2021 UT App 108



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

C.R. E NGLAND AND I NDEMNITY I NSURANCE C O

. OF N ORTH A MERICA , Petitioner s , v. L ABOR C OMMISSION AND M ANSOOR H AKEM , Respondent s

. Opinion N o. 20200181

- CA Filed October 15, 2021
Original Proceeding in this Court
Christin Bechmann and Jeffrey A. Callister , Attorney s for Petitioners Ryan J. Schriever and W. Andrew Penrod , Attorney s for Respondent Mansoor Hakem

J UDGE G REGORY K. O RME authored th is Opinion , in which J UDGES R YAN M. H ARRIS and R YAN D. T ENNEY concurred

.

ORME , Judge :

¶1 C.R. England and its insurer, Indemnity Insurance Co. of North America , petition for judicial review of the Utah Labor Commission’s order directing it to pay temporary total disability (TTD) benefits to Mansoor Hakem. Hakem filed what he style d a

“ cross

- appeal ” seeking further TTD benefits. We decline to address Hakem’s purported cross

- appeal because our rules of appellate procedure and the relevant statutory provisions do not allow for cross

- petitions in proceedings for judicial review of agency action

. W e therefore lack jurisdiction to consider Hakem’s “cross

- appeal , ” which was filed more than 30 days following entry of the final order. On the merits of England’s petition, w e set aside the C ommission’s order directing England to pay TTD benefits because the order was not supported byC.R. England v. Labor Commission

20200181

- CA 2 2021 UT App 108 substantial evidence and instruct the C ommission to reconsider its order consistent with the guidance in this opinion

.

BACKGROUND 1

¶2 On June 9, 2015, Hakem was injured while working for England

. 2 Hakem then filed a claim with England for TTD benefits

. 3 It is not clear in the record, however, when England began paying these benefits . O n October 2, 201 5, England made an offer of light

- dut y work to Hakem , which Hakem rejected on October 14, 201 5

. Despite this rejection, England claim s to have continued paying TTD benefit s totaling $54,510 to Hakem

. At some point in 2016 , it appears that England discontinued making TTD benefit payments. Agai n, t he timing of this discontinuation is not entirely clear in the record , and this is the focus of England’s petition for review.

1

. “ In reviewing an order from the Commission, we view the facts in the light most favorable to the Commission ’ s findings and recite them accordingly. ” O'Connor v. Lab or Comm'n , 2020 UT App 49, n.1, 463 P.3d 85

.

2 . Because the crux of England’s petition for review concerns the timing and amount of the TTD benefit payments , and because we ultimately do not address the issues Hakem raises, we have no need to recite all the facts regarding Hakem’s injury and
treatment or the findings made by the medical panel, the administrative law judge, and the Commission regarding that injury.

3

. England also paid over $30,000 toward Hakem’s medical bills , but because England does not raise any issue with these expenses , we do not mention them further.C.R. England v. Labor Commission

20200181

- CA 3 2021 UT App 108 ¶3 In December 2016, Hakem filed a claim with the C ommission seeking TTD benefits from June 10, 2015, until the date on which he achieved maximum medical improvement

. In its answer to Hakem’s claim , England asserted that it had already paid Hakem $54,510 in TTD benefits , but it failed to include any dates for those payments

. In September 2018 , the matter proceeded to a hearing b efore an administrative law judge ( the ALJ ) . During the hearing , England orally affirmed that it made TTD benefit payments to Hakem . First, it asserted that it paid TTD benefits to Hakem “ until he was released at maximum medical improvement , ” and later it argued that “[Hakem] is requesting TTD benefits from June 10, 2015, through the present ,” even though England “ paid

. . . these benefits through October.” These are the only two references England made during the hearing to its prior payments of TTD benefi ts , and Eng la nd did not provide, as far as we can tell from the record , any evidentiary support for these assertions or even specific dates of payment. All England asserted was that it paid benefits through “ October , ” without specifying a year

. To confuse matters more, at the end of the hearing Hakem informed the ALJ that he was now claiming TTD benefits “from October 14, 2015, to a date of medical stability

. ” This time period included many months during which England claimed to have already paid TTD benefi t s.

¶4 The ALJ then referr ed the case to a medical panel and subsequently denied further TTD benefits to Hakem. In his order, however, the ALJ seem s to have confused the dates in question. The ALJ began the order by first stating , with our emphasis, that “[t]he panel’s opinion will assist the Court in determining the relevant question of whether [Hakem] retained the ability to perform any work after October 2, 2016

. ” The ALJ continued , again with our emphasis, that

[b] ased on the different opinions, the Court referred this issue to a medical panel in order toC.R. England v. Labor Commission

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- CA 4 2021 UT App 108 assist the Court in determining whether [Hakem] could return to light

- duty work or if he was restricted from all work at any point after October 2, 2015

. The medical panel determined [Hakem] di d not have a biomechanical impairment in function, but he was limited in his ability to function due to his pain and required light duty [ restrictions ] after October 2, 2015

. . . . Therefore, because light

- duty work was made available to [Hakem] and he fai led to accept the work, he is not entitled to total disability compensation after October 13, 2014

.
¶5 Hakem sought review of the ALJ’s order by the C ommission. The C ommission affirmed the ALJ’s order but amended it , sua sponte, in an attemp t to fix the ALJ’s apparent confusion about the operative dates . It stated that the ALJ’s
decision to deny Mr. Hakem [TTD benefits ] seems to be based on CR England’s proffer of light

- duty work on October 2, 2015, and his effective refusal of such assignment. [The ALJ] then sought to ensure Mr. Hakem’s ability to perform light

- duty work as of that date by posing such question to the medical panel, but erroneously describing the date as 2016 rather than 2015 . Despite this error, [the ALJ] relied on the panel’s opinion that Mr . Hakem could work light duty as evidence that the proffer of such work from CR England was appropriate.
The parties have not attempted to bring these errors to light on review. Instead their present dispute focuses on the medical panel’s conclusions.

The C ommission further explained:C.R. England v. Labor Commission

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- CA 5 2021 UT App 108 After considering the evidence on t his point, the Commission agrees with [the ALJ] that Mr. Hakem has not established entitlement to [TTD] benefits beginning October 14, 2015, as CR England had made a proffer of light

- duty work to him by that date. However, Mr. Hakem is entitled to [TTD] benefits for certain periods during which he was not able to perform even light

- duty work.

¶6 The C ommission concluded , after reviewing Hakem’s medical records, that Hakem was released from al l work by his doctor on February 3, 2016, and then released only for light

- duty work on June 15, 2016

. The Commission thus ordered England to pay Hakem $14,899.40 in TTD benefits for that February

- to

- June time period. England then filed a request for the C ommission to reconsider its order, arguing that its decision to award TTD benefits to Hakem from February 3, 2016 , to June 14, 2016 , was “not supported by sufficient evidence” and “erroneously sets aside [the] findings of . . . [the ALJ] based on a typogra phical error.” On January 29, 2020, t he C ommission denied the motion , stating that substantial evidence existed from Hakem’s medical records to show that Hakem was released from all work from February 3, 2016, to June 14, 2016, and should receive benefits for that time period.

¶7 On February 26, 2020, within 30 days of the Commission’s final order, England filed a petition for review in this court

. Hakem then purported to file a “cross

- appeal” on March 5, 2020, asserting error with the ALJ ’s and the C ommission’s decision s regarding the offer for light

- duty work and the denial of further benefits on that basis

.

ISSUES AND STANDARDS OF REVIEW

¶8 Hakem raises multiple issues in his cross

- petition

. But we must first determine whether we have jurisdiction to c onsiderC.R. England v. Labor Commission

20200181

- CA 6 2021 UT App 108 the petition. “ Questions about appellate jurisdiction are questions of law.” See Zion Vill age Resort LLC v. Pro Curb U.S.A. LLC , 2020 UT App 167, ¶ 21, 480 P.3d 1055 (quotation simplified). And because we determine that we lack jurisdiction to consider it , we are required to dismiss Hakem’s petition

. See id.

¶9 England asserts that the C ommission erred in granting TTD benefits to Hakem for the period of February 3, 2016, to June 1 4 , 2016, because England had already paid those benefits to Hakem , resulting in Hakem receiving a double benefit. Because this is a factual issue , we review the Commission’s order for substantial evidence

. Utah Am. Energy Inc. v. Lab or Comm'n
, 2021 UT App 33, ¶ 12, 484 P.3d 1195

. “ A decision is supported by substantial evidence if there is a quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. ” Ivory Homes, Ltd. v. Utah State Tax Comm'n , 2011 UT 54, ¶ 11, 266 P.3d 751 (quotation simplified).

ANALYSIS

I. Jurisdiction Over Hakem’s Cross

- Appeal

¶10 The Utah Administrative Procedures Act (UAPA) governs judicial review of state agency action. See Utah Code Ann. § § 63G

- 4

- 10 1 to

- 601 (LexisNexis 20 18 ). UAPA states that “[a] party shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued [

. ] ” Id. § 63G

- 4

- 401 (3)(a) . And “[t]o seek judicial review of final agency action resulting from formal adjudicative proceedings, the p etitioner shall file a petition for review of agency action with the appropriate appellate court in the form required by the appellate rules of the appropriate appellate court. ” Id. § 63G

- 4

- 403 (2)(a)

. Rule 14 of the Utah Rules of Appellate Procedure , in tu rn, states that “[w]hen a statute provides for judicial review by or appeal to the SupremeC.R. England v. Labor Commission

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- CA 7 2021 UT App 108 Court or the Court of Appeals of an order or decision of an administrative agency , . . . a party seeking review must file a petition for review . . . within the time prescribed by statute [

. ] ” Utah R. App. P. 14(a). Rule 18 further direct s that “[a]ll provision s ” of the rules of appellate procedure “are applicable to review of decision s or orders of agencies, except that Rules 3 through 8 are not applicable.” Id. R. 18

. Thus , rule 4, which allows parties to cross

- appeal i n appeals arising from judicial proceedings, does not apply to proceedings for review of agency decisions

. S ee id. R. 4(d) ; Watson v. Lab or Comm'n , 2020 UT App 170, ¶ 1 n.1, 480 P.3d 353 (noting that “ b ecause the rules of appellate procedure do not allow for a cross

- petition in the administrative context, akin to a cross

- appeal in a judicial proceeding , each party must file its own petition for review if they both wish t o contest the administrative agency’s ruling”)

. We note that UAPA likewise does not contain a provision allowing cross

- petition s. Instead, it directs that parties shall file petitions for review within 30 days of an agency’s final order

. See Utah Code Ann. § 63G

- 4

- 401 (3)(a)

.
¶11 Thus, p arties wishing to challenge any part of an agency decision governed by UAPA must file their own petition for review within 30 days of the agency’s final order. See id. ; Utah R. App. P. 14(a)

. And “ [w] e cannot infer a right to file a
cross

- petition within an additional period of time where the Utah Legislature did not include such a provision in UAPA , ” Viktron/Lika Utah v. Lab or Comm'n , 2001 UT App 8, ¶ 7, 18 P.3d 519 , particularly given that our rules expressly exclude the availability of that procedural tool , see Utah R. App. P. 18.

¶12 In th is case , the C ommission’s order became final on January 29, 2020, when it denied England’s motion for reconsideration. Both parties then had 30 days to file a petition for review with this court. England timely filed its petition for review on February 26. Hakem, on the other hand, did not file a petition for review within that 30

- day window. Rather , he filed aC.R. England v. Labor Commission

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- CA 8 2021 UT App 108 “cross

- appeal” on March 5. And, as noted above, our caselaw, the applicable rules , and UAPA clearly indicat e that cross

appeal s or cross

- petition s are not available when we review agency action

. 4 See Watson , 2020 UT App 170, ¶ 1 n.1 ; Viktron/Lika Utah , 2001 UT App 8, ¶ 7

. Therefore, we lack jurisdiction to consider Hakem’s cross

- petition. And e ven if we were to
construe it as a petition for review under the statute, see Viktron/Lika Utah , 2001 UT App 8, ¶ 8 (“ We may construe a filing with this court according to its content, regardless of its caption.”), we would nonetheless lack jurisdiction to consider the issues raised because it was filed outside the 30

- day deadline. 5 Therefore , we are required to dismiss Hakem’s cross

-

4 . We acknowledge this court’s role in Hakem’s confusion on his ability to file a “cross

- appeal , ” as we accepted his briefs and even charged and collected a cross

- appeal filing fee. We permitted the “cross

- appeal” to move along until it was placed with a panel for resolution on its merits

. We regret our failure to detect the problem sooner , and we should have dismissed the “cross

- appeal” before the parties spent time and resources in briefing it. B ut ultimately , mistakes on a court’s part cannot

overcome a lack of jurisdiction. See In re a doption of Baby E.Z. , 2011 UT 38, ¶ 25, 266 P.3d 702 (“ Because subject matter jurisdiction goes to the heart of a court ’ s authority to hear a case, it is not subject to waiver and may be raised at an y time [

. ] ”) (internal citations omitted) . We will direct our clerk of court to refund the cross

- appeal filing fee charged to Hakem because it was improvidently collected.

5

. At oral argument before this court, Hakem asserted that because UAPA grants us “j urisdiction to review all final agency action resulting from formal adjudicative proceedings,” see Utah Code Ann. § 63G

- 4

- 403(1) (LexisNexis 20 1 8) (emphasis added), and because England filed a petition for review within 30 days, we have jurisdiction over the issues Hakem raises because they (continued...)C.R. England v. Labor Commission

20200181

- CA 9 2021 UT App 108 petition. 6 See Barney v. Div ision of Occupational & Pro. Licensing , 828 P.2d 542 , 544 (Utah Ct. App. 1992 ) (“ If the court concludes

(...continued) were dealt with in the Commission’s order. This is an expansive view of jurisdiction that we cannot a dopt . In essence, Hakem is asserting th at once a party files a petition for review of an agency action, the opposing party has unlimited time to raise issues of its own because that first petition vested the court with plenary jurisdiction over all aspects of the agency’s ruling. This does not comport with UAPA, which requires parties to file their petitions for review within 30 days, see id. § 63G

- 4

- 401(3)(a), and we see nothing in the statute, applicable rules, or caselaw that would allow for this expansive approach to our jurisdiction.

6

. We do, however, renew our concern with the current statutory and rule

- based scheme in place for judicial review of agency action. We see wisdom in a rule, akin to what exists in an appeal from a judicial proceeding, that allows for cross

- petitions in proceed ings for judicial review of agency action. Not only would this increase judicial efficiency , as we recently explained in Watson v. Labor Comm ission , 2020 UT App 170, ¶ 1 n.1, 480 P.3d 353, it would also undoubt edly benefit the parties in these situations. For example, after an order has been issued by an agency, one side may not be completely satisfied with the order but may be satisfied enough that it does not believe it worth the trouble to file a petition for review and pursue further proceedings just to fine tune the decision substantially in its favor. But if the opposing party files a petition for review and the substantially prevailing party is to find itself before the appellate court anyway, that party should have the opportunity to raise issues in a cross

- petition. This is the very logic that permits cross

- appeals in the context of judicial proceedings, and we can think of no reason why that procedure would not work as well in the administrative review context. We therefore (continued...)C.R. England v. Labor Commission

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- CA 10 2021 UT App 108 that it does not have jurisdiction, it retains only the authority to dismiss the action.”) (quotation simplified).

¶13 At oral argument before this court, Hakem, citing Hamer

v. Neighborhood Housing Services of Chicago , 138 S. Ct. 13 (20 17) , argued that our procedural rules that explicitly do not allow for

cross

- petitions cannot dictate jurisdiction in our review of agency proceedings. See Utah R. App. P. 4, 14, 18. Even aside from the fact that UAPA itself requires parties to file a peti tion within 30 days and does not provide a party with the possibility of a cross

- petition, this argument is unavailing for two additional reasons.

¶14 First, UAPA directs that parties petitioning for review must file a petition “with the appropriate appellate court in the form required by the appellate rules of the appropriate appellate court.” Utah Code Ann. § 63G

- 4

- 403 (2)(a) (emphasis added). Thus, the statute that grants this court jurisdiction over these reviews also grants the Supreme Court the ability to control that jurisdiction through its rules. Hamer clearly does not apply as it dealt with jurisdiction in the federal context, see 138 S. Ct. at 17 (“ Only Congress may determine a lower federal court’s subject

- matter jurisdiction

. ”) (emphasis added) (quotation otherwise simplified), and not in a state context where the state legislature grants a court the authority to manage jurisdiction through its own rules.

(...continued) believe our Supreme Court should direct its Advisory Committee on the Rules of Appellate Procedure to consider amendments to the applicable rules that would enable parties in administrative proceedings to file cross

- petitions

. And to the extent that statutory changes are needed to effect such a change, appropriate statutory amendments should also be considered by our Legislature

.C.R. England v. Labor Commission

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- CA 11 2021 UT App 108 ¶15 Second, our Supreme Court has held that the applicable Utah Rules of Appellate Procedure hav e “jurisdictional effect.” State v. Lara , 2005 UT 70, ¶ 12, 124 P.3d 243 (quotation simplified) . Specifically, deadlines for filing notice s of appeal are “jurisdictional in nature

. ” S tate v. Collins , 2014 UT 61, ¶ 22, 342 P.3d 789 (quotation simplified ). T he same is true for petitions for judicial review, and courts are “ depriv[ed] . . . of jurisdiction” when petitions for review are untimely filed. Union Pacific R.R. Co. v. Utah State Tax Comm'n , 2000 UT 40, ¶ 25, 999 P.2d 17

. See also Ortega v. Ridgewood Est ate s LLC , 2016 UT App 131, ¶ 30, 379 P.3d 18 (“ We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.”) (quotation simplified).

¶16 For these reasons, we dismiss Hakem’s cross

- appeal for lack of jurisdic tion.

II. TTD Benefits

¶17 England ’s main argument 7 asserted in its timely petition for review is that the C ommission erred , not because it

7 . England raises two additional issues. First, it asserts that the Commission’s order was arbitrary and capricious because the Commission “raised the typographical error without involving the parties or taking the time to verify whether the period was even in dispute.” B ecause we instruct the Commission to reconsider its decision on the basis that its order was not supported by substantial evidence, giving it the opportunity to remedy any error, we have no need to address this ancillary issue. Second, England asserts its due process rights were violated when the C ommission corrected the ALJ’s order sua sponte . We briefly address this issue because it may arise again if the Commission finds that England did not make the payments it (continued...)C.R. England v. Labor Commission

20200181

- CA 12 2021 UT App 108 determined that Hakem was entitled to TTD benefits , but because it awarded a double benefit to Hakem by requiring England to pay a second round of TTD benefits for the period from February 3, 2016, to June 14, 2016. There clearly was confusion on the part of the ALJ , and possibly on the part of the C ommission , concerning the dates relevant to Hakem’s entitlement to benefits . We will not directly wade into that debate because England has asserted on review that “[i]n the end

. . . the dates do not matter because it does not change the outcome of the case, specifically, [England] had already paid sixty

- nine weeks of TTD.”

¶18 In t he proceedings before the Commission, however, there wa s scant evidence of th e s e payment s . England directs us
to only two locations in the record, and we are unaware of any

(...continued) claims to have made and reinstates its original order. S ee State v. Low , 2008 UT 58, ¶ 61, 192 P.3d 867 ( stating that w hen “ there are other issues presented on appeal that will likely arise” on remand, we may “ exercise our discretion to address those issues for purposes of providing guidance on remand ”). We disagree with England that the Commission erred in fixing a typographical error sua sponte. Pursuant to Utah Code section 34A

- 2

- 420(1), the Commission is granted “continuing” jurisdiction over each case before it and “may from time to time modify or change a former finding or order of the commission.” Furthermore, our Supreme Court has held that “ the power of the Commission as to its continuing jurisdiction

. . . is extended to the right to rescind, alter, or amend orders, decisions, or awards on good cause appearing therefor. ” Frito

- Lay v. Utah Lab or Comm'n , 2009 UT 71, ¶ 25, 222 P.3d 55 (quotati on simplified)

. Thus, the Commission has the prerogative to adjust awards and correct mistakes, and it did not violate England’s due process rights in attempting to correct the mistakes it saw here

.C.R. England v. Labor Commission

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- CA 13 2021 UT App 108 others, where it provided “evidence” of these payments. It first cites its answer t o Hakem ’s claim for benefits in which it simply asserted that it had already paid $54,510 in TTD benefits to Hakem from the date of the injury. Second, it cites its assertions in the hearing before the ALJ when it claimed that it paid TTD benefits to Hakem “until he was released at maximum medical improvement” and that “[Hakem] is requesting TTD benefits from June 10, 2015, through the present,” even though it “paid

. . . these benefits through October.” England did not submit any documents substantiating t hese assertion s , and neither the ALJ

n or the C ommission made any findings premised on England’s assertions.

¶19 On review , England claims that it “submitted the undisputed summary of benefits paid showing [it] had paid Hakem $54,510 in [T T D benefits ].” But then to back up this claim , England cite s its answer to Hakem’s claim and nothing else, let alone a location in the record where we might find the “summary of benefits” it allegedly paid. Nor is such a summary attached as an exhibit to its answer. England then contends that we can derive the dates of the payments through simple math. Hakem was entitled to $790 per week in TTD benefits

. By taking the $54,510 England assert s it paid and dividing it by $790
, Hakem received sixty

- nine weeks of payments. And sixty

- nine weeks from June 9, 2015, ends on October 4, 2016. Thus, England claim s that it clearly made payments to Hakem during the period of February 3, 2016, to June 14, 2016, and that the C ommission ordered it to pay duplicative TTD benefits to Hak em for that period

.
¶20 While the math appears to be correct , on review we are unable to directly grant the relief England seeks because of the evidentiary gaps in the record regarding these payments. First, there is no evidence of when England actually began making payments to Hake m ; it could have been the exact day of Hakem’s injury , as England claims, but we cannot determineC.R. England v. Labor Commission

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- CA 14 2021 UT App 108 that and have no way of knowing on which dates England actually made payments. Second, and most importantly, there simply is nothing in the record to substantiate England’s specific claim that it paid a total of $54,510 in TTD benefits . There are no documents in the record detailing what Hakem received an d when. England is essentially asking us to make a finding , without any substantive r ecord evidence, that it made the payments during the disputed time period and then direct the C ommission to rescind its order requiring England to make additional payments . This is something we typically will not do

. S ee Willey v. Willey , 951 P.2d 226, 230 (Utah 1997) (“ If the appellate court determines that the findings of fact are insufficient to support the conclusion, the appellate court normally remands the matter

. . . for further proceedings.”)

.
¶21 But we do recognize the basic merit of England’s complaint and set aside the C ommission’s order because it is not, so far as we can ascertain, supported by substantial evidence

. The Commission ordered England to pay approximately 18 weeks of TTD benefits , and there is some indication in the record that England had already made payments applicable to that time period. Thus, we set the Commission’s order aside and instruct it to determine whether England had already made TTD payments from February 3, 2016, to June 14, 2016, as England claimed before the ALJ. The Commission is to en sure that no payments it required England to make were duplicative. If England did, in fact, already make these payments during that time period, then the Commission shall decline to award Hakem any further TTD benefits. If the Commission finds that England did not make those payments, or at least did not make all of them, then it can simply reinstate

or adjust its original order, as appropriate.C.R. England v. Labor Commission

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- CA 15 2021 UT App 108 CONCLUSION

¶22 Because UAPA and our rules of appellate procedure do not allow for cross

- petitions in proceedings for judicial review of agency action , we do not have jurisdiction to consider Hakem’s

“ cross

- appeal , ” an d we have no option other than to dismiss it. On the merits of England’s petition, w e set aside the C ommission’s order on the ground that it is not supported by substantial evidence and direct the C ommission to determine whether England has already paid Ha kem all TTD benefits to which he is entitled

.