                    This opinion is subject to revision before final
                         publication in the Pacific Reporter

                                    2017 UT 87


                                       IN THE

          SUPREME COURT OF THE STATE OF UTAH

                             STEVEN G. PETERSEN,
                                  Petitioner,
                                          v.
         UTAH LABOR COMMISSION and GRANITE SCHOOL DISTRICT,
                            Respondents.

                                No. 20150203
                           Filed December 1, 2017

                Petition for Review of an Agency Decision

                                    Attorneys:
    Halston T. Davis, Jared L. Mortenson, Salt Lake City, for petitioner
           Jaceson R. Maughan, Salt Lake City, for respondent
                        Utah Labor Commission
    Bret A. Gardner, Kristy L. Bertelsen, Salt Lake City, for respondent
                          Granite School District
     Troy L. Booher, Beth E. Kennedy, Salt Lake City, for amicus Utah
                          State Board of Regents
        Stanford E. Purser, Salt Lake City, for amicus State of Utah

    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
              JUSTICE DURHAM and JUSTICE HIMONAS joined.
               ASSOCIATE CHIEF JUSTICE LEE filed an opinion
                        concurring in the result.
         JUSTICE PEARCE filed an opinion concurring in the result.




_____________________________________________________________

 Justice Durham sat on this case and voted prior to her retirement
on November 15, 2017.
                     PETERSEN v. LABOR COMM’N
                         Opinion of the Court

   CHIEF JUSTICE DURRANT, opinion of the Court:

                             Introduction
    ¶ 1 This case presents the question of whether Utah Code
section 35-1-65 (1982) operates as an unconstitutional statute of
repose under the Open Courts Clause of the Utah Constitution. The
statute provides that an injured worker who is temporarily totally
disabled “shall receive” a specified amount of compensation per
week, but that “[i]n no case shall compensation benefits exceed 312
weeks . . . over a period of eight years from the date of the injury.”1
In November 1982, Steven Petersen suffered a back injury when,
while working for the Granite School District (Granite), a 500-pound
cast iron boiler door fell onto him. In proceedings before the Utah
Labor Commission (Commission), an impartial medical panel
concluded that Mr. Petersen’s 1982 injury was the medical cause of a
subsequent surgery in 2014. An administrative law judge (ALJ), with
the Commission, denied Mr. Petersen’s request for temporary total
disability compensation following the 2014 surgery on the ground
that more than eight years had elapsed since the date of the injury.
Mr. Petersen appealed this decision to the appeals board of the
Commission (Appeals Board), which affirmed.
   ¶ 2 Mr. Petersen filed a petition for review with this court. He
argues that the statute cuts off his right to temporary total disability
compensation before it accrued, thus operating as an
unconstitutional statute of repose in violation of the Open Courts
Clause of the Utah Constitution. We hold that section 35-1-65 does
not abrogate any previously existing remedy and so is not subject to
an Open Courts Clause challenge. We disagree with Mr. Petersen’s
contention that his common law tort cause of action was abrogated
with no adequate substitute remedy and hold that the Workers’
Compensation Act as a whole is an adequate substitute. We
therefore affirm the Commission’s decision.
                             Background
   ¶ 3 On November 10, 1982, Mr. Petersen injured his back while
working for Granite. Mr. Petersen underwent back surgery in
_____________________________________________________________
   1 UTAH CODE § 35-1-65 (1982). This court applies the law as it
existed at the time of the injury. Brown & Root Indus. Serv. v. Indus.
Comm’n, 947 P.2d 671, 675 (Utah 1997). Accordingly, the 1982 version
of the Workers’ Compensation Act governs this case, and all
subsequent references are to that version unless otherwise noted.

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                         Opinion of the Court

December 1983. Granite paid the medical costs of this surgery, as
well as temporary total disability compensation following this
surgery.
   ¶ 4 Mr. Petersen returned to work, and in July 1987,
experienced a second work accident. He underwent a second back
surgery in March 1988 and a third back surgery in December 1989.
Granite paid for medical costs and temporary total disability
compensation following both surgeries. In January 2004, more than
twenty years after the date of the original accident, Mr. Petersen
underwent a fourth back surgery. He was off work for seven
months, and Granite paid for both the medical costs of surgery and
temporary total disability compensation for this period.
    ¶ 5 In June 2011, while still working for Granite, Mr. Petersen
slipped and fell into a trench, landing with his back on an exposed
rock. He was off work for two weeks and then returned to his
regular work duties. In March 2014, Mr. Petersen underwent a fifth
surgery, but this time Granite refused to pay temporary total
disability compensation. Mr. Petersen then sought a hearing before
the Commission, seeking temporary total disability compensation
for work missed following the 2014 surgery.
    ¶ 6 The ALJ referred the case to a medical panel, which
concluded that Mr. Petersen’s 1982 accident, and not his 2011
accident, medically necessitated the 2014 surgery.2 The ALJ denied
Mr. Petersen’s request for temporary total disability compensation
on the grounds that the eight-year period specified by Utah Code
section 35-1-65 is a statute of limitation that expired on November
10, 1990, eight years from the date of the initial workplace accident.
    ¶ 7 Mr. Petersen appealed the ALJ’s decision to the Appeals
Board. The Appeals Board disagreed with the ALJ, concluding that
section 35-1-65 is a statute of repose that may be unconstitutional
under the Open Courts Clause of the Utah Constitution. But because
the Appeals Board concluded that it lacked authority to adjudicate
the constitutionality of the statute, it affirmed the ALJ’s order
denying temporary total disability compensation. Mr. Petersen then
filed a petition for review, which was certified to this court. His sole

_____________________________________________________________
   2 The ALJ and the Appeals Board agreed with the medical panel
that the 1982 events, and not the 2011 events, were the medical cause
of the 2014 surgery. Mr. Petersen has not challenged this finding on
appeal.

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                        PETERSEN v. LABOR COMM’N
                           Opinion of the Court

contention before this court is that section 35-1-65 operated as an
unconstitutional statute of repose under the Open Courts Clause.
                            Standard of Review
    ¶ 8 This court “has jurisdiction to review all final agency action
resulting from formal adjudicative proceedings”3 and is empowered
to “grant relief” where “a person seeking judicial review has been
substantially prejudiced” because “the agency action, or the statute
or rule on which the agency action is based, is unconstitutional on its
face or as applied”4 or “the agency has erroneously interpreted or
applied the law.”5 “A person is ‘substantially prejudiced’ when the
agency’s erroneous interpretation or application is not harmless. We
review that agency’s interpretation or application of the law for
correctness.”6
                                 Analysis
   ¶ 9 There are two issues on appeal: first, whether Utah Code
section 35-1-65, the temporary total disability statute, is a statute of
limitation or a statute of repose. If it is a statute of limitation, our
analysis ends.7 If it is a statute of repose, we must address whether it
survives scrutiny under our Open Courts Clause jurisprudence.
   ¶ 10 We conclude that section 35-1-65 is not a statute of
limitation, but that, in any event, it does not operate to abrogate a
_____________________________________________________________
   3   UTAH CODE § 63G-4-403(1).
   4   Id. § 63G-4-403(4)(a).
   5   Id. § 63G-4-403(4)(d).
   6 Employers’ Reinsurance Fund v. Labor Comm’n, 2012 UT 76, ¶ 8,
289 P.3d 572 (citation omitted).
   7 Mr. Petersen has not argued that the statute, if one of limitation,
would be unconstitutional. If he had, such a challenge would rest on
an uncertain legal foundation. The constitutionality of a statute of
limitation under the Open Courts Clause has not been addressed by
this court, because such a challenge does not pass even the first step
of the Open Courts Clause analysis—the legislature has not
“abrogated” a cause of action by specifying a reasonable period of
time after accrual during which the cause of action must be asserted.
See Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah
1985) (“To be constitutional, a statute of limitations must allow a
reasonable time for the filing of an action after a cause of action
arises.”).

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                           Opinion of the Court

previously existing remedy and so is not subject to challenge under
the Open Courts Clause. Moreover, we conclude that the only
plausible challenge Mr. Petersen could raise is that section 35-1-65 is
an inadequate substitute remedy for the loss of an injured
employee’s common law tort claim. We hold, however, that such a
challenge must fail because the Utah Workers’ Compensation Act
(WCA) as a whole is an adequate substitute remedy for the loss of
such a tort claim.
I. Utah Code Section 35-1-65 Is Not a Statute of Limitation and Does
           Not Abrogate a Previously Existing Remedy
    ¶ 11 The first issue we must decide is whether Utah Code section
35-1-65 is a statute of limitation or repose. After examining how
section 35-1-65 operates within the WCA context, we conclude that it
is not a statute of limitation. We next assess whether the statute is
one of repose that abrogates a remedy in a manner implicating the
Open Courts Clause of the Utah Constitution. Because it does not
operate to abrogate a previously existing remedy, we hold that
section 35-1-65 does not implicate our open courts jurisprudence.
  A. Section 35-1-65 Is Not a Statute of Limitation Because It Does Not
 Specify a Time Period Following the Accrual of a Cause of Action During
                     Which a Claim Must Be Brought
    ¶ 12 As noted above, we must determine whether section 35-1-65
is a statute of limitation or repose. “A statute of limitations requires a
lawsuit to be filed within a specified period of time after” a cause of
action accrues. 8 In contrast, a statute of repose “bars all actions after
a specified period of time has run from the occurrence of some event
other than the occurrence of an injury that gives rise to a cause of
action.”9 Thus, to assess whether section 35-1-65 is a statute of
limitation or repose, we must determine what event—whether the
accrual of a cause of action or some other event—starts the clock on
the statutory time period.
    ¶ 13 “[A] cause of action accrues upon the happening of the last
event necessary to complete the cause of action.”10 The difficulty in
this case, then, is determining what constitutes a “cause of action” in
the Workers’ Compensation context and when such a cause of action
_____________________________________________________________
   8Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah
1985).
   9   Id.
   10   Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983).

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                       PETERSEN v. LABOR COMM’N
                           Opinion of the Court

“accrues.” “Workers’ compensation claims are best viewed as a
process, rather than as a discrete event . . . .”11 We have recognized
that WCA “remedies, whether viewed individually or together, are
not analogous to an ordinary lump-sum judgment that the common
law provides for personal injury actions.”12
   ¶ 14 The relevant portions of section 35-1-65 provide:
         In case of temporary disability, the employee shall
         receive 66 2/3% of that employee’s average weekly
         wage at the time of the injury so long as such disability
         is total . . . . In no case shall compensation benefits
         exceed 312 weeks . . . over a period of eight years from
         the date of the injury.
We note from the outset that while the statute runs from the “date of
the injury,” we have consistently interpreted this phrase to mean the
date of the workplace accident.13 The question then becomes
whether the “last event necessary to complete the cause of action” is
the workplace accident. If so, section 35-1-65 is a statute of limitation.
If not, then the statute is not one of limitation because it runs from a
date other than the happening of the last event necessary to give rise
to a cause of action.
   ¶ 15 Granite argues that Mr. Petersen’s “cause of action” for
temporary total disability, unlike a claim for death benefits, 14 did not

_____________________________________________________________
   11 Color Country Mgmt. v. Labor Comm’n, 2001 UT App 370, ¶ 26,
38 P.3d 969, aff’d sub nom. Thomas v. Color Country Mgmt., 2004 UT 12,
84 P.3d 1201.
   12   Stoker v. Workers’ Comp. Fund, 889 P.2d 409, 411 (Utah 1994).
   13 Our court, as well as the court of appeals and the Commission,
has consistently assumed that the “date of the injury” referred to in
section 35-1-65 is the date of the workplace accident. See, e.g., U.S.
Smelting, Ref. & Mining Co. v. Nielsen, 430 P.2d 162, 163 (Utah 1967)
(“[W]hen an industrial accident occurs on a certain date, any
disability resulting therefrom is compensable during six years after
such accident occurred . . . .”). Mr. Petersen has not argued
otherwise, so we assume that the “date of the injury” referred to in
the statute is the date of the workplace accident.
   14 See Hales v. Indus. Comm’n, 854 P.2d 537, 539 (Utah Ct. App.
1993); Velarde v. Bd. of Review of Indus. Comm’n, 831 P.2d 123, 126–29
(Utah Ct. App. 1992).

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“arise after the happening of some unanticipated event such as a
need for surgery, or even death, but rather runs from the date of the
injury as explicitly provided for by the statute.”15 In Granite’s view, a
WCA cause of action fully accrues on the date of the accident.
Though there is some support for this argument in our caselaw, 16 we
ultimately reject it, at least in the context of section 35-1-65.
   ¶ 16 Mr. Petersen’s cause of action for temporary total disability
compensation did not fully accrue when he was first injured in 1982.
Instead, that right accrued at the moment he became temporarily
disabled and therefore entitled to compensation. This is because the
period of disability is the “last event necessary to complete the cause
of action” under the statute, which provides that temporary total
disability compensation “shall” be awarded “so long as” the
“disability is total.” 17 The words “so long as” necessarily convey that
the disability could cease to be total, or that it might not be total
immediately upon the happening of the accident. Because the statute
requires that “disability” be “total” before compensation may be
awarded, and total disability may not occur on the day of the

_____________________________________________________________
   15  Our court of appeals has accepted this view, holding that a
cause of action for temporary total disability benefits fully accrues on
the date of the accident. See Middlestadt v. Indus. Comm’n, 852 P.2d
1012, 1013 (Utah Ct. App. 1993). There, an injured employee applied
for temporary total disability benefits more than eight years after his
workplace accident. Id. The court of appeals stated that it had “held
in Avis v. Industrial Commission, 837 P.2d 584 (Utah Ct. App. 1992) . . .
that a worker’s cause of action accrues when the industrial accident
occurs. A statute requiring filing within a set period following the
accident is therefore a statute of limitation, not a statute of repose.”
Id. The Middlestadt court then applied this logic to section 35-1-65,
concluding it to be a statute of limitation because, in that court’s
view, the cause of action accrued with the happening of the accident.
Id. at 1014.
   16 For example, we have stated that “[a] claim for compensation
under the Industrial Act is only one claim, no matter how many
hearings are had or how many distinct awards are made. It is a claim
by the employee for compensation for the injury he has sustained,
notwithstanding the compensation may be determined from time to
time resulting in many distinct awards.” Vigos v. Mountainland
Builders, Inc., 2000 UT 2, ¶ 29 n.7, 993 P.2d 207 (citation omitted).
   17   UTAH CODE § 35-1-65.

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                          PETERSEN v. LABOR COMM’N
                            Opinion of the Court

accident, the happening of the workplace accident alone is not the
“last event necessary” to entitle Mr. Petersen to compensation. A
statute of limitation runs from the last event necessary to complete
the cause of action. But a statute of repose runs from a date other
than this last event.18 This statute runs not from the time that an
injured worker enters a period of total disability, but instead from
the happening of the accident. Thus, it is not a statute of limitation.
 B. Section 35-1-65 Does Not Violate the Open Courts Clause, Because It
             Does Not Cut Off a Previously Existing Remedy
    ¶ 17 Mr. Petersen argues that section 35-1-65 is a statute of repose
that abrogates his right to a remedy in violation of our Open Courts
Clause. After briefly reviewing our open courts jurisprudence, we
conclude that even if the statute qualifies as a statute of repose, it
does not violate our constitution because it does not operate to cut
off a previously existing remedy, and so Mr. Petersen’s challenge to
the statute fails.
    ¶ 18 A “statute of repose bars all actions after a specified period
of time has run from the occurrence of some event other than the
occurrence of an injury that gives rise to a cause of action.”19 Based
on this definition, section 35-1-65 is arguably a statute of repose: it
bars all actions for temporary total disability after eight years have
run from the occurrence of the workplace accident, which, as
discussed above, is not the last event necessary to create a cause of
action for temporary total disability.
   ¶ 19 But a closer review of section 35-1-65 and its history reveals
that it does not operate to cut off a previously existing remedy.
Because it does not, section 35-1-65 is not akin to those statutes we
have found susceptible to Open Courts Clause challenges.20 Section
_____________________________________________________________
   18   See supra ¶ 12.
   19   Berry, 717 P.2d at 672.
   20  See id. at 683 (striking down a products liability statute of
repose that cut off previously existing rights to bring actions for
products liability); Sun Valley Water Beds of Utah, Inc. v. Herm Hughes
& Son, Inc., 782 P.2d 188, 193–94 (Utah 1989) (same, with regard to a
architects and builders statute of repose); cf. Judd v. Drezga, 2004 UT
91, ¶ 10, 103 P.3d 135 (considering the merits of an Open Courts
clause challenge to a statute that had the effect of “diminish[ing], but
not eliminat[ing]” certain damages previously awardable for medical
malpractice).

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                           Opinion of the Court

35-1-65 does not cut off a previously existing right to temporary total
disability compensation; instead, it creates a right to temporary total
disability compensation, albeit with a built-in time limitation. A
review of our Open Courts Clause jurisprudence reveals the types of
statutes that constitute statutes of repose subject to constitutional
inquiry and demonstrates that section 35-1-65 is not such a statute.
   ¶ 20 The Open Courts Clause of the Utah Constitution provides:
         All courts shall be open, and every person, for an
         injury done to him in his person, property or
         reputation, shall have remedy by due course of law,
         which shall be administered without denial or
         unnecessary delay; and no person shall be barred from
         prosecuting or defending before any tribunal in this
         State, by himself or counsel, any civil cause to which he
         is a party.21
This provision provides a substantive check against legislative
power22 by “impos[ing] some limitation” on the legislature’s “great

_____________________________________________________________
   21   UTAH CONST. art. I, § 11.
   22 We note that we requested supplemental briefing on whether
we should overrule this aspect of our precedent. We asked the
parties to address the issue of whether the Open Courts Clause
“provide[s] a substantive guarantee against the elimination of
remedies recognized by the law in the past” or whether it is “only a
procedural guarantee of access to our courts ‘by due course of law’
for any remedies currently recognized by our law?” In essence, this
question asks whether the Open Courts Clause provides a
substantive protection against the legislature prospectively changing
the remedies available for injuries, or whether it merely guarantees
procedural safeguards for injured persons to obtain access to the
courts in order to obtain whatever legal remedies are currently
provided by law. While we appreciate the parties’ and amici’s
thoughtful arguments on this point, we do not reach this issue.
Because we conclude that section 35-1-65 is constitutional even
under our current interpretation of the Open Courts Clause, we do
not address the issue of whether we should overrule Berry and its
progeny and adopt a procedural interpretation of that clause. We
consider this to be a matter of constitutional avoidance; we will not
overturn decades of precedent in the context of a case whose factual
basis does not require us to do so.

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                        PETERSEN v. LABOR COMM’N
                           Opinion of the Court

latitude in defining, changing, and modernizing the law.” 23 To
determine whether legislation violates the Open Courts Clause, we
first look to see whether the legislature has abrogated a cause of
action, or modified a cause of action by abrogating a remedy.24 If so,
the legislation is invalid unless the legislature has provided an
“effective and reasonable alternative remedy,”25 or the abrogation “is
not an arbitrary or unreasonable means for” eliminating “a clear
social or economic evil.”26
   ¶ 21 Mr. Petersen’s challenge to section 35-1-65 does not survive
step one of this analysis. He argues that the statute abrogates a
remedy because it bars him from obtaining temporary total disability
beyond eight years from the date of his workplace accident. We
disagree.
   ¶ 22 First, we have never accepted an interpretation of the Open
Courts Clause that affirmatively requires the legislature to provide a
remedy for every type of injury.27 Instead, “we look to see whether
the plaintiff could have brought his or her cause of action prior to”
the passage of the law that currently acts as a barrier to the action.28
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   23   Berry, 717 P.2d at 676.
   24Laney v. Fairview City, 2002 UT 79, ¶ 49, 57 P.3d 1007 (“[W]e
must first determine whether a cause of action has been abrogated
by the legislative enactment. If no remedy was eliminated, there is
no need to proceed with the Berry test.”).
   25   Berry, 717 P.2d at 680.
   26   Id.
   27 E.g., Craftsman Builder’s Supply, Inc. v. Butler Mtg. Co., 1999 UT
18, ¶ 140, 974 P.2d 1194 (Zimmerman, J., concurring in result with
opinion) (“I dismiss from the start any notion that [the Open Courts
Clause] guarantee[s] a remedy for every injury. The law simply does
not recognize that every harm suffered should be compensated. The
principle damnum absque injuria, that there can be damage without
the violation of a legal right, is too well established in our
jurisprudence to give such an expansive interpretation to the obscure
phrasing of the open courts provision.”).
   28 Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 54, 356 P.3d 1172; see
also Judd, 2004 UT 91, ¶ 10 (“As part of our Berry jurisprudence, we
have fashioned a test by which we can discern whether the
legislature had sufficient reason to diminish or eliminate a previously
existing right to recover for an injury.” (emphasis added)).

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This essentially amounts to a “but for” test. That is, we ask whether,
but for the challenged statute, the claimant would have been able to
bring a cause of action or obtain a remedy. Here, even in the absence
of section 35-1-65, Mr. Petersen would not be entitled to temporary
total disability compensation over thirty years from the date of his
workplace accident.
   ¶ 23 The heart of the problem is that Mr. Petersen would not
have been able to bring a cause of action to receive temporary total
disability benefits more than eight years29 after his workplace
accident before the passage of the 1917 WCA. In fact, before 1917, he
would have not been able to seek temporary total disability
compensation at all. Therefore, to say that the legislature has
abrogated Mr. Petersen’s remedy because he is not eligible for
temporary total disability compensation after eight years from the
accident is erroneous. Because Mr. Petersen is challenging a portion
of the WCA that created a new right in its original enactment in
1917, he cannot show that any previously existing right or remedy
has been abrogated.30


_____________________________________________________________
   29 Mr. Petersen actually has two more years than he would have
had under the 1917 version of the statute, which provided for
temporary total disability compensation for six years from the date
of the injury. 1917 Laws of Utah 330, ch. 100, § 76 (codified at Utah
Code § 42-1-61 (1933)). Mr. Petersen has eight years under the 1982
version of the statute. The legislature has since amended the statute
to extend the period of compensation eligibility to twelve years from
the date of the injury. UTAH CODE § 34A-2-410 (2016).
   30  This would be a different case if the legislature had initially
provided a remedy in the WCA in 1917 that it subsequently took
away. Comparing the temporary total disability statute with the
permanent partial disability statute helps illustrate this point. When
first enacted, the permanent partial disability statute provided that
an employee “shall receive, during such disability and for a period
not to exceed six years . . . a weekly compensation.” UTAH CODE
§ 42-1-62 (1933). This court interpreted the “six year” limitation to
mean that a claimant was entitled to receive up to six years’ worth of
compensation, no matter how long had passed between the date of
injury and the disability period. See Hardy v. Indus. Comm’n, 58 P.2d
15, 17 (1936) (holding that the “limitation . . . relates to the disability
period and not the calendar period dating from the injury”).
                                                             (Continued)
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                           PETERSEN v. LABOR COMM’N
                             Opinion of the Court

    ¶ 24 He nevertheless proceeds on the theory that the legislature
has deprived him of the right to a lifetime of eligibility for temporary
total disability compensation. The problem with this view is that
Mr. Petersen is seeking something to which no one in Utah has ever
been entitled. The logical extension of his argument is that he is
entitled to temporary total disability compensation whenever he
becomes temporarily totally disabled, presumably at any point
during the remainder of his life. Neither the common law nor the
Utah legislature ever provided for such a remedy. Therefore, it is
inaccurate to say that section 35-1-65 abrogates a remedy.
   ¶ 25 We recognize that this conclusion is in apparent tension
with dicta in Stoker v. Workers’ Compensation Fund of Utah.31 There we
recognized that section 35-1-65 “might act to cut off a claim a worker
may have for temporary total disability benefits and possibly raise a
constitutional issue.”32 Mr. Petersen asserts that his case fits this
hypothetical posed by Stoker.
   ¶ 26 First, it is unclear whether we concluded in Stoker that
section 35-1-65 will necessarily cut off rights in some cases, or if we
merely reserved the question of whether it could do so for a future
case.33 If it is the latter, today’s decision is not in conflict with our
conclusion in Stoker because we simply answer that question in the
negative. To the extent we suggested the former in Stoker, we decline
to adopt that reasoning today. Even if the statute cut off
Mr. Petersen’s ability to collect compensation for his most recent
period of total disability before it arose, it still did not cut off a

   The legislature amended the permanent partial disability statute
in 1939, adding the words “from the date of the injury” after the six
year limitation, to clarify that the six-year period was to run from the
calendar date of the injury. The permanent partial disability
amendment could operate to cut off a previously existing remedy,
because it could cut off a right that existed after the enactment of the
WCA, but before its amendment. Temporary total disability
compensation, on the other hand, has featured a time limitation of
“six years from the date of injury” since its original enactment in
1917, and therefore does not cut off a previously existing remedy.
1917 Laws of Utah 330, ch. 100, § 76 (codified at Utah Code § 42-1-61
(1933)).
   31   889 P.2d at 411.
   32   Id.
   33   See id.

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previously existing remedy. The statute simply does not create an
open-ended right to temporary total disability compensation, no
matter how much time has passed since the workplace accident.
Because no such right ever existed, either under the common law or
by statute, section 35-1-65 does not act to cut off such a right after
eight years from the accident. Thus, section 35-1-65 does not
abrogate a previously existing remedy and is not subject to an Open
Courts Clause challenge.34
   ¶ 27 The only plausible argument Mr. Petersen could raise,
though he does not articulate his argument in these terms, is that his
right to recover against his employer in tort at common law was
abrogated by the WCA’s exclusive remedy provision,35 and that
section 35-1-65 is an inadequate substitute remedy because it does
not adequately compensate for the lifetime’s worth of lost wages he
could have proven in a tort action. We now turn to this implied
_____________________________________________________________
   34 We also note another portion of Stoker that is inconsistent with
our opinion in this case and with our precedent. We stated there
that, although section 35-1-65 did not operate as a statute of repose
against Mr. Stoker, he was nevertheless entitled, under the
continuing jurisdiction statute, to go back before the Commission
and ask it to modify his prior award. Stoker, 889 P.2d at 412. To the
extent this conclusion suggests Mr. Stoker could recover temporary
total disability compensation by simply asking the Commission to
modify its earlier award, it is incorrect. That notion is inconsistent
with our cases that have held that the temporary total disability
statute is narrower than the continuing jurisdiction statute, and
applies more directly to the question of whether benefits must be
paid after the time period has elapsed. See U.S. Smelting, 430 P.2d at
164 (“[T]he Commission has continuing jurisdiction only during the
period of the limitations statutes.”). Thus, we have explicitly held
that continuing jurisdiction does not permit the Commission to
award temporary total disability compensation after eight years
from the accident, because that would amount to subverting the
statutory time limitation on when such benefits are available. To the
extent we suggested otherwise in Stoker, we disavow that portion of
the opinion, and clarify that, whether or not a proceeding was
commenced in the Commission within eight years of the injury, the
statute does not permit modification of an earlier award to grant
what amounts to temporary total disability compensation more than
eight years after the injury.
   35   UTAH CODE § 34A-2-105.

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                         PETERSEN v. LABOR COMM’N
                            Opinion of the Court

challenge to the adequacy of section 35-1-65 as a substitute remedy
for workplace injuries.
  II. The Workers’ Compensation Act Does Not Violate the Open
Courts Clause, Because It Provides an Adequate Substitute Remedy
    ¶ 28 The best argument Mr. Petersen could advance is that
section 35-1-65 is an inadequate substitute for the loss of his common
law tort remedy.36 We thus assess whether Utah Code section 35-1-65
and the other rights provided by the WCA constitute an adequate
substitute remedy under the Open Courts Clause. Contrary to
Mr. Petersen’s view, in passing the 1917 WCA the legislature did not
abrogate a right to temporary total disability compensation beyond
eight years from workplace accident. Instead, it abrogated the right
of an injured worker to bring a tort claim against his or her
employer. We thus assess whether the legislature has provided an
effective and reasonable alternative remedy for this abrogation. We
conclude that it has.37
    ¶ 29 We have held that the Open Courts Clause “is satisfied if the
law provides an injured person an effective and reasonable
alternative remedy.”38 A substitute remedy passes this test when it is
“substantially equal in value or other benefit to the remedy
abrogated.”39 The “form of the substitute remedy may be different,”
_____________________________________________________________
   36 For example, Mr. Petersen argues that “the legislature has
arbitrarily taken critical life-sustaining benefits from injured workers
and their dependents . . . without their consent.” We construe this
argument to be an attack on the adequacy of WCA benefits as a
substitute for the loss of the injured employee’s tort claim. Viewed in
any other light, the lack of an available remedy is merely damnum
absque injuria, harm the law has never recognized as legal injury.
   37 The parties also dispute whether the abrogation of temporary
total disability compensation after eight years from the injury is an
“arbitrary or unreasonable” means to eliminate a “clear social or
economic evil.” Again, this argument stems from the incorrect
premise that such a remedy was abrogated. Because we conclude
that an adequate substitute remedy has been provided for the
remedy that was actually abrogated, we do not address the “social or
economic evil” prong of the analysis.
   38Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc.,
782 P.2d 188, 191 (Utah 1989) (citation omitted).
   39   Id. (citation omitted).

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                            Cite as: 2017 UT 87
                            Opinion of the Court

so long as it provides “essentially comparable substantive protection
to one’s person, property, or reputation.”40 Implicit in our
articulation of this comparative task is that we must look holistically
at the supplanted remedy and the supplanting remedy. We do not
evaluate adequacy ex post, from the perspective of one who has been
injured. Instead, we make this determination ex ante, in the shoes of a
member of the public whose rights are supplanted.41 To view an
individual portion of a replacement remedial scheme in isolation
would unnecessarily hamstring the legislature’s ability to provide
substitute remedial schemes and “moderniz[e] the law.”42 The same
problem would arise were we to analyze a particular individual’s
recovery under each system of rights to determine the adequacy of a
substitute remedy. We reject this approach. Instead, we look to the
package of rights an individual enjoyed before and after the
abrogation.
   ¶ 30 With these principles in mind, we note that we have
consistently recognized that, as a global matter, the package of WCA
benefits is an adequate substitute for the loss of the employee’s
common law tort action against his or her employer.43 We reiterate
_____________________________________________________________
   40   Id. at 191–92 (citation omitted).
   41 See Masich v. U.S. Smelting, Ref. & Mining Co., 191 P.2d 612, 624
(Utah 1948). (“The fact that under the act certain of the employees
are denied their common law right . . . does not offend against the
Constitution as certain individual rights and remedies can be made
to yield to the public good.”).
   42Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah
1985).
   43   See Masich, 191 P.2d at 624. (“The constitutionality of
compensation acts is too well settled to be now questioned.“);
Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 81,
974 P.2d 1194 (“[T]he Legislature may establish statutory remedies in
the place of common law remedies, as the Legislature has done in
enacting the Workers’ Compensation Act . . . .”); see also Shattuck-
Owen v. Snowbird Corp., 2000 UT 94, ¶ 19, 16 P.3d 555 (“The workers’
compensation system constitutes a quid pro quo between employers
and employees. Under the Act’s balancing of rights, ‘employees are
able to recover for job-related injuries without showing fault . . . and
employers are protected from tort suits by employees’ by virtue of
the Act’s exclusive remedy provision.” (alteration in original)
(citations omitted)).

                                      15
                        PETERSEN v. LABOR COMM’N
                           Opinion of the Court

that principle today, clarifying that we make this determination by
assessing all of the benefits provided by the WCA.
   ¶ 31 To assert a common law tort claim for a workplace accident
before the enactment of the WCA in 1917,44 an injured worker would
have needed to clear many hurdles. First, the worker would have
needed to convince a jury by a preponderance of the evidence that
his injury resulted from some degree of fault on the part of his
employer, at least negligence.45 Next, he would have been subject to
having his recovery barred or reduced by his own fault 46 or
assumption of risk.47 And though he would have been entitled to
whatever foreseeable lost wages he could prove,48 proving such lost
wages would necessarily be difficult where future aggravations or
deteriorations are speculative.

_____________________________________________________________
   44 The supplemental briefing in this case addressed the question
of whether the rights protected by the Open Courts Clause should be
limited to only those rights existing at the time of the adoption of the
Utah Constitution. Our cases have held to the contrary. See, e.g., Day
v. State, 1999 UT 46, ¶ 38, 980 P.2d 1171 (“The determination of
whether a person who is injured in ‘person, property, or reputation’
has been denied a remedy by due course of law should be decided
by reference to the general law of rights and remedies at the time
that the Legislature abrogates a remedy.”). We find it unnecessary to
consider whether to overturn our precedent in this regard because,
even assuming that we consider the rights and remedies as they
existed at the time of abrogation in 1917, we find that an adequate
substitute remedy has been provided here.
   45 See Grandin v. S. Pac. Co., 85 P. 357, 360 (Utah 1906) (“The
master cannot be expected, nor is he required, to anticipate and
guard against every conceivable kind of accident and misfortune
that might happen to the servant in the performance of the work.”).
   46   See Hone v. Mammoth Mining Co., 75 P. 381, 383 (Utah 1904).
   47   See Dunn v. Or. Short Line R.R. Co., 80 P. 311, 312 (Utah 1905).
   48 See Atwood v. Utah Light & Ry. Co., 140 P. 137, 140 (Utah 1914)
(“Where the injury alleged will necessarily render a person less
capable of performing his usual business duties in the future, proof
of the impairment of his general earning capacity may ordinarily be
given under the general allegation of the injury, and damages
resulting therefrom, such as the inability to attend to his ordinary
business . . . .”).

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                          Cite as: 2017 UT 87
                         Opinion of the Court

    ¶ 32 In place of that system, the legislature has provided a
scheme that removes many of those hurdles. Under the temporary
total disability statute, Mr. Petersen is entitled, without showing his
employer’s fault or lack of his own, to obtain up to 312 weeks of
wage compensation by demonstrating that he is temporarily totally
disabled by an injury that occurred in the course of his employment.
Moreover, beyond simply providing for temporary total disability
compensation,49 the legislature also provided a number of other
_____________________________________________________________
   49  The parties here dispute which portions of the WCA we should
take into account when assessing whether the legislature has
provided a substitute remedy. Mr. Petersen argues that other
remedies available under the Workers’ Compensation scheme, such
as permanent total disability benefits, cannot be considered as a
substitute for the loss of his remedy of temporary total disability
beyond eight years from the accident. Granite contends that Mr.
Petersen’s claim for permanent total disability compensation was an
adequate alternative remedy in place of his barred claim for
temporary total disability compensation. Granite also contends that
Mr. Petersen has an adequate alternative remedy because he has
“alternative remedies . . . outside of Utah’s workers[‘] compensation
act.” For example, Granite notes that short or long term disability or
social security disability benefits could be available to Mr. Petersen.
    Mr. Petersen correctly notes that we have held that the legislature
cannot simply rely on existing remedies to fill a void left by the
abrogation of a remedy. See Sun Valley Water Beds, 782 P.2d at 192
(“[W]hen the legislature removes a particular right or remedy, it
cannot simply rely on other preexisting rights or remedies to fill the
void left behind, but must rather provide a quid pro quo in the form of
[ ] a substitute remedy for the individual . . . .”). But that is not what
happened here. Rather, the legislature provided a suite of benefits,
all at once, to replace the loss of an injured employee’s common law
tort action. Our cases have never held that we must view each piece
of a substitute remedy statutory scheme in isolation. Rather, the
better view is to consider the adequacy of the package of rights that
was substituted for the package of rights that was taken away. We
therefore consider all four forms of disability compensation, along
with medical cost coverage for the life of the employee, when
assessing whether the legislature has given an adequate substitute
for its abrogation of an employee’s common law tort remedy.
Mr. Petersen is correct, however, that other potential independent
avenues of recovery, such as social security, that were not given as a
quid pro quo for the loss of tort rights cannot be considered in this
                                                              (Continued)
                                    17
                         PETERSEN v. LABOR COMM’N
                            Opinion of the Court

benefits in place of an injured employee’s abrogated common law
tort action, including medical cost coverage for life,50 as well as
compensation for temporary partial disability,51 permanent partial
disability,52 and permanent total disability.53
    ¶ 33 Having outlined an employee’s rights under these two
regimes, our task is to assess whether the WCA benefits are
“substantially equal in value or other benefit” to a common law tort
action. In some ways, the two systems might seem to be apples and
oranges. One system of rights contains no time limitation on the
years of recoverable lost wages, so long as they are provable at the
time of trial, but is subject to jury and evidentiary uncertainties. The
other features time-limited remedies, but is not subject to the
evidentiary and other demands of a common law negligence cause
of action. Some injured workers will no doubt have strong proof of
their employer’s fault and damages, and thus will likely lose out on a
significant tort judgment by virtue of the WCA. On the other hand,
many injured workers who can obtain no evidence of their
employers’ fault, or who face substantial evidence of their own fault,
will in some sense have gained a windfall under the WCA.
   ¶ 34 We recognize that a given employee’s recovery under the
workers’ compensation scheme might amount to more or less than
the employee would have recovered under the common law tort
system in place before the passage of the WCA. But under our
precedent, we do not analyze the facts of a particular individual’s
case to determine the adequacy of a substitute remedy. Instead, we
look to the package of rights the individual enjoyed before and after
the abrogation, and we assess whether the substituted package
“provid[es] essentially comparable substantive protection to one’s




analysis. See id. We agree and do not consider these alternative
claims in our assessment of the adequacy of the substitute remedy in
this case.
   50   UTAH CODE § 35-1-81 (1982).
   51   Id. § 35-1-65.1 (1982).
   52   Id. § 35-1-85 (1982).
   53   Id.

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                           Cite as: 2017 UT 87
                 Lee, A.C.J., concurring in the judgment

person property, or reputation”54 as existed under the previous legal
regime.
    ¶ 35 We conclude that “although the form of the substitute
remedy [is] different,” the workers’ compensation scheme
nevertheless “provid[es] essentially comparable substantive
protection to one’s person, property, or reputation” for injuries
arising from workplace accidents as existed under the common
law.55 Although the legislature abrogated Mr. Petersen’s common
law tort rights regarding workplace accidents, it has given an
adequate alternative remedy in the form of a no-fault, time-limited
package of Workers’ Compensation benefits.
                               Conclusion

    ¶ 36 While Utah Code section 35-1-65 is not a statute of
limitation, it nevertheless is valid under the Open Courts Clause
because it does not abrogate a previously existing legal remedy.56
Mr. Petersen’s challenge to the abrogation of his common law tort
claim against his employer fails because the legislature has provided
an adequate substitute remedy in the form of a suite of workers’
compensation benefits, including section 35-1-65. We therefore find
no violation of the Open Courts Clause and affirm the Appeals
Board’s decision denying Mr. Petersen temporary total disability
compensation.


   ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:

   ¶ 37 I concur in the judgment in this case on the basis of my
opinion in Waite v. Utah Labor Commission, 2017 UT 86, __ P.3d __
(Lee, A.C.J., concurring in the judgment). As in Waite the petitioner
in this case asserts an Open Courts Clause challenge to the

_____________________________________________________________
   54   Sun Valley Water Beds, 782 P.2d at 191–92.
   55   Id.
   56 Justice Lee “would affirm on the ground that the Open Courts
Clause does not limit the legislature’s authority to prospectively alter
the law giving rise to a legal right of action,” based on his arguments
set forth in his concurrence in Waite v. Labor Commission, 2017 UT 86,
__ P.3d __. Infra ¶ 37. We here incorporate the same arguments that
we made in Waite in response to Justice Lee. See Waite, 2017 UT 86,
¶¶ 31–34.

                                    19
                     PETERSEN v. LABOR COMM’N
                        Pearce, J., concurring

legislature’s enactment of a statute of repose that effectively cut of
the availability of a cause of action previously available under the
Workers’ Compensation Act. For reasons stated in my opinion
in Waite I would affirm on the ground that the Open Courts Clause
does not limit the legislature’s authority to prospectively alter the
law giving rise to a legal right of action.


   JUSTICE PEARCE, concurring:

    ¶ 38 I concur and write separately for the same reasons outlined
in my concurring opinion in Waite v. Utah Labor Commission, 2017 UT
86, __ P.3d __ (Pearce, J., concurring).




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