0 OnTheJob News 4th Quarter 2015

On The Job Newsletter

Utah Labor Commissioner Sherrie Hayashi

Commissioner's Corner ...

As we head towards the final stretch of this very productive 2015 work year, we have the opportunity to move in many new and exciting directions.

Utah’s economy is one of the strongest in the nation. With a growing workforce, finding effective ways of managing our regulatory responsibilities is imperative. We have experienced a record staff turnover this last year and with a new year in sight, this is an opportune time to re-look at goals and evaluate where we are headed in the future. The future can always be an exciting time when we take what we have learned from the past and apply it to new situations. To this end, we will continue to look for ways to create goals within each of our divisions that will correlate to make the Labor Commission as a whole stronger.

One of my primary goals is a new emphasis for the Commission to reach out to the public in new and diverse ways. Education is our strongest tool and we need to do a better job in reaching out to the public. This will allow the Labor Commission opportunities to educate hard working employees about their rights while at the same time, assisting employers in doing their part to create safe and fair work environments. Through this type of community outreach, we can be much more proactive in addressing issues. We can all do our part in creating a welcoming environment in this great state.

A healthy regulatory environment is most efficient when we recognize that everyone has a role to fulfil and that we can work together for a common goal. We appreciate all of our partners for your dedication in helping keep people safe. As this year comes to a close, although there have been a number of changes in staffing and policy, these changes can be utilized for a fantastic 2016 here at the Labor Commission. With a renewed emphasis on outreach, we hope that employers and employees will learn more about the many great services we offer.

working light duty

Director Kerry Chlarson is Retiring

Kerry began his career with the Labor Commission almost 7 years ago and will be retiring as the Director of the Utah Antidiscrimination and Labor Division. Before coming to the Labor Commission, Kerry retired from the United States Marine Corp. and spent 8 years with the Disability Law Center in Utah. There he was the Managing Attorney. He holds a law degree from the University of Utah and started his legal career with the law firm of Sykes & Vilos in Salt Lake City.

“I will miss all of the wonderful people I have worked with here at the Commission,” stated Kerry. “I have learned a great deal from each of them and will miss my association with them. I have enjoyed interacting with the public and working with them to resolve challenging situations.”

“Please join me in wishing Kerry well in all of his future endeavors and thanking him for his years of service. His knowledge and dedication will be missed. I very much appreciate all of Kerry’s years of service” stated Commissioner Hayashi.

working light duty

Common Questions - Returning to Work After An On-The-Job Injury

1. When can an injured worker return to work? An injured worker can return to work when he or she is able to do so. This may require consultation with a physician, who can issue a light-duty or full-duty work release.

2. Can an employer bring an injured worker back to work on a light-duty assignment? Yes, if the light-duty assignment is reasonable and within the injured worker’s capabilities as determined by a medical provider. There are advantages to bring an injured worker back to light-duty work as soon as possible: It reduces the amount of disability compensation that must be paid and it avoids the time and expense of hiring and training a new employee. But most importantly, studies show that workers get better faster if they have the opportunity to return to work as they recover from their injuries.

3. Is an employer required to provide light-duty work? No, but as discussed above, there are advantages to both the employer and the employee if a light-duty assignment is arranged.

4. If an injured worker returns to work on a light-duty assignment, must he or she be paid the same wage as before the injury? No. If the light-duty assignment pays less than the injured worker’s pre-injury wage, the injured worker will receive temporary partial disability compensation to help make up the difference.

5. Can an injured worker refuse light-duty work? Not without a good reason. If an employer offers suitable light-duty work within documented medical restrictions, the injured worker is required to accept the work or risk losing his or her temporary disability compensation.

6. Can an injured worker be discharged if he or she can’t return to work due to a job injury or illness? The Utah Workers’ Compensation Act does not prohibit an employer from discharging an injured worker if the worker can no longer perform his or her job. However: it is against the law for an employer to retaliate against an employee for filing a workers’ compensation claim, and firing an employee who is capable of performing the essential functions of the job may violate the Utah Antidiscrimination Act and the ADA.

7. Is an employer required to continue providing medical coverage for an injured worker under the employer’s group health insurance plan? Utah law does not require an employer to continue medical insurance while an employee is off work and receiving workers’ compensation benefits because of a workplace injury or illness. However, employers should consider the requirements of other laws, such as the Family and Medical Leave Act (FMLA).

Local Emphasis Program for Amputations

One Year Evaluation – Local Emphasis Program for Amputations

In an effort to reduce specific risks to workers in industries where amputations may occur, the Utah Occupational Safety and Health Division (UOSH) implemented a Local Emphasis Program (LEP) for amputations (Amputation LEP) which went into effect on November 1, 2014 (Directive No.: 2014-002). The Amputation LEP applies to general industry workplaces where any machinery and equipment that are likely to cause amputations are present. This LEP expires on October 31, 2019, but may be renewed as necessary. The goal of the Amputation LEP is “to reduce amputation injuries while maximizing the agency’s inspection resources” by focusing on workplaces with machines that cause or are capable of causing amputations, as well as workplaces where amputations have occurred. This article summarizes the number of amputation accidents as well as the number of inspections performed and citations issued by UOSH during the first year of the Amputation LEP.

According to data collected by the Utah Industrial Accidents Division (IA), there were 43 amputations in Utah between November 1, 2013 and October 31, 2014, the year prior to the Amputation LEP going into effect. During the first year that that Amputation LEP has been in effect, November 1, 2014, through October 31, 2015, there were 39 amputations according to the same IA data source.

During the first year of the Amputation LEP, UOSH Compliance Safety and Health Officers (CSHOs) conducted 78 inspections under the scope of the Amputation LEP. There were at least 5,892 employees who worked at the businesses which were inspected who were affected by the Amputation LEP. The total number of hazards identified by the UOSH inspections and eliminated from the various places of work was 176 (166 serious violations and 10 other-than-serious violations). In other words, the 176 safety and health hazards which were removed from the 5,892 employees’ workplaces positively affected those employees and made a safer work environment for them.

The following are the standards and number of violations of those standards which were cited by UOSH as a result of the Amputation LEP inspections performed during the first year of the Amputation LEP:

1. Machine guarding (91 violations)
2. Lockout/Tagout (30 violations)
3. Respiratory protection (13 violations)
4. Walking-working surfaces (10 violations)
5. Electrical (10 violations)
6. Hazard Communication (7 violations)
7. Power press (4 violations)
8. Powered industrial trucks (3 violations)
9. Removing tools/equipment/materials without authorization (2 violations)
10. Not reporting injury within 8 hours (1 violation)
11. Open pit (1 violation)
12. Permit required confined space (1 violation)
13. Welding (1 violation)
14. Loose clothing (1 violation)
15. Hazard assessment certification (1 violation)

UOSH will continue to provide education and compliance assistance to employers related to the Amputation LEP, as well as enforce regulations where hazards are observed. This is done to ensure that employers who have equipment and/or machinery that are known to cause serious injury, including amputations, are aware of the hazards and that they provide a safe and healthful workplace for their employees.

With the continuance of the Amputation LEP, UOSH believes that the number of amputations and fatalities will be reduced among workers who work in industries where machines are present that would likely cause such occurrences.

National Coal Mine Rescue Competition

2015 National Coal Mine Rescue Competition

Bowie Resources Southern Utah Fuel Company Black Team is the recipient of this year’s trophy for highest placing Utah team. Each year the State of Utah recognizes the mine rescue team from Utah that places the highest at the National Mine Rescue Contest.

The national contest was held this year in Lexington, Kentucky. This year’s the highest placing Utah team was Bowie Resources’ Southern Utah Fuel Company Black Team. Kent Houghton, the Director of the Office of Coal Mine Safety presented this year’s trophy to Brett Allred, the team’s trainer. Bowie Resources is the state’s largest coal mine operator with Dugout, Skyline and the Southern Utah Fuel Company Mines. Bowie Resources’ Utah mines are some of the safest in the nation. Their commitment to safety and mine rescue speaks highly of the culture of safety in their Utah operations.

There are about 350 mine rescue teams who are certified and equipped to perform mine rescue operations in the United States. They train and compete in mine rescue contests organized across the United States culminating in national championships for coal, metal and non-metal mines. These teams, when they are called upon, perform and undertake some of the most difficult and dangerous emergency response work in this county, sometimes traveling in dark underground mines filled with poisonous and explosive gases and debris in order to find missing miners or recover those who did not survive.

The first mine rescue contest was held on October 30, 1911 and was organized by Dr, Joseph A. Holmes at Forbes Field in Pittsburg, Pennsylvania. Dr. Holmes was appointed by President William Howard Taft as the director of the United States Bureau of Mines in 1910, and the Holmes Safety Association was named in his honor. He is credited with being the father of coal mine safety. In honor of this date, the Mine Rescue and Health Administration in 2013 set aside October 30 as National Mine Rescue Day to honor those brave and dedicated individuals who risk their own lives to save others.

We appreciate the time and effort these teams put in to training and their dedication to the other coal miners in the State of Utah. They are there and always prepared to go to the aid of their fellow miners when needed and they have our gratitude and respect for what they do.

fair housing

HUD Rule Standardizes What Constitutes Harassment

In late October of 2015, the U.S. Department of Housing and Urban Development proposed a rule to standardize what constitutes harassment in the context of fair housing. The rule, titled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act, attempts to formalize the long-standing practice of both HUD and the courts to categorize fair housing harassment into two main areas: hostile environment and quid pro quo harassment.

Hostile Environment harassment occurs when a tenant's right to use and enjoy their housing is interfered with as a result of severe or pervasive actions on the part of a harasser. Generally, these actions must be either ongoing, or if not chronic, then sufficiently extreme to create a hostile living environment for the tenant.

Quid Pro Quo harassment occurs when a tenant is subject to an unwelcome demand from the harasser, and a condition of the tenant's housing is contingent upon the tenant's acquiescence to that demand. Quid pro quo harassment most often occurs in the context of sexual harassment, ie, a landlord making sexual advances on a tenant and demanding acquiescence in exchange for services such as reduced rent or the fulfillment of maintenance requests.

Harassers can be housing providers, on-site managers, or even other tenants, and it is important to recognize and report fair housing harassment in all its forms. It is HUD's hope that the proposed rule will make it easier to identify and eliminate fair housing harassment and ensure that tenants feel safe and comfortable in their own homes.

The full text of the proposed rule can be viewed at https://www.regulations.gov/#!documentDetail;D=HUD-2015-0095-0001. The rule is open for public comment until December 21, 2015.

Utah Labor Commission logo

Utah Labor Commission Workers’ Compensation Conference

On October 16th the Division of Industrial Accidents hosted the Labor Commission’s 11th Workers’ Compensation Educational Conference. The conference took place at the Sheraton Hotel in downtown Salt Lake City and was attended by 179 participants. The goal of the conference is to bring together all of our participants in the workers’ compensation system, including adjusters, attorneys, medical providers, and insurance carrier representatives, in an environment where important information and ideas can be shared. We hope to continually improve the efficiency of the system by discussing the newest issues, treatment practices, administrative processes, and the services offered by the Labor Commission. To meet these goals we offered morning sessions which included updates by Commission representatives on the appeal process and legislation, news topics such as the new shared economy like Uber and Airbnb and the national opt out movement, and an insightful panel made up of attorneys and our chief administrative law judge who took questions and shared their various practice perspectives.

The afternoon sessions included two tracks in which attendees could participate. The first focused on medical treatment topics by industry physicians and included topics such as the diagnosis and treatment of closed head injuries, craniocerebral trauma, cumulative trauma disorder and upper extremity conditions, and issues related to seeing the injured worker first. The second afternoon track was directed toward administrative items such as understanding an injured worker’s perspective, an overview of how the workers’ compensation system works in Utah including the Commission’s Medical Committee and Advisory Council, an overview of the Medical Fee Standards, and a presentation by the Division on medical marijuana, outreach, and mediation. These were presented by industry experts and division representatives.

It is important for the health of Utah’s system to be up to date on such things as treatment methods, technology advances, and educational initiatives focused various issues. These conferences provide us a wonderful opportunity to do so. This then allows us to meet the needs of the public and all parties involved in the workers’ compensation system from the injured workers to the adjusters who handle the claims. All of the presentations from the conference are available on the Utah Labor Commission website under the Division of Industrial Accident’s page. We want to thank everyone who participated in helping make this a successful conference. Mark your calendars because in two years we will be celebrating the centennial anniversary of the Workers’ Compensation Act in Utah.

Coal Miner

From the US Department of Labor

National Miners Day
More than 366,000 men and women go to work extracting ore from the ground at nearly 13,600 surface and underground mining operations every day. On National Miners Day, we salute them.

The Future of Work

Employment relationships are changing for many Americans, in both high- and low-tech sectors. What do these changes mean for the department's efforts to advance opportunity, protect benefits and promote basic labor standards? Join the conversation on the #FutureOfWork.

The future of work

Judge's gavel

Appellate Decisions

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

Utah Court of Appeals

Rashell Quast v. Labor Commission, University of Utah Huntsman Cancer Hospital, and Workers Compensation Fund (2015 UT App 267; issued November 12, 2015).
Ms. Quast injured her mid back while working for Huntsman Cancer Hospital (“Huntsman”) in 2007. She filed a claim for benefits based on the mid-back injury, which dispute was resolved by way of an agreement between the parties. Ms. Quast later filed another claim based on the same mid-back injury and alleged entitlement to additional medical treatment as well as permanent total disability compensation. The ALJ determined that Ms. Quast was entitled to the additional medical treatment she claimed. The ALJ also entered a preliminary award of permanent total disability compensation to Ms. Quast. Huntsman appealed the ALJ’s decision to the Commission, which upheld the award of additional medical treatment but reversed the preliminary award of permanent total disability benefits. The Commission found that Ms. Quast had not established that she was permanently and totally disabled because she did not meet §34A-2-413(1)(c)(ii), which requires a claimant to show that he or she is limited in her ability to do basic work activities. The Commission reasoned that Ms. Quast did not meet that requirement because she was not reasonably limited in her ability to perform basic work activities. Ms. Quast appealed the Commission’s denial of permanent total disability benefits to the Utah Court of Appeals, which concluded that the Commission had imposed a higher standard on Ms. Quast than required by §413(1)(c)(ii). The court explained that, consistent with its reasoning in the Oliver case issued in September 2015, a claimant could meet §413(1)(c)(ii) by showing any limitation rather than having to demonstrate a reasonable limitation in his or her ability to do basic work activities. The court therefore reversed the Commission’s decision and reinstated the ALJ’s preliminary award of permanent total disability benefits to Ms. Quast.

Law book

Rules Corner
Rule 602-1-4
Labor Commission, Adjudication
Effective October 9, 2015

Filing of Documents. This rule change allows administrative law judges and parties to file documents with electronic signatures. The change also defines “electronic signature” and outlines the requirements for affidavits or documents needing a notarized, verified, or acknowledged signature that are filed with the Commission.