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2005

Richard Mendoza v. Skaggs Companies and orCNA Insurance, and the Utah Labor Commission :Reply BriefUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Mark D. Dean; Kristy L. Bertelsen; Blackburn and Stoll, LC; Attorneys for Appellees SkaggsCompany and CAN Insurance; Alan L. Hennebold; Deputy Commissioner Labor Commission ofUtah.Richard Mendoza; Appellant Pro Se.

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Recommended CitationReply Brief, Mendoza v. Skaggs Companies, No. 20051090 (Utah Court of Appeals, 2005).https://digitalcommons.law.byu.edu/byu_ca2/6158

IN THE UTAH COURT OF APPEALS

RICHARD MENDOZA,

Petitioner/Appellant,

v.

SKAGGS COMPANIES and/or CNA INSURANCE, and the UTAH LABOR COMMISSION

Respondents/Appellees.

Court of Appeals Case No. 2005-1090

Priority 7

Labor Commission No.: 2002-1380

REPLY BRIEF OF APPELLANT RICHARD MENDOZA

Appeal from the Utah Labor Commission

Mark D. Dean (5271) Richard Mendoza Kristy L. Bertelsen (8148) 48 West 300 South #N407 BLACKBURN & STOLL, LC Salt Lake City, Utah 84101 Attorneys for Appellees Skaggs Appellant Company and CAN Insurance 257 E. 200 South, Suite 800 Salt Lake City, Utah 84111

Alan L. Hennebold Deputy Commissioner Labor Commission of Utah 160 East 300 South P.O. Box 146615 Salt Lake City, Utah 84114-6615

FILED UTAH APPELLATE COURTS

JAN 2 2 2007 #218738 vl

IN THE UTAH COURT OF APPEALS

RICHARD MENDOZA,

IVlilioiHM/Appclkinl,

SKAGGS COMPANIES and or CNA INSURANCE, and the UTAH I ABOI COMMISSION

Ui'sp()M(len(s/A|)|icllci s

Court of Appeals Case No. 2005-1090

Prion! \

m i l . i i i , ' I M K ' - 1 ' .SO

REPLY BRIEF OF APPELLANT RICHARD MENDOZA

\\)\v 'I t'lnm (lir I H I]I I IIM>I ('ommission

Mark D. Dean (5271) Kristy L. Bertelsen (814s BLACKBURN & STOLE, . . Attorneys for Appellees Skaggs Company and CAN Insurance 257 E. 200 South, Suite 800 Salt Lake City, Utah 84111

Alan L. Hennebold Deputy Commissioner Labor Commission of Utah 160 East 300 South P.O. Box 146615 Salt Lake City, Utah 84114-6615

Richard Mendoza 48 West 300 South #N407 Salt Lake City, Utah 84101 Appellant

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Petitioner/Appellant Richard Mendoza hereby files this Reply Brief which is

intended to demonstrate that the arguments made in the Brief of Appellee are unavailing

and that he is entitled to the relief sought in his appeal.

The fundamental fallacy with the argument that the Appellees filed a Motion for

Review within the applicable thirty (30) day deadline from the Order of the

Administrative Law Judge is that the Appellee misstates the Order which it should have

appealed. The Course of Proceedings set forth in the Statement of Facts in the Brief of

Appellee at pages 3 through 7 demonstrates that this is the case. The Appellee acts as if

the operative order was issued on February 28, 2005. That is false. The Order which the

Appellee failed timely to Appeal is the Supplemental and Amended Findings of Fact,

Conclusions of Law and Order ("Supplemental Order") (R., 57-60), which set forth the

rights of Appellant and from which the Appellee failed to file its Appeal to the Labor

Commission within thirty (30) days. The operative order, which sets forth the

Appellant's rights was issued on February 8, 2005. That would have required an Appeal

within thirty (30) days if Appellee wished to challenge it before the Labor Commission.

Yet, Appellee admits it did not file its Motion for Review to the Labor Commission until

March 30, 2005, fifty (50) days after the Administrative Law Judge's Supplemental

Order was entered.

The Supplemental Order, which sets forth Appellant's rights, gave Appellant the

following:

#218738 vl 2

a. His medical costs related to his industrial accident, except that he was awarded no compensation for the DRS traction therapy;

b. Temporary total compensation in the amount of $51,005;

c. $6,705 in consideration of his 7% whole person impairment related to the industrial accident as permanent partial disability compensation;

d. Interest at 8% from the time the medical costs and wage compensation payments were due until paid. (R., 60).

That award, is, in essence, what the Appellee appealed from on March 30, 2005,

when it finally filed its Motion for Review to the Labor Commission.

Appellee argues that there would be a windfall for Appellant, because on the

merits he is not entitled to such an award. Aside from Appellant's disagreement with that

characterization, that argument is immaterial to this appeal because the question here is

one of jurisdiction, jurisdiction of the Labor Commission to review the Supplemental

Order.

In Gillett v. Price, 135 P.3d 861 (Utah 2006), the Utah Supreme Court noted with

respect to the Utah Rules of Civil Procedure that post-judgment motions to reconsider are

not recognized in the Rules of Civil Procedure, and therefore held that a Motion for

Reconsideration cannot toll the time period allowed for appeal. Likewise, that same

reasoning must lead this Court to find that there is no tolling of the thirty (30) day appeal

period to the Labor Commission caused by the filing of a Motion for Reconsideration.

Indeed, as Appellee admits in its Brief, it is well settled under Utah law that a Motion for

Review must be filed within thirty (30) days from the ALJ's Order. [Brief of Appellee at

#218738 vl 3

11]. Appellee further admits that it "is not aware of any current statute or rule in Utah

that currently addresses whether a party may file a Motion for Reconsideration of ALJ's

Orders". [Id.] While Motions for Review were "previously" permitted pursuant to prior

Utah statute (§35-1-82.53, Utah Code Ann. 1987), that prior statute is, according to

Appellee's own admission, not currently effective.

The Appellee, despite attempts at basing its rights on §34A-2-420, fails, as it must,

to point to any statute allowing a Motion for Review or Reconsideration to the

Administrative Law Judge to toll the thirty (30) day deadline set for an Appeal to the

Labor Commission. Thus, the failure to Appeal to the Labor Commission within thirty

(30) days, as admittedly required by Utah statute, is fatal to Appellee's argument, and no

Utah statute permits the Labor Commission to take jurisdiction of an Appeal if it is not

filed within thirty (30) days of the Order.

Only by mischaracterizing the February 28, 2005 Order regarding Motion for

Reconsideration as the operative order can the Appellee even attempt to make its

argument. To honor this argument would be tantamount to honoring an argument that

despite the dictates of Gillett a Motion for Reconsideration in a civil court would toll the

thirty (30) day deadline to appeal.

Appellee argues that its letter dated February 14, 2005 to the Honorable Dale

Sessions, the Administrative Law Judge (R., 61-62), may be considered a Motion for

Review to the Commission. [Brief of Appellee at 8, 10]. However, this letter was

addressed solely to Judge Sessions, was called a "Motion for Reconsideration and/or

Motion for Review to Supplement and Amended Findings of Fact, Conclusions of Law

#218738 vl 4

and Order" dated February 8, 2005 (R., 61), and asked only Judge Sessions to amend the

February 8, 2005 Supplemental Order. (R., 62). Appellee well recognizes that this was

not an appeal to the Commission but was rather a Motion for Reconsideration. When

Appellee finally got around to an appeal on March 30, 2005, it called the document

MOTION FOR REVIEW, and rather than send it as a letter to the Administrative Law

Judge, it filed it with the Labor Commission of Utah. (R., 66-69). A mere glance at the

letter sent to Administrative Law Judge Sessions on February 14, 2005 (R., 61-62) on the

one hand, and the Motion for Review, captioned Richard Mendoza Petitioner vs. Skaggs

Companies, Inc., and/or CNA Respondents, in the Labor Commission of Utah (R., 66-

69), demonstrates plainly that the February 14, 2005 letter was a Motion for

Reconsideration filed with the Administrative Law Judge as opposed to a Motion for

Review to the Labor Commission.

Therefore, it is uncontrovertable that the Appeal of the February 8, 2005 Order to

the Labor Commission was not filed even close to the thirty (30) day deadline.

Finally, Skaggs seems to talk about the custom at the Labor Commission to allow

Administrative Law Judges to reconsider and amend their orders. While this may go on,

it cannot and does not toll the thirty (30) day time period for appeals of orders. Utah

statutes do not allow for such a tolling, and custom cannot allow an administrative

agency to violate or ignore a statutory scheme.

Nor does the Labor Commission rule cited by Appellee provide for such a tolling

in this case. Rule R602-2(M) provides:

M. Motions for Review.

#218738 vl 5

\ny party to an adjudicative proceeding may obtain review of an Order issued by an Administrative Law Judge by filing a written request for review with the Adjudication Division in accordance with the provisions of Section 63-46b-12 and Section 34A-1-303, Utah Code. Unless a request for review is properly filed, the Administrative Law Judge's Order is the final order of the Commission. If a request for review is filed, other parties to the adjudicative proceeding may file a response within 20 calendar days of the date the request for review was filed. If such a response is filed, the party filing the original request for review may reply within 10 calendar days of the date the response was filed. Thereafter the Administrative Law Judge shall;

a. Reopen the case and enter a Supplemental Order after holding such further hearing and receiving such further evidence a? mav be deemed nece^sarv

b . AiiK-i.w . .»iw*;.:> ,.M , ; . . . . . . : . * , . • . „ .Mippiei i iCi iLi l

Order; or

t\ Relet* the entire case for review under Section 34A 2-801, Utah C< >de;

2. ii the Administrative Law Judge enters a Supplemental Order, as provided in this subsection, it shall be final unless a request for review of the same is filed, (emphasis added)

Rule K(>0J. 4J\[), il il allows sin Ii ,i Irllm/1, ',•, ,'iiM MTIII In b kyun l III" ' "ifirmv i"11'

powers under Utah statutes and could not pass legal muster. But, by its terms, 602-2(M)

cannot possibly have any applicability to this case. The only allowance for an

Ailiiiiiiislialivn III AV lndj',t In u'opeii a HIM11 and coin a siipplriiu'nliil inula mieml m

modify his prior by a supplemental order or uo any him; else undei this rule is, "[I]f a

request for review is T«>» .I ^ ? " fher parties to the adjudicative proceeding may file a

reSp0nse w i t h i n 20 cu icnua i uayb ut ijis._sl.aic. niu I H J U I M iOl i WOVv w<us i l k d

case, after Appellee's 1 -cbrucu •* ! 1, _ 0i>3 toller to the VLJ asking him u reconsider, no

#218 738 vl 6

other party filed a response to that letter. Therefore, §602-2(M), even if it were allowed

by Utah statute, did not come into play.

Finally, even if an Administrative Law Judge can review, revise and amend his or

her orders, that does not mean that the thirty (30) day time period is tolled. A party who

seeks review to an Administrative Law Judge and fails to ask for review by the

Commission within thirty (30) days, does so at that party's peril.

For the reasons set forth in Appellant's Opening Brief and in this Brief, and

because of the statutory scheme in Utah for review of Orders of Utah Labor Commission

Administrative Law Judges, it is plain that the Labor Commission's review of the

Supplemental Order was done without jurisdiction. The terms of the Supplemental Order

dated February 8, 2005 (R., 57-60) must be reinstated, with all the relief given Appellant

therein reinstated.

RESPECTFULLY SUBMITTED this t ^ d a y of January, 2007.

Richard Mendoza ^ ^ Petitioner/Appellant

#218738 vl 7

CER l'lFlC/v i ii UF SLR\ ICE

The undersigned hereby certifies that on this ^ day of January, 2007, two true and correct copies of the foregoing REPLY BRIEF OF APPELLANT RICHARD MENDOZA was served by U.S. mail, postage prepaid, as follows:

Mark D. Dean Kristy L. Bertelsen BLACKBURN & STO: L. 257 East 200 South, Suite 80o Salt Lake City, Utah 84! l ] Attorneys for Appellees Skaggs Company and CAN Iv suram •

Alan L. Hennebold Deputy Commissioner Labor Commission o f 160 East 300 South P.O. Box 146615 Salt Lake City, Utah 84114 6615

#218738 vl 8