On The Job Newsletter

Utah Labor Commissioner Sherrie Hayashi

Commissioner's Corner ...

Coal Miner Memorial Dedication: Reflecting on the historical role of the Utah Labor Commission in coal mine safety

The community in Carbon County came together on Labor Day, in Price, to dedicate the Coal Miner Memorial. This was the culmination of a two year effort memorializing 1,362 coal miners who lost their lives while working in mines. The memorial itself is a beautiful and striking reflection of a history of hard working people, all too many of whom lost their lives.

Coal Miner memorial.The Labor Commission historically had a significant role in terms of coal mine safety. Utah has had a mine safety inspection and safety program, beginning with statehood with authority first resting with the state Coal Mine Inspector, and later the State Industrial Commission (the predecessor agency to the Utah Labor Commission). From those earliest points in time of Utah history to 1980, the state of Utah had a comprehensive coal mine safety program including enforcement of safety standards. Beginning in the early 1970’s, the federal Mine Safety and Health Administration (MSHA) began playing a greater role in coal mine safety. With the federal role becoming more prominent, the state began to curtail its own mine inspection program, and by 1988, the Utah legislature ended the state’s involvement in coal mine safety regulation, ceding that role to the federal government.

Coal Miner memorial.The State of Utah’s role again changed with the August 2007 Crandall Canyon Mine accident, which killed six miners followed by the death of three mine rescuers in a subsequent collapse. After Crandall, the State of Utah reviewed its role once again in mine safety, and decided that Utah should have a more prominent role, thus creating the Office of Coal Mine Safety. Although MSHA remains the primary agency responsible for enforcement of mine safety, the state focuses on a collaborative approach of being a facilitator of coal mine safety among various stakeholders. That role continues today.

Seeing families, friends, and the community gather together to remember those whose lives were lost is a reminder that any life lost in a workplace accident is one that did not need to happen.

Workers Compensation Fund logo.

Workers Compensation Policy Compliance Collections

The Workers’ Compensation Act requires Utah employers to carry workers’ compensation insurance covering industrial accidents sustained by its employees, with few exceptions. If an employer doesn’t carry the insurance as required, the Act provides that a penalty assessment may be imposed by the Industrial Accidents Division. The Division’s Policy Unit is comprised of 3 full-time compliance officers, and is responsible for reviewing compliance by of all Utah employers, to ensure that they carry the required workers’ compensation insurance coverage.

The Policy Unit’s primary goal is to bring employers into current compliance with the law. The Unit places additional focus on industries that may result in actual loss due to higher risk, such as construction or manufacturing. In addition to ensuring that employers gain compliance, the Unit fulfils its obligation to fairly and equitably assess penalties to uninsured employers.

The majority of employers penalized for noncompliance with the Act participated in the process and volunteer payment of the penalties. Of the 624 Noncompliance Orders issued by the Division during the fiscal year 2015, 217 were Abstracted, meaning roughly 34% were forwarded to an attorney for collection. The Division is fortunate to enjoy the cooperation of the Attorney General’s Office and Office of State Debt Collection, and to have been assigned Assistant Attorney General Mark Medcalf to oversee these collection efforts.

Mr. Medcalf diligently works to secure the debts owed by employers to the Uninsured Employers’ Fund (UEF) for the non-compliance penalties, and his efforts have resulted in several years of consistently increasing recoveries. For this fiscal year Mr. Medcalf has recovered close to 1.2 million dollars that have been applied to both the principal balances owed to the UEF and the resulting add-on interest, penalties, and fees that are established by State Debt Collection statute.

The Policy Unit of the Industrial Accidents Division welcomes any questions that stakeholders may have regarding the workers’ compensation policy compliance process, including the collection of the penalties.

Celebrating disability

Celebrating the 25th Anniversary of The Americans With Disabilities Act (ADA)

This year, we celebrate the twenty-fifth anniversary of the Americans with Disabilities Act (ADA). On July 26, 1990, the ADA was signed into law by President George H. W. Bush and it was amended in 2008 by the ADA Amendment Act of 2008 (ADAA) which was signed by President George W. Bush.

A significant part of the ADA provides protection from discrimination in employment to those individuals who have either a physical or mental disability. Those among us who have disabilities have many talents, capabilities, and abilities, and if given the opportunity, they have much to offer to businesses and our communities. The ADA reminds us to look beyond the disability and look to the abilities of all people.

Utah provided protection from discrimination in the workplace for individuals with disabilities in 1979, well before the passage of the ADA. The Utah Antidiscrimination Act was passed in 1965 and the state legislature included disability as a protected category in 1979.

As we reflect upon the ADA and its impact on our society, let's not forget the positive impact the law has had. Automatic doors, curb cuts, wider aisles in stores, easier access to switches and plugs, ramps instead of stairs, etc., are all part of the positive changes brought about by the ADA. However, the most important part of the ADA is how it has changed the lives of people with disabilities, giving people added opportunities to fully participate in our communities and increase the quality of life. We all benefit when everyone has the full opportunity to contribute to society.

As articulated in our Declaration of Independence, “All men and women are created equal and are endowed by their creator with certain inalienable rights.” Let’s celebrate the ADA and the positive impact it has had in providing equal rights and opportunity for people with disabilities.

gender neutral bathroom sign

Guide to Restroom Access for Transgender Workers

The Occupational Safety and Health Administration has published a Guide to Restroom Access for Transgender Workers. The publication provides guidance to employers on best practices regarding restroom access for transgender workers.

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 courts this quarter dealt with the Utah Workers’ Compensation Act.

Utah Supreme Court

Washington County School District and Utah School Boards Risk Management Association v. Labor Commission and Steven H. Brown (2015 UT 78; issued August 25, 2015)..

Mr. Brown sustained a compensable back injury while working as a bus driver for Washington County School District in 2003. A few years later in 2007, Mr. Brown re-injured his back while attending a community event. The medical evidence showed that the work injury in 2003 contributed to Mr. Brown’s subsequent back problems and the Commission awarded benefits to Mr. Brown. Washington County appealed the Commission’s decision to the Court of Appeals, arguing that the 2007 event severed the causal connection between Mr. Brown’s employment and his back condition. The Court of Appeals affirmed the Commission’s decision after finding that Mr. Brown’s subsequent back problems were the natural result of his original work-related back injury. Washington County then appealed the Court of Appeals’ decision to the Utah Supreme Court. The Supreme Court held that an injured worker in Mr. Brown’s position must show that the work accident is more than merely a contributing cause of the subsequent injury; the injured worker must show that the work accident was a “significant contributing cause” of the subsequent injury under the standard regarding the direct and natural results test. The court remanded the matter to the Commission to apply this refined standard to Mr. Brown’s claim.

Utah Court of Appeals

Mark L. Oliver v. Labor Commission, Workers Compensation Fund, and D. Tyree Bulloch Construction (2015 UT App 225; issued September 3, 2015)..

Mr. Oliver suffered injuries to his pelvis, low back, and left leg while working on a construction job for Bulloch. He was able to return to work for some time, but later required a left-knee replacement and developed post-phlebotic syndrome. Mr. Oliver claimed permanent total disability compensation related to his ongoing left-leg problems. The ALJ referred the medical aspects of the claim to an impartial medial panel, which found that Mr. Oliver could still do “medium-level” work despite his condition. Notwithstanding the medical panel’s opinion, the ALJ concluded that Mr. Oliver was permanently and totally disabled. Bulloch appealed the ALJ’s decision to the Commission, which determined that Mr. Oliver had not met all the requirements for an award of permanent total disability compensation. Specifically, the Commission found that Mr. Oliver had not shown that he was reasonably limited in his ability to do basic work activities or that he could no longer work as a delivery driver as he did shortly after the work accident. The Commission therefore reversed the ALJ’s award and denied Mr. Oliver’s claim for benefits. Mr. Oliver appealed the Commission’s decision to the Utah Court of Appeals, which set aside the Commission’s decision and reinstated the ALJ’s award after finding that the Commission used an improper legal standard. The court held that Mr. Oliver was only required to show any limitation in his ability to do basic work activities, which he did. The court also held the Commission’s finding that Mr. Oliver was qualified to work as a delivery driver at the time of the accident was in error because he performed such work after the accident.

Right Way Trucking, LLC and Workers Compensation Fund v. Labor Commission and James Eacho (2015 UT App 210; issued August 20, 2015).

Mr. Eacho was working in Idaho as a delivery driver for Right Way Trucking when he had to move approximately 14 fiberglass showers and bathtubs inside his truck trailer to the tailgate for delivery. The temperature inside the trailer was about 120 degrees Fahrenheit. Mr. Eacho then had another delivery of about 10 more showers and bathtubs. He drove home to Utah after finishing his delivery and began feeling ill after he arrived at home. Mr. Eacho went to the hospital where he was assessed with septic shock, acquired pneumonia, cardiogenic shock, probable heat stroke, renal failure, cerebral infarct, and encephalopathy due to heat illness and dehydration from his work activities. A medical panel determined that Mr. Eacho’s heat illness and related symptoms were medically caused by his work activities. The ALJ relied on the medical panel’s opinion and awarded benefits to Mr. Eacho. Right Way appealed the award to the Commission and argued that a response from its medical consultant should be referred to the medical panel for consideration. The Commission rejected the medical consultant’s response after finding it contained no new information and affirmed the ALJ’s award. Right Way then sought review of the Commission’s decision from the Utah Court of Appeals by arguing that it was error to admit the medical panel’s report into evidence without a hearing on the report. The court rejected Right Way’s argument and concluded that the ALJ did not abuse her discretion by admitting the panel’s report into evidence or by denying Right Way’s request for a hearing on the report. The court also found that the Commission did not abuse its discretion in denying Right Way’s request to submit the response from its medical consultant because it essentially repeated his previous opinion. The court upheld the Commission’s award of benefits to Mr. Eacho.

Robert Marcroft v. Labor Commission, Uninsured Employers’ Fund, and Always Rolling Trucking, LLC (2015 UT App 174; issued July 16, 2015).

Mr. Marcroft worked for Always Rolling Trucking as a long-haul truck driver. He stayed overnight at a truck stop and was crossing the parking lot on foot in order to take a shower the next morning when his left foot was struck by a car. The parties stipulated that Mr. Marcroft would receive third-party liability and personal-injury insurance payments aside from any workers’ compensation benefits. The ALJ first determined that Mr. Marcroft’s injury was compensable under the “continuous coverage” rule and awarded benefits. The ALJ’s decision was appealed to the Commission’s Appeals Board, which upheld the award but recognized that a third-party recovery should be offset against the award of workers’ compensation benefits. Mr. Marcroft did not seek reconsideration of the Appeals Board’s decision, but filed an appeal with the Utah Court of Appeals. The court noted that the Appeals Board made an error with regard to the actual amount to be offset against Mr. Marcroft’s award of benefits, but ultimately upheld the Appeals Board’s order because Mr. Marcroft failed to preserve his argument for appeal.

Bobie Tupou.

In Memory of Bobie Tupou

The Labor Commission lost a friend and colleague on October 13, 2015 when Bobie Tupou passed away. Bobie started with the Labor Commission in December 1998 serving as the Commission’s Financial Analyst. Bobie started her career with the State in 1990. Prior to working for the Labor Commission, she was with the Department of Natural Resources. We will remember Bobie for her laughter, sense of humor and her loyalty and her dedication to the Commission, her friends, and to her family.