Ameritemps, Inc. and/or Hartford Ins., v. UT Labor Commission, and Johnny Albert

2007 UT 8
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Ameritemps, Inc., and/or 	No. 20051119
Hartford Insurance,
Petitioners,
v.
Utah Labor Commission, and 	F I L E D
Johnny Albert, et al.,
Respondents. 	January 19, 2007
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Original Proceeding in the Utah Court of Appeals
Attorneys: 	Theodore E. Kanell, Joseph C. Alamilla, Salt Lake
City, for petitioners
Alan L. Hennebold, Salt Lake City, for Utah Labor
Commission,
Richard R. Burke, Salt Lake City, for Albert
Floyd W Holm, James R. Black, Salt Lake City,
for Workers’ Compensation Fund of Utah
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 	We granted certiorari in this case to determine a
single issue: whether an initial finding of permanent total
disability under Utah Code section 34A-2-413 constitutes a final
agency action for purposes of appellate review. 	We agree with
the court of appeals that it does.
BACKGROUND
¶2 	Over a period of several years, respondent Johnny
Albert suffered a series of injuries in work-related accidents,
the last of which occurred while he was working for petitioner
Ameritemps, Inc. (“Ameritemps”). 	The Utah Labor Commission (the

1 For convenience, we cite to the current version of this
statute, as did the court of appeals. 	See Ameritemps, Inc. v.
Labor Comm’n, 2005 UT App 491, ¶ 1 n.1, 128 P.3d 31.
No. 20051119 	2
“Commission”), pursuant to Utah Code section 34A-2-413, 1 found
Albert to be permanently totally disabled as a result of his
accidents and ordered Ameritemps to pay permanent total
disability compensation. 	Ameritemps then filed a petition for
judicial review of the Commission’s decision with the Utah Court
of Appeals.
¶3 	Before the court of appeals, Ameritemps challenged the
Commission’s decision on two bases. 	First, Ameritemps argued
that evidence precluded an award to Albert of permanent total
disability and that the Commission had therefore incorrectly
applied the law to the facts. 	Second, Ameritemps claimed that
the Commission had failed to finalize its finding of permanent
total disability under the statute.
¶4 	Section 34A-2-413(6)(a) of the Utah Code states that a
“finding by the commission of permanent total disability is not
final, unless otherwise agreed to by the parties,” until a
second-step proceeding to consider reemployment takes place.
Ameritemps maintained that because the Commission did not hold
this second-step proceeding, its finding of permanent total
disability was never “final” under this statute. 	Consequently,
because Utah appellate courts have jurisdiction over only “final
agency actions,” Ameritemps paradoxically requested that its own
petition for review be dismissed for lack of jurisdiction.
¶5 	The court of appeals rejected both of Ameritemps’
arguments, holding the Commission’s finding of permanent total
disability to be a final agency action subject to judicial review
and affirming the Commission’s decision on the merits. 	We
granted certiorari solely on the issue of jurisdiction.
ANALYSIS
¶6 	Challenges to subject matter jurisdiction present
questions of law, which we review for correctness. 	Beaver County
v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147.
¶7 	The sole issue before us is whether a finding by the
Commission of permanent total disability under Utah Code section
34A-2-413 constitutes a final agency action for purposes of
appellate review. 	We affirm the court of appeals’ holding that
it does and that jurisdiction was therefore proper. 	The court of

2 2004 UT 12, ¶ 14, 84 P.3d 1201.
3 2000 UT 40, ¶ 16, 999 P.2d 17.
3 	No. 20051119
appeals correctly interpreted and applied the relevant case law
and statutes. 	We adopt its well-reasoned, clearly articulated
analysis. 	See Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491,
128 P.3d 31. 	In doing so, we reaffirm our prior case law
analyzing the finality of agency actions.
¶8 	Under the Utah Administrative Procedures Act, an
appellate court may exercise jurisdiction only over agency
decisions that are “final agency actions.” 	Utah Code Ann.
§ 63-46b-14(1), (3)(a) (2004). 	To the unwary, however, the
Workers’ Compensation Act may appear to be contradictory
in saying that a “finding by the commission of permanent total
disability is not final, unless otherwise agreed to by the
parties, until” certain second-step proceedings take place.
Utah Code Ann. § 34A-2-413(6)(a) (2005) (emphasis added).
¶9 	The court of appeals correctly relied on our opinion in
Thomas v. Color Country Management 2 to distinguish between a
“final order” for enforcement purposes and a “final agency
action” for purposes of appellate judicial review. 	See
Ameritemps, 2005 UT App 491, ¶¶ 12-16. 	With this distinction,
although the Commission’s finding was not “final” for all
purposes under section 34A-2-413(6)(a), it was possible to be
final enough to constitute a “final agency action” subject to
judicial review within the meaning of section 63-46b-14.
¶10 	The court of appeals then applied, correctly, the test
we articulated in Union Pacific Railroad Co. v. Utah State Tax
Commission 3 to determine that the Commission’s finding of
permanent total disability did constitute a final agency action
subject to appellate judicial review. 	See Ameritemps, 2005 UT
App 491, ¶¶ 17-25. 	We agree with the court of appeals’
thoughtful analysis and affirm its holding.
¶11 	We feel constrained to comment briefly on the briefing
and argument in this case. 	For the most part, the parties
disregarded the question on which we granted certiorari, and
they treated superficially, if at all, the rule of law at issue.
Only the Workers’ Compensation Fund addressed it and was thereby
helpful to our analysis. 	Ameritemps apparently did not regard
our request as meaningful and elected to mount its challenge
elsewhere. 	It saw no distinction between a final order and a
final agency action. 	Albert’s decision to address three issues
not included in our grant of certiorari and to dismiss as

No. 20051119 	4
insignificant the question we did include was likewise of little
assistance.
¶12 	In light of these circumstances, we considered
dismissing the matter for failure of the parties to adequately
brief the issue. 	However, the clarity and correctness of the
court of appeals’ analysis was sufficient to allow us to resolve
any misunderstanding that may have existed about the current
state of the law.
CONCLUSION
¶13 	Although a Commission finding pursuant to Utah Code
section 34A-2-413 of permanent total disability is “not final”
under that statute until certain second-step proceedings take
place, such a finding does constitute a “final agency action”
within the meaning of Utah Code section 63-46b-14 for purposes of
appellate judicial review. 	Affirmed.
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¶14 	Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.