Utah Labor Commission Workers’ Compensation Educational Conference APPEALS AND LEGISLATIVE UPDATES

Legislative Changes: 2014 Session HB 10: Injured Worker Reemployment Amendments Enacted Utah Code Ann. §34A , which replaced the Injured Worker Reemployment Act. Retained the language from the Reemployment Act that encouraged the rehabilitation and reemployment of injured workers and provided a framework for doing so. Did away with the unnecessary and burdensome reporting requirements contained in the original Injured Worker Reemployment Act. Highlights that rehabilitation and reemployment remain voluntary: “(2)(b) This section is intended to promote and monitor the state’s and the employer’s capacity to assist the injured worker in returning to the workforce by evaluating the effectiveness of the voluntary efforts of the employers under this section.”

HB 94: Workers’ Compensation and Community Based Services Removed the workers’ compensation exemption for certain domestic workers providing “home and community based services.” “Home and community based services” means services provided to an individual with a disability or the individual’s family that helps prevent the individual from being placed in a more restrictive setting, including: Respite care, skilled nursing, nursing assistant services, personal care and attendant services, support for the daily activities of individual, or other specialized in-home support services. An individual with a disability or the individual’s representative is considered an employer if: The domestic worker provides home and community based services for seven hours or more per week; The domestic worker is paid from state or federal money received by the individual with a disability or representative and intended to fund home and community based services. Under the statute, the state or federal money is to include the cost of the workers’ compensation coverage in addition to the money necessary to fund the services so that the money intended to pay for home and community based services is not reduced in order to pay for workers’ compensation coverage.

SB 44: Workers’ Compensation and Employee Misconduct Modified Utah Code Ann. §34A-2-302, Employee’s Willful Misconduct Provides that disability compensation may be denied to an employee if the major contributing cause of the employee’s injury was the employee’s misconduct. (34A-2-302(3)(b)(i)). SB 44 provides that disability compensation shall be reduced by 15% when an employee’s misconduct is a contributing but not the major contributing cause of the employee’s injury. (34A-2-302(3)(b)(ii)). The misconduct described in Subsection (3)(b) includes the misuse or abuse of alcohol or a controlled substance. The presumption that the employee’s misconduct was the major contributing cause of the injury may be rebutted by a preponderance of the evidence. (34A-2-302(5)(b)).

SB 127: Labor Commission Decision Amendments Modified several sections of the Utah Labor Code to clarify when Commission decisions are considered final and when judgements may be docketed in district court. Decisions regarding permanent total disability compensation, whether issued by the Commissioner or the Appeals Board, are final unless and until set aside by the Court of Appeals. All other Commission decisions, whether issued by the Commissioner or the Appeals Board, are final unless further appeal is sought within 30 days of the date the order is issued. (Utah Code Ann. 34A-1-303(2)). With the exception of an order awarding permanent total disability compensation, a final order of the Commission may be enforced in district court once all administrative and appellate remedies are exhausted. (Utah Code Ann. 34A-2-212(1)(a)). Preliminary or final Commission decisions awarding permanent total disability benefits may be enforced in district court unless stayed or set aside by the court of appeals. (Utah Code Ann (3)).

SB 160: Workers’ Compensation Amendments Modified Utah Code Ann. §34A-2-420(1) to allow the Commission to approve a full and final settlement of a claim for medical and disability benefits if: The employee’s claim for medical benefits is allowed under 34A-2-417(1) but disability benefits associated with the medical benefits and resulting treatment is barred under 34A-2-417(2); and The full and final settlement is presented for the Commission’s approval; or The claim is the liability of the Employers’ Reinsurance Fund (ERF) or the Uninsured Employers’ Fund (UEF). Specifically provides that a full and final settlement extinguishes the employer’s liability to the employee unless an issue is expressly preserved. (34A-2-420(5)). Clarifies the Commission’s authority in approving settlements. Subsection (6) was added to provide that a final settlement effectuating a compromise or commutation may provide for payment of benefits in cash or cash equivalents, or through an insurance contract or by a third party so long as the Commission determines the payment provisions : Are secure and assign, transfer, or reinsure the financial obligation to make benefit payments to a qualified third party in compliance with Commission rules; or Do not relieve the parties of their underlying liability for payments required by a full and final settlement agreement.

Legislative Changes: 2015 Session SB 135: Workers’ Compensation Coverage for Firefighters Enacted Utah Code Ann. §34A-3-113, Presumption of workers’ compensation benefits for firefighters. Applies to members, volunteers, or on call members of a fire department or other organization that provides fire suppression or other fire-related services. Provides that if a firefighter who contracts a presumptive cancer meets the statutory requirements there is a rebuttable presumption that the presumptive cancer was contracted arising out of and in the course of employment and that the presumptive cancer was not contracted by a willful act of the firefighter. “Presumptive cancer” means one or more of these cancers: Pharynx Esophagus Lung Mesothelioma

Workers’ Compensation for Firefighters (Continued) To be entitled to the presumption, the firefighter must: Undergo annual physical examinations during employment as a firefighter; Have been employed as a firefighter for eight years or more and regularly responded to firefighting or emergency calls during that time; In the event the firefighter uses tobacco, provide documentation from a physician indicating the firefighter has not used tobacco for the eight years preceding the reporting of the presumptive cancer to the employer or the Industrial Accidents Division. The presumption may be rebutted by a preponderance of the evidence. If a firefighter contracts a presumptive cancer, and is employed as a firefighter by more than one employer, and qualifies for the presumption, and the presumption has not been rebutted, the employer and insurer at the time of the last substantial exposure to risk of the presumptive cancer are liable. A cause of action under this new section arises on the date after May 12, 2015, that the firefighter: Suffers disability from the disease; Knows, or in the exercise of reasonable diligence should have known, that the disease is caused by employment; and Files a claim.

SB 99: Timeliness of Decisions In the 2013 legislative session, Senator Harper introduced SB 99. A key component of the legislation was the modification of Utah Code Ann. §34A to implement a timeliness requirement for decisions issued by the Adjudication Division and by the Commission. Pursuant to Section 34A-2-801(3), administrative law judges are expected to issue decisions within 60 days of the date the hearing is held unless the parties agree to a longer period of time or if issuing the decision within 60 days is simply impracticable. Likewise, Section 34A-2-801(6), requires the Commissioner and Appeals Board to issue decisions on motions for review that are filed with the Commission within 90 days of the date the motion for review is filed. Like Subsection 801(3), the decision may be delayed if the parties agree to a longer period of time or if issuing the decision within 90 days is impracticable.

Reporting requirements Subsection 801(10) requires the Commission to report annually to the Business and Labor Interim Committee on the timeliness of decisions. The Commission is expected to report: The number of cases for which an application for hearing was filed during the previous calendar year. The number of these cases for which the ALJ decision was not issued within 60 days of the date of the hearing. The number of these cases that were appealed to the Commissioner or Appeals Board and for which a decision was not issued within 90 days of the date the motion for review was filed. The number of these cases for which a final order was issued within 18 months of the date the application for hearing was filed. The number of cases for which a final order was not issued within 18 months and the reasons these cases were not resolved within 18 months of the date the application for hearing was filed.

2014 Legislative Report In October 2014, the Commission submitted its first annual report regarding compliance with SB 99. During calendar year 2013, 874 workers’ compensation claims were filed with the Commission. Of these, 169 cases were ready for a decision to be issued by an ALJ in calendar year Parties sought review with the Commission or Appeals Board on 94 of these 169 decisions. The Adjudication Division issued decisions on 168 of the 169 decisions within 60 days. The Commission and/or Appeals Board issued decisions on all 94 motions for review within 90 days of the date the motion for review was filed. No cases filed in calendar year 2013 had aged more than 18 months by the end of fiscal year The Commission is currently preparing the 2015 report. The results should be similar to the 2014 report.