Harper Inv. v. Bell

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Harper Inv. v. Bell Case No. 20000806-CA



Harper Investment, Inc.; and American Home Assurance Co.,


Claud Bell,

(Not For Official Publication)

Case No. 20000806-CA

(December 6, 2001)

2001 UT App 371



Original Proceeding in this Court

Carrie T. Taylor and Mark R. Sumsion, Salt Lake City, for Petitioners
Alan Hennebold, Salt Lake City, and Virginius Dabney, St. George, for Respondent


Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

Petitioners Harper Investment, Inc. and American Home Assurance Co. seek review of a Utah Labor Commission order pursuant to Utah Code Ann. § 63-46b-16 (1997). The Commission's April 27, 1999 order is not a final order; thus, we must dismiss the petition for lack of jurisdiction. See Utah Code Ann. § 78-2a-3(2)(a) (Supp. 2001) (stating the court of appeals has jurisdiction to review final orders and decrees of state agencies); Merit Elec. v. Utah Dep't of Commerce, 902 P.2d 151, 152-53 (Utah Ct. App. 1995).

The permanent total disability statute in effect at the time of Bell's injury, Utah Code Ann. § 35-1-67(6) (1994), states that "[a] finding by the commission of permanent total disability is not final" until there is a hearing to review any reemployment plan submitted by the employer. There has been no hearing on the reemployment plan nor is there any indication in the record that the employer will forgo submitting one.

Moreover, the language of the Commission's order itself indicates the agency action is not final. The Commission indicated that its award of permanent total disability was "tentative," and that the matter was to be remanded to the ALJ for further findings on several issues, including the determination of liability for certain medical expenses and a hearing on the reemployment plan. The Commission's order concludes with this directive: "The ALJ will then issue a decision addressing [the issues remanded] and also mak[e] a final determination regarding Mr. Bell's entitlement to permanent total disability compensation."

Thus, the order that petitioners seek to have reviewed is not final under Union Pacific Railroad Co. v. Utah Tax Commission, 2000 UT 40,¶16, 999 P.2d 17, because it is "preliminary, preparatory . . . or intermediate with regard to subsequent agency action," and judicial review will "disrupt the orderly process of adjudication." See also Color Country Mgmt. v. Labor Comm'n, 2001 UT App 370,¶46; Barker v. Pub. Serv. Comm'n, 970 P.2d 702, 706 (Utah 1998).

We dismiss the petition for review for lack of jurisdiction.(1)

James Z. Davis, Judge



Norman H. Jackson, Associate Presiding Judge

William A. Thorne, Jr., Judge

1. Although we dismiss the petition for review for lack of jurisdiction, and hence have no opportunity to address the merits of the petition, we note, for the sake of the parties and the Commission, that pursuant to our decision in Color Country Management v. Labor Commission, 2001 UT App 370,¶46, because the April 1999 order is not final, the May 2000 abstract was improperly issued.