Commissioner Hayashi's Farewell
After 23 years with the state and 10 years as Commissioner, I've decided it is time to start a new chapter in my career. This has been a very hard decision but change is important, both individually and organizationally.
Over the years, I have had the opportunity of working with many different professionals in many different types of settings. Stakeholders, legislators, federal, state and local officials, employers, employees, industry groups, community groups, religious groups, labor organizations, and the public, just to name a few. The ability to bring together different perspectives and interests work together to find solutions that enhance the system is the most rewarding aspect of my career with the Labor Commission. Working for government, particularly for a regulatory agency can be difficult. Labor Commission employees have the challenge of enforcing statutory requirements while making sure we are providing exceptional public service to everyone. It is a difficult balancing act and can at times feel like a thankless job. Even so, Labor Commission employees are up to the task and are some of the most professional, caring and dedicated people who truly believe in the Labor Commission. It is with gratitude that I thank them for allowing me to work along side them.
Safety is No Accident: June is National Safety Month
June is National Safety Month and the Utah Labor Commission joins thousands of organizations across the country in an effort to raise workplace safety awareness. A serious workplace injury or death will change a life forever. The families, friends, communities and coworkers of an injured worker also have their lives altered forever. The expectation of coming home safe after each work day is not an unreasonable or unattainable goal. The Utah Labor Commission understands the benefits employers receive when they keep their employees safe and make workplace safety their first priority.
Safety programs are great for business. A workplace with strong safety programs allows employees to feel more comfortable and confident. Productivity grows when employees know their employer is invested in their health and safety. Employees want to be part of an environment where their well-being counts. Through this enhanced confidence, customer service grows because potential customers will not have to wait long for assistance or products and will interact with staff who are free of work related injuries and accidents.
Creating a safe work environment starts with understanding your environment. Taking the time to educate employees regarding potential slips, trips, and fall hazards, falling objects, and proper cutting behavior limits costly work related injuries or deaths. Employers and employees each have the responsibility to work together in a cooperative manner to decrease workplace injuries. Each must take an active approach in building an environment where everyone is protected.
The Utah Labor Commission strives to educate employers and employees regarding the creation of a healthy and safe work environment. Open communication and enhanced safety training are keys to ensuring that management and staff each will return home safe. The Commission encourages everyone to use National Workplace Safety Month as a springboard to a healthy and prosperous year free of work related accidents.
2016 Workplace Safety Week Highlights the Importance of Creating a Safe Work Environment
This year, Utah Workplace Safety Week was held during the week of June 20 - 24, 2016. This week is part of National Workplace Safety Month. For information regarding Utah Workplace Safety Week, and further information regarding National Workplace Safety Month, visit the following websites: https://www.wcf.com/2016-utah-workplace-safety-week and https://www.nsc.org/act/events/Pages/national-safety-month.aspx.
In the calendar year 2015, there were 421 workplace accidents reported to the Utah Occupational Safety and Health Division (UOSH). Of those, 327 were in general industry, 74 were in construction and 20 were in the public sector. During this same time frame UOSH investigated 15 workplace fatalities.
During the 2015 calendar year, UOSH conducted over 650 inspections and completed over 200 compliance inspections.
The safety standards for which citations were issued by UOSH during this time frame were for violations related to: fall protection, machine guarding, scaffolding, personal protective equipment, lock out/tag out, excavations, hazard communication, forklifts and ladders.
Wireless Technologies Advancing Inspection Efficiency
Even though the vision of a "paperless office" is difficult to imagine, especially in government, the Utah Labor Commission Division of Boiler, Elevator and Coal Mine Safety has accomplished just that. Now the goal is to take things one step further and make our inspection process ... wireless.
In September 2005, the Division decided to implement a Web-based program tailored to the inspector's specific needs. We hoped the program, by eliminating both paper and wires, would allow our inspectors to be more self-sufficient and productive. And it has.
Each of the inspectors' vehicles now houses a virtual office. The inspectors utilize their smartphones as a wireless hot spot allowing them to connect to the Internet, and therefore our computer system, from anywhere they can receive a cell phone signal. Power inverters in their vehicles allow them to plug in an all-in-one device allowing them to print and scan, and their laptops are now mounted in their vehicles in the same fashion as those used by the Utah Highway Patrol.
Development of the program was completed fully in-house with inspector participation from the start. It began with a read-only search grid that allowed inspectors to view all units due for inspection in their area at any given time. Shortly thereafter a print function was added. This allowed the inspector to print a list of the items needing inspection and also a worksheet containing all of the pertinent information currently on file for the unit to be used on-site to perform the inspection.
In the next phase inspectors were given the ability to perform a few crucial updates, while scrapping and inactivating decommissioned units in the field. Finally, nearly a year later, they were able to submit inspection data to the office. Upon completion of an inspection, the inspector takes the worksheet back to his vehicle, connects wirelessly to the Internet, and logs into our Inspector Web system. The inspectors can enter or update all pertinent data, create an inspection and with one click of a button, the process is complete. And now even the payment of an invoice can be performed online.
Twenty years ago the percentage of overdue units was nearly 100 percent; ten years ago, it was nearly 50 percent and at that time the Division sent nearly 20 percent of accounts to collection. The amount of time that elapsed from the date of inspection to the date the owner received a permit could be more than 30 days.
Now, the percentage of overdue units for the entire Division is less than 7%, the amount of time between inspection and the owner receiving a permit is no more than a week from the time it is entered into our system and we send less than 1% of accounts to collection.
Our next step; a handheld device scanning a barcode on an inspection item will allow the entire data entry process taking place in the palm of the inspector’s hand.
Reasonable Accommodations for Pregnancy and Related Conditions under the Utah Antidiscrimination Act
The Utah State Legislature has recently passed laws providing legal protections for pregnant and new mothers. These laws are designed to provide guidance to employers by providing standards for pregnant or new mothers in their employ.
Generally, an employer must make a reasonable accommodation for pregnancy, child birth, breastfeeding, or a related condition, if the employee so requests. Additionally, unless the employer can show the reasonable accommodation is an undue hardship (as defined in the Act), an employer cannot require an employee to end the employment if a reasonable accommodation can be given; or deny employment opportunities to the employee if the denial is based on the need to make a reasonable accommodation. Utah Code § 34A-5-106(1)(g). However, the law is clear that an employer is not required to allow an employee to bring a child to work. Utah Code § 5-106(7)(d).
The law also provides that an employer may require a medical certification concerning whether the reasonable accommodation is medically advisable for the employee. Utah Code at § 5-106(7)(a). However, the employer cannot require a medical certification for reasonable accommodations of more frequent restroom, food, or water breaks. Utah Code at § 5-106(7)(c).
Employers are required to include information regarding the right to reasonable accommodations for pregnancy and related conditions in their employee handbooks or post notice of these rights in conspicuous places. Utah Code at 5-106(7)(e).
If you would like more information regarding Reasonable Accommodations for Pregnancy, you may contact us at firstname.lastname@example.org or by phone at (801)530-6801. The Labor Commission also offers training FREE of charge to any interested parties.
Workers’ Compensation Webinar Series Has Nation Wide Appeal
In response to an on-going need to offer trainings for out of state insurance carriers and third party administrators adjusting claims in Utah, the Industrial Accidents Division is pleased to announce a new workers compensation webinar series. The utilization of a webinar seemed the ideal approach in ensuring that newly hired adjusters, or adjusters in general, had access to information and tools necessary to adjust claims in our state. The webinar series was implemented in addition to presentations already being conducted for varying audiences, such as union groups, medical providers, employers and community agencies serving the public.
The initial step of implementing a webinar series required the development of a training course that would provide an overview of the workers’ compensation claims process, while also directing adjusters to specific rules and statues, reporting procedures, required forms, and resources. While developing the webinar series, it was important to have feedback directly from insurance carriers, adjusters, attorneys and partners, to identify relatable topics and areas of interests for new adjusters. The webinar series was also developed to be taken during a scheduled work day, only 60-90 minutes in duration and with accessibility from any computer connected to the internet.
The first webinar, facilitated by Anita Watson, member of the Claims Section of the Industrial Accidents Division, took place on May 19th, with approximately seventeen claims adjusters and staff members from Nationwide Insurance based in the mid-west. Monthly webinars will continue to be facilitated while additional training courses and topics are developed for specific stakeholder groups. Interested groups can contact Anita Watson with the Industrial Accidents Division using email@example.com to learn how their organization can receive this training and schedule a webinar.
Workers’ Compensation Claim Attorney’s Fees Change
In a seminal decision issued on May 18, 2016, the Utah Supreme Court ruled that the Utah Labor Commission’s long-standing practice of regulating attorneys’ fees in workers compensation claims is unconstitutional. The Court based its decision on a 1985 amendment to the Utah Constitution which vested the Court with the exclusive right to regulate the practice of law. Based on that right, the Court concluded that it - and not the Commission - has the sole right to regulate attorneys’ fees. The Court’s decision lays aside the Commission’s long-standing practice of regulating attorneys’ fees.
While the holding in Injured Workers Ass’n v. Utah is clear, its repercussions are not. Although the Commission is certain that the decision will impact workers’ compensation claims and the Adjudication Division’s workload, it does not yet know what it will mean for injured workers and attorneys.
The Commission is currently in the process of amending its Administrative Rules and forms to remove attorneys’ fee requests.
Miner’s Memorial Dedication in Emery County Brings Communities Together
On Saturday, June 11th, the communities of Emery County gathered at the Museum of the San Rafael for the Miner’s Memorial Dedication. This memorial is made possible through the dedication of those who wish to always remember the 124 miners from the Emery County area that have fallen. The Utah Labor Commission strives to maximize boiler, elevator and coal mine safety, and provide for effective coal mine accident prevention. Events such as this dedication serve to remind all of us; mining companies, miners, and the public at large that safety must be more than a priority, it must be a value. The Utah Labor Commission joins with the communities of Emery County in a committed effort to remember and protect those who work in the mining industry.
This quarter the Utah Supreme Court issued a decision with regard to attorney fees in Labor Commission cases. 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 courts this quarter dealt with the Utah Workers’ Compensation Act.
Injured Workers Association of Utah, et al., v. State of Utah (2016 UT 21; issued May 18, 2016)..
The Injured Workers Association of Utah (“IWA”) filed a lawsuit challenging the attorney-fee structure for workers’ compensation claims outlined in the Commission’s administrative rules and authorized by the Utah State Legislature in the Utah Labor Commission Act. The lawsuit was originally brought before the Fifth District Court, which dismissed the matter. IWA then appealed the dismissal and the Supreme Court took jurisdiction over the dispute. The court held that the Utah Constitution vested the court with the exclusive authority to govern the practice of law in the State of Utah and that the separation of powers doctrine precludes the Legislature from regulating the practice of law. The court explained that its exclusive authority to govern the practice of law in Utah includes regulation of attorney fees such that the attorney-fee schedule enacted by the Commission by authority from the Legislature was invalid. Finally, the court declined to adopt the attorney-fee schedule used by the Commission for workers’ compensation claims and also declined to set its own schedule of such fees at the present time. The court emphasized that while attorneys representing claimants in workers’ compensation cases were not presently subject to a set fee schedule, the attorneys are still subject to the rules of professional conduct when charging attorney fees to injured workers.
Court of Appeals
Ernest Health, Inc. and North River Insurance Co. v. Labor Commission and Martie Breivik (2016 UT App 48; issued March 10, 2016).
Ms. Breivik worked for Ernest Health as a secretary. She fell at work and landed on her dominant right hand, spraining ligaments and damaging her fifth metacarpal. Ms. Breivik did not fracture any bones, but she developed complex regional pain syndrome (CRPS) in her right hand. Ms. Breivik’s treating physician eventually concluded that she was not employable on account of her chronic pain and unstable emotional state resulting from her work injury. Ernest Health’s medical consultant originally expressed the belief that Ms. Breivik could work in a sedentary capacity if she were motivated to do so; however, Ernest Health’s medical consultant later described that he did not anticipate Ms. Breivik being able to work as her functional capability was similar to someone who had a right-hand amputation. The ALJ entered a preliminary award of permanent total disability benefits to Ms. Breivik on account of her right-hand problems. Ernest Health appealed the ALJ’s decision to the Commission’s Appeals Board and attempted to submit surveillance video of Ms. Breivik and another medical report that was not part of the evidentiary record. The Appeals Board rejected the video and affirmed the ALJ’s award of benefits. The Appeals Board also found that there was no legitimate conflict of medical reports or opinions that would require referral to an impartial medical panel. Ernest Health appealed the award to the Utah Court of Appeals. The court upheld the Appeals Board’s decision to exclude Ernest Health’s late-submitted evidence and agreed with the Appeals Board that there was no legitimate conflict of medical opinions that would require referral to a medical panel. The court concluded that the award of benefits outlined by the ALJ and affirmed by the Appeals Board should not be disturbed.
Charlotte Lynn Bade-Brown v. Labor Commission, Low Book Sales and Leasing, and Mid Century Insurance Co. (2016 UT App 65; issued April 7, 2016).
Ms. Bade-Brown was test driving a car as part of her job for Low Book Sales and Leasing when the car was struck from behind by a dump truck. She was taken to the hospital and diagnosed with contusions to her head and chest along with strains to her back and neck. Ms. Bade-Brown underwent treatment for her injuries. More than four years after the accident, Ms. Bade-Brown’s treating physician assessed her with chronic neck pain and aggravation of a disc bulge in her low back due to the work accident. Low Book’s medical consultant disagreed with Ms. Bade-Brown’s physician with regard to the medical cause of her condition and the issue was referred to an impartial medical panel. The medical panel concluded that Ms. Bade-Brown’s neck and back problems were not medically causally connected to the work accident. The medical panel explained that Ms. Bade-Brown’s work-related injuries would have resolved within a few months. The ALJ relied on the medical panel’s opinion over Ms. Bade-Brown’s objection and denied her claim for benefits. Ms. Bade-Brown sought review of the ALJ’s decision from the Commission. She argued that it was improper for the ALJ to rely on the medical panel’s report without a hearing on the report because it contained errors and because the panel chairman was biased against injured workers. The Commission determined that a hearing on the medical panel’s report was not necessary because the only error made by the panel was harmless and did not affect Ms. Bade-Brown’s claim. The Commission also found that Ms. Bade-Brown’s allegation of bias on the part of the medical panel was unsubstantiated and affirmed the ALJ’s order. Ms. Bade-Brown appealed the Commission’s decision to the Utah Court of Appeals. The court upheld the Commission’s decision after agreeing that a hearing on the medical panel’s report was not required by statute and that the panel’s error did not affect Ms. Bade-Brown’s eligibility for disability benefits. The court also agreed with the Commission that Ms. Bade-Brown’s allegation of bias on the part of the medical panel was unfounded.