Martinez v. Media-Paymaster Plus

2007 UT 42
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Enrique Martinez, 	Nos. 20050745
Respondent, 	20050750
v.
Media-Paymaster Plus/Church of
Jesus Christ of Latter-day Saints, 	F I L E D
and Labor Commission of Utah,
Petitioners. 	May 18, 2007
---
Original Proceeding in the Utah Court of Appeals
Attorneys: 	Richard R. Burke, Salt Lake City, for respondent
Merrill F. Nelson, Christian S. Collins, Salt Lake
City, for Media-Paymaster Plus
Alan L. Hennebold, Salt Lake City, for Labor
Commission
Floyd W Holm, Murray, for amicus Workers’
Compensation Fund
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	Enrique Martinez petitioned the Utah Labor Commission
(the “Commission”) for an award of permanent total disability
compensation against his former employer, Media-Paymaster Plus
(“Media”). 	After an administrative law judge (the “ALJ”) denied
his claim and the Commission confirmed the decision, Martinez
sought a writ of review from the Utah Court of Appeals. 	The
court of appeals reversed the Commission’s order and remanded the
matter to the Commission to award Martinez benefits. 	We granted
certiorari to determine (1) whether the court of appeals applied
the correct standard of review, and (2) whether the employee or
the employer bears the burden of proof when an employee seeks
compensation under Utah Code section 34A-2-413(1)(c).

Nos. 20050745, 20050750 	2
¶2 	Regarding the first issue, the court of appeals
reviewed under an abuse of discretion standard the Commission’s
determination that Martinez could perform the “essential
functions” of his prior employment, as well as its determination
that other work was “reasonably available” to him. 	Because we
conclude that the court of appeals should have reviewed these
determinations under a substantial evidence standard, we remand
them to the court of appeals for consideration under the
appropriate standard of review. 	With regard to the second issue,
we conclude that an employee seeking an award of permanent total
disability bears the burden of proving each of the four elements
specified under section 34A-2-413(1)(c).
BACKGROUND
¶3 	On October 28, 1996, while performing temporary work as
a movie extra for Media, Martinez slipped and fell on a wet
floor, suffering injury to his cervical spine and right shoulder.
Martinez had retired from state employment in 1995 after working
for 28 years as a maintenance specialist. 	At the time of the
accident, he was working part-time at a McDonald’s restaurant.
He continued to work there until December 1996. 	In September
1997, Martinez tried to return to work at Media, but no work was
available. 	At that time, Martinez also tried to return to
light-duty work at McDonald’s but was told no such work was
available. 	Martinez has not worked since leaving McDonald’s in
December 1996.
¶4 	On July 31, 2000, Martinez filed an action with the
Commission to compel Media to pay him permanent total disability
compensation for his injuries. 	Section 34A-2-413 of the Workers’
Compensation Act (the “Act”) governs permanent total disability
determinations. 	The relevant portions of the Act are as follows:
(b) To establish entitlement to permanent
total disability compensation, the employee
has the burden of proof to show by a
preponderance of evidence that:
(i) the employee sustained a
significant impairment . . . as a result
of the industrial accident or
occupational disease that gives rise to
the permanent total disability
entitlement;

3 	Nos. 20050745, 20050750
(ii) the employee is permanently
totally disabled; and
(iii) the industrial accident or
occupational disease was the direct
cause of the employee’s permanent total
disability.
(c) To find an employee permanently totally
disabled, the commission shall conclude that:
(i) the employee is not gainfully
employed;
(ii) the employee has an impairment
. . . that limit[s] the employee’s
ability to do basic work activities;
(iii) the industrial or occupationally
caused impairment . . . prevent[s] the
employee from performing the essential
functions of the work activities for
which the employee has been qualified
until the time of the industrial
accident or occupational disease that is
the basis for the employee’s permanent
total disability claim; and
(iv) the employee cannot perform other
work reasonably available, taking into
consideration the employee’s:
(A) age;
(B) education;
(C) past work experience;
(D) medical capacity; and
(E) residual functional capacity.
Utah Code Ann. § 34A-2-413(1)(b)-(c) (2005) (amended 2006).
¶5 	The ALJ denied Martinez’s claim, finding that Martinez
“failed to prove that he cannot perform the essential functions
of work he was qualified to perform, and . . . failed to prove
that there is no other work reasonably available.” 	Following the
denial of his claim by the ALJ, Martinez appealed to the
Commission. 	The Commission confirmed the ALJ’s decision that
Martinez had failed to satisfy two of the elements required to
establish permanent total disability under section 34A-2-413.
First, using Martinez’s work at McDonald’s as a benchmark, the

1 In 2006, the legislature amended subsection (c) to clarify
that the burden of proof under subsection (c) was intended to
fall on the employee. 	Utah Code Ann. § 34A-2-413(1)(c) (Supp.
2006). 	Because we find that the language of the 1995 version of
the statute was unambiguous, we refrain from considering the
statutory amendment. 	See Olsen v. Samuel McIntyre Inv. Co., 956
P.2d 257, 259, 261 (Utah 1998) (holding that the court does not
look beyond an unambiguous statute and that retroactive
legislative enactments are not applied in pending cases except in
a few narrow circumstances not applicable here).
Nos. 20050745, 20050750 	4
Commission concluded that Martinez had failed to show that his
impairments prevented him from performing the essential functions
of his position at McDonald’s. 	Second, the Commission concluded
that Martinez had failed to prove that he was unable to perform
other reasonably available work.
¶6 	The court of appeals reversed the Commission’s order,
holding that (1) the Commission abused its discretion in
concluding that Martinez was capable of performing his prior job
and other reasonably available work, and (2) the Commission
incorrectly allocated the burden of proof. 	Martinez v. Media-
Paymaster Plus, 2005 UT App 308, ¶¶ 9, 13, 16, 117 P.3d 1074.
¶7 	In reversing the Commission on the first issue, the
court of appeals reviewed for abuse of discretion the
Commission’s application of its findings of fact to the law. 	The
court held that the Commission had abused its discretion in
concluding that Martinez could perform the essential functions of
a fast-food worker, id. ¶¶ 10–13, and in concluding that other
work was reasonably available to Martinez, id. ¶¶ 14–15.
¶8 	In reversing the Commission on the second issue, the
court of appeals focused on the differences in language between
Utah Code section 34A-2-413(1)(c) (“subsection (c)”) and Utah
Code section 34A-2-413(1)(b) (“subsection (b)”). 1 	Subsection (b)
delineates three elements for which an “employee has the burden
of proof” in order to establish entitlement to benefits for
permanent total disability. 	Subsection (c) sets out four
additional items that the “Commission shall conclude” before
finding an employee permanently totally disabled. 	After
determining that the statute was ambiguous with respect to which
party bears the burden of proof under subsection (c), the court
analyzed punctuation rules, canons of statutory construction, and
public policy. 	It then determined that the employer bore the
burden of proof under subsection (c). 	Id. ¶¶ 7–9.

5 	Nos. 20050745, 20050750
¶9 	We granted certiorari on two issues: 	(1) whether the
court of appeals applied the correct standard in reviewing the
Commission’s order, and (2) whether the employee or the employer
bears the burden of proof under Utah Code section
34A-2-413(1)(c).
ANALYSIS
¶10 	Regarding the first issue, we conclude that the court
of appeals should have reviewed the Commission’s findings that
Martinez could perform the essential functions of his prior
employment and that other work was reasonably available to him
under a substantial evidence standard but, in fact, improperly
reweighed the Commission’s factual determinations under the guise
of reviewing the application of facts to law. 	Because the court
of appeals should have considered these issues under a
substantial evidence standard, we reverse and remand for
consideration under the appropriate standard of review.
¶11 	We similarly reverse the court of appeals’ holding on
the second issue. 	As a threshold matter, we find that the court
of appeals correctly reviewed the Commission’s statutory
interpretation of Utah Code section 34A-2-413(1)(c) for
correctness. 	We find, however, that the employee bears the
burden of proof under section 34A-2-413(1)(c) because, when
subsections (b) and (c) are read in context, it is clear that
subsection (c) delineates the elements an employee must prove to
meet his subsection (b)(ii) burden of establishing that he is
permanently totally disabled.
I. 	STANDARD OF REVIEW
¶12 	We first consider Martinez’s argument that the
Commission’s factual findings are inadequate as a matter of law.
We then turn to Media’s contention that the court of appeals
erred by reviewing the Commission’s factual findings despite
Martinez’s failure to marshal the evidence. 	Having disposed of
these two threshold matters, we then consider the appropriate
standard of review.
A. 	The Commission’s Factual Findings Are Not Inadequate
as a Matter of Law
¶13 	Martinez argues that if the essential functions of his
prior work and the reasonable availability of other work are
factual issues, the Commission’s factual findings on these issues
are so inadequate as to require their reversal as a matter of
law. 	In essence, Martinez argues that there is no “logical and

2 Although we address the implications of this argument, we
do not concede the accuracy of its premise. 	Martinez did
challenge the Commission’s factual findings before the court of
(continued...)
Nos. 20050745, 20050750 	6
legal basis for the [Commission’s] ultimate conclusions,” see
Milne Truck Lines, Inc. v. Pub. Serv. Comm’n, 720 P.2d 1373, 1378
(Utah 1986), and that consequently, this court has no principled
basis on which to sustain its factual findings, see Mountain
States Legal Found. v. Pub. Serv. Comm’n, 636 P.2d 1047, 1051-52
(Utah 1981). 	In such an instance, marshaling is not required
because “the findings are so inadequate that they cannot be
meaningfully challenged as factual determinations.” 	Woodward v.
Fazzio, 823 P.2d 474, 477 (Utah Ct. App. 1991).
¶14 	Martinez contends that it was irrational for the
Commission to conclude that other work was reasonably available
in the face of testimony by a vocational expert that Martinez
could not perform any currently available jobs without some task
modification. 	Martinez further points to the Commission’s
failure to mention Martinez’s sitting and standing limitations in
concluding that Martinez could perform the essential functions of
his prior work. 	We disagree.
¶15 	The Commission’s conclusion that available fast-food
positions could be modified to accommodate Martinez’s limitations
is a logical finding based on the presented evidence. 	Further,
despite the Commission’s failure to mention the sitting and
standing requirement, its order did carefully consider Martinez’s
weight limitations on lifting and pushing, evidence of symptom
magnification, and the fast-food industry’s practice of assigning
tasks according to the respective abilities of each individual
employee. 	On the basis of this evidence, the Commission compared
Martinez’s abilities with the essential functions of fast-food
work and concluded that “Mr. Martinez’s work-related impairments
do not prevent him from performing such functions.” 	Thus, the
Commission’s failure to directly address Martinez’s sitting and
standing limitations or to allow for some task modification in
reaching its conclusion that other work was reasonably available
does not warrant reversal as a matter of law.
B. 	Clarification of the Marshaling Requirement
¶16 	During oral argument, Media argued that the court of
appeals was required to dismiss Martinez’s factual challenge to
the Commission’s order because Martinez failed to properly
marshal the evidence. 	Media further argued that this failure
alone constitutes reversible error. 2 	Media’s argument is not

2 (...continued)
appeals, but did so under the theory that the factual findings
were inadequate as a matter of law. 	See Martinez, 2005 UT App
308, ¶ 3. 	Under such a theory, marshaling is not required.
Woodward, 823 P.2d at 477. 	Further, the court of appeals did not
purport to consider the sufficiency of the facts. 	Martinez, 2005
UT App 308, ¶ 3. 	However, because we ultimately agree with
Media’s contention that “essential functions” and “reasonably
available” are factual issues, we consider the implications of
the argument.
3 The marshaling requirement applies when a party challenges
a court’s or an agency’s factual findings, regardless of the
standard of review at issue. 	See, e.g., Wilson Supply, Inc. v.
Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54 P.3d 1177 (holding that
to correctly dispute the lower court’s factual findings as
clearly erroneous, “an appellant must first marshal all the
evidence in support of the finding and then demonstrate that the
evidence is legally insufficient to support the finding even when
viewing it in a light most favorable to the court below”); United
Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006
UT 35, ¶¶ 37-38, 140 P.3d 1200 (“[P]arties who ask this court to
consider fact-sensitive questions–-including those questions
reviewed under an abuse of discretion standard–-have a duty to
marshal all the evidence that formed the basis for the trial
court’s ruling.”) 	Consequently, this discussion applies to the
marshaling requirement generally, not just in the context of a
challenge to an agency’s factual findings.
7 	Nos. 20050745, 20050750
well-taken and, in fact, evinces a fundamental misunderstanding
of the marshaling obligation. 	We accordingly pause to clarify
it.
¶17 	To successfully challenge an agency’s factual findings,
the party “must marshall [sic] all of the evidence supporting the
findings and show that despite the supporting facts, and in light
of the conflicting or contradictory evidence, the findings are
not supported by substantial evidence.” 	Grace Drilling Co. v.
Bd. of Review of Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App.
1989); accord Utah R. App. P. 24(a)(9) (“A party challenging a
fact finding must first marshal all record evidence that supports
the challenged finding.”). 3 	This requires counsel to construct
the evidence supporting the adversary’s position, and then
“ferret out a fatal flaw in the evidence.” 	West Valley City v.
Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah 1991). 	Compliance
with this undertaking helps ensure that the factual findings of
the agency are overturned only when lacking in substantial
evidence.

Nos. 20050745, 20050750 	8
¶18 	In our zeal to emphasize the importance of the
marshaling requirement to parties, we have used language implying
that appellate courts are strictly bound to affirm the accuracy
of the agency’s or trial court’s factual findings in the absence
of marshaling. 	See, e.g., United Park City Mines Co., 2006 UT
35, ¶ 32 (“Because [the defendant] has failed to marshal the
evidence supporting the . . . award, . . . we cannot conclude
that the trial court abused its discretion.”); Eggett v. Wasatch
Energy Corp., 2004 UT 28, ¶ 10, 94 P.3d 193 (“The court of
appeals does not review the trial court’s factual findings where
the party challenging those findings fails to marshal the
evidence. 	Instead, the court of appeals must assume that the
record supports the findings of the trial court.” (internal
quotation marks and citation omitted)).
¶19 	Despite this language, the marshaling requirement is
not a limitation on the power of the appellate courts. 	Rather,
it is a tool pursuant to which the appellate courts impose on the
parties an obligation to assist them in conducting a whole record
review. 	It is not, itself, a rule of substantive law.
Consequently, parties that fail to marshal the evidence do so at
the risk that the reviewing court will decline, in its
discretion, to review the trial court’s factual findings. 	See
Chen v. Stewart, 2004 UT 82, ¶ 82 n.16, 100 P.3d 1177 (explaining
that the marshaling requirement is critical because in its
absence the appellate court “must go behind the trial court’s
factual findings,” which often requires a “colossal commitment of
time and resources”).
¶20 	The reviewing court, however, retains discretion to
consider independently the whole record and determine if the
decision below has adequate factual support. 	While parties have
a duty to marshal the evidence when challenging the factual basis
for a lower body’s decision, we refrain, consistent with the
Rules of Appellate Procedure, from dictating the remedy the court
of appeals must impose when parties fail to meet this
requirement. 	Utah R. App. P. 24(b)(k) (“Briefs which are not in
compliance may be disregarded or stricken, on motion or sua
sponte by the court . . . .” (emphasis added)).
¶21 	In short, parties remain obligated by our rules to
marshal the evidence when challenging the factual findings of a
lower court. 	We refrain, however, from limiting the appellate
courts’ discretion by mandating a particular remedy when parties
fail to meet this requirement. 	Having determined that the court
of appeals retained the discretion to review Martinez’s challenge

9 	Nos. 20050745, 20050750
to the Commission’s factual findings, we turn to the standard of
review question on which we granted certiorari.
C. 	Whether Martinez Could Perform the “Essential
Functions” of Fast-Food Work and Whether Other Work
Was “Reasonably Available” to Him Are Factual
Questions We Review for Substantial Evidence
¶22 	The court of appeals applied an abuse of discretion
standard in reviewing the Commission’s conclusions that Martinez
“could perform the ‘essential functions’ of a fast food worker
and that other work was ‘reasonably available’ for him.”
Martinez v. Media-Paymaster Plus, 2005 UT App 308, ¶ 10, 117 P.3d
1074 (quoting Utah Code Ann. § 34A-2-413(1)(c)(iii), (iv) (2005)
(amended 2006)). 	The court of appeals appears to have based its
selection of this standard of review on its conclusion that
(1) the Act impliedly grants discretion to the Commission to
apply “the facts to the Act”; and (2) it would consequently
review only the Commission’s application of the “facts that it
found to the law.” 	Id. ¶¶ 10-11.
¶23 	We conclude that the court of appeals erred in applying
an abuse of discretion standard of review because the provisions
of Utah Code section 34A-2-413 call for a factual determination.
As a result, the court of appeals actually reweighed the
Commission’s factual determinations under the guise of applying
the undisputed facts to the law. 	Because determining the
“essential functions” of prior employment and ascertaining
whether other work is “reasonably available” are factual issues,
we remand the matter to the court of appeals for consideration
under a substantial evidence standard of review.
¶24 	Although we reverse the court of appeals with respect
to the standard of review, we acknowledge the difficult issue it
presents. 	Judicial review of Commission decisions is governed by
both Utah Code section 34A-2-801 and Utah’s Administrative
Procedures Act (the “UAPA”). 	Utah Code Ann. § 34A-2-801(7)-(8)
(2005). 	Section 63-46b-16(4)(d) of the UAPA allows relief when
“the agency has erroneously interpreted or applied the law.” 	Id.
§ 63-46b-16(4)(d) (2004). 	Subsection (4)(g) allows relief when
“the agency action is based on a determination of fact . . . that
is not supported by substantial evidence when viewed in light of
the whole record before the court.” 	Id. § 63-46b-16(4)(g).
Finally, subsection (4)(h)(i) allows relief when an agency action
is “an abuse of the discretion delegated to the agency by
statute.” 	Id. § 63-46b-16(4)(h)(i); see also Ameritemps, Inc. v.
Labor Comm’n, 2005 UT App 491, ¶ 8, 128 P.3d 31 (finding that an
abuse of discretion standard should be used “when an agency has

4 Mixed questions are generally defined as the application
of law to fact, Pena, 869 P.2d at 936, but the court of appeals
transposed the standard and asked whether the Commission abused
its discretion in “applying the facts that it found to the law.”
Martinez, 2005 UT App 308, ¶ 11. 	Because it appears that the
court of appeals intended to treat “essential functions” and
“reasonably available” as mixed questions of law and fact, we
proceed from that premise.
Nos. 20050745, 20050750 	10
discretion to apply its factual findings to the law” (citation
omitted)).
¶25 	The court of appeals is correct that agency actions are
reviewed for abuse of discretion when there is an express or
implied delegation within the statute. 	That truism, however,
does not dictate the appropriate standard of review because
codifying a factual issue does not transform an issue from one of
fact to a mixed question of law and fact for purposes of
determining the appropriate standard of review. 	Our task,
therefore, is to determine, first, whether “essential functions”
and “reasonably available” are factual, legal, or mixed issues
and, second, the appropriate standard of review.
¶26 	We discussed the distinctions between legal, factual,
and mixed questions and their relationship to the appropriate
standard of review in State v. Pena, 869 P.2d 932, 935-37 (Utah
1994). 	There, we defined factual questions as “entailing the
empirical, such as things, events, actions, or conditions
happening, existing, or taking place, as well as the subjective,
such as state of mind.” 	Id. at 935. 	In contrast, we defined
legal determinations as “rules or principles uniformly applied to
persons of similar qualities and status in similar
circumstances.” 	Id. 	We also recognized a third category, “the
application of law to fact,” which asks “whether a given set of
facts comes within the reach of a given rule of law.” 	Id. at
936.
¶27 	Because the court of appeals analyzed whether the
undisputed facts adequately met the statutory requirements of
“essential functions” and “reasonably available,” 4 we give this
third category close consideration. 	See Martinez, 2005 UT App
308, ¶ 11. 	We begin with the proposition that the existence of
an articulable legal issue is a necessary element of a mixed
question. 	Pena, 869 P.2d at 937; see, e.g., Pullman Standard v.
Swint, 456 U.S. 273, 290 n.19 (1982) (defining a mixed question
of law and fact as occurring when “historical facts are admitted
or established, the rule of law is undisputed, and the issue is
whether the facts satisfy the statutory standard, or . . .

11 	Nos. 20050745, 20050750
whether the rule of law as applied to the established facts is or
is not violated”). 	In other words, a mixed question is one in
which we must
determine when the articulated legal rule to
be applied to a set of facts-–a rule that we
establish without deference to the trial
courts-–embodies a de facto grant of
discretion which permits the trial court to
reach one of several possible conclusions
about the legal effect of a particular set of
facts without risking reversal.
Pena, 869 P.2d at 937.
¶28 	Therefore, when determining whether an issue presents a
mixed question, we must first identify the legal principle at
issue. 	Our decision in Drake v. Industrial Commission, 939 P.2d
177 (Utah 1997), is illustrative. 	There, we were asked whether
the court of appeals appropriately reviewed for legal correctness
the issue of whether the petitioner was injured in the scope of
her employment. 	Id. at 180. 	The Labor Commission, along with
the employee’s insurer, argued that scope of employment
determinations were factual and consequently subject to a
substantial evidence standard of review. 	Id. at 181 & n.7. 	We
rejected this argument, holding that whether facts fall under the
“legal rule termed ‘special errands,’ . . . requires some legal
analysis.” 	Id. 	Prior precedent and persuasive authority had
established a legal, albeit highly fact dependent, rule for
determining when a “special errand” fell within an employee’s
scope of employment. 	Id. at 183. 	Given the fact-dependent
nature of the inquiry, however, we found that we could not “spell
out in detail a legal rule that will adequately anticipate the
facts that should be outcome determinative” for the policy behind
the legal rule to be served. 	Id. at 182 (internal quotation
marks omitted). 	Consequently, we determined that whether a
“special errand” is within an employee’s scope of employment is a
mixed question of law and fact requiring some deference. 	Id. 	We
further explained that when considering “‘whether a given set of
facts comes within the reach of a given rule of law,’” id. at 181
(quoting Pena, 896 P.2d at 936), deference to the lower court is
created when a legal standard is defined “‘so that it actually
grants some operational discretion to the trial courts applying
it,’” id. (quoting State v. Vincent, 883 P.2d 278, 282 (Utah
1994).
¶29 	In summary, factual issues are generally empirical,
legal issues apply an abstract rule regardless of the specific

Nos. 20050745, 20050750 	12
facts, and mixed questions generally arise when the applicability
of the legal rule turns on the combination of present facts.
Having undertaken this attempt to flesh out the distinctions
between questions of law, questions of fact, and mixed questions
of law and fact, we turn to the issues presented here.
1. 	Essential Functions
¶30 	Whether certain tasks are “essential functions” varies
from job to job and industry to industry. 	A judge is ill-
equipped to determine, with his or her legal expertise, the
essential elements of a fast-food job. 	Rather, that
determination must be based on factual evidence and testimony
from those with experience in the industry. 	Additionally, there
is no legal rule that could create the basis for a mixed question
of fact and law. 	While the adjective “essential” does introduce
a level of abstraction into the fact-finder’s determination, it
does not create a mixed question any more than the modifier
“reasonable” changes the reasonable man standard into a legal
determination. 	Cf. Benson v. Ames, 604 P.2d 927, 929 (Utah 1979)
(finding that negligence under a reasonable man standard is a
factual determination disrupted on appeal only if substantial
evidence fails to support the trial court’s ruling). 	We
consequently hold that the question of whether an employee can
perform the “essential functions” of prior employment is a
factual determination that should be overturned on appeal only if
substantial evidence fails to support it.
2. 	Reasonably Available
¶31 	The second issue, whether other work was “reasonably
available” to Martinez, is a closer question. 	In different
contexts, reasonableness has been considered both a legal and a
factual question. 	See, e.g., Benson, 604 P.2d at 929 (finding
that whether a defendant acted as a “reasonable man” in a
negligence case is an issue for the trier of fact that should not
be disturbed on appeal if it is supported by substantial
evidence). 	But see, e.g., Evans v. State, 963 P.2d 177, 179
(Utah 1998) (finding that “reasonable cause” was primarily a
legal question in the antitrust arena, but that appellate courts
should grant the fact-finder a “measure of discretion”); Salmon
v. Davis County, 916 P.2d 890, 892 (Utah 1996) (“[T]he
reasonableness of an award of attorney fees ordinarily presents a
question of law with some measure of discretion given to the
trial court.”). 	Additionally, the Labor Commission has defined
“reasonably available” as “regular, steady, and readily
available” work, Utah Admin. Code r. 612-1-10(D)(1)(b), a

13 	Nos. 20050745, 20050750
definition that reads like a legal rule to be applied to a
factual situation.
¶32 	Despite these countervailing examples, we conclude that
the question of whether other work is “reasonably available” is a
factual determination. 	The statute asks the Commission to
determine if other work is reasonably available, “taking into
consideration the employee’s[] . . . age; . . . education; . . .
past work experience; . . . medical capacity; and . . . residual
functional capacity.” 	Utah Code Ann. § 34A-2-413(1)(c)(iv).
These factual considerations inform what is reasonable; its
parameters are not further defined by an overarching legal
principle, as in the case of reasonable suspicion, for example.
See Pena, 869 P.2d at 939.
¶33 	Our conclusion that “essential functions” and
“reasonably available” are factual determinations is consistent
with both our prior precedent and the applicable statutory
language. 	First, we have traditionally viewed permanent total
disability determinations as factual. 	Hodges v. W. Piling &
Sheeting Co., 717 P.2d 718, 721 (Utah 1986); Kerans v. Indus.
Comm’n, 713 P.2d 49, 54 (Utah 1986); Brundage v. IML Freight,
Inc., 622 P.2d 790, 792 (Utah 1980); Utah State Rd. Comm’n v.
Indus. Comm’n, 168 P.2d 319, 322 (Utah 1946). 	Second, as
discussed herein, the language of subsection (b) requires the
employee to prove permanent total disability by a “preponderance
of the evidence,” using the elements of subsection (c) to meet
that evidentiary burden (emphasis added).
¶34 	In sum, we conclude that the court of appeals
erroneously applied an abuse of discretion standard when
reviewing the Commission’s factual findings that Martinez was
capable of performing the “essential functions” of his prior job
and that he was capable of performing other work “reasonably
available” to him.
D. 	The Correct Standard of Review Is Substantial Evidence
¶35 	Having determined that the correct standard of review
is substantial evidence, we pause to consider its requirements.
Substantial evidence exists when the factual findings support
“more than a mere scintilla of evidence . . . though something
less than the weight of the evidence.” 	Grace Drilling Co. v. Bd.
of Review of Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989)
(internal quotation marks and citation omitted, alteration in
original). 	An administrative law decision meets the substantial
evidence test when “a reasonable mind might accept as adequate”

Nos. 20050745, 20050750 	14
the evidence supporting the decision. 	Id. (internal quotation
marks and citation omitted).
¶36 	In order to determine whether a decision is supported
by substantial evidence, the reviewing court must consider the
whole record before the lower court. 	Whitear v. Labor Comm’n,
973 P.2d 982, 984 (Utah Ct. App. 1998) (citing Utah Code Ann.
§ 63-46b-16(4)(g) (1997)). 	Whole record review considers the
evidence in support of the administrative finding, as well as
evidence that detracts from the finding. 	Id. 	To aid the
appellate court in conducting a whole record review, the party
challenging the factual findings must marshal all of the evidence
and demonstrate that, despite the facts supporting the decision,
the “findings are not supported by substantial evidence.” 	Grace
Drilling Co., 776 P.2d at 68.
¶37 	When we consider the actual substance of the court of
appeals’ ruling that Martinez could not perform the “essential
functions” of his past employment, the effect of a different
standard of review becomes clear. 	For instance, it does appear,
as the court of appeals stated, that the “Commission simply
ignored the impact of the sitting and standing limitation.”
Martinez v. Media-Paymaster Plus, 2005 UT App 308, ¶ 13, 117 P.3d
1074. 	However, with the statement “The Commission ignored a
significant portion of an evaluation that it explicitly
accepted,” id. (emphasis added), the court of appeals implicitly
acknowledged that some of the Commission’s factual findings were
supportive of its ultimate conclusion. 	This acknowledgment has
different implications under a substantial evidence standard; if
more than a scintilla of the evidence supports the conclusion,
then the Commission’s ruling should remain intact.
¶38 	As a natural consequence of selecting the wrong
standard of review, the court of appeals reweighed the facts that
formed the basis of the Commission’s conclusion that other work
was “reasonably available” under the guise of applying the facts
to the law. 	For example, the court of appeals stated that the
Labor Commission ignored Dr. Bertsch’s cross-examination
testimony that no jobs in the current market could accommodate
Mr. Martinez’s limitations. 	Id. ¶ 15. 	The Commission’s order,
however, merely gave more weight to the portion of her testimony
that was more favorable to its factual findings. 	In fact,
Dr. Bertsch testified that she had contacted many local fast-food
restaurants with open positions and their managers expressed a
willingness to hire someone with Martinez’s limitations.
Although recognizing that some task modification would be
required, the Commission found that fast-food work requires the
completion of a “variety of tasks . . . performed by a crew of

15 	Nos. 20050745, 20050750
several employees.” 	It further found that Martinez’s education,
work experience, and language ability would increase his
employability. 	This evidence supports the Commission’s
conclusion that “Media [had] presented persuasive evidence that
many employers in the fast-food business have work immediately
available for someone with Mr. Martinez’ background and
abilities.”
¶39 	In sum, we find that the court of appeals should have
applied a substantial evidence standard of review to the
questions of whether Martinez could perform the “essential
functions” of his prior employment and whether other jobs were
“reasonably available” to him. 	Because it applied the incorrect
standard of review, the court of appeals inappropriately
reweighed the Commission’s factual findings under the guise of
reviewing mixed questions of law and fact. 	Consequently, we
remand for a determination under the correct standard of review.
II. 	THE EMPLOYEE BEARS THE BURDEN OF PROOF UNDER
UTAH CODE SECTION 34A-2-413(1)(c)
¶40 	The parties and the amicus disagree on the standard of
review applicable to the Commission’s ruling on the burden of
proof issue, so we consider this threshold matter first.
A. 	We Afford No Deference to the Commission on Matters of
Statutory Construction
¶41 	Burden of proof questions typically present issues of
law that an appellate court reviews for correctness. 	Beaver
County v. State Tax Comm’n, 916 P.2d 344, 357 (Utah 1996).
Amicus Workers’ Compensation Fund (“WCF”), however, contends that
we should defer to the Commission’s conclusion regarding the
burden of proof because the legislature impliedly granted the
Commission discretion to decide the issue under Utah Code section
34A-2-413(1)(c). 	WCF reasons that “where the legislature either
expressly or implicitly grants [an] agency discretion to
interpret or apply a statutory term,” appellate courts should
defer to the agency’s interpretation unless it constitutes an
abuse of discretion. 	Luckua v. Bd. of Review of Indus. Comm’n,
840 P.2d 811, 813 (Utah Ct. App. 1992); accord Morton Int’l, Inc.
v. Auditing Div. of State Tax Comm’n, 814 P.2d 581, 588-89 (Utah
1991) (superseded by Utah Code section 59-1-610(1)(b) for the
specific instance of administrative decisions by the Utah State
Tax Commission as stated in 49th St. Galleria v. Tax Comm’n,
Auditing Div., 860 P.2d 996 (Utah Ct. App. 1993)). 	WCF contends
that subsection (c) impliedly grants such discretion to the
Commission because the listed requirements for a permanent total

Nos. 20050745, 20050750 	16
disability determination are prefaced with the clause “the
commission shall conclude.”
¶42 	We disagree and hold that the language of subsection
(c) grants the Commission authority to determine only whether the
facts presented meet the statute’s requirements for a finding of
permanent total disability. 	It does not bestow on the Commission
the authority to allocate the burden of proof.
¶43 	Our conclusion in this regard is consistent with the
legislature’s more general delegation of authority to the
Commission found in Utah Code section 34A-1-301, which bestows on
the Commission “the duty and the full power, jurisdiction, and
authority to determine the facts and apply the law in this
chapter or any other title or chapter it administers.” 	Utah Code
Ann. § 34A-1-301 (2005). 	We previously have held that section
34A-1-301 does not grant the Commission discretion for statutory
interpretation. 	Esquivel v. Labor Comm’n, 2000 UT 66, ¶ 18, 7
P.3d 777.
¶44 	It is also consistent with our case law on implied
agency delegation. 	In Salt Lake City Corp. v. Department of
Employment Security, 657 P.2d 1312, 1315-17 (Utah 1982), we
acknowledged the Commission’s latitude in affirming its award of
unemployment benefits to a state employee who had voluntarily
left her job. 	The statute at issue in that case provided that
unemployment benefits were generally unavailable when employees
voluntarily quit, but allowed the Commission to award benefits
when required by “equity and good conscience.” 	Id. at 1317. 	We
conclude that this language implicitly “bespeak[s] a legislative
intent to delegate . . . interpretation to the responsible
agency.” 	Morton, 814 P.2d at 588 (internal quotation marks and
citation omitted). 	In contrast, however, subsection (c) only
gives the Commission discretion to “find” the facts required to
establish the elements of permanent total disability.
¶45 	Our conclusion is also consistent with the principle
that grants of discretion to administrative agencies should be
limited to those issues on which the agencies have “special
experience or expertise placing [them] in a better position than
the courts to construe the law.” 	King v. Indus. Comm’n, 850 P.2d
1281, 1286 (Utah Ct. App. 1993). 	Here, however, there is nothing
to suggest that the Commission is in a better position than this
court to construe the statutory allocation of the burden of
proof. 	We consequently hold that the court of appeals
appropriately applied a correctness standard when assessing which
party bore the burden of proof under subsection (c).

17 	Nos. 20050745, 20050750
B. 	The Employee Bears the Burden of Proving the Elements of
Permanent Total Disability
¶46 	We review the court of appeals’ statutory
interpretation of section 34A-2-413(1)(c) for correctness. 	See
State v. Ireland, 2006 UT 82, ¶ 6, 150 P.3d 532. 	When
interpreting statutes, we look first to the statute’s plain
language with the primary objective of giving effect to the
legislature’s intent. 	Savage v. Utah Youth Vill., 2004 UT 102,
¶ 18, 104 P.3d 1242. 	“We presume that the legislature used each
word advisedly” and read “each term according to its ordinary and
accepted meaning.” 	State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d
682 (internal quotation marks and citation omitted). 	Statutes
should be read as a whole and their provisions interpreted in
harmony with related provisions and statutes. 	Miller v. Weaver,
2003 UT 12, ¶ 17, 66 P.3d 592.
¶47 	When the language of the statute is plain, other
interpretive tools are not needed. 	Adams v. Swensen, 2005 UT 8,
¶ 8, 108 P.3d 725. 	However, if the language is ambiguous, the
court may look beyond the statute to legislative history and
public policy to ascertain the statute’s intent. 	Utah Pub.
Employees Ass’n v. State, 2006 UT 9, ¶ 59, 131 P.3d 208 (Parrish,
J., concurring). 	When viewed holistically, a statute is
ambiguous if duplicative, yet plausible meanings are not
eliminated from possibility. 	Id. ¶ 60.
¶48 	Having acknowledged these rules, we consider the plain
language of section 34A-2-413(1) of the Act, which outlines the
threshold requirements an employee must meet to receive
compensation for permanent total disability. 	Subsection (b)
states that the employee has the burden of proving three
subparts: 	(i) that the employee was significantly impaired as a
result of an industrial accident or occupational disease;
(ii) that “the employee is permanently totally disabled”; and
(iii) that “the industrial accident or occupational disease was
the direct cause of the employee’s permanent total disability.”
Utah Code Ann. § 34A-2-413(1)(b)(i)-(iii) (2005).
¶49 	We next turn to subsection (c), which states that “[t]o
find an employee permanently totally disabled, the commission
shall” reach four necessary conclusions:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or
combination of impairments that limit the
employee’s ability to do basic work
activities; (iii) the . . . impairments

Nos. 20050745, 20050750 	18
prevent the employee from performing the
essential functions of the work activities
for which the employee has been qualified
until the time of the industrial accident
. . . and (iv) the employee cannot perform
other work reasonably available, taking into
consideration the employee’s age; education;
past work experience; medical capacity; and
residual functional capacity.
Id. § 34A-2-413(1)(c) (amended 2006).
¶50 	Although subsection (c) does not explicitly allocate
the burden of proof, a reading of the statute as a whole makes
clear that it falls to the employee. 	Both subsections (b) and
(c) include the same critical phrase: 	“permanently totally
disabled.” 	Subsection (b)(ii) cursorily states that “the
employee has the burden of proof to show by a preponderance of
evidence that” he or she “is permanently totally disabled.” 	It
is unclear, however, from the wording of subsection (b)(ii) what
is required for the employee to prove permanent total disability.
Subsection (c) simply enumerates those requirements. 	In short,
subsection (c) imbues subsection (b)(ii) with meaning.
¶51 	The court of appeals’ interpretation, allocating
subsection (c)’s burden of proof to the employer, renders
meaningless the employee’s responsibility to prove permanent
total disability under (b)(ii). 	We avoid construing “a
particular provision of a statute so as to neutralize . . . other
provisions if any other construction of the particular provision
is at all tenable.” 	Chris & Dick’s Lumber & Hardware v. Tax
Comm’n, 791 P.2d 511, 516 (Utah 1990) (Howe, J., dissenting).
¶52 	The plain language of subsection (c) further bolsters
our interpretation that the employee bears the burden of proof.
In each of subsection (c)’s four subparts, “the employee” must be
in a particular posture in order to be found permanently totally
disabled. 	These elements of proof turn on intimate facts about
the employee’s circumstances--his unemployment or how his medical
capacity or age affects his ability to do reasonably available
work, for example. 	The fact that the employee is in the best
position to proffer evidence relevant to these factual
determinations further supports our interpretation that the
employee bears the burden of proof under subsection (c).
¶53 	The court of appeals’ interpretation, on the other
hand, mandates that the employer disprove the elements of
subsection (c), which would require judicially created additions

5 Having reached this legal conclusion, we remain mystified
about its effect on the outcome of this case. 	Usually, burden of
proof questions are outcome determinative only in the case of an
evidentiary draw. 	And in their briefs to us, neither party
asserts that was the case here. 	Thus, even had we upheld the
court of appeals’ decision on the burden of proof issue, it is
unclear whether that conclusion would have required the
Commission to reverse its initial denial of permanent total
disability. 	We encourage parties to consider and brief the
effect of their legal challenges on a case’s outcome so that we
can better advise lower courts about the ramifications of our
rulings.
19 	Nos. 20050745, 20050750
to and subtractions from the statute’s plain language. 	For
example, subsection (c)(i) requires proof that “the employee is
not gainfully employed.” 	Under the court of appeals’ reading,
the employer would have to prove that the employee is gainfully
employed. 	See Martinez v. Media-Paymaster Plus, 2005 UT App 308,
¶ 9, 117 P.3d 1074. 	Although we concede that section
34A-2-413(1)(c) was not artfully drafted, we refrain from
creating clarity by reading additional terms into the statute.
¶54 	In conclusion, we reverse the court of appeals because
we can find only one plausible reading of the statute based on
its plain language--namely, that the employee has the burden of
proving the elements of subsection (c). 5
CONCLUSION
¶55 	The court of appeals should have applied a substantial
evidence standard of review to the Commission’s conclusions that
other work was “reasonably available” to Martinez and that he
could have performed the “essential functions” of a fast-food
employee. 	Consequently, we reverse the court of appeals and
remand for a determination under the appropriate standard of
review. 	We also reverse the court of appeals’ allocation of the
burden of proof. 	We hold that under the plain language of Utah
Code section 34A-2-413(1), the employee bears the burden of
proving the four elements of subsection (c).
---
¶56 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.