The evidence was there. The employer just never asked the judge to use it
An employer had a defense that could sink a workers' comp claim. It never argued the point - and Utah's top court made that count.
The Utah Supreme Court on August 20, 2026 reopened a workers' compensation case after ruling that the employer, Darden Restaurant, gave up a late-notice defense it had raised on paper but never pursued at the hearing.
The claim started in the kitchen. On July 1, 2020, a manager at an Olive Garden in St. George, owned by Darden, slipped on spilled ice while carrying a bucket of it across the floor. He hit his shoulder on the ice machine and his head on the wall, then landed on his back with the bucket on his chest. He took ibuprofen and finished his shift. Shoulder surgery followed a month later. Neck pain surfaced that December.
Much of the case turned on a question familiar to any HR team: what counts as notice that a worker was hurt. Utah gives workers 180 days to report a work injury, and a missed deadline bars the claim. The manager said he told his supervisor within a week - a voicemail the day he fell ("I kinda fell today, kinda hurt my right shoulder. It really hurts."), a follow-up call, and again in person ("My shoulder really hurts. I can't even lift my arm."). His supervisor testified he never reported the accident to her.
Darden had listed the late-notice defense in its answer and pretrial disclosures. But at the hearing it used the missing report to argue something else - that the injury never happened - rather than asking the judge to throw out the claim on timing. The administrative law judge raised the notice bar herself and dismissed both claims. Later stages revived the neck claim: a medical panel found it "likely impacted" by the fall, and the judge awarded benefits.
The Supreme Court zeroed in on Darden's choice. By pleading the defense but never seeking relief on it, the company waived it. The pieces were there, but the judge - not Darden - put them together and, as the court said, "stepped into the role of advocate rather than arbiter." "In our adversary system, the parties - not the court - decide which claims and defenses to pursue, forgo, raise, or abandon," the court said.
The judge raising the issue on her own did not preserve it. The court vacated the dismissal and sent the case back to the lower courts, with the shoulder claim ultimately headed to the Labor Commission.
