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On The Job Newsletter
Labor Commissioner Sherrie Hayashi

Commissioner's Corner

In November, I travelled to the Republic of China (Taiwan) as part of a delegation of 9 state Labor Commissioners and one federal labor official as invited guests of the Taipei Economic Cultural and Representative Office and the Ministry of Labor. Taiwan is a member of NAGLO (National Association of Government Labor Officials) of which Utah is a member.

view of Taiwan.The trip was impressive in many respects, especially the hospitality shown by the people of Taiwan. Our visit included meeting with the Ministry of Economic Affairs, Labor Unions in Taipei, the Kinmen Employment Center, Workforce Development Agency, Labor Unions in Kinmen, National Health Insurance Administration, Bureau of Labor Insurance, Occupational Safety and Health Administration, Workforce Development Agency, and the Institute of Labor, Occupational Safety and Health, and included participation in a Taiwan-US Labor Commissioners symposium.

view of Taiwan.Many regulatory issues facing those of us in the United States are very similar to those faced in Taiwan, including misclassification of employees, balancing issues of an aging workforce with a new generation of workers, and surprisingly, immigration issues. A great deal of value is placed on education, including receiving an education overseas. Particularly in the area of economic development, most of the Taiwanese representatives had received advanced degrees in the US and Europe, but the country’s focus on education has also created a shortage of skilled workers in the trades.

view of Taiwan.Our visits with the agencies made it very clear that Taiwan is very deliberate in their approach to developing labor policy. A great deal of effort is given to researching ‘best practices’ in implementing labor laws and processes, including taking time to visit other countries. The US and Europe are frequent models but there is a very deliberate effort to adopt and modify labor policy in a manner that fits Taiwan’s system, culture, customs, and overall goals. Their programs include workers compensation, unemployment benefits, universal health care coverage, governmental pension (like social security) as well as an employee-based pension, benefits for employees when a company closes and is unable to pay wages, a robust occupational safety and health program and equal opportunity laws.

We also toured their occupational safety and health research institute viewing some of their research facilities for fall protection, reviewing types of harnesses and falls from scaffolding, ergonomics, and we were also introduced to their ventilated hard hat model. My visit to Taiwan was truly an eye opening, once in a lifetime experience. Commissioner Sherrie Hayashi and other officials in Taiwan.I encourage anyone who has an opportunity to visit and experience the beauty and uniqueness of Taiwan.


David Parker

Fair Housing Outreach Initiative

In the March 2014 edition of the On the Job Newsletter, the Commission announced that the Fair Housing Unit of the Utah Antidiscrimination and Labor Division, had received a one-year grant from the Department of Housing and Urban Development (HUD) to hire an outreach coordinator to implement educational programs throughout the State.

The Division promptly hired Dr. David Parker to be its coordinator and he has been hard at work the past eight months educating landlords and tenants about their rights and responsibilities under the State and Federal Fair Housing Acts.

One of the unique challenges the Division identified in fulfilling its mission to educate citizens of Utah on Fair Housing Law, is that many people do not know that the Fair Housing Unit is a part of the Utah Labor Commission. Therefore, one of the goals of the Fair Housing unit has been to strengthen the Commission’s ties with various municipal, State, Federal, and even international agencies, in order to establish the Labor Commission as the place to ask questions regarding Fair Housing issues.

Another challenge is that although there currently exist some groups of housing providers, there are relatively few established groups of tenants to educate on Fair Housing Law. Therefore Dr. Parker has identified various groups that frequently need advice on Fair Housing Laws such as churches, social workers, advocates, students, community leaders, and even hairdressers to organize outreach activities and promote awareness of fair housing issues.

It’s always of particular interest to the Commission to continue to strengthen ties in rural communities, so specific efforts have been made as part of the outreach program to conduct presentations in Moab, Logan, Tooele and Vernal, as well as several other cities in between in order to hold community meetings with local groups, tenants, and landlords.

As a result of the outreach emphasis on training, the Division has organized approximately 40% more educational activities this year, over the previous year and it has seen increased case filings, inquiries from landlords and tenants, and a deeper understanding of Fair Housing Law from those who attended these educational activities.

If your organization, or anyone you know, would be interested in scheduling a free Fair Housing Training session anywhere in the State, please contact David Parker at 385-321-9317 (dparker@utah.gov) or Dan Singer at 801-530-6924 (dsinger@utah.gov).


Frequently asked questions.

Utah Coordination of Benefits Act -
Understanding Your Rights and Obligations

On July 1, 2014, the Utah Coordination of Benefits Act (or “COB”) became law. This Act requires that private health insurance carriers cover the medical expenses of an injured worker until the Labor Commission makes a determination of whether the accident or injury is related to work.

Prior to COB’s enactment, private health insurance carriers could refuse to pay medical claims, arguing that the injury was caused by work, and should therefore be covered by the work comp carrier. On the other hand, some workers compensation carriers wouldn’t pay the claim either because they alleged the injury wasn’t caused by work. Now injured workers are no longer caught between two insurance carriers. Instead, the private carrier must pay the medical expenses while the workers compensation claim is being resolved.

How does it work? An injured worker may file an application for hearing with the Adjudication Division. At that time, let us know that you have private health insurance and you want them to pay for your medical bills while your workers compensation claim is being decided. There is information that you will need to provide to the Division such as name of the primary and secondary carrier (if any), the address and phone number for the carrier as well as policy numbers and names of those insured.

Once this information has been received by the Adjudication Division, they will send a notice to your private health insurance carrier letting them know of their duty to pay. Remember that it is the Division’s responsibility to send that notice – you don’t need to. This information can be provided to the Division at any point in your case, but keep in mind that your private carrier won’t be responsible for expenses until they receive notice, and therefore they may not reimburse you for expenses you’ve incurred up until that point.

Once a case goes to hearing

If the Adjudication Division decides that the accident or injury is work-related, the workers compensation carrier will be required to repay the private health insurance carrier the amount the plan paid to the health care providers, plus interest at an annual rate of 8%. The workers compensation carrier will also be required to reimburse the injured worker for any co-payments, coinsurance, deductibles, or other out-of-pocket expenses that he/she paid or incurred, plus 8% interest. On the other hand, if the claim is found not to be work-related, the workers compensation carrier is not required to reimburse the private health insurance company for the benefits it has paid under the terms of the health benefits plan. Likewise, the workers compensation carrier is not responsible to reimburse any co-pays, deductibles or other expenses the injured worker may have had to pay.

If you would like more information about COB and its various requirements, please see our web page: FAQ's about COB, or contact the Adjudication Division for additional information at (801) 530-6800 or casefiling@utah.gov.


Thumbs up

Division of Industrial Accidents Update

John F. Kennedy once said, “Change is the law of life. And those who look only to the past or present are certain to miss the future.” Change is a constant in our lives including here at the Labor Commission. The Industrial Accidents Division has experienced some recent changes which we believe will be instrumental in improving our operations.

Recently, Tonya Gallegos, the division’s former deputy director, took a position in the private market. Tonya’s former position is instrumental for the Industrial Accidents Division, since in addition to deputy director and presiding officer duties, Tonya acted as the division’s business analyst and was instrumental in getting our Electronic Date Interchange program (EDI) off the ground.

After an extensive interview and selection process, we hired Brad Morse to fill her position. Some of Brad’s experience includes his former position as the Division’s policy and claims sections manager. In his new role, he will continue to oversee the progress of the Division’s projects and take on the presiding officer’s role. He is also well versed in EDI implementation and his background with the policy section will serve him well in this new capacity.

We took this opportunity to re-organize the management of the policy and claims sections. Erin Hanson, formerly a collections manager and policy compliance investigator, was selected as the new manager for the policy section. Brad Thurman was selected as the new manager of the claims section . Brad was the manager for the waiver program and he will continue in this role in addition to the claims section duties. Both Brad and Erin bring experience and leadership skills to their respective sections, which we believe will greatly benefit the division.

What we do: The purpose of the claims section is to assist injured workers, employers, providers, and adjusters through the claims process. They receive information and reports on injuries, answer questions, assist parties with disputes through a formal and informal dispute resolution processes, and educate the public about employer and employee rights under the Workers’ Compensation Act. The policy section enforces the requirement for employers to maintain workers compensation insurance. They investigate incidences of possible non-compliance, assist employers in obtaining coverage, provide education, and issue penalties against non-compliant employers.

These two sections are very important to supporting the state’s workers compensation program and we are proud to have so many talented and dedicated staff capable of administering the various programs within our division. We are looking forward to the positive impact these new changes will have in the work of the Industrial Accidents Division.


worker on a scaffold.

Local Emphasis Program for Construction Industry

In an effort to reduce specific risks to workers in various industries, federal OSHA, as well as Utah OSHA, implements emphasis programs. These programs feature a combination of enforcement and educational outreach for employers whose workers face certain hazards.

Depending on the scope of the emphasis programs, they are known as national emphasis programs (“NEPs”), regional emphasis programs (“REPs”) or local emphasis programs (“LEPs”). Emphasis programs fall under the category of “Programmed Inspections.” They are focused at specific high hazard industries, workplaces, occupations, and health substances. The construction industry is one of those high hazard industries.

Utah OSHA implemented an LEP for the construction industry which went into effect on August 1, 2014 (Directive No.: 2014-001). The Construction LEP applies to all construction worksites under the jurisdiction of Utah OSHA and expires on July 31, 2019, but may be renewed as necessary. The goal of the Construction LEP is “to establish an enforcement initiative to reduce the incidents of injury, illness and fatality among workers in the construction industry, (SIC1521 – 1799/NAICS 236115 – 238990) by focusing on the “Big 4” construction hazards: falls from elevations, caught-in between, struck-by and electrocution.”

Nationally, in 2013, there were 796 fatalities reported to federal OSHA in the construction industry. Of those, 468 (58.7%) were fatalities resulting from the “Big 4” hazards. In Utah, in 2012, construction related fatalities accounted for 64% of all Utah OSHA reportable fatalities. The leading causes of death during this period were falls from elevation, struck-by, caught-in between and electrocution, the “Big 4.”

In order to select the sites to visit under the Construction LEP, Utah OSHA used the 2010 census to create a list of cities and towns with populations of 1,000 or more people. This list became the “Inspection Pool.” This list was then put into an online randomized sequence generator to randomize the list of cities and towns. The first fifteen cities and towns were then assigned to different Compliance Safety and Health Officers (“CSHOs”) for inspection. Inspections in each of the cities and towns in the first cycle, and each subsequent cycle, were completed before beginning another cycle.

worker on a scaffold.Once the cities and towns are assigned to a specific CSHO, that CSHO will drive the assigned area looking for active construction sites, including those with no observable hazards. The CSHO will not drive the same street or road repeatedly at different times unless it is necessary to do so to obtain access to other areas not previously inspected. All active construction sites will be inspected in the geographic area. Once a construction site is located, the CSHO will enter the construction site under the Construction LEP and perform a brief opening inspection with the general or prime contractor. The CSHO will then walk the job site looking for “Big 4” hazards. The CSHO will contact each subcontractor on the jobsite, but will only open inspections with employers who have employees exposed to observed hazards. If hazards are observed, the CSHO will issue corresponding citations. If no hazards are observed, the CSHO will continue on to the next construction site within the area.

Outreach and training are an important part of the Construction LEP, as well. Utah OSHA CSHOs and Consultants have been involved in training and outreach with various construction groups and associations recently. Presentations have been made at the Utah AGC Safety Conference, the Southern Utah AGC Safety Conference, as well as at other industry events instructing members of the construction industry on the Construction LEP details.

Utah OSHA believes that the Construction LEP will help to reduce specific risks to workers in the construction industry through training, outreach and focus on the “Big 4” hazards.


Office of Coal Mine Safety, Price, Utah

2014 - A Year of Change

This past year was one of many changes for the Division of Boiler, Elevator and Coal Mine Safety. Over the course of 2014 the Division lost a third of its workforce to retirements and was forced to move its Price office because the building where it was housed was being demolished.

The Division functions like a well-oiled machine, each employee a “cog” in the machine working in conjunction with the others in perfect harmony. When one of the “cogs” is missing the machine slows while the search for its replacement is conducted. Upon its replacement, the machine continues to work, a little faster than without it of course, and a little slower than it did previously, but still gets the job done. This year it was not just one “cog”, it was four, and the Division retired two inspectors on the same day at the end of June.

Coal mine certification in Price, UtahNeedless to say, no machine can function properly with that many pieces missing, but the other “cogs” really stepped up. For example, when two elevator inspectors retired on the same day, the remaining elevator inspectors worked as many as ten (10) hours of overtime a week for several weeks to keep the Division on track, and they did a great job.

In the middle of all the retirements the Division was informed that the DOT building in Price, UT which houses the Coal Mine portion of the Division, was being demolished and we needed to find a new place for that office. After a long search for a proper location, the Division decided to return to its previous home at the College of Eastern Utah which is now Utah State University Eastern. Although the search for a new location was a long and arduous process, the move itself was nearly effortless and the offices saw little more than a hiccup in their services, once again keeping the machine in harmony.

The Division is back at full staff now, there is still a lot of training to do, but we are well on our way to being back on track. The Coal Mine offices are settled in their new location and doing well. The Division as a whole is back in harmony and 2015 is looking like a great year.


Judge's gavel

Appellate Decisions

This quarter the Utah Court of Appeals issued two decisions involving a Labor Commission case. The full text of these decisions is available at www.utcourts.gov/opinions/. The decision issued by the court this quarter dealt with the Utah Workers’ Compensation Act.

Mercado v. Labor Commission, Autogrill Group, and Hartford Insurance Co. of the Midwest (2014 UT App 268; issued November 14, 2014).

Ms. Mercado worked as a dishwasher for Autogrill restaurant. In the course of her normal job duties, Ms. Mercado would receive assistance from her coworkers when she could not lift a heavy pot. She suffered a broken arm at work and was treated for her injury. Ms. Mercado later returned to her job as a dishwasher and continued to receive assistance from other employees to lift heavy pots that she could not manage. Autogrill was forced to lay off its staff during renovation of the Salt Lake International Airport where the restaurant was located. Unable to find other employment, Ms. Mercado filed a claim for permanent total disability compensation. The Commission determined that despite Ms. Mercado’s physical limitations, her work-related impairment did not prevent her from performing the essential functions of the work for which she was qualified at the time of the accident; namely, her job with Autogrill. Ms. Mercado appealed the Commission’s decision to the Utah Court of Appeals, which upheld the Commission’s decision. The court rejected Ms. Mercado’s argument that her work-related limitations prevented her from returning to her dishwashing job with Autogrill because she continued to work following the injury under the same conditions—assistance with lifting heavy pots—as she worked prior to the work injury. The court also agreed with the Commission that Ms. Mercado had not shown that the work accident was the direct cause of any disability. The court concluded that the Commission’s findings were supported by substantial evidence and affirmed the Commission’s decision to deny benefits to Ms. Mercado.

Danny’s Drywall and American Liberty Insurance Co. v. Utah Labor Commission and Rafael Suastegui Bernal (2014 UT App 277; issued November 20, 2014).

Mr. Bernal was working for Danny’s Drywall when he fell 14 feet from a scaffold. He suffered fractures to bones in his face and right hand, as well as tears in the muscles and cartilage of his right shoulder. He also experienced back and neck pain following the accident and underwent multiple surgeries to treat his various injuries. An impartial medical panel was asked to consider the medical aspects of Mr. Bernal’s claim. As part of its examination, the panel asked Mr. Bernal’s family questions to help the panel gauge the extent of his injuries before outlining the limitations from his work injuries. The Commission relied on the medical panel’s opinion and determined that Mr. Bernal was entitled to a preliminary award of permanent total disability compensation. Danny’s appealed the order to the Utah Court of Appeals, which affirmed the Commission’s decision. The court explained that the panel’s questioning of Mr. Bernal’s family members was not inappropriate under the Utah Workers’ Compensation Act, which authorizes a medical panel to conduct its own medical examination of an injured worker. The court rejected Danny’s argument that such questioning violated the Utah Administrative Procedures Act because the panel’s examination was not an adjudicative proceeding. The court also noted that Danny’s had failed to preserve its argument that the panel’s examination violated Danny’s right to due process and therefore did not address the merits of such argument. The court found that the Commission’s findings were supported by substantial evidence and therefore declined to disturb the Commission’s decision.


Law book

Rules Corner

The Commission enacted a number of administrative rule changes this quarter. Most of these changes relate to a review of the Industrial Accidents Division’s rules governing workers’ compensation benefits. The substantive changes are outlined below.

Labor Commission, Industrial Accidents

Rule 612-100. Workers’ Compensation Rules – General Provisions.
Effective October 22, 2014

R612-100-1. This update eliminates reference to the Utah Injured Worker Reemployment Act that was allowed to sunset during the 2014 legislative session.

R612-100-2. This update eliminates certain definitions found elsewhere in the Division’s rules, that are no longer in use, or that do not require definition. It also adds such definitions as “benefit,” “claimant,” “injury,” and “payor.” The definition for “first aid” is also added to this rule and is substantially the same as was previously found in R612-100-3 and R612-200-1.A.

R612-100-3. This update incorporates those changes necessitated by the electronic data interchange (EDI), which eliminates the need for parties to file certain paper documents. The rule also eliminates the definition of “first aid,” which has been moved to R612-200-2, any reference to the “Application for Hearing” form, and the “Release to Return to Work Form,” which is no longer used due to the sunset of the Utah Injured Worker Reemployment Act.

Rule 612-200. Workers’ Compensation Rules – Filing and Paying Claims.
Effective October 22, 2014

R612-200-1. This update eliminates the lengthy and redundant definition of “first aid,” which has instead been placed with other definitions in R612-100-2. This update also eliminates the detailed list of information previously required when reporting workplace injuries and, instead, incorporates EDI standards which fully address these information requirements. The update also consolidates the remaining provisions of the rule to clearly identify the parties responsible for reporting and investigating workplace injuries and the consequences for failing to do so.