Utah Labor Commission

On The Job Newsletter
On The Job News

Utah Labor Commissioner Sherrie Hayashi

Commissioner's Corner

In January 2013, Governor Gary Herbert set out a vision for the performance of state agencies. Led by the Governor’s Office of Management and Budget (GOMB), the State of Utah has developed the SUCCESS framework, which provides a structure and the tools for executive agencies to improve government operations and services by 25% using a combination of quality, cost and throughput.

The Labor Commission currently has implemented the SUCCESS framework in 6 areas within our agency: Adjudication, Employment & Housing Discrimination, Wage Claims, Boiler Inspections, Elevator Inspections, and Workers Compensation Policy Compliance.

From these six systems, the Commission has shown a 54% improvement in performance over the past 18 months. This is accomplished by setting measurable goals and targets, applying tools and principles modeled upon the Theories of Constraints, creating a strategy, applying the strategy, engaging staff at all levels, synchronizing policy and projects and, finally, staying focused. It may be helpful to see some tangible examples of how the SUCCESS framework is being applied in the Labor Commission:

Industrial Accidents/Policy Unit
The workers' compensation policy unit was chosen by the Industrial Accidents Division to be part of the Governor's SUCCESS project. The policy unit is responsible for verifying that employers that are required to have workers compensation do so, or issue a penalty for noncompliance. This is done by correlating records from the Department of Workforce Services (DWS) and from the insurance carriers. The policy system matches the employers with their workers’ compensation policy. When an employer has employees and the policy system cannot find a workers’ compensation policy, an investigation is created.

The first step to increasing our efficiency was to evaluate all job duties of the policy unit and categorize them. While doing this, we realized our investigators were spending significant time performing data clean up, corresponding with the public, and locating noncompliant employers. The Industrial Accidents Division created two distinct jobs within the policy unit. The first would do all the data clean up, take all the phone calls, and verify that the investigators would only focus on truly noncompliant employers. The second job function would take the investigations that had been verified as valid and pursue investigations to determine whether or not the employer is not compliant with statutory requirements to provide workers' compensation insurance.

By implementing this new process, we were able to increase the number of employers that gained worker compliance by 19%. Additionally, investigations of non-compliant employers increased by 33% per investigator.

The second step was to look at the investigation process, and see if there were any efficiencies that could be made to the investigation process itself. There was room for improvement with the time frame of our process, which was streamlined by eliminating lengthy response periods, creating form letters and templates, and clarifying our internal policies and procedures. These efficiencies cut the average investigation period from approximately 72 days to 50 days.

Starting in the summer of 2013, the Adjudication Division underwent a detailed examination of every step in its processes from intake to case closure. In doing so, the Division identified several areas where improvements could be made. For example, typically, judges were scheduled with 16 hearings every week, which meant they did not have enough undisturbed blocks of time in which to write decisions. Instead, their attention was routinely refocused from writing decisions, to hearing cases, and then back to writing. This forced multitasking was not efficient. So, starting in September 2013, the Division moved to a new hearing calendar: each judge conducts one week of hearings, followed by two undisturbed weeks of writing decisions. Surprising, this new system resulted in a slight increase in the average number of hearings conducted (from 20/month to 21.6).

The real improvement came in the timeliness of decisions. Prior to the change, 38% of all final decisions were issued within 60 days. Now, that percentage has increased to 94%. The Division has also implemented many other process improvements from re-designed templates, standardizing medical records exhibits, conducting trainings, hiring new medical panel chairs, and creating model medical panel questions, etc. The Division has also implemented a better tracking process and incorporated reportable measures to make sure it is operating as efficiently as possible. These measurables include the age of cases, the rate decisions are upheld on appeal, the number of cases closed and the number of decisions issued monthly. Overall, the Division has achieved a 49.5% improvement in efficiency in just under 2 years.

The Commission will continue to implement the SUCCESS Framework. Our focus will continue to be on more efficient processing of cases while maintaining quality and reducing our backlog. We look forward to reporting on our successful efforts.

elevator control panel

Elevator Safety

Elevators are one of, if not the safest mode of transportation available. Take a moment and think about the number of times have you stepped into an elevator. If you work in a building that has an elevator chances are you ride it at least twice a day. It delivers you to the proper floor each morning and brings you back to your car each evening.

So, there are 52 weeks in a year, but let’s say we all take two weeks of vacation, like we should, so that is 50 weeks a year, 5 days a week, 2 rides a day, that is a total of 500 rides a year, just at work. What about other office buildings, doctor’s offices, dentists, government buildings, malls, etc.?

Now, take another moment to think about how many times you were delayed, inconvenienced or even injured as a result of one of those rides. Aside from the occasional mechanical or electrical problem, (statistics show only 1 in 12 million elevator rides result in some sort of minor incident, for example, doors not opening) your rides are probably uneventful.

In fact, of the millions of elevator rides taken by humans every year, the largest portion of incidents involve a person who is responsible for repair or maintenance of the elevator, a careless occupant who, for example walks without looking into an open hoistway or attempts to climb out of an elevator that is stuck between floors, or someone who is just in the wrong place at the wrong time when a rare catastrophic failure occurs.

One of the reasons that elevators are perhaps considered one of the safest mode of transportation available, is because elevators are regularly inspected by labor commissions or other government entities throughout the United States.

Here in Utah the Division of Boiler, Elevator and Coal Mine Safety inspects all elevators in the state every two years. State of Utah Elevator Inspectors are required to have a minimum of five years of experience and must train for a full year under the tutelage of a Certified Qualified Elevator Inspector (QEI) before being allowed to take the QEI Exam themselves.

So the next time you step on an elevator, press the button for your floor and arrive safe and sound, take a moment to acknowledge the Utah Labor Commission – Division of Boiler, Elevator and Coal Mine Safety, and the capable inspectors whose hard work ensures our safety every day.

Ron Dressler

Ron Dressler Appointed to Board of IAIABC

On April 2015, Ron Dressler, our very own Industrial Accidents Division Director, was offered the opportunity to fill a vacant position on the board of Directors for the IAIABC.

The International Association of Industrial Accident Boards and Commissions (IAIABC) is a not-for-profit trade association representing government agencies charged with the administration of workers' compensation systems throughout the United States, Canada, and other nations and territories.

Founded in 1914, the IAIABC is the world’s oldest trade association dedicated to promoting the advancement of workers’ compensation systems throughout the world through education, research, and resource management. The theme “Find Information. Connect People.” captures the heart of the association as it continues its mission through the twenty-first century.

The IAIABC is also the national organization tasked with assisting state workers' compensation regulators in advancing effective and efficient systems. It is made up of state jurisdictions, insurance carriers, medical providers, and other workers' compensation professionals. It provides standards in injury and policy reporting as well as regulation and issue review.

When asked about perspective regarding his appointment to serve on the board, Ron said: “I am honored to be considered by the nominating committee and selected by the board to fill the vacant director position. This volunteer position will give Utah a seat at the table and a voice in making policy decisions for the regulation of the workers' compensation systems."

There are numerous committees and boards tasked with handling the many areas within the workers' compensation system. These committees and boards are governed by the Board of Directors. Being able to interact and coordinate with other jurisdictions allows Utah to meet the needs of its stakeholders while maintaining a balanced and fair system.

IAIABC group photo

Dr Jeremy Biggs

Medical Panel Update

With the help of Dr. Jeremy Biggs, the Adjudication Division continues to make strides in improving its medical panel process. Dr. Biggs was hired last year as the Adjudication Division’s medical director.

Since coming on board, Dr. Biggs has been able to help recruit and train an additional 8 new medical panel chairs. This brings our total to 16 talented and dedicated doctors with expertise in everything from neurology, occupational medicine and orthopedics, to general surgery, psychiatry and dermatology.

As a result of this training and additional medical panel members, we have been able to reduce the time that cases take at the medical panel stage. The Adjudication Division has also worked closely with physicians, plaintiff’s attorneys and defense attorneys to create an extensive list of model questions that the judges can use when referring a case to a medical panel. Of course, the questions can be modified to fit the particular facts of a case, but having a more standardized list of questions helps the judges to be consistent with each other.

These questions are designed to elicit fact-based answers from the medical panels, rather than only their opinions and conclusions. These types of answers should help the judge and the parties see better how panels reach their conclusions since the questions require the panels to “show us your work.”

In drafting the model questions, the Division also realized that terms that judges use don’t always mean the same thing to doctors. For example, to a judge, the term “aggravate” means “to make worse” but to a doctor, it means “to make permanently worse.” A question that the judges used to ask fairly routinely was whether an injury was aggravated temporarily or permanently. This must have left medical panel members scratching their heads, since by their understanding, it was impossible for something to be aggravated only temporarily. It is our intent that by having a list of model questions, it will help the judges ask the right questions, and help the doctors answer them in a clear and useful way.

If you have suggestions for, or questions or concerns about, the medical panel process, you may contact Dr. Biggs at jbiggs@utah.gov or Heather Gunnarson, Adjudications Division Director at hgunnarson@utah.gov.

inside utah capitol building

Update on Impact of SB 296 - Gender Identity and Sexual Orientation Protections

SB 296 became effective on May 12, 2015. The bill amended the Utah Antidiscrimination Act and the Utah Fair Housing Act by adding gender identity and sexual orientation as protected categories. Additional changes included employee dress and grooming standards, sex-specific facilities, freedom of expressive association and the free exercise of religion. Since its enactment, the question has arisen; what impact have we seen as a Division because of this new legislation?

Since the law became effective recently and would only apply to issues arising after May 12, it is still too early to tell the impact the new law will have. So far, we have only seen one Fair Housing case filed utilizing the new law and no employment discrimination cases have been received by our office.

Because the Utah Antidiscrimination Act and the Utah Fair Housing Act already prohibited discrimination based on gender and religion, most situations were covered by the old law. This is one of the reasons the Division did not believe the new law would result in a large increase in claims, which has been accurate up to this point. However, taking into consideration that the law only recently came into effect, and there are still some people who may not be aware of the new provisions, only time will tell what the actual impact may be.

As a way of increasing understanding and awareness of the new law, the Utah Antidiscrimination and Labor Division has updated its forms for filing an employment discrimination or Fair Housing complaint to include the new protected categories, including updates to the website which provide information about the new law. Additionally, the presentations and trainings conducted by the Division will include information about the changes.

It is always interesting to see the effect changes to the employment and housing law has on the work we do. And although it is difficult to know what will happen in the future, one thing is for certain, the Division will do its best to ensure the public remains informed and educated about what the new law means to them.

Senator Mayne

Senator Mayne

Utah Workplace Safety Week 2015

Senator Karen Mayne sponsored Senate Bill 106 in the 2014 Legislative Session for annual recognition of Utah Workplace Safety Week during the third week of June. Together with Utah employers and our safety partners, the Utah Labor Commission and the Utah Occupational Safety and Health Division (UOSH) participated in several events held during the week of June 22 - 26, 2015.

On Monday, June 22, 2015, Deputy Commissioner and General Council of the Labor Commission, Jaceson Maughan, and Chris Hill, Director of UOSH, attended the Utah Workplace Safety Week Press Conference with Governor Herbert. This event was held at the Workers Compensation Fund and attended by many people.

Also, on June 22, 2015, Kate McNeill, Consultation Manager, and David Bloomfield, Consultant, attended the Workplace Safety Week Kickoff at a bridge and highway project at 500 South and I-15 in Bountiful.

On June 24, 2015, Chris Hill attended and presented at the Utah Safety Council and the free seminar which was held involving the “Focus Four Hazards in Construction.”

Chris Hill also attended the AGC Safety Conference held in conjunction with Utah Workplace Safety Week. Jim Johnston, Consultant, presented at this same conference during a breakout session on the UOSH Construction Local Emphasis Program. David Bloomfield and Jim Johnstone had a booth set up during this conference to discuss and disseminate information regarding UOSH.

On June 26, 2015, Jaceson Maughan presented safety awards at the Utah AFL-CIO conference held in conjunction with Utah Workplace Safety Week. Chris Hill also attended the luncheon and presentation of awards. David Bloomfield had a booth set up during this conference to discuss and disseminate information regarding UOSH.

Also, during this week, each UOSH Consultant and Compliance Safety and Health Officer promoted workplace safety during all investigations or contacts which they had with the public and with stakeholders.

wc coverage

Heat Related Illness -- What You Should Know

Heat-related deaths and illness are preventable, yet annually many people succumb to extreme heat, both in the workplace and at home.

Heat Related Illness - Signs and Symptoms

Heat Cramps
If your body is dehydrated you might experience heat cramps.
• Muscle pains or spasms, usually in the legs, abdomen or arms.
arrowStay out of the heat, if possible, and drink water are key.

Heat Exhaustion
If your body is becoming overheated, you may experience heat exhaustion.
• Heavy sweating, muscle cramps, tiredness, weakness, dizziness, fainting, headache, nausea or vomiting.
arrowStop activity and seek a cool place (shade or air-conditioning) and drink water or sports beverages

Heat Stroke
Heat stroke is the most serious heat-related illness. It occurs when the body becomes unable to control its temperature. The body’s temperature rises rapidly and the body is unable to cool down. Warning signs of heat may vary but may include the following:
• Extremely high body temperature.
• Red, hot and dry or moist skin.
• Rapid, strong pulse.
• Nausea.
• Throbbing headaches, dizziness and/or confusion.
• Unconsciousness.
arrowSeek medical attention immediately and begin aggressive cooling if heat stroke is suspected. Getting the person to a cool location and using cool damp cloths is critical to lower the body temperature while seeking immediate medical attention. This is a life threatening medical emergency.

Stay Informed
• Check local news for extreme heat alerts and safety tips.
• Prevention is the best way to avoid heat-related illness. Learn ways to prevent heat-related illness.
• Learn the signs and symptoms of heat illness.
• Learn how to protect specific vulnerable populations.

Visit the Utah Labor Commission webpage at laborcommission.utah.gov to learn more about preventing heat-related illness and to find free educational and training resources, in both English and Spanish.

Judge's gavel

Appellate Decisions

This quarter the Utah Supreme Court and the Utah Court of Appeals issued three 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 and the Utah Payment of Wages Act.

Smith’s Food & Drug, Inc. and Kroger Co. v. Labor Commission and Mary Dee Cox (2015 UT App. 79; issued April 2, 2015). .

Ms. Cox suffered a right-shoulder injury while she was working for Kroger and underwent shoulder-replacement surgery. Following the surgery, Ms. Cox continued to experience right-shoulder problems and requested authorization for additional treatment but Kroger’s adjuster did not respond to Ms. Cox’s request. She then filed an application for hearing with the Commission seeking the cost of medical treatment on her right shoulder as well as “add-on” attorney fees applicable to claims for medical expenses only. Kroger and its adjuster did not approve the cost of the treatment by the time Ms. Cox retained an attorney and filed her application for hearing; however, the treatment sought by Ms. Cox was approved by the time the hearing took place. The remaining issue before the ALJ was whether Ms. Cox was entitled to add-on attorney fees under §34A-1-309(4). The ALJ awarded add-on attorney fees to Ms. Cox and Kroger appealed the award to the Commission. The Commission agreed with the ALJ that Ms. Cox had met all the criteria in §309(4) and affirmed the award after reasoning the eventual approval of benefits was too late for the Commission to find that there was truly no dispute over the treatment claimed by Ms. Cox. Kroger appealed the Commission’s decision to the Utah Court of Appeals by arguing that the award of add-on attorney fees was inappropriate because medical benefits were ultimately not in dispute. The court explained that Kroger exposed itself to liability for Ms. Cox’s attorney fees when the adjuster failed to address her request for additional treatment. The court expressly rejected Kroger’s argument that medical benefits were not in dispute and upheld the Commission’s award of add-on attorney fees.

Laurie L. Mitchell v. Labor Commission, Milliken & Co., and Liberty Mutual (2015 UT App. 94; issued April 16, 2015)..

Ms. Mitchell had a history of right-shoulder problems that she aggravated while working for Milliken & Co. She was attempting to feed a winding machine by throwing a portion of rope weighing about two pounds up and over one of the machine’s rollers, which was approximately 15 feet off the ground. After her third attempt to feed the machine, Ms. Mitchell felt pain in her right shoulder and was eventually diagnosed with a torn rotator cuff. A hearing was held before an ALJ, where it was established that Ms. Mitchell had a pre-existing condition that contributed to her right-shoulder injury. The ALJ therefore applied the more stringent standard of legal causation to the claim and concluded that Ms. Mitchell had not met such a standard. Ms. Mitchell appealed the ALJ’s denial of benefits to the Commission, which analogized the mechanism of injury differently than the ALJ but agreed that the work activity in question did not constitute unusual or extraordinary activity. The Commission therefore denied Ms. Mitchell’s claim for benefits. She then appealed the Commission’s decision to the Utah Court of Appeals. The court agreed with the Commission that the work activity of throwing a few pounds into the air was not unusual or extraordinary when compared to the activities of modern non-employment life. The court upheld the Commission’s decision to deny Ms. Mitchell’s claim for failure to establish a legal causal connection between her employment and her right-shoulder injury. This matter is currently pending before the Utah Supreme Court on Ms. Mitchell’s request for a writ of certiorari.

Matt Baker and Sunrise Home Health Care, LLC v. Labor Commission, Antidiscrimination and Labor Division, and Jazmin Shelton (2015 UT App. 127; issued May 21, 2015).

Ms. Shelton worked for Sunrise Home Health Care as a registered nurse. She left her employment with Sunrise and it reduced her pay rate for her last two weeks of employment for failure to provide adequate notice of leaving her position. Ms. Shelton filed a wage claim with the Utah Antidiscrimination and Labor Division (UALD), which issued an order requiring Sunrise to pay the difference between her normal pay rate the reduced rate Sunrise paid for her last two weeks of work. UALD also ordered Sunrise to pay a penalty and attorney fees. The UALD’s order became final when it denied Sunrise’s request for reconsideration of the order. Sunrise then sought review of UALD’s order in district court. UALD moved to dismiss Sunrise’s petition for review as moot based on evidence that Ms. Shelton had withdrawn her wage claim against Sunrise. The district court granted UALD’s motion and dismissed the matter, instructing UALD to rescind its order against Sunrise. Sunrise appealed the district court’s decision to the Utah Court of Appeals. The Court of Appeals held that the controversy was not mooted by Ms. Shelton withdrawing her wage claim because UALD’s order had become final. The Court of Appeals added that UALD did not have jurisdiction to alter its final order once Sunrise instituted proceedings to review the order in district court. The Court of Appeals therefore reversed the district court’s dismissal and remanded the matter to the district court for further proceedings.