DAR File No. 38806

Labor Commission, Industrial Accidents

Rule R612-200

Workers' Compensation Rules - Filing and Paying Claims

Notice of Proposed Rule

(Amendment)

DAR File No.: 38806
Filed: 08/22/2014 08:44:07 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of amending Section R612-200-1, is to eliminate unnecessary or redundant parts of the rule, and to update and clarify the rule's remaining provisions. The purpose of amending Sections R612-200-2, R612-200-3, and R612-200-4 is to consolidate into one rule all the regulatory provisions that relate to the mechanics of paying workers' compensation benefits. The amendment eliminates unnecessary or redundant parts of existing rules; the amendment also updates and clarifies the remaining provisions. The purpose of amending and renumbering of former Section R612-200-5 into the new Section R612-200-3 is to eliminate the antiquated and misleading references to "compensation agreements" and substitute a requirement that payors use a new form, entitled "Statement of Compensation" to provide claimants with information regarding the computation and amount of their disability or dependents' benefits. The proposed changes to Sections R612-200-4 and R612-200-5 are to re-number them in line with the new number format of the other sections. Also, certain terms are updated to make them consistent with the rules as a whole and updates a rule reference. The proposed change to Section R612-200-6 is to update the burial benefit amount paid on behalf of a deceased claimant.

Summary of the rule or change:

The amendment eliminates the lengthy and redundant definition of "first aid", which has instead been placed with other definitions in Section R612-100-2. Likewise, the amendment eliminates the detailed list of information to be reported regarding workplace injuries and, instead, incorporates electronic data interchange (EDI) standards which fully address such information requirements. The remaining provisions of the rule are then reorganized and consolidated into a sequential order that more clearly identifies the parties responsible for reporting and investigating workplace injuries, and the consequences for failure to do so. The amendment adds provisions to authorize a full range of electronic methods for paying benefits, provided that such methods impose no costs or delays on injured workers. The amendment establishes uniform principles for determining when benefits are "due and payable", from which interest may begin to accrue. Provisions in the former rule that addressed attorney fees have been removed, since that subject is under the control of the Adjudication Division and is addressed comprehensively in that Division's Section R602-2-4. The remaining provisions of the rule are then reorganized and consolidated into logical order. The amendment eliminates existing provisions that allow, but do not require payors and claimants to execute "compensation agreements". These voluntarily compensation agreements were not uniformly used by stakeholders; the agreements also contained language that might mislead the parties as to the binding effect of such agreements. The amendment substitutes a requirement that payors complete a new form, entitled "Statement of Compensation", which will disclose to claimants the basis by which a payor has computed their benefits. The amendment substitutes "claimant" for "worker", "payor" for "self insured employer and/or insurer", and substitutes Subsection R612-200-1(B) for Section R612-1-7. The amendment increases the awarded burial expenses from $8,000 to $9,000 and modifies the time period this amount is to be reviewed from "every two years" to "each even-numbered year". The rule sections are renumbered to make them consistent with the consolidation of Sections R612-200-2, R612-200-3, and R612-200-4.

State statutory or constitutional authorization for this rule:

• Section 34A-1-104
• Section 34A-2-101 et seq.
• Section 34A-3-101 et seq.

This rule or change incorporates by reference the following material:

• Adds Utah Claims R3 EDI Tables, published by Industrial Accidents Division, 04/19/2013
• Adds EDI Implementation Guide, published by Industrial Accidents Division, 04/19/2013

Anticipated cost or savings to:

the state budget:

Consolidating, updating, and simplifying the existing provisions of Rule R612-200 will not result in additional administrative or enforcement costs to the Labor Commission, nor will the changes affect the state's workers' compensation coverage expenses as an employer.

local governments:

Consolidating, updating, and simplifying the existing provisions of Sections R612-200-1 through R612-200-5 will not change local governments' workers' compensation coverage expenses as employers. For those local governments which are self-insured employers, Section R612-200-6 will require a possible increase of $1,000 to burial benefits paid.

small businesses:

Consolidating, updating, and simplifying the existing provisions of Rule R612-200 will not change small businesses' workers' compensation coverage expenses as employers.

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

Consolidating, updating, and simplifying the existing provisions of Sections R612-200-1 through R612-200-5 will not change local governments' workers' compensation coverage expenses to other persons. Insurance carriers may see an increase of $1,000 for burial expenses pursuant to Section R612-200-6.

Compliance costs for affected persons:

The elimination of unnecessary and redundant provisions, and the simplification and clarification of other provisions, will assist stakeholders in understanding and using the workers' compensation system. The proposed amendment is not expected to result in any additional compliance costs for affected persons.

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

The proposed changes to Rule R612-200 are part of the Industrial Accidents Division's comprehensive review of all its workers' compensation rules. As already noted, the proposed amendment works to simplify, update and clarify the existing standards for reporting and investigating workplace injuries. As such, the amendment will not increase stakeholder costs, but should make use of the Division's rules easier to use.

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:

10/15/2014

This rule may become effective on:

10/22/2014

Authorized by:

Sherrie Hayashi, Commissioner

R612. Labor Commission, Industrial Accidents.

R612-200. Workers' Compensation Rules - Filing and Paying Claims.

[R612-200-1. Reporting and investigating injuries.

A. Employer's Obligation to Report Injury.

1. Time requirements. Within 7 days after first notice of a work-related injury, except an injury requiring only first aid treatment as defined in subsection B. of this rule, an employer must report the injury as follows:

a. Insured employer. An insured employer must report the injury to its workers' compensation insurance carrier.

b. Self-insured employer. A self-insured employer must report the injury to its claims administrator.

c. Uninsured employer. An uninsured employer must report the injury directly to the Division.

d. An employer is deemed to have notice of a workplace injury upon the earliest of the following:

i. Observation of the injury;

ii. Verbal or written notice of the injury from any source; or

iii. Receipt of any other information sufficient to warrant further inquiry by the employer.

2. Penalty for failure to properly report injury. The Division may impose a civil assessment of up to $500 against an employer for each occurrence in which the employer fails to report a work-related injury as required by this rule.

B. First Aid.

1. Injury Required Treatment Only by First Aid Need Not Be Reported. An employer is not required to report a work injury that requires only first aid treatment.

a. First aid treatment is limited to medical care provided on-site or at an employer-sponsored free clinic. It may include an initial visit and one subsequent follow-up visit within 7 days of the injury or, if provided by a licensed health professional in an employer-sponsored free clinic, then an initial visit and two subsequent visits within 14 days of the injury.

b. The Employer must maintain health records on site for first aid treatment. (This does not apply to reporting it on OSHA's 300 log).

2. Treatments That Constitute First Aid. First aid treatment is limited to the following types of medical care:

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

b. Tetanus immunizations;

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

d. Applying bandages, gauze pads, etc.;

e. Hot or cold therapy, limited to hot or cold packs, contrast baths and paraffin;

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

g. Use of temporary immobilization devised 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. Eye patches, simple irrigation, or use of a cotton swab to remove foreign bodies not embedded in or adhered to the eye;

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

l. Use of finger guards;

m. Massages;

n. Drinking fluids to relieve heat stress.

3. Treatments That Are Not Considered First Aid. First aid does not include treatment of any injury that has resulted in a loss of consciousness, inability to work, work restriction, or transfer to another job.

C. Insurer and Self-Insured Employer's Duty to File First Report of Injury.

1. Purpose of First Report of Injury. The First Report of Injury is used to provide notice of work injuries to the Division as required by Section 34A-2-407 of the Utah Workers' Compensation Act and Section 34A-3-108 of the Utah Occupational Disease Act.

2. Incorporation by Reference of Technical Standards Governing First Reports of Injury. The Labor Commission hereby adopts and incorporates by reference the Industrial Accidents Division Claims EDI Implementation Guide ("EDI Implementation Guide") and the Utah Claims R3 EDI Tables ("EDI Tables"). (Date/version, etc.)

3. Compliance with EDI Implementation Guide and EDI Tables.

a. Each First Report of Injury must comply with the formatting standards and content requirements of the EDI Implementation Guide and EDI Tables and must contain the following minimum information:

i. Date of Injury;

ii. Type of loss (injury or occupational disease);

iii. Basic injury information, including a) nature of Injury (strain, puncture etc); b) part of body affected (hand, foot etc); and cause of injury (burn, fall, exposure etc);

iv. Description of event or conditions leading to injury or disease;

v. Injured worker's first and last name;

vi. Injured worker's date of birth;

vii. Injured worker's social security number, Green Card number, Employment Visa number, or Passport number. If none of these identification numbers are available, the entity preparing the First Report of Injury must contact the Division to obtain a substitute identification number;

viii. Injured worker's mailing address;

ix. Injured worker's employment status (part or full time);

x. Date employer had notice of the injury;

xi. Employer's name;

xii. Employer's federal employer identification number or federal tax identification number;

xiii. Employer's unemployment insurance number; and

xiv. Employer's physical business address.

b. The claim administrator shall report the appropriate First Report of Injury (FROI) based on the EDI standard, which includes the ability to communicate immediate denial and under investigation. In the event of denial or under investigation, the claim administrator must provide the claimant written notice of determination and reasons for it.

4. Time requirement for filing First Report of Injury. Within 7 days of receiving notice of a work injury, an insurance carrier or self-insured employer must submit a First Report of Injury for the injury to the Division.

a. An insurance carrier or self-insured employer is deemed to have notice of a workplace injury or disease upon receipt of verbal or written notice of the injury that includes the names of the employer and employee and the date of injury.

b. An employer that is not self-insured and does not have workers' compensation insurance must report any work injury directly to the Division.

c. The Division may impose a civil assessment of up to $500 against an insurance carrier or self-insured employer for each occurrence or failure to properly report a work injury as required by this rule. The penalty shall be applied only to the improperly filed report as a whole and not applied to each required date element required by section 3.a.

D. Investigation of Claims. An insurance carrier, claim administrator or uninsured employer shall promptly investigate the claim and either accept or deny the claim within 21 days of the date of notice. IF, with exercise of reasonable diligence, the insurance carrier, claim administrator or uninsured employer cannot complete its investigation within the initial 21-day period, it shall within that initial 21-day period submit to the Division a "First Report of Injury - Under Investigation" and provide a similar written notice to the subject employee. The insurance carrier, claim administrator or uninsured employer shall then be allowed 24 days in addition to the initial 21-day period to complete its investigation.

1. The Division may impose a civil assessment of up to $500 against an insurance carrier or self-insured employer for each occurrence of failure to properly report its compensability determination by the conclusion of the additional 24-day period provided by this subsection. The penalty shall be applied only to the improperly filed report as a whole and not applied to each required data element required by section 3.a.

E. The payment of compensation shall be considered overdue if not paid within 21 days of a valid claim or within the 45 days of investigation unless denied.

F. Failure to make payment or to deny a claim within the 45 day time period without good cause shall result in a referral of the insurance company to the Insurance Department for appropriate disciplinary action and may be cause for revocation of the self-insurance certification for a self-insured employer. Good cause is defined as:

1. Failure by an employee claiming benefits to sign requested medical releases;

2. Injury or occupational disease did not occur within the scope of employment;

3. Medical information does not support the claim;

4. Claim was not filed within the statute of limitations;

5. Claimant is not an employee of the employer he/she is making a claim against;

6. Claimant has failed to cooperate in the investigation of the claim;

7. A pre-existing condition is the sole cause of the medical problem and not the claimed work-related injury or occupational disease;

8. Tested positive for drugs or alcohol; or

9. Other - a very specific reason must be given.

G. If an insurance carrier or self-insured employer begins payment of benefits on an investigation basis so as to process the claim in a timely fashion, a later denial of benefits based on newly discovered information may be allowed.]

R612-200-1. Reporting and Investigating Injuries.

A. Employers' Duty to Report Work Injuries.

1. An employer is not required to report an injury that requires only first aid treatment, as defined by Subsection R612-100-3.A.

2. Except for injuries treated only by first aid, an employer shall report each employee work injury within 7 days after receiving initial notice of the injury, as follows:

a. An employer that has obtained workers' compensation insurance shall report the injury to its insurance carrier.

b. An employer that has received Division authorization to self-insure shall report the injury to its claims administrator.

c. An employer that has failed to obtain worker's compensation coverage shall report the injury by contacting the Division directly.

3. An employer has notice of a work injury upon the earliest of:

a. Observation of the injury;

b. Verbal or written notice of the injury from any source; or

c. Receipt of any other information sufficient to warrant further inquiry by the employer.

B. Submitting Reports of Injury to the Division.

1. Except for injuries treated only by first aid as defined by Subsection R612-100-3.A, an insurance carrier, self-insured claim administrator, or uninsured employer shall submit a First Report of Injury to the Division within seven days after receiving initial notice of the injury.

a. An insurance carrier or self-insured claim administrator has notice of a work injury upon receipt of verbal or written information that includes the name of the employer, the name of the employee and the date of injury.

b. The insurance carrier or self-insured claim administrator shall submit the First Report of Injury to the Division electronically in compliance with the content and formatting requirements of the Industrial Accidents Division Claims EDI Implementation Guide ("EDI Guide V2.2, 04-19-13) and the Utah Claims R3 EDI Tables ("EDI Tables"; 04-19-13) adopted and incorporated by this reference as part of these rules.

c. An uninsured employer shall report the information required by this subsection as part of the employer's initial contact with the Division required by subsection A.2.c of this rule.

C. Investigation of Claims; Notice to Division and Claimants; Commencement of Benefits.

1. An insurance carrier, self-insured employer, or uninsured employer shall promptly investigate a reported work injury and either accept or deny workers' compensation liability for the claim within 21 days after receiving initial notice of the injury.

a. If, with reasonable diligence, an insurance carrier, self-insured employer, or uninsured employer cannot complete its investigation within 21 days after initial notice, it may complete and submit Division Form 441, "Notice of Further Investigation of a Workers' Compensation Claim" notify the Division and claimant that the matter remains under investigation. The insurance carrier, self-insured employer, or uninsured employer is then allowed 24 days in addition to the initial 21-day period to complete its investigation and accept or deny liability of the claim.

b. An insurance carrier or self-insured employer denying a claim for workers' compensation benefits shall report such denial through current EDI processes. An uninsured employer denying a claim for workers' compensation benefits shall complete and mail to the Division Form 089, "Employee Notification of Denial of Claim" and to the claimant.

c. If the insurance carrier, self-insured employer, or uninsured employer accepts liability for the claim, payment of benefits shall commence within 7 days from the date of acceptance. The insurance carrier, self-insured employer, or uninsured employer shall use Division Form 141, "Statement of Insurance Carrier or Uninsured Employer with Respect to Payment of Benefits" to report the initial benefits paid to a claimant. Form 141 must accompany the first payment to the claimant and must be filed with or mailed to the Division on that same date.

d. An insurance carrier, self-insured employer, or uninsured employer's payment of benefits during investigation of a claim does not prevent subsequent denial of the claim after the investigation is completed.

D. Consequences of Failure to Comply.

1. Pursuant to Subsection 34A-2-407(8) of the Utah Workers' Compensation Act, the Division may impose a civil assessment of up to $500 for an insurance carrier, insured employer, self-insured employer, or uninsured employer's failure, without good cause, to comply with the requirements of this rule.

a. "Good cause" includes a claimant's unreasonable failure to sign requested medical releases or otherwise cooperate in the investigation of a claim.

b. For improperly filed reports, the civil assessment shall be imposed for the report as a whole and not for each data element within a report.

2. In addition to the civil assessment authorized by Subsection 34A-2-407(8), an insurance company or self-insured employer's failure, without good cause, to comply with the requirements of this rule may result in:

a. referral of the insurance company to the Insurance Department for appropriate disciplinary action; or

b. revocation of a self-insured employer's authorization to remain self-insured.

 

[R612-200-2. Issuance of Checks.

A. Any entity issuing compensation checks or drafts must make those checks/drafts payable directly to the injured worker and must mail them directly to the last known mailing address of the injured worker, with the following exceptions:

1. If the employer provides full salary to the injured worker in return for the worker's compensation benefits, the check may be mailed to the worker at the place of employment;

2. If the employer coordinates other benefits with the worker's compensation benefits, the check may be mailed to the worker at the place of employment.

B. In no case may the check be made out to the employer.

C. Where attorney fees are involved, a separate check should be issued to the worker's attorney in the amount approved or ordered by the Commission, unless otherwise directed by the Commission. Payment of the worker's attorney by issuing a check payable to the worker and his attorney jointly constitutes a violation of this rule.

 

R612-200-3. Interest.

A. Interest must be paid on each benefit payment which comprises the award from the date that payment would have been due and payable at the rate of 8% per annum.

B. For the purpose of interest calculation, benefits shall become "due and payable" as follows:

1. Temporary total compensation shall be due and payable within 21 days of the date of the accident.

2. Permanent partial compensation shall be due and payable on the next day following the termination of a temporary total disability. However, where the condition is not fixed for rating purposes, the interest shall commence from the date the permanent partial impairment can be medically determined.

3. Permanent partial or permanent total disability compensation payable by the Employers' Reinsurance Fund or the Uninsured Employers' Fund shall be due and payable as soon as reasonably practical after an order is issued.

 

R612-200-4. Discount.

Eight percent shall be used for any discounting or present value calculations. Lump sums ordered by the Commission or for any attorney fees paid in a single up-front amount, or of any other sum being paid earlier than normally paid under a weekly benefit method shall be subject to the 8% discounting. The Commission shall create and make available a precise discount or present value table based on a 365 day year. For those instances where discount calculations are not routinely utilized or where the Commission's precise table is not available, the following table, which is a shortened version of the precise table, may be utilized by interpolating between the stated weeks and the related discount.

 

TABLE

  
  Unaccrued  X  Weekly     X  Cumulative  =  Discount $
  Weeks         Benefit $     Discount
       1                       .001475
      10                       .008076
      20                       .015343
      30                       .022538
      40                       .029663
      50                       .036719
      60                       .043706
      70                       .050626
      80                       .057478
      90                       .064264
     100                       .070984
     110                       .077639
     120                       .084229
     130                       .090756
     140                       .097221
     150                       .103623
     160                       .109963
     170                       .116243
     180                       .122463
     190                       .128623
     200                       .134724
     210                       .140767
     220                       .146752
     230                       .152680
     240                       .158552
     250                       .164368
     260                       .170129
     270                       .175835
     280                       .181488
     290                       .187087
     300                       .192633
     312                       .199219

]

R612-200-2. Payment of Benefits, Interest and Attorney Fees.

A. Timing and payment of benefits. A workers' compensation benefit is due and payable when the claimant has satisfied all legal requirements applicable to that benefit.

1. Payment intervals for compensation. After entitlement to disability compensation or dependent's benefits has been established, such compensation shall be paid in regular intervals of at least once a month, except that TTD and TPD benefits shall be paid twice monthly.

2. Form of payment. A payor may choose to pay benefits by check, debit card or electronic fund transfer, provided that the form of payment allows a claimant to access the full amount of the benefit on the date the payment is due. No fee or charge of any kind may be assessed against the claimant.

3. Payment to be made directly to claimant. Workers' compensation disability benefits and dependents' benefits shall be paid solely and directly to the claimant. Benefits may be paid "in care of" the employer if the employer coordinates employee benefits. If payment of such benefits is made by check, the check shall be personally delivered to the claimant or mailed to the claimant's home address.

B. Deduction and payment of attorney fee. The computation and payment of fees for claimants' attorneys is governed by 34A-1-309 and Section R602-2-4, "Attorney Fees." A separate check should be issued to the worker's attorney in the amount approved or ordered by the Commission, unless otherwise directed by the Commission. Payment of the worker's attorney by issuing a check payable to the worker and his attorney jointly constitutes a violation of this rule.

C. Interest. As required by Subsection 34A-2-420(3) of the Utah Workers' Compensation Act, any final order of the Commission awarding benefits will include interest on the principal amount of the benefits at the rate of 8% per annum from the date the benefit or any part thereof was due and payable.

D. Discounting of lump sum payments. Any proposal to pay all or part of a claimant's future workers' compensation benefits in a present lump sum must be submitted to the Adjudication Division for review and approval. A discount rate of eight percent per annum shall be used to determine the present value of such benefits. The following table may be used to determine a benefit's present value by interpolating, when necessary, the weeks to be discounted between the weeks listed on the table.

 

TABLE

  
  Unaccrued  X  Weekly     X  Cumulative  =  Discount $
  Weeks         Benefit $     Discount
  
       1                       .001475
      10                       .008076
      20                       .015343
      30                       .022538
      40                       .029663
      50                       .036719
      60                       .043706
      70                       .050626
      80                       .057478
      90                       .064264
     100                       .070984
     110                       .077639
     120                       .084229
     130                       .090756
     140                       .097221
     150                       .103623
     160                       .109963
     170                       .116243
     180                       .122463
     190                       .128623
     200                       .134724
     210                       .140767
     220                       .146752
     230                       .152680
     240                       .158552
     250                       .164368
     260                       .170129
     270                       .175835
     280                       .181488
     290                       .187087
     300                       .192633
     312                       .199219

 

[R612-200-5. Compensation Agreements.

A. An applicant, insurance company, and/or employer may enter into a compensation agreement for the purpose of resolving a worker's compensation claim. Compensation agreements must be approved by the Commission. The compensation agreement must be that contained on Form 019 of the Commission forms and shall include the following information:

1. Signatures of the parties involved;

2. Form 122 - Employer's First Report of Injury;

3. Doctor's report of impairment rating;

4. Form 141 - Payment of Benefits Statement.

B. Failure to provide any of the above documentation and forms may result in the return of the compensation agreement to the carrier or self-insured employer without approval.

 

]R612-200-3. Statement of Compensation.

At the time a payor first pays permanent partial disability compensation or dependent's benefits to a claimant, the payor shall complete Form 219 "Statement of Compensation." The completed form and supporting documents shall be mailed to the claimant or dependents but need not be filed with the Division unless requested.

 

R612-200-[6]4. Insurance Carrier/Employer Liability.

A. This rule governs responsibility for payment of [workers' compensation ]benefits for [industrial accidents]a work injury when:

1. The [worker's ultimate]claimant's entitlement to benefits is not in dispute; [but]and

2. There is a dispute between [self-insured employers and/or insurers]payors regarding their respective liability for [the injured worker's]such benefits because the claimant has suffered separate compensable injuries which are the liability of the different payors[arising out of separate industrial accidents which are compensable under Utah law].

B. In cases meeting the criteria of subsection A, the [self-insured employer or insurer]payor providing [workers' compensation] coverage for the most recent compensable injury shall advance [workers' compensation ]benefits to the [injured worker]claimant. The benefits advanced shall be limited to medical benefits and temporary total disability compensation[. The benefits advanced]and shall be paid according to the entitlement in effect on the date of the earliest related injury.

1. The [self-insured employer or insurance carrier]payor advancing benefits shall notify the non-advancing [party(s)]payor within the time periods [as specified in rule R612-1-7]established by Subsection R612-200-1.B, that benefits are to be advanced pursuant to this rule.

2. The [self-insured employers or insurers]payor not advancing benefits, upon notification from the advancing [party]payor, shall notify the advancing [party]payor within 10 working days of any potential defenses or limitations of the non-advancing [party(s)]payor's liability.

C. [The parties]Payors are encouraged to settle liabilities pursuant to this rule.  [, h]However, any party may file a request for agency action with the Commission for determination of liability for the [workers' compensation ]benefits at issue.

D. The medical utilization decisions of the [self-insured employer or insurer]payor advancing benefits pursuant to this rule shall be presumed reasonable with respect to the issue of reimbursement.

 

R612-200-[7]5 . Permanent Total Disability.

A. This rule applies to claims for permanent total disability compensation under the Utah Workers' Compensation Act.

1. Subsection B applies to permanent total disability claims arising from accident or disease prior to May 1, 1995.

2. Subsection C applies to permanent total disability claims arising from accident or disease on or after May 1, 1995.

B. For claims arising from accident or disease on or after July 1, 1988 and prior to May 1, 1995, the Commission is required under Section 34A-2-413, to make a finding of total disability as measured by the substance of the sequential decision-making process of the Social Security Administration under Title 20 of the Code of Federal Regulations, amended April 1, 1993. The use of the term "substance of the sequential decision-making process" is deemed to confer some latitude on the Commission in exercising a degree of discretion in making its findings relative to permanent total disability. The Commission does not interpret the code section to eliminate the requirement that a finding by the Commission in permanent and total disability shall in all cases be tentative and not final until rehabilitation training and/or evaluation has been accomplished.

1. In the event that the Social Security Administration or its designee has made, or is in the process of making, a determination of disability under the foregoing process, the Commission may use this information in lieu of instituting the process on its own behalf.

2. In evaluating industrial claims in which the injured worker has qualified for Social Security disability benefits, the Commission will determine if a significant cause of the disability is the claimant's industrial accident or some other unrelated cause or causes.

3. To make a tentative finding of permanent total disability the Commission incorporates the rules of disability determination in 20 CFR 404.1520, amended April 1, 1993. The sequential decision making process referred to requires a series of questions and evaluations to be made in sequence. In short, these are:

a. Is the claimant engaged in a substantial gainful activity?

b. Does the claimant have a medically severe impairment?

c. Does the severe impairment meet or equal the duration requirement in 20 CFR 404.1509, amended April 1, 1993, and the listed impairments in 20 CFR Subpart P Appendix 1, amended April 1, 1993?

d. Does the impairment prevent the claimant from doing past relevant work?

e. Does the impairment prevent the claimant from doing any other work?

4. After the Commission has made a tentative finding of permanent total disability:

a. In those cases arising after July 1,1994, the Commission shall order initiation of payment of permanent total disability compensation;

b. the Commission shall review a summary of reemployment activities undertaken pursuant to the Utah Injured Worker Reemployment Act, as well as any qualified reemployment plan submitted by the employer or its insurance carrier; and

c. unless otherwise stipulated, the Commission shall hold a hearing to consider the possibility of rehabilitation and reemployment of the claimant pending final adjudication of the claim.

5. After a hearing, or waiver of the hearing by the parties, the Commission shall issue an order finding or denying permanent total disability based upon the preponderance of the evidence and with due consideration of the vocational factors in combination with the residual functional capacity which the commission incorporates as published in 20 CFR 404 Subpart P Appendix 2, amended April 1, 1993.

C. For permanent total disability claims arising on or after May 1, 1995, Section 34A-2-413 requires a two-step adjudicative process. First, the Commission must make a preliminary determination whether the applicant is permanently and totally disabled. If so, the Commission will proceed to the second step, in which the Commission will determine whether the applicant can be reemployed or rehabilitated.

1. First Step - Preliminary Determination of Permanent Total Disability: On receipt of an application for permanent total disability compensation, the Adjudication Division will assign an Administrative Law Judge to conduct evidentiary proceedings to determine whether the applicant's circumstances meet each of the elements set forth in Subsections 34A-2-413(1)(b) and (c).

(a) If the ALJ finds the applicant meets each of the elements set forth in Subsections 34A-2-413(1)(b) and (c), the ALJ will issue a preliminary determination of permanent total disability and shall order the employer or insurance carrier to pay permanent total disability compensation to the applicant pending completion of the second step of the adjudication process. The payment of permanent total disability compensation pursuant to a preliminary determination shall commence as of the date established by the preliminary determination and shall continue until otherwise ordered.

(b) A party dissatisfied with the ALJ's preliminary determination may obtain additional agency review by either the Labor Commissioner or Appeals Board pursuant to Subsection 34A-2-801(3). If a timely motion for review of the ALJ's preliminary determination is filed with either the Labor Commissioner or Appeals Board, no further adjudicative or enforcement proceedings shall take place pending the decision of the Commissioner or Board.

(c) A preliminary determination of permanent total disability by the Labor Commissioner or Appeals Board is a final agency action for purposes of appellate judicial review.

(d) Unless otherwise stayed by the Labor Commissioner, the Appeals Board or an appellate court, an appeal of the Labor Commissioner or Appeals Board's preliminary determination of permanent total disability shall not delay the commencement of "second step" proceedings discussed below or payment of permanent total disability compensation as ordered by the preliminary determination.

(e) The Commissioner or Appeals Board shall grant a request for stay if the requesting party has filed a petition for judicial review and the Commissioner or Appeals Board determine that:

(i) the requesting party has a substantial possibility of prevailing on the merits;

(ii) the requesting party will suffer irreparable injury unless a stay is granted; and

(iii) the stay will not result in irreparable injury to other parties to the proceeding.

2. Second Step - Reemployment and Rehabilitation: Pursuant to Subsection 34A-2-413(6), if the first step of the adjudicatory process results in a preliminary finding of permanent total disability, an additional inquiry must be made into the applicant's ability to be reemployed or rehabilitated, unless the parties waive such additional proceedings.

(a) The ALJ will hold a hearing to consider whether the applicant can be reemployed or rehabilitated.

(i) As part of the hearing, the ALJ will review a summary of reemployment activities undertaken pursuant to the Utah Injured Worker Reemployment Act;

(ii) The employer or insurance carrier may submit a reemployment plan meeting the requirements set forth in Subsection 34A-2-413(6)(a)(ii) and Subsections 34A-2-413(6)(d)(i) through (iii).

(b) Pursuant to Subsection 34A-2-413(4)(b) the employer or insurance carrier may not be required to pay disability compensation for any combination of disabilities of any kind in excess of the amount of compensation payable over the initial 312 weeks at the applicable permanent total disability compensation rate.

(i) Any overpayment of disability compensation may be recouped by the employer or insurance carrier by reasonably offsetting the overpayment against future liability paid before or after the initial 312 weeks.

(ii) An advance of disability compensation to provide for the employee's subsistence during the rehabilitation process is subject to the provisions of Subsection 34A-2-413(4)(b), described in subsection 2.(b) above, but can be funded by reasonably offsetting the advance of disability compensation against future liability normally paid after the initial 312 weeks.

(iii) To fund an advance of disability compensation to provide for an employee's subsistence during the rehabilitation process, a portion of the stream of future weekly disability compensation payments may be discounted from the future to the present to accommodate payment. Should this be necessary, the employer or insurance carrier shall be allowed to reasonably offset the amounts paid against future liability payable after the initial 312 weeks. In this process, care should be exercised to reasonably minimize adverse financial impact on the employee.

(iv) In the event the parties cannot agree as to the reasonableness of any proposed offset, the matter may be submitted to an ALJ for determination.

(c) Subsections 34A-2-413(7) and (9) require the applicant to fully cooperate in any evaluation or reemployment plan. Failure to do so shall result in dismissal of the applicant's claim or reduction or elimination of benefit payments including disability compensation and subsistence allowance amounts, consistent with the provisions of Section 34A-2-413(7) and (9).

(d) Subsection 34A-2-413(6) requires the employer or its insurance carrier to diligently pursue any proffered reemployment plan. Failure to do so shall result in a final award of permanent total disability compensation to the applicant.

(e) If, after the conclusion of the foregoing "second step" proceeding, the ALJ concludes that successful rehabilitation is not possible, the ALJ shall enter a final order for continuing payment of permanent total disability compensation. The period for payment of such compensation shall [be ]commence on the date the employee became permanently and totally disabled, as determined by the ALJ.

(f) Alternatively, if after the conclusion of the "second step" proceeding, the ALJ concludes that successful rehabilitation and/or reemployment is possible, the ALJ shall enter a final order to that effect, which order shall contain such direction to the parties as the ALJ shall deem appropriate for successful implementation and continuation of rehabilitation and/or reemployment. As necessary under the particular circumstances of each case, the ALJ's final order shall provide for reasonable offset of payments of any disability compensation that constitute an overpayment under Subsection 34A-2-413(4)(b).

(g) The ALJ's decision is subject to all administrative and judicial review provided by law.

D. For purposes of this rule, the following standards and definitions apply:

1. Other work reasonably available: Subject to medical restrictions and other provisions of the Act and rules, other work is reasonably available to a claimant if such work meets the following criteria:

a. The work is either within the distance that a resident of the claimant's community would consider to be a typical or acceptable commuting distance, or is within the distance the claimant was traveling to work prior to his or her accident;

b. The work is regular, steady, and readily available; and

c. The work provides a gross income at least equivalent to:

(1) The current state average weekly wage, if at the time of the accident the claimant was earning more than the state average weekly wage then in effect; or

(2) The wage the claimant was earning at the time of the accident, if the employee was earning less than the state average weekly wage then in effect.

2. Cooperation: As determined by an administrative law judge, an employee is not entitled to permanent total disability compensation or subsistence benefits unless the employee fully cooperates with any evaluation or reemployment plan. The ALJ will evaluate the cooperation of the employee using, but not limited to, the following factors: attendance, active participation, effort, communication with the plan coordinator, and compliance with the requirements of the vocational plan. In determining if these factors were met, the ALJ shall consider relevant changes in the employee's documented medical condition.

3. Diligent Pursuit: The employer or its insurance carrier shall diligently pursue the reemployment plan. The ALJ will evaluate the employer or insurance carrier's diligent pursuit of the plan using, but not limited to, the following factors: timely payment of expenses and benefits outline in the vocational plan, and as required by the educational institution providing the vocational training, communication with the employee, compliance with the requirements of the vocational plan, and timely modification of the plan as required by documented changes in the employee's medical condition.

4. Resolution of disputes regarding "cooperation" and "diligent pursuit": If a party believes another party is not cooperating with or diligently pursing either the evaluations necessary to establish a plan, or the requirements of an approved reemployment or rehabilitation plan, the aggrieved party shall submit to the workers' compensation mediation unit an outline of the specific instances of non-cooperation or lack of diligence. Other parties may submit a reply. The Mediation Unit will promptly schedule mediation to reestablish cooperation among the parties necessary to evaluate or comply with the plan. If mediation is unsuccessful, a party may request the Adjudication Division resolve the dispute. The Adjudication Division will conduct a hearing on the matter within 30 days and shall issue a written decision within 10 days thereafter.

 

R612-200-[8]6. Burial Expenses.

1. The Commission adopts this rule pursuant to authority granted by Section 34A-2-418 of the Utah Workers' Compensation Act.

2. If death results from a work injury, burial expenses up to $9,000 shall be paid. Unusual circumstances may require additional payment, either voluntarily or through Commission order.

3. During each even-numbered year the Commission shall review this rule and make such adjustments as are necessary so that payment of burial expense required by this rule remains equitable when compared to the average cost of burial in this state.

 

KEY: workers' compensation, filing deadlines, time, administrative proceedings

Date of Enactment or Last Substantive Amendment: [July 8, 2013]2014

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