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On The Job Newsletter
Scott McKenzie

Scott McKenzie Appointed as the New Utah OSHA Director

Below are some words from Mr. McKenzie about his appointment.

I would like to take this opportunity to share with you my goals for the division. It’s my vision to take Utah OSHA and its staff to a higher level of excellence by improving the division’s relationship with local businesses and government agencies at both the state and municipal level. In order to accomplish this, we are focusing on three strategies:

1) We will increase our efforts in order to have a strong, fair and effective enforcement program.
2) We will increase our outreach and education programs.
3) Improve our partnerships and cooperative programs in order to strengthen our relationships with the people we serve.


About me: I hold a Master’s Degree in Public Administration from Webster University and national certifications as both a Registered Environmental Health Specialist (REHS) and as a Certified Safety Management Practitioner (CSMP).

Prior to this appointment, I worked for the Utah Department of Health. I also served 32 years in the U.S. Navy as a public health officer and as an occupational safety and health official.

I am a native of Taylorsville, Utah and graduated from Cottonwood High School. I joined the Navy enlisted ranks after graduation and progressed up to the rank of Chief Petty Officer before finishing my bachelor’s degree and being commissioned as a Medical Service Corps officer. I recently retired from the Navy at the rank of Commander. Some of my most rewarding assignments were working with several foreign governments as a Public Health advisor.

My wife Jacklyn and I have two sons, Jeremiah and Jonathan. We enjoy outdoor activities and doing things together as a family.

I look forward to working to make Utah a safer place for everyone.


Brent Asay

Utah Hosts National Labor Standards Conference

Some 49 years ago a group of people reaching out to each other throughout the United States decided to form the “Interstate Labor Standards Association,” (ILSA) on the principle that networking among state counterparts in common areas of endeavor would be beneficial. It turned out to be a very smart idea, as attested by 49 years of fruitful activity!

During the week of September 22nd – 27th, the Utah Labor Commission (“Commission”) hosted the 49th Annual Interstate Labor Standards Association (“ILSA”) national conference. ILSA is comprised of representatives of the various state agencies involved in the administration and enforcement of wage and child labor laws. Brent Asay, Wage Claim Unit Manager with the Utah Labor Commission, serving as 2013 ILSA President, hosted the conference this year. Close to 35 people including several representatives from the U.S. Department of Labor participated in the conference, with 16 U.S. states and Taiwan represented.

The Conference opened with remarks by Utah Lieutenant Governor Greg Bell, who welcomed the out-of-state participants to Salt Lake City and the State of Utah. Starting off the week’s meeting sessions, each ILSA state representative reported on new state legislation and the developments and trends that occurred in their respective states within the past year, in the enforcement of wage and child labor law. The speakers and discussion panels which followed throughout the week, including representatives from the U.S. Department of Labor, addressed specific topics in these areas. In addition, there were excellent sessions on worker job misclassification, process/quality improvement, best practices, and mediation.

This year’s ILSA Conference in Salt Lake City lived up to the ILSA trademark that has been established over the years, of providing its members a golden opportunity for increased knowledge, the sharing of ideas for success, improving ILSA as a resource, and coordination of efforts where feasible.

by Brent Asay, Wage Claim Unit Manager


refugees

Labor Commission Releases “Workplace Safety for Refugees” DVD

Utah welcomes approximately 1,100 newly-arrived refugees and approximately 1,000 second migration refugees each year. Currently it is estimated that 25,000-30,000 refugees are living in Utah representing over 20 different refugee communities. One approach to addressing workplace safety concerns for refugees is to provide them with an opportunity to learn concepts in their own language, specifically related to safe workplace practices.

The Utah Labor Commission Workplace Safety Program has produced a workplace safety video in the hopes that a reduction in job-related accidents will take place, and that programs such as this will provide a much needed educational opportunity for refugees to learn about their roles, responsibilities and rights regarding workplace safety.

Our key partners in this production were the Utah Refugee Coalition (URC), a local non-profit organization comprised of refugee communities created to connect its membership to local resources and Reel Advocacy, a non-profit organization dedicated to providing professional media with inspired storytelling for nonprofits. Reel Media was responsible for the video production and editing of this DVD.

Free DVD copies of “Workplace Safety for Refugees” are available by contacting Elena Bensor, Public Information /Community Relations Officer (801) 530-6918 .

In addition, the program can also be streamed directly from our website

by Elena Bensor, Public Information & Community Relations Officer


Labor Commission safety poster calendars

Utah Labor Commission Safety Calendars Available

Each year, as part of the Labor Commission’s community relations program, and by utilizing money from the Workplace Safety Fund, the Commission sponsors a “Take Safety Seriously” poster contest specifically aimed at promoting safety awareness for Utah’s future workforce.

The poster contest, in its 16th year now, is currently open to all middle and junior high schools across Utah, including Charter Schools and private schools. Cash awards are given to the winners and matching awards to the school’s art program for participating. This year, the level of interest and participation was unprecedented with over 1,700 entries submitted by 70 different middle and junior high schools throughout Utah. The top 12 entries are then included in the Labor Commission’s annual safety calendar. We print about 15,000 copies and those are distributed without cost to schools, businesses, and community based organizations, for purposes of increasing workplace safety awareness throughout the state of Utah.
Safety calendar
2013 safety calendars are now available to the general public, free of charge. We have planner and wall sizes. Interested individuals are welcome to pick up requested quantities Monday - Friday 8:00 a.m. to 5:00 p.m. at our office located at 160 East 300 South, 3rd Floor, Salt Lake City, Utah. For questions please call 801-530-6800.


Welcome to Utah

Utah's Occupational Injuries and Illnesses Report for 2012

The U.S. Department of Labor, Bureau of Labor Statistics has released its 2012 nonfatal occupational injury and illness data which was obtained through the annual Survey of Occupational Injuries and Illnesses.

Two thousand six hundred and three (2,603) private sector employers in Utah were surveyed for information concerning their average number of employees and hours worked, as well as details on any nonfatal occupational injuries and illnesses that occurred during calendar year 2012. The overall incidence rate for the private sector decreased to 3.4 in 2012, down from 3.6 work-related injury and illness cases per 100 full-time workers in 2011. From these injuries and illnesses, cases with days away from work were unchanged from 0.7 cases per 100 full-time workers in 2011 to 0.7 in 2012. Cases with job transfer or restrictions were unchanged from 0.7 cases per 100 full-time workers in 2011 to 0.7 in 2012. The incidence rate for other recordable cases was decreased from 2011 at 2.1 cases per 100 full-time workers to 2.0 in 2012. Other recordable cases are work-related injuries or illnesses that required more than first aid, but did not require days away from work, job transfer or restriction.

Two hundred thirty-six (236) public sector employers in Utah were surveyed for information concerning their average number of employees and hours worked, as well as details on any occupational injury and illnesses that occurred during calendar year 2012. The overall incidence rate for the public sector decreased from 4.2 work-related injury and illness cases per 100 full-time workers in 2011, down to 4.0 in 2012. From these injuries and illnesses, cases with days away from work were unchanged from 0.6 in 2011 to 0.6 cases per 100 full-time workers in 2012. Cases with job transfer or restriction decreased from 0.5 in 2011 cases per 100 full-time workers to 0.3 in 2012. The incidence rate for other recordable cases increased from 3.1 cases per 100 full-time workers in 2011 to 3.2 in 2012.

Nonfatal occupational injuries and illnesses by industry The survey was administered by the Utah Labor Commission, Statistics Department. The 2007 version of the North American Industry Classification Systems (NAICS 2007) was used to group company data by industry. Over 3,000 Utah employers are randomly selected for the survey each year.

by Edward Denning and Jennifer Roundy, Bureau of Labor Statistics


Ron Dressler

Utah Labor Commission Workers’ Compensation Conference 2013

On September 27th, 2013 the Division of Industrial Accidents hosted the Labor Commission’s 10th Workers’ Compensation Educational Conference. The conference took place at the Sheraton Hotel in downtown Salt Lake City, and was attended by 207 participants representing adjusters, attorneys, medical providers, and insurance carrier representatives.

The morning session included introductions by Commissioner Sherrie Hayashi and Deputy Commissioner Jaceson Maughan as well as a very informative keynote address by Dr. Mark Melhorn on determining medical causation. The morning session also included updates and advocacy tips by two of the Commission’s Administrative Law Judges, Diedre Marlow and Aurora Holley, as well as Division and legislative updates, and information about what should be included on labels of hazardous chemicals and safety data sheets.

Utah OSHA adopted a new standard on November 25, 2012, which updates the existing Hazard Communication standard (1910.1200), to make workplace chemical safety and health information more universal, and enhances hazard understanding for employees.

The Utah Labor Commission, previously known as the Utah Industrial Commission, was initially established in 1917 as a regulatory agency enforcing safety rules for Utah’s workers in addition to providing support for Utah’s new workers’ compensation law.

The afternoon agenda consisted of two breakout sessions, one directed toward administrative topics and the other medical. The administrative session consisted of an overview of the Utah Occupational Safety and Health Division’s Consultation Program by James Johnston and Shaheen Safiullah, a panel discussion by the Industrial Accident Division’s Claims Section, and an overview of the Medical Fee Standards by Peg Howarth of the Workers’ Compensation Fund of Utah.

The medical breakout session covered a few interesting items such as “The diagnosis and treatment of closed head injuries” by Dr. John Speed; “The treatment of shoulder and knee injuries” by Dr. Kirt Kimball; “Whether sleep apnea is compensable” by Dr. Howard Leaman; "Functional capacity assessments" by Dell Felix, PT; and an update on fees and the Impairment Guidelines by the Division’s Medical Director, Dr. Alan Colledge.

I want to publicly thank everyone who participated in helping make this a successful conference.

by Ron Dressler, Director Industrial Accidents Division


Coal Mining

2013 National Coal Mine Rescue Competition

Coal miners from across the United States competed in the National Coal Mine Rescue Competition held in Columbus Ohio, September 9 -12, 2013.

The 102nd biennial competition was hosted by the National Mining Association. The Mine Safety and Health Administration (MSHA) and the Utah Labor Commission provided the officials and judges for the competition. Kent Houghton and Debbie King, Division of Boiler, Elevator and Coal Mine Safety, were part of the officiating team.

Utah State Trophy First Place for Mine Rescue The four-day competition began on Monday, September 9th with the First Aid and Bench competitions. First Aid specialists treat injuries and perform vital medical treatment. Benchmen identify and fix problems with breathing apparatuses needed to avoid inhalation of potentially deadly gases emitted by a mine fire or explosion. Wednesday and Thursday were the Mine Rescue competitions where teams are required to overcome obstacles they may encounter in a real mine disaster when rescuing survivors. They are judged on their knowledge of mine-rescue principles, mapping skills, overall knowledge, organization, attention to detail and teamwork.

Thursday was the Pre-shift competition. Prior to every shift, pre-shift examiners identify and correct mine hazards before they cause an accident or injury.

The competition wrapped up on Thursday, September 12th with an awards banquet where trophies were awarded for the top three placing teams in each category. Utah was well represented with Corey Prettyman from Energy West Mining, competing against 126 other pre-shift contenders, earning the first place award in the Pre-shift competition. In addition to the top three placing trophies, many individual states will award a trophy to the highest placing team from their state. The Utah State Trophy for Mine Rescue was won by Bowie Resources, SUFCO Mine – White Team.

Bowie Resources – SUFCO Mine, White Team
Although the problems encountered in the competition are simulated mine disasters and the miners are competing for awards, this is no game. Mine rescuers are the ones who go into a coal mine when all the other miners are being evacuated in an emergency. They put their own lives and safety on the line to rescue their fellow miners. They invest a lot of time, training and hard work sharpening their skills and advancing their knowledge so that when the time comes that they are needed, they are prepared for the crucial task at hand.

by Debbie King, Miner Certification


Judge's gavel

Appellate Decisions

This quarter the Utah Court of Appeals issued two 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 Occupational Safety and Health Act.

Allied Construction & Development, Inc. v. Labor Commission Appeals Board (2013 UT App 224; issued September 12, 2013).

Allied was installing a large steel pipe in a trench, which used a support system to shore the sides of the trench. A Utah OSHA inspector received an anonymous call from a person who claimed that there were workers in the trench without the support system in violation of trench excavation safety standards under C.F.R. §1926.652(e)(2)(i).

The Utah OSHA inspector arrived on the scene to find a long-handled garden shovel with a rounded tip leaning upright against the unsupported portion of the trench wall. As the shovel was more than two feet in length, the Utah OSHA inspector concluded that a worker had been in a portion of trench more than two feet below the support system and cited Allied for a serious violation of trench excavation safety standards under C.F.R. §1926.652(e)(2)(i). Allied challenged the citation and a hearing was scheduled on the matter.

At the hearing, the only evidence submitted was a video of the upright shovel. Allied’s representative addressed the video by submitting that the shovel could have remained upright after the trench support panels were removed from behind it. The ALJ reasoned that it was unlikely the shovel would have remained upright while heavy equipment moved the support panels and upheld the citation. The Commission affirmed the ALJ’s decision.

On review, the Court of Appeals set aside the ALJ’s decision. The court held that to conclude the shovel must have been left by an individual in an unprotected portion of the trench was speculation. The court overturned the citation because the ALJ’s finding that Allied had violated safety standards was not supported by substantial evidence.

A&B Mechanical Contractors and Workers Compensation Fund v. Labor Commission and Scott Driscoll (2013 UT App 230; issued September 19, 2013).

Mr. Driscoll injured his neck and left shoulder while working for A&B. A&B conceded that Mr. Driscoll met the requirements for a preliminary finding of permanent total disability benefits and agreed to pay him subsistence benefits in conjunction with a reemployment plan.

Mr. Driscoll participated in a vocational rehabilitation plan and completed a two-year degree in information technology. He also registered with seven different employment staffing firms and worked with job placement counselors to find employment. The parties stipulated that the subsistence payments would end in September of 2008 and A&B would provide 90 days of job placement assistance to Mr. Driscoll, but he could apply for a final award of permanent total disability benefits.

A&B’s vocational expert helped Mr. Driscoll find a job making wiring harnesses, but that position violated his work restrictions as it required repetitive work with his left arm. Despite full cooperation from both parties in carrying out the rehabilitation and reemployment plan over four years, Mr. Driscoll was unable to find employment that met his work restrictions.

Mr. Driscoll then filed a motion claiming permanent total disability compensation with the Commission. The ALJ concluded Mr. Driscoll was permanently and totally disabled from his work injuries and awarded him such compensation. The Commission’s Appeals Board affirmed the award after finding that the evidence showed successful rehabilitation was not possible for Mr. Driscoll.

A&B appealed the award to the Utah Court of Appeals, which agreed that Mr. Driscoll had established entitlement to permanent total disability compensation. The court determined that the Appeals Board reasonably interpreted the ALJ’s decision not to require Mr. Driscoll to reestablish his eligibility for permanent total disability compensation. The court ultimately upheld the Appeals Board’s decision regarding Mr. Driscoll’s rehabilitation after finding that such finding was supported by substantial evidence.


Law book

Rules Corner

Pursuant to authority granted by the Utah Legislature, the Commission has recently adopted or is considering the following substantive rules. If you have questions or concerns about any of these rules, please call the Labor Commission at 801-530-6953.

Rule 612-300 Industrial Accidents
Workers’ Compensation Rules—Medical Care.
The Labor Commission’s regulations for medical care of injured workers was previously located in the rules set forth in R612-300 and the Medical Fee Schedule. This rule update incorporates the Medical Fee Schedule into this rule. The rule and the Medical Fee Schedule were redundant, sometimes ambiguous, and contained outmoded provisions. This rule repealed the existing rule and Medical Fee Schedule but reenacted the remaining necessary regulations in the new R612-300.
Effective November 22, 2013

Rule 602-5 Adjudication
Procedures for Resolving Disputes Regarding “Cooperation” and “Diligent Pursuit” Under Subsection 34A-2-413(6)(e)(iii) and Subsection 34A-2-413(9) Consistent with Utah Administrative Code Subsection R612-200-7(D)(4).
This non-substantive change corrects the rule’s citations to R612-1-10, which has been renumbered as R612-200-7.
Effective December 2013

Rule 612-400-5 Industrial Accidents
Premium Rates for the Uninsured Employers’ Fund and the Employers’ Reinsurance Fund.
This update provides a premium rate increase for the Uninsured Employers’ Fund.
Effective December 23, 2013