DAR File No. 37124

Labor Commission, Industrial Accidents

Rule R612-100

Workers' Compensation Rules - General Provisions

Notice of Proposed Rule

(New Rule)

DAR File No.: 37124
Filed: 12/28/2012 02:19:56 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The substance of this rule is currently found in Rules R612-1, R612-2, R612-3, R612-4, R612-5, R612-7, R612-8, R612-9, R612-11, R612-12, and R612-13, which will be repealed. The Labor Commission is repealing all existing Industrial Accident Division rules to allow those rules to be consolidated, reorganized, and reenacted in a format that is more logical and user friendly.

Summary of the rule or change:

The proposed Rule R612-100 contains the authority, definitions, official forms, and the designation of proceedings as informal provisions of existing Rules R612-1, R612-2, R612-3, R612-4, R612-5, R612-7, R612-8, R612-9, R612-11, R612-12, and R612-13, which are being repealed. (DAR NOTE: The proposed repeal of Rule R612-1 is under DAR No. 37129, the proposed repeal of Rule R612-2 is under DAR No. 37130, the proposed repeal of Rule R612-3 is under DAR No. 37131, the proposed repeal of Rule R612-4 is under DAR No. 37132, the proposed repeal of Rule R612-5 is under DAR No. 37133, the proposed repeal of Rule R612-7 is under DAR No. 37135, the proposed repeal of Rule R612-8 is under DAR No. 37136, the proposed repeal of Rule R612-9 is under DAR No. 37137, the proposed repeal of Rule R612-11 is under DAR No. 37139, the proposed repeal of Rule R612-12 is under DAR No. 37140, and the proposed repeal of Rule R612-13 is under DAR No. 37141 in this issue, January 15, 2013, of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Section 34A-3-101 et seq.
• Section 34A-2-101 et seq.
• Section 63G-4-102 et seq.
• Section 34A-1-104 et seq.

Anticipated cost or savings to:

the state budget:

Because the substantive provisions of the new rule are the same as an existing rule that is being repealed, enactment of the new rule will not result in costs or savings to the state budget.

local governments:

Because the substantive provisions of the new rule are the same as an existing rule that is being repealed, enactment of the new rule will not result in costs or savings to local government.

small businesses:

Because the substantive provisions of the new rule are the same as an existing rule that is being repealed, enactment of the new rule will not result in costs or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

Because the substantive provisions of the new rule are the same as an existing rule that is being repealed, enactment of the new rule will not result in costs or savings to other affected persons.

Compliance costs for affected persons:

Reenactment of the authority, definitions, official forms, and the designation of proceedings as informal, substantive provisions currently found in Rule R612-1, R612-2, R612-3, R612-4, R612-5, R612-7, R612-8, R612-9, R612-11, R612-12, and R612-13 will not change interested parties' rights or duties and will not impose any compliance costs on affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

The repeal of existing Rules R612-1, R612-2, R612-3, R612-4, R612-5, R612-7, R612-8, R612-9, R612-11, R612-12, and R612-13, coupled with reenactment of the rules' substantive provisions in a more logical format is intended to make the rules easier to find and use by businesses and all other stakeholders in the workers' compensation system. The Commission does not anticipate that the improved organization of these rules will result in any fiscal impact on businesses.

Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Industrial Accidents
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Ron Dressler at the above address, by phone at 801-530-6841, by FAX at 801-530-6804, or by Internet E-mail at rdressler@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2013

This rule may become effective on:

02/21/2013

Authorized by:

Sherrie Hayashi, Commissioner

R612. Labor Commission, Industrial Accidents.

R612-100. Workers' Compensation Rules - General Provisions.

R612-100-1. Authority.

These rules are enacted pursuant to the following statutory authority:

A. Section 34A-1-104 of the Utah Labor Commission Act;

B. Section 34A-2-103, 34A-2-201.3, 34A-2-407 and 34A-2-412 of the Utah Workers' Compensation Act;

C. Section 34A-2-1001 et seq. of the Workers'; Compensation Coverage Waiver Act;

D. Sections 34A-8a-202 and 34A-8a-203 of the Utah Injured Worker Reemployment Act;

E. Section 59-9-101 of the Taxation of Admitted Insurers Act;

F. Section 63G-4-202(1) of the Utah Administrative Procedures Act; and

G. Section 78B-8-404 of Capter8, Title 78B, Utah Code Annotated.

 

R612-100-2. Definitions.

A. "Administrative Law Judge" means a person duly designated by the Commission to hear and decide disputed cases.

B. "Aggregate Excess Insurance" is the amount of insurance required to cover the total accumulated workers' compensation benefits for all claims payable for a given period of time with the employer retaining an obligation for a designated amount as a deductible and the insurance company paying all amounts due thereafter up to a maximum total obligation.

C. "Applicant/Plaintiff" means, for purposes of a workers' compensation proceeding, an injured employee or his/her dependent(s) or any person seeking relief or claiming benefits under the Workers' Compensation and/or Occupational Disease and Disability Laws.

D. "Award" means the finding or decision of the Commission, Appeals Board or Administrative Law Judge as the benefits due an injured employee or the dependent(s) of a deceased employee.

E. "Commission" means the Labor Commission.

F. "Contact" means the designated person(s) within an emergency medical services agency or the employer of an emergency medical services provider.

G. "Defendant" means, for purposes of workers' compensation proceedings, an employer, insurance carrier, self-insurer, the Employers' Reinsurance Fund, and/or the Uninsured Employers' Fund.

H. " Department " means the Utah Labor Commission.

I. "Division" means the Division of Industrial Accidents within the Labor Commission.

J. "Disabled Injured Worker" means an injured worker who:

1. because of the injury or disease that is the basis for the employee being an injured worker:

a. is or will be unable to return to work in the injured worker's usual and customary occupation; or

b. is unable to perform work for which the injured worker has previous training and experience; and

2. reasonably can be expected to attain gainful employment after an evaluation provided for in accordance with the Utah Injured Worker Reemployment Act, Title 34A, Chapter 8a.

K. " Emergency medical services provider " means Emergency Medical personnel as defined in Section 26-8a- 102, a public safety officer, local fire department personnel, or personnel employed by the Department of Corrections or by a county jail, who provide prehospital Emergency medical care for an emergency medical services agency either as an employee or a volunteer.

L. " Emergency medical services (EMS) agency " means an agency, entity, or organization that employs or utilizes emergency medical services providers as defined in (4) as employees or volunteers.

M. " Employee leasing company " is as defined per Title 58, Chapter 59.

N. "Employer" includes self-insured employers and uninsured employers that are paying an injured workers' claim for benefits.

O. "Global Fee Cases" - are those flat fee cases where fees include pre-operative and follow-up or aftercare.

P. "Insurer" includes workers' compensation insurance carriers and self-insured employers unless otherwise specified.

Q. "Insurance Carrier" includes all insurance companies writing workers' compensation and occupational disease and disability insurance, the Workers' Compensation Fund, and self-insurers who are granted self- insuring privileges by the Commission. In all cases involving no insurance coverage by the employer, the term "Insurance Carrier" includes the employer.

R. "Medical Panel" means a panel appointed by an Administrative Law Judge pursuant to the standards set forth in Section 34A-2-601, which is responsible to make findings regarding disputed medical aspects of a compensation claim, and may make any additional findings, perform any tests, or make any inquiry as the Administrative Law Judge may require.

S. "Medical Practitioner" means any person trained in the healing arts and licensed by the State in which such person practices.

T. "Receiving facility" means a hospital, health care or other facility where the patient is delivered by the emergency medical services provider for care.

U. "Reserve" is defined as the amount necessary to satisfy all debts, past, present, and future, incurred by reason of industrial accidents or occupational diseases, the origins of which commenced prior to the date of reserve determination.

V. "Significant Exposure" and "Significantly Exposed" mean exposure of the body of one person to the blood or body fluids visibly contaminated by blood of another person by:

1. percutaneous injury, including a needle stick or cut with a sharp object or instrument; or

2. contact with an open wound, mucous membrane, or non-intact skin because of a cut, abrasion, dermatitis, or other damage; or

W. " Source Patient " means any individual cared for by a pre-hospital emergency medical services provider, including but not limited to victims of accidents or injury, deceased persons, and prisoners or persons in the custody of the Department of Corrections.

X. "Specific Excess Insurance" is defined as the amount of insurance required to cover the workers' compensation benefits arising out of a specific occurrence (accident) or occupational disease under the Workers' Compensation Law with the employer retaining an obligation for a designated amount as a deductible and the insurance company assuming the obligation for all amounts due thereafter up to a maximum total obligation.

Y. "Usual and Customary Rate (UCR)" is the rate of payment using Ingenix, or a similar service, for charges for services for a particular zip code.

 

R612-100-3. Official Forms.

A. "Employer's First Report of Injury - Form 122" - This form is used for reporting accidents, injuries, or occupational diseases as per Section 34A-2-407. This form must be filed within seven days of the occurrence of the alleged industrial accident or the employer's first knowledge or notification of the same. This form also serves as OSHA Form 301. The employer must report all injuries, other than first aid administered on site or at an employer sponsored free clinic, to the Industrial Accident Division and to the insurance carrier. First aid treatment is defined as:

a. non-prescription medications at non-prescription strength;

b. administering tetanus immunizations;

c. cleaning, flushing, or soaking wounds on the skin surface;

d. using wound coverings, such as bandages, Band Aid (TM), gauze pads, etc., or using SteriStrips (TM) or butterfly bandages;

e. using hot or cold therapy (limited to hot or cold packs, contrast baths and paraffin);

f. using any totally non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc.;

g. using temporary immobilization devices while transporting an accident victim (splints, slings, neck collars, or back boards);

h. drilling a fingernail or toenail to relieve pressure, or draining fluids from blisters;

i. using eye patches; using simple irrigation or a cotton swab to remove foreign bodies not embedded in or adhered to the eye;

j. using irrigation, tweezers, cotton swab or other simple means to remove splinters or foreign material from areas other than the eye;

k. using finger guards;

l. using massages;

m. drinking fluids to relieve heat stress;

First aid, as defined above, is limited to a one-time visit and one subsequent follow up visit within a 7 day time period. (This does not apply to reporting it on OSHA's 300 log). However, if first aid treatment is given by a licensed health professional in an employer sponsored free clinic then two subsequent visits within a 14 consecutive day time period are allowed. The employer must maintain the employer's injury report (Form 122) and health records on site for first aid treatment.

First aid, as defined in a through m, does not include any work injuries resulting in:

i) loss of consciousness;

ii) loss of work;

iii) restriction of work; or

iv) transfer to another job.

B. "Physician's Initial Report of Work Injury or Occupational Disease - Form 123" - This form is used by physicians and chiropractors to report their initial treatment of an injured employee. This form must be completed when a bill is generated for treatment administered by a licensed health care provider, as defined in 34A-2-11. This form is also to be completed by the health care provider if treatment, beyond first aid, is given at an employer sponsored free clinic. The form must be cosigned by the supervising physician, unless the form is completed by a nurse practitioner.

C. "Restorative Services Authorization - Forms 221(a) Spine, 221(b) Upper Extremity, and 221(c) Lower Extremity" - These forms are to be used by any medical provider billing under the restorative services section of the Commission's adopted Resource-Based Relative Value Scale and the Medical Fee Guidelines. The medical provider shall file the appropriate form with the insurance carrier or self-insured employer and the division within ten days of the initial evaluation. After the initial filing, an updated Restorative Services Authorization form must be filed for approval or denial at least every six visits until a fixed state of recovery has been reached.

D. "Statement of Insurance Carrier or Self-Insurer with Respect to Payment of Benefits - Form 141" - This form is used for reporting the initial benefits paid to an injured employee. This form must be filed with or mailed to the division on the same date the first payment of compensation is mailed to the employee. A copy of this form must accompany the first payment.

E. "Employee Notification of Denial of Claim - Form 089" - This form is used by insurance carriers or self-insured employers to notify the claimant that his or her claim, in whole or part, is denied and the reason(s) why the claim is being denied. An insurance carrier or self-insured employer shall complete its investigation within 45 days of receipt of the claim and shall commence the payment of benefits or notify the claimant and the division in writing that the claim, in whole or part, is denied.

F. "Insurance Carriers/ Self-Insurer's Notice of Further Investigation of a Workers' Compensation Claim - Form 441" - This form is used by insurance carriers or self-insured employers to notify the claimant and the commission that further investigation is needed and the reasons for further investigation. This form or letter containing similar information is to be filed within 21 days of notification of claim that further investigation is needed.

G. "Statement of Insurance Carrier or Self-Insurer with Respect to Suspension of Benefits - Form 142" - This form is to be used by insurance carriers or self-insured employers to notify an employee of the suspension of weekly compensation benefits. The form must be mailed to the employee and filed with the division five days before the date compensation is suspended. The insurance carrier or self-insured employer must specify the reason for the suspension of benefits.

H. "Application for Hearing - Form 001" - Used by an applicant for instituting an industrial claim against an insurance carrier, self-insured employer, or uninsured employer. This form, obtainable from the division, must be filed and signed by the injured employee or his/her agent. All blanks must be completed to the best knowledge, belief, or information of the injured employee.

I. "Claim for Dependents' Benefits and/or Burial Benefits - Form 025" - This form is used by the dependent(s) of a deceased employee to seek benefits as a result of a fatal accident or occupational disease occurring in the course of employment.

1. This form must be filed before a hearing or an award is made, and pleadings will not be accepted in lieu thereof. If pleadings are submitted, the attorney so filing will be supplied the form for filing before any proceedings are initiated.

2. The filing of this form by the surviving spouse on behalf of the surviving spouse and the surviving spouse's dependent minor children is sufficient for all dependents.

3. Unless otherwise directed by an Administrative Law Judge, the following information shall be supplied before an Order or an Award is made:

(a) A certified copy of the marriage license and birth certificates of dependent minor children. If such evidence is not readily available, the Administrative Law Judge will determine the adequacy of substitute evidence.

(b) Adoption papers or other decrees of courts of record establishing legal responsibility for support of dependent children.

(c) If either the deceased employee or surviving spouse has been involved in divorce proceedings, copies of decrees and orders of the court should be supplied.

J. "Insurance Company's and Self-Insurer's Final Report of Injury and Statement of Total Losses - Form 130" - This form is used by insurance carriers and self-insurers to report the total losses occurring in a claim for any benefits. This form must be filed with the division as soon as final settlement is made but in no event more than 30 days from such settlement. This form shall be filed for all losses including medical only, compensation, survivor benefits, or any combination of all so as to provide complete loss information for each claim.

K. "Dependents' Benefit Order - Form 151" - This form is used by the division in all accidental death cases where no issue of liability for the death or establishment of dependency is raised and only one household of dependents is involved. The carrier indicates acceptance of liability by completing the top half of the form and filing it with the division.

L. "Medical Information Authorization - Form 046" - This form is used to release the applicant's medical records to the Commission or the chairman of a medical panel appointed by an Administrative Law Judge.

M. "Application to Change Doctors - Form 102" - This form must be used by the employee pursuant to the provisions of Rule R612-2-9 as contained herein.

N. "Employee's Notification of Intent to Leave Locality or State, and to Change Doctor or Hospital - Form 044" - As per Section 34A-2-604, this form is used by the employee and must be accompanied by the "Attending Physician's Statement - Form 043" before Commission approval can be granted. Otherwise, compensation may not be allowed.

O. "Attending Physician's Statement - Form 043" - This form must be completed by employee and his last attending physician in the state to establish the medical condition of the employee. It must be accompanied by Form 044.

P. "Compensation Agreement - Form 219" - This form is used by the parties to a workers' compensation claim to enter into an agreement as to a permanent partial impairment award, and must be submitted to the Division of Industrial Accidents for approval.

Q. "Application for Lump Sum or Advance Payment - Form 134" - This form is used by an employee to apply for a lump sum or advance payment for a permanent partial impairment award.

R. "Release to Return to Work - Form 110" - This form may be used to meet the requirements of Rule R612-2-3(D), as contained herein.

S. "Request for Copies From Claimant's File - Form 205" - This form is used to request copies from a claimant's file in the Commission with the appropriate authorized release.

T. Reemployment Program Forms

1. "Initial Assessment Report - Form 206" - This form is completed either by the self-insured employer, the workers' compensation insurance provider, or by a rehabilitation agency contracted by the employer/carrier. The report contains claimant demographics and insurance coverage details, and addresses the issue of need for vocational assistance.

2. "Request for Decision of Administrative Review - Form 207" - This form is completed when the employee wishes to contest the information/decision made by the carrier or rehabilitation agency.

3. "U.S.O.R. Rehabilitation Progress Report - Form 208A" - This form shall be requested from the Utah State Office of Rehabilitation at each stage of the reemployment process (eligibility determination, reemployment plan development/implementation and case closure) or at any interruption of the process. An Individualized Written Rehabilitation Program (USOR 5 IWRP) shall also be requested when a plan is developed. All other private rehabilitation providers shall submit a Form 206 for any plan progress, postponement, or interruption in the plan.

4. "Reemployment Plan - Form 209" - This form is used for either an original or amended work plan. The form contains the details and estimated costs in returning the injured worker to the work force.

5. "Reemployment Plan Closure Report - Form 210" - This form is submitted to the division upon completion of the reemployment plan. The closure report shall detail costs by category either by dollar amounts or time expended (only in the categories of evaluation and counseling). The report shall also contain all the details on the return to work.

6. "Application for Certification as a Reemployment Provider - Form 212" - This form is completed by rehabilitation providers who wish to be certified by the division. It contains provider demographics, Utah staff credentials, services/fees, and references.

7. "Administrative Review Determination - Form 213" - This form is used by the division to summarize the outcome of the administrative review.

U. "Medical Records - Copies - Form 302" - This form is used by a claimant to request a free copy of his/her medical records from a medical provider. This form must be signed by a staff member of the division.

V. The division may approve change of any of the above forms upon public notice. Carriers may print these forms or approved versions.

 

R612-100-4. Designation as Informal Proceedings.

A. Pursuant to 63G-4-202, the following are designated as informal adjudicatory proceedings:

1. Assessment of penalty under 34A-2-211 against an employer conducting business without obtaining workers' compensation coverage;

2. Assessment of penalty under 34A-2-201.3 against an insured employer for direct payment of workers' compensation benefits; and

3. Assessment of penalty under 34A-2-407 against an employer who does not timely report an industrial accident.

B. All subsequent adjudicative proceedings in the above-identified matters are designated as formal proceedings.

 

KEY: workers' compensation, administrative procedures

Date of Enactment or Last Substantive Amendment: 2013

Authorizing, and Implemented or Interpreted Law: 34A-2-101 et seq.; 34A-3-101 et seq.; 34A-1-104 et seq.; 63G-4-102 et seq.