Labor Commission Logo
On The Job Newsletter

Utah state capitol dome

2014 Legislative Session

The Utah Legislature enacted several bills during the 2014 session that impact the Labor Commission. These bills include changes to the workers’ compensation system and the adjudication of those claims as well as new requirements for the payment of wages in the construction industry. The Legislature also passed a bill dedicating a week in June of each year to public awareness of workplace safety.

Workers’ Compensation Changes
Most of these changes were enacted fairly early and quickly during the session. These bills were vetted by the Workers’ Compensation Advisory Council and received the Council’s support, which in turn allowed the bills to advance quickly.

HB 10, Injured Worker Reemployment Amendments
Addresses the changes necessitated by the sunset of the Injured Worker Reemployment Act. The bill keeps the language from the Reemployment Act that encourages the rehabilitation and reemployment of injured workers and clarifies that such acts remain voluntary on the part of employers and insurance carriers. The bill enacts a new section of the Workers’ Compensation Act, §34A-2-413.5, and does away with the reporting obligations previously required under the Reemployment Act. Under this new section, employers and insurance carriers are no longer required to submit reports on their rehabilitative and reemployment efforts to the Industrial Accidents Division and are no longer required to seek a waiver when not making a referral for reemployment activities.

SB 127, Labor Commission Decision Amendments
Clarifies when Commission decisions are considered final. There had been some confusion as to when Commission decisions are final and when a judgment may be docketed for enforcement in district court. SB 127 provides that Commission decisions awarding permanent total disability benefits are considered final unless set aside by the Court of Appeals. Abstracts may be issued and these awards docketed for enforcement in district court unless and until set aside by the Court of Appeals. All other Commission decisions are final unless further appeal is initiated within 30 days of the date the decision is issued. The distinction is necessary to ensure that injured workers who are totally and permanently disabled are not denied benefits during a lengthy appeal process.

First substitute SB 44, Workers’ Compensation and Employee Misconduct
Alters the payment of disability compensation to injured workers when the injured worker is impaired on the job site and impairment is a contributing or major cause of the injury.

Under the current law, if an injured worker is found to be impaired it is presumed the impairment was the major contributing cause of the injury and disability compensation is denied if the worker cannot overcome the presumption.

Utah state capitol SB 44 establishes a preponderance of the evidence standard for rebutting this presumption. If an employee is unable to rebut the presumption that impairment was not the major contributing cause of the accident, the employee is still denied disability compensation. If the employee is able to show impairment was not the major contributing cause, but unable to show impairment was not a contributing cause, the employee’s disability compensation will be reduced by 15%.

If an employee can show impairment was not the major or a contributing cause of the injury, the employee is eligible for disability compensation in the full amount.

SB 160, Workers’ Compensation Amendments
Extends the Commission’s authority to approve settlements in which an employee’s medical claims are allowed but the employee’s disability claims are barred by the statute of limitations. The bill also clarifies that a full and final settlement extinguishes an employer’s obligations unless specifically preserved and gives the Commission explicit authority to approve settlements that provide for the payment of benefits in cash or cash equivalents, through an insurance contract, or by a third party.

HB 94, Workers’ Compensation and Community Based Services
Modifies the definition of “employer” and removes the workers’ compensation exemption in certain domestic employment settings and for certain types of domestic employees. Under this bill, domestic employees who provide home and community based services for more than seven hours per week and who are paid from state and federal money received by an individual with a disability or that individual’s designated representative are no longer exempt from workers’ compensation coverage.

“Home and community based services” are defined as those services provided to an individual with a disability or the individual’s family that help keep the individual in the home rather than being placed in a more restrictive setting.

Payment of Wages

SB 87, Contractor Employee Amendments
Modifies the pay statement requirements in the construction industry. This bill provides that a licensed contractor is required to give an employee a detailed pay statement that includes the employee’s name, base rate of pay, the pay period dates, the number of hours the employee worked if the employee is paid hourly, the amount of and reason for any withholdings made in accordance with state and federal law, and the total amount paid to the employee. The bill also provides for the Commission to administer penalties for an employer’s failure to meet these requirements.

An employer may be fined $50 for an initial violation, $100 for a second or third violation within a one-year period, and $500 for a fourth and any subsequent violations within a one-year period.

Safety

Finally, SB 106, Workplace Safety Week Designation
Designates the third full week of June as Workplace Safety Week. Based on the success of last year’s SCR 9, which resulted in designating June 23-29, 2013, as Workplace Safety Week, the third week of June will now be dedicated each year to encouraging Utahns to recognize the importance of safety in the workplace.

by Jaceson R. Maughan, Deputy Commissioner and General Counsel  


Equal housing training

Utah Labor Commission Announces Free Fair Housing Training

The Utah Labor Commission is pleased to announce that the Fair Housing Unit of the Utah Antidiscrimination and Labor Division (UALD) received a grant from the Department of Housing and Urban Development which will fully fund an education and outreach position for one year. The Division’s new outreach Fair Housing coordinator will provide education to landlords, government agencies, and tenants about Fair Housing law.

Moving day The Antidiscrimination Division has long discussed how to best reach out to landlord and tenant groups, especially in the rural areas of Utah. This new position will enable us to provide an expert in housing law to speak to individuals throughout the state who might feel unsure of what their rights and responsibilities are under the Utah and Federal Fair Housing Acts.

We have found that many management companies, tenant groups and municipalities recognize Fair Housing Month by reviewing fair housing laws and ensuring that they and their employees are aware of the rights and responsibilities imposed by the Act. The Utah Antidiscrimination and Labor Division is committed to making sure that these groups are successful in their efforts and have as many educational tools at their disposal as possible.

President Lyndon B. Johnson and Dr. Martin L. KingIt’s noteworthy that this April marks the 46th anniversary of the passing of the Federal Fair Housing Act. The Act was passed in the aftermath of the assassination of Dr. Martin Luther King, Jr. President Lyndon B. Johnson called on Congress to pass fair housing legislation, calling it a fitting legacy to King and his life's work. A short seven days after the assassination of Dr. King, the Fair Housing Act was passed. The Utah Labor Commission is proud to celebrate Fair Housing Month and works diligently to assure that fair housing practices are utilized throughout Utah.

The Fair Housing outreach coordinator will reach as broad an audience as possible, and will provide training to any company, governmental agency or community group, free of charge.

To schedule a fair housing training session, or to find out more about the Fair Housing Acts, please contact Dan Singer, Fair Housing Manager with the UALD at 801-530-6924 or at dsinger@utah.gov.

by Dan Singer, Fair Housing Unit Manager  


SHARP Award

Litehouse, Inc. Receives the Utah OSHA SHARP Award

Litehouse, Inc., located in Hurricane, Utah, was awarded participation in the Utah OSHA Consultation Safety and Health Achievement Recognition Program (SHARP) effective December 5, 2013. The award was presented to Mr. Kelly Prior, CFO, Mr. John Shaw, Director of Operations and Mr. Matt Hansen, Facility Manager. The award was presented by Mr. Scott McKenzie, Utah OSHA Director.

Litehouse employees

Litehouse, Inc. is the first Southern Utah business to receive the Utah OSHA Consultation and Education Services SHARP award. The Litehouse facility began its production process on May 16, 2011 and their 125 employees produce 50,000 to 60,000 gallons of salad dressing each week. Kelly Prior, Executive Vice President and CFO said, “We have three or four manufacturing plants, but this one is really setting the bar for the whole company.” John Shaw, Director of Operations stated, “This [SHARP] really is a recognition of all the work everybody in this plant has done to work safely so that people go home each day and come back to work the next day.

Litehouse employeesThe Hawkins family started selling their homemade dressing out of the family’s restaurant in Hope, Idaho, over 50 years ago. In 2006, the family sold the Company to its employees. Every person at Litehouse has the same passion and commitment to producing the best products available.

Utah OSHA and the Utah Labor Commission congratulate Litehouse, Inc., the first Southern Utah SHARP Company.


Sandy City fire truck

Sandy City Fire Department Receives the Utah OSHA SHARP Award

Sandy City Fire Department, Station 31, 32, 33, 34 and 35 was awarded participation in the Utah OSHA Consultation Safety and Health Achievement Recognition Program (SHARP) effective September 3, 2013. The award was presented to Mr. Don Rosenkrantz, Sandy City Fire Chief, Mr. Robert DeKorver, Sandy City Fire Marshal and Mr. Jared Smith, Sandy City Office of Risk Management. The award was presented by Mr. Jaceson Maughan, Deputy Labor Commissioner and Mr. Scott McKenzie, Utah OSHA Director.

The Sandy City Mayor and Administration recognize that the safety of city employees is a top priority and it helps to maintain employee morale. By tracking and recognizing safety records, each city department is held accountable for their safety practices and takes an active role in reviewing safety procedures and accidents within their department on a regular basis.

Sandy Fire Dept receives SHARP AwardFrom left: Deputy Chief Bruce Cline, Chief Don Rosenkrantz, Mayor Tom Dolan, City Council Chairman Scott Cowdell, Utah OSHA Director Scott Mckenzie

Chief Rosenkrantz is committed to maintaining an exemplary safety and health management system, which promotes employee involvement enhanced by individual knowledge and responsibility. The department places the highest priority on the health and safety of the eighty full time employees and 40 part time employees at their five fire stations. Applying for participation in the Safety and Health Achievement Program (SHARP), through Utah OSHA Consultation and Education Services, was a way to increase workplace safety and health awareness within the department and communicate that there is a continued commitment to safety processes.

Sandy City Fire Department has sought and welcomed any suggestion for improving their safety standards while working with Utah OSHA Consultants, Evelyn Partner and Lawnie Nebeker. Recognizing the steps taken to receive the award was just as important to the Department as achieving the award.

The Utah Labor Commission congratulates the members of the Sandy City Fire Department for their outstanding commitment to safety practices.

by Kate McNeil Utah OSHA Consultation Manager


judge's gavel.

Utah Antidiscrimination Division Legal Update

On June 24, 2013, the United States Supreme Court decided two employment discrimination cases; Vance v. Ball State University, et al., 133 S.Ct. 2434 (2013), and University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). These decisions will have an impact on employment discrimination claims here in Utah that involve harassment by individuals who may be considered supervisors as well as claims of unlawful retaliation under Title VII of the Civil Rights Act of 1964 (Title VII).

Additionally, since the Utah Antidiscrimination Act is similar to Title VII, these cases may influence how Utah courts interpret the Utah Antidiscrimination Act.

In Vance, the Court held that an employee is a supervisor for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment action against the victim. Traditionally, under Title VII, an employer’s liability for harassment may depend upon the status of the harasser. If the harassing employee is a co-worker of the victim, the employer is only responsible if it was negligent in controlling working conditions. However, in cases where the harasser is a supervisor and the harassment results in a tangible employment action, the employer is strictly liable. If no tangible employment action occurs, then the employer may not be found liable if it can show that it exercised reasonable care to prevent and correct any harassing behavior and the victim unreasonably failed to take advantage of the preventive or corrective opportunities it provided.

Inasmuch as Vance clarifies who may be considered a supervisor, the case may have an impact on employment discrimination claims in determining whether the harasser is a supervisor or not.

The Supreme Court, in University of Texas Southwestern Medical Center, held that in claims for retaliation brought under Title VII of the Civil Rights Act of 1964, the complaining party must show that, but for his or her protected activity, the adverse action would not have occurred. This burden of proof placed upon an individual alleging retaliation is a somewhat higher burden of proof than was required by some courts in the past.

by Kerry Chlarson, Anti-Discrimination & Labor Division Director


Online wage claims

Online Wage Claim Filing

It’s now easier to file a claim for unpaid wages. In October 2013 the Wage Claim Unit (“WCU”) of the Antidiscrimination and Labor Division (“UALD”) launched their online wage claim filing. This procedure gives customers the option of filing a wage claim online through the Utah Labor Commission website. It involves no paperwork and is a convenient and user-friendly process for those who would rather complete the wage claim form online.

Leonor Lopez, former WCU Intake Officer, observes, “Online filing has helped streamline the claim filing process, resulting in enhanced customer service.”

Online wage claim form

This new procedure is easy to follow. The user goes to www.laborcommission.utah.gov and under the column, “I Want To:” clicks on “File A Complaint. ” This will open a pop-up menu, from there the user selects “Wage Claim (Online).” Then follows the easy prompts and answers a series of questions which will assist the Wage Claim Unit in determining jurisdiction over the specific claim.

If the answers indicate that the Labor Commission can help, a security screen appears. After the individual properly enters the security characters, he or she is then is able to complete the wage claim application form. The online information provided by the customer then uploads directly into the WCU case database system for processing.

According to Izzy Simpson, WCU Intake Officer, this makes for easier case setup. She says, “The online procedure provides for greater documentation accuracy compared to paper claim submissions.” She also indicates that some patrons particularly like the feature of receiving immediate confirmation that the WCU received their online filed claim after they completed the form and hit the “submit” button.

Individuals are still free to email completed wage claim forms or submit them by mail or fax to WCU. With the anticipated continued success of the online filing procedure, UALD hopes to eventually expand it to include late wage payment penalty and retaliation claims, and to make it available in Spanish.

by Brent Asay, Wage Claim Unit Manager, Utah Antidiscrimination and Labor Division


improved processes

Adjudication Division's Process Improvements

The Adjudication Division continues to implement improvements in the timeliness of its entire process, from processing applications for hearings to issuing final decisions.

Below are some highlights:


Intake
As some of you may know, in early December, the Division had a backlog of hundreds of cases waiting on orders for answers and hearing dates – a backlog that stretched into hundreds of cases and several months. To combat the backlog, the Division shifted work around among the staff, and hired a part-time temporary employee. As of the date of this article, the Division is up to date on issuing orders for answers, and is scheduling hearings in cases where an answer was filed in mid-February. Although we still have a backlog, the Division has reduced it from about 4 months to about 4 weeks. We will continue our efforts until we are up to date on scheduling hearings. Our goal is to issue orders for answers and schedule hearings with a 2 day turnaround.

clerks may spend critical time opening what appears to be a new case file, rather than merely amending an existing one.In order to help us at the intake stage, it is critical that when filing amended applications, an injured worker clearly indicate, on the face of the application itself, that it’s being amended. Otherwise, the clerks may spend critical time opening what appears to be a new case file, rather than merely amending an existing one. In addition, if an injured worker chooses to file medical records in lieu of the summary of medical records form, he or she must remember to highlight the language from those medical records that ties them to an alleged work- related accident. Otherwise, the clerks have to spend considerable time sorting through pages and pages of medical records to ensure jurisdiction – time that could be spent processing applications and scheduling hearings.

Interim and Final Orders
The Division has made great strides in issuing its interim and final orders in a much more timely fashion. Two years ago, our work standards required that decisions be issued within 120 days. In September 2012, that standard was reduced to 90 days, and in July 2013, it was further reduced to only 60 days. Currently, the Division is issuing 93% of its interim decisions within 60 days, and 89% of final decisions within 60 days of receiving medical panel report objections. Our goal is, of course, is to issue all decisions within 60 days, and we will continue our efforts until we have met that goal.

We appreciate the patience of stakeholders as we continue to implement process improvements and tweak our business practices.

by Heather Gunnarson, Adjudication Division Director


Southern Utah workers compensation conference

Labor Commission’s Southern Utah Workers’ Compensation Conference

On February 21, the Industrial Accidents Division hosted the Labor Commission’s 10th Workers’ Compensation Educational Conference at Dixie State University in St. George, Utah. Attendance included adjusters, attorneys, medical providers and insurance carrier representatives.

Attendees provided a wide range of perspectives and brought up interesting questions, which allowed presenters the opportunity to tailor the presentations and discussions to the needs and interests of the conference participants.

The first speaker, Brad Morse, manager of the Industrial Accidents Claims Unit, presented division and legislative updates, including a summary of the provisions of new workers’ compensation laws passed during the 2013 Legislature, specifically SB 45, SB 59 and SB 147.

As the conference continued, Pete Groesbeck, a highly experienced mediator with the division, provided a review of the changes in Industrial Accident Division (IAD) Rules, complying with an Executive Order issued on December 6, 2012, requiring state agencies to review their rules to assure:

• Consistency with statutory authority
• Ensuring that rulemaking provides full opportunity for public participation
• Rules do not impose unnecessary economic burden
• Compliance costs are minimized
• Rules are clear and concise

Mr. Groesbeck also conducted a discussion giving information on the essential elements of the Industrial Accidents Division conciliation and mediation program. Those elements are: Labor Commission neutrality, good faith negotiations and compromise, vetting all issues, confidentiality of outcomes, and petitioner has all relevant information necessary to make an informed and prudent decision.

Additional presenters included Judge Cheryl Luke, representing the Adjudication Division. Her presentation included Adjudicative updates and a review of processes. She concluded her presentation with an overview of recent cases and decisions.

Southern Utah workers compensation conference

The second half of the conference focused on medical issues, with Dr. Allen Colledge and Dr. Kirt Kimball as the presenters. Dr. Colledge reviewed medical updates, treatment guidelines and impairment ratings, while Dr. Kimball’s presentation focused on information regarding the treatment of injured workers that sustain shoulder and knee injuries. Dr. Kimball also held a discussion on “Using Medical Science to Assist in Determining Causation.” The presentations by Dr. Colledge or Dr. Kimball can be found on the Labor Commission website.

The conference concluded with a very informative Q&A session, with Dr. Kimball and Dr. Colledge leading the discussion.

by Brad Morse, Section Manager, Industrial Accidents Division


Judge's gavel

Appellate Decisions

This quarter the Utah Supreme Court and the Utah Court of Appeals issued four decisions involving Labor Commission cases. The full text of these decisions is available at www.utcourts.gov/opinions/. The decisions issued by the court this quarter dealt with the Utah Workers’ Compensation Act, and the Utah Occupational Safety and Health Act.

Utah Supreme Court - Hughes General Contractors, Inc. v. Labor Commission (2014 UT 3; issued January 31, 2014).

Hughes was the general contractor for a construction project and had hired B.A. Robinson as a subcontractor to perform masonry work. B.A. Robinson erected a scaffold which was found to be in violation of occupational safety standards by Utah OSHA, which cited Hughes for the violation. Hughes appealed the citation and a hearing was held. The ALJ upheld the citation based on a federal workplace-safety practice known as the “multi-employer worksite doctrine.” Such doctrine attributes liability to the general contractor even if the employees threatened by the hazard are solely employees of another employer. Hughes appealed the ALJ’s decision, which was upheld by the Commission’s Appeals Board. The Appeals Board reasoned that because the applicable language in the Utah Occupational Safety and Health Act so closely resembled its federal counterpart, and because the Act also specified that its intent was to maintain safety standards as effective as federal standards, the multi-employer worksite doctrine applied to Hughes and the citation was valid. Hughes appealed the Appeals Board’s decision and the Utah Supreme Court took the case directly. The court disagreed with the Appeals Board’s reasoning and found that there was no clear legislative intent to apply the multi-employer worksite doctrine to Utah employers. The court noted that the Commission had not actually adopted the portion of the Code of Federal Regulations pertaining to the doctrine and found that the statutory language in Utah did not mirror its federal counterpart. The court therefore reversed the Appeals Board’s decision and overturned the citation.

Utah Court of Appeals - Tysha R. Cook and Tristan Ritchie v. Labor Commission, Zions Bank Corp., and Workers Compensation Fund (2013 UT App. 286; issued November 29, 2013).

The decedent employee in this case, Gina Cook, died from a rare and aggressive form of cancer. Her estate originally sought compensation from her employer, Zions Bank, under a tort theory, but the Utah Supreme Court held that the only recourse against her employer was to seek benefits under the workers’ compensation system. The central issue in Ms. Cook’s claim before the Commission was whether a delay of a few months, during which time Zions Bank did not allow Ms. Cook time off to treat her condition, was medically causally connected to her condition. An expert medical panel was asked to consider if such delay in treatment aggravated, prolonged, accelerated, or otherwise contributed to the cancer’s effects. The panel concluded that it could not assign any percentage of aggravation, acceleration, mortality, morbidity, or other contribution to Ms. Cook’s cancer as a result of the delays in medical treatment. The ALJ relied on the medical panel’s conclusion and dismissed Ms. Cook’s claim for lack of a medical causal connection between Ms. Cook’s employment and the effects of her cancer. The Commission’s Appeals Board affirmed the ALJ’s decision with a dissenting vote. The matter was appealed to the Utah Court of Appeals, which upheld the Appeals Board’s majority decision after finding it to be supported by substantial evidence.

Annette Scott v. Labor Commission, Garden Burger, Inc., and Workers Compensation Fund (2013 UT App. 291; issued December 12, 2013).

Ms. Scott was injured in 2002 when a large metal mixer fell over and pinned her to the floor. She was treated for upper back pain with left-sided symptoms in her neck and arm. In 2011, Ms. Scott developed right-sided symptoms in her neck and arm and underwent surgery on her cervical spine. She claimed the surgery was due to the 2002 accident and filed a claim with the Labor Commission. The ALJ held a hearing and referred the medical aspects of Ms. Scott’s claim to a medical panel. The panel found that that the difference in Ms. Scott’s symptoms immediately following the accident and beginning in 2011 made it more likely that an outside factor, rather than the accident, medically caused her need for surgery. The ALJ relied on the panel’s opinion and denied Ms. Scott’s claim. On review, Ms. Scott attempted to submit additional medical evidence from her treating physicians in support of a medical causal connection between her need for surgery and the work accident. However, the Commission noted that opinions from Ms. Scott’s treating physicians were already in the record and rejected the late-submitted evidence. The Commission affirmed the ALJ’s denial of Ms. Scott’s claim. She appealed the case to the Utah Court of Appeals, which found that the Commission’s decision not to allow the late evidence was within its discretion. The court upheld the Commission’s denial of benefits based on the medical panel’s opinion after finding that it was supported by substantial evidence.

Angela Oliver v. Labor Commission and Employers’ Reinsurance Fund; Safeway v. Angela Oliver (2013 UT App. 301; issued December 27, 2013).

Ms. Oliver sustained a work-related low-back injury in 1987 while she was working for Safeway. She underwent vocational rehabilitation and returned to work as a nursing assistant and then as a nurse. In 2004, Ms. Oliver injured her low back while working as a nurse. She claimed permanent total disability compensation related to her low-back condition from the company that employed her as a nurse, and a hearing was held. Ms. Oliver’s claim was referred to a medical panel of one, Dr. Goldman, and her claim against the nursing services provider was eventually dismissed due to the lack of a legal causal connection. Ms. Oliver re-filed her claim for benefits naming Safeway as the responsible employer. Another hearing was held and her claim was again referred to Dr. Goldman as the only member of a medical panel. Safeway objected to Dr. Goldman’s participation and the matter was remanded to the ALJ to appoint a new medical panel. The ALJ again enlisted Dr. Goldman as chairman of the medical panel, who associated with another doctor this time. The ALJ eventually denied Ms. Oliver’s claim for permanent total disability compensation due to her demonstrated ability to learn new skills. Ms. Oliver appealed the ALJ’s decision to the Commission’s Appeals Board. Safeway again objected to the participation of Dr. Goldman by arguing that he could not be impartial after his prior involvement. The Appeals Board upheld the ALJ’s denial of benefits because, according to the law in effect at the time, she had not shown the 1987 accident prevented her from returning to work in a job that she would be able to do. Ms. Oliver appealed the denial to the Utah Court of Appeals, which consolidated her appeal with a challenge from Safeway regarding the composition of the medical panel. The court set aside the Appeals Board’s decision after finding that it had applied an incorrect standard. Specifically, the court held that the Commission must determine if the 2004 injury was the natural result of the 1987 injury with Safeway. The court also determined that on remand it may be prudent to appoint a medical panel comprised of entirely new doctors as Dr. Goldman’s objectivity may be compromised.


Law book

Rules Corner

Rule 602-2-5 - Adjudication - Effective February 21, 2014
Timeliness of Decisions. This rule was enacted to establish timeliness standards and procedures for the adjudication of workers’ compensation claims in accordance with Senate Bill 99, which was passed during the 2013 legislative session. SB99’s timeliness requirements for the adjudication of claims and the motion for review process are located in Utah Code Ann. §34A-2-801.

Rule 616-2-3 -Boiler and Pressure Vessel Rules - Effective March 10, 2014
Safety Code and Rules for Boilers and Pressure Vessels. This update adopts the 2013 edition of the American Society of Mechanical Engineers (ASME) Section I, IV, and VIII; the 2013 edition of the National Board Inspection Code (NBIC) Part 3 2013 edition; and the 2012 edition of the Controls and Safety Devices for Automatically Fired Boilers ASME CSD-1. This information is updated on a regular basis to ensure uniformity between Utah standards and national standards for the design, installation, and inspection of boilers and pressure vessels.