2020 UT App 44

THE UTAH COURT OF APPEALS

STEVE MASSENGALE,

Petitioner,

v.

LABOR COMMISSION AND ALLIANT TECHSYSTEMS INC.,

Respondents.

Opinion

No. 20190249-CA

Filed March 26, 2020

Original Proceeding in this Court

Richard R. Burke, Attorney for Petitioner

Jaceson R. Maughan and Christopher C. Hill, 

Attorneys for Respondent Labor Commission

Bret A. Gardner and Kristy L. Bertelsen, Attorneys

for Respondent Alliant Techsystems Inc.

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Steve Massengale has petitioned this court for review of 

the Labor Commission’s order dismissing his claim for 

permanent total disability benefits as untimely. We decline to 

disturb the Labor Commission’s order.

BACKGROUND

¶2 Massengale suffered a work-related back injury on June 

28, 2002, while working for Alliant Techsystems Inc. (Alliant), 

and received workers’ compensation benefits, including 

compensation for two surgeries. Over the years, Massengale’s 

condition worsened, and on June 26, 2014, he filed an application 
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for hearing on a request for surgery and a claim for permanent 

total disability benefits. Alliant asked the administrative law 

judge (ALJ) to dismiss Massengale’s claim for permanent total 

disability benefits because that claim could not be assessed until 

he became medically stable after the surgery. Thereafter, 

Massengale amended his application for hearing to address only 

the surgery claim and a request for add-on attorney fees. A short 

time later, Massengale voluntarily withdrew his claim for 

permanent total disability benefits.

¶3 On July 8, 2016, more than two years after he filed his 

initial application for hearing and more than fourteen years after 

his workplace injury, Massengale filed another application for 

hearing to adjudicate his permanent total disability claim. An 

ALJ dismissed this claim because it was not filed prior to the 

expiration of the twelve-year statute of repose applicable to 

disability claims in workers’ compensation cases. Massengale 

appealed the ALJ’s determination, and the Labor Commission 

affirmed the ALJ’s order, explaining that Massengale’s 

withdrawal of his permanent total disability claim demonstrated 

that he was unable to meet his burden to prove entitlement to 

permanent disability benefits within the twelve-year statutory

period. Massengale now requests that we review the Labor 

Commission’s decision.

ISSUE AND STANDARD OF REVIEW

¶4 Massengale asserts that the Labor Commission 

misinterpreted the relevant statute and that he should therefore 

have been permitted to pursue his permanent total disability 

claim. The Labor Commission’s “interpretation of a statute is a 

question of law, which we review for correctness.” Miller v. Utah 

Dep’t of Transp., 2012 UT 54, ¶ 23, 285 P.3d 1208 (quotation 

simplified).
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ANALYSIS

¶5 Utah law provides that a worker’s claim for either 

temporary or permanent disability benefits is barred unless the

employee

(i) files an application for hearing with the Division 

of Adjudication no later than six years from the 

date of the accident; and

(ii) by no later than 12 years from the date of the 

accident, is able to meet the employee’s burden of 

proving that the employee is due the compensation 

claimed under this chapter.

Utah Code Ann. § 34A-2-417(2)(a) (LexisNexis 2019). The statute 

further provides, in subsection (2)(c), that the Labor Commission 

“may enter an order awarding or denying an employee’s claim 

for compensation under this chapter within a reasonable time 

period beyond 12 years from the date of the accident, if” the 

employee has complied with the requirements of subsection 

(2)(a) above and “is actively adjudicating issues of 

compensability before the commission” “12 years from the date 

of the accident.” Id. § 34A-2-417(2)(c).

¶6 Massengale asserts that he met the requirements for his 

claim to be considered within a reasonable time beyond twelve 

years and that his disability claim was therefore timely under 

subsection (2)(c). But to qualify for consideration under 

subsection (2)(c), a claimant must first show that he or she has 

complied with subsection (2)(a). Id. § 34A-2-417(2)(c)(i). Alliant 

maintains that Massengale’s voluntary withdrawal of his 2014

application for permanent total disability benefits precludes him 

from demonstrating that he was “able to meet [his] burden of 

proving that [he] is due the compensation claimed” by the 
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twelve-year mark, as required by subsection (2)(a). See id. § 34A2-417(2)(a)(ii).1

¶7 Subsection (2)(a) is a statute of repose.2 Waite v. Utah Labor 

Comm’n, 2017 UT 86, ¶ 17, 416 P.3d 635. This means that, unlike a 

statute of limitations, the twelve-year limit can cut off a

 

1. The Labor Commission alternatively contends that 

Massengale could not meet subsection (2)(c)’s requirement that 

he be “actively adjudicating issues of compensability before the 

commission” because he withdrew his application for hearing 

with respect to his disability claim. See Utah Code Ann. § 34A-2-

417(2)(c)(ii) (LexisNexis 2019). The parties dispute whether the 

requirement that a claimant be “actively adjudicating issues of 

compensability” is concerned only with a snapshot of what is 

happening at the twelve-year mark or whether it requires the 

claimant to be continuously adjudicating the claim before and 

after the twelve-year mark to preserve the Labor Commission’s 

ability to consider the claim within a reasonable period beyond 

twelve years. We ultimately need not resolve this question, 

however, because we agree with the Labor Commission that 

Massengale was unable to prove his entitlement to 

compensation within the twelve-year period as required by 

subsection (2)(a). See id. § 34A-2-417(2)(a)(ii).

2. The court in Waite v. Utah Labor Commission, 2017 UT 86, 416 

P.3d 635, explained that the purpose of the statute of repose was 

to “help[] insurance companies better manage their risks, 

inform[] them as to the amount of reserves they need to keep, 

and protect[] them against limitless litigation over old claims 

where causation ha[s] become tenuous,” as well as to “help 

employers by reducing the premiums they would have to pay,” 

and that “[t]hese are the types of policy considerations that . . . 

justify a legislative abridgment of a legal remedy.” Id. ¶ 25.
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claimant’s right to benefits even if the circumstances giving rise 

to the claim have not yet occurred. Id. ¶¶ 11, 14. The statute of 

repose at issue in this case—subsection (2)(a)—bars a claim if the 

employee is unable to meet his or her “burden of proving that 

the employee is due the compensation claimed under this 

chapter” “by no later than 12 years from the date of the 

accident.” Utah Code Ann. § 34A-2-417(2)(a). In the context of 

permanent total disability claims, this burden typically includes 

showing that the claimant has reached medical stability or

maximum medical improvement (MMI). See Waite, 2017 UT 86, 

¶ 14; Macy’s Southtowne Center v. Labor Comm’n, 2019 UT App 

148, ¶ 20, 449 P.3d 998. Medical stability “means that the period 

of healing has ended and the condition of the claimant will not 

materially improve.” Booms v. Rapp Constr. Co., 720 P.2d 1363, 

1366 (Utah 1986). Only “once healing has ended[ can] the 

permanent nature of the claimant’s disability . . . be assessed and 

benefits awarded accordingly.” Macy’s Southtowne, 2019 UT App 

148, ¶ 20 (quotation simplified). Thus, if a claimant has not yet 

reached medical stability by twelve years following the accident, 

the statute of repose “can cut off a claimant’s right to assert a 

claim.” See Waite, 2017 UT 86, ¶ 14.

¶8 Because Massengale was pursuing a claim for surgery 

alongside his permanent disability claim, he was not in a 

position, at the twelve-year mark, to prove his entitlement to 

permanent disability benefits. Even if he could have been 

considered medically stable in the absence of surgery,3 his 

 

3. Massengale asserts that because he was medically stable prior 

to the requested surgery, he was capable of proving his 

permanent total disability claim within the statutory period. And 

had Massengale elected to pursue only his permanent disability 

claim at that time rather than seek surgery, we might be inclined 

to agree. But having elected to pursue the surgery, which was 

(continued...)
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continued pursuit of surgical options to improve his condition at 

the time of filing his application for hearing precluded any 

finding that he had reached MMI because there was no way of 

knowing how the surgery would affect his impairment until 

after he healed from surgery. Without his having reached MMI, 

Massengale’s permanent total disability claim was not ripe for 

adjudication within the twelve-year statutory period.

¶9 Massengale’s inability to prove his claim for permanent 

disability benefits is effectively demonstrated, as the Labor 

Commission observed, by his decision to voluntarily withdraw 

his application for hearing with respect to that claim. If he “had 

been able to prove entitlement within the 12-year period, no 

withdrawal would have been necessary.” Indeed, having been 

approved for the surgery to be paid by his employer—a surgery

he requested—Massengale could not continue to pursue his 

permanent total disability claim until after the surgery was 

complete and he had recovered from it. Because Massengale 

could not show that he had reached MMI by the twelve-year 

mark, he could not prove his entitlement to permanent total 

disability benefits within the statutory period, and the statute of 

repose therefore barred his claim.

 

(...continued)

expected to materially improve Massengale’s condition to some 

unknown degree, Massengale could not have been considered to 

have reached MMI. Massengale laments the fact that claimants 

in his position—those who may elect to undergo surgery on the 

eve of the twelve-year deadline—are effectively forced to choose 

between seeking surgery and seeking permanent total disability 

benefits. While we acknowledge and are sympathetic to the 

unfortunate nature of the position in which Massengale has 

found himself, such situations are the inevitable result of our 

legislature’s choice to implement a twelve-year statute of repose 

in workers’ compensation cases.
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CONCLUSION

¶10 Because Massengale was continuing to pursue a surgery

that had the potential to materially improve his condition at the 

time the statute of repose expired, he could not establish his 

entitlement to permanent total disability benefits within the 

twelve-year statute of repose. Thus, the Labor Commission did 

not err in determining that the statute of repose barred his 

disability claim. Accordingly, we decline to disturb the Labor 

Commission’s decision.