1     
WORKERS' COMPENSATION ATTORNEY FEES

2     
AMENDMENTS

3     
2018 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Karen Mayne

6     
House Sponsor: James A. Dunnigan

7     

8     LONG TITLE
9     General Description:
10          This bill modifies provisions of the Workers' Compensation Act related to attorney
11     fees.
12     Highlighted Provisions:
13          This bill:
14          ▸     provides that to the extent allowed by court rule, an employee may be awarded
15     reasonable attorney fees in an adjudication of a medical benefits claim; and
16          ▸     makes technical and conforming changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          34A-2-413, as last amended by Laws of Utah 2016, Chapter 31
24          34A-2-801, as last amended by Laws of Utah 2016, Chapters 187 and 242
25     REPEALS AND REENACTS:
26          34A-1-309, as last amended by Laws of Utah 2009, Chapter 216
27     


28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 34A-1-309 is repealed and reenacted to read:
30          34A-1-309. Attorney fees.
31          For an adjudication of a medical benefits claim, reasonable attorney fees may be
32     awarded in accordance with and to the extent allowed by rule adopted by the Utah Supreme
33     Court and implemented by the Labor Commission.
34          Section 2. Section 34A-2-413 is amended to read:
35          34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
36          (1) (a) In the case of a permanent total disability resulting from an industrial accident
37     or occupational disease, the employee shall receive compensation as outlined in this section.
38          (b) To establish entitlement to permanent total disability compensation, the employee
39     shall prove by a preponderance of evidence that:
40          (i) the employee sustained a significant impairment or combination of impairments as a
41     result of the industrial accident or occupational disease that gives rise to the permanent total
42     disability entitlement;
43          (ii) the employee has a permanent, total disability; and
44          (iii) the industrial accident or occupational disease is the direct cause of the employee's
45     permanent total disability.
46          (c) To establish that an employee has a permanent, total disability the employee shall
47     prove by a preponderance of the evidence that:
48          (i) the employee is not gainfully employed;
49          (ii) the employee has an impairment or combination of impairments that reasonably
50     limit the employee's ability to do basic work activities;
51          (iii) the industrial or occupationally caused impairment or combination of impairments
52     prevent the employee from performing the essential functions of the work activities for which
53     the employee has been qualified until the time of the industrial accident or occupational disease
54     that is the basis for the employee's permanent total disability claim; and
55          (iv) the employee cannot perform other work reasonably available, taking into
56     consideration the employee's:
57          (A) age;
58          (B) education;

59          (C) past work experience;
60          (D) medical capacity; and
61          (E) residual functional capacity.
62          (d) Evidence of an employee's entitlement to disability benefits other than those
63     provided under this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:
64          (i) may be presented to the commission;
65          (ii) is not binding; and
66          (iii) creates no presumption of an entitlement under this chapter and Chapter 3, Utah
67     Occupational Disease Act.
68          (e) In determining under Subsections (1)(b) and (c) whether an employee cannot
69     perform other work reasonably available, the following may not be considered:
70          (i) whether the employee is incarcerated in a facility operated by or contracting with a
71     federal, state, county, or municipal government to house a criminal offender in either a secure
72     or nonsecure setting; or
73          (ii) whether the employee is not legally eligible to be employed because of a reason
74     unrelated to the impairment or combination of impairments.
75          (2) For permanent total disability compensation during the initial 312-week
76     entitlement, compensation is 66-2/3% of the employee's average weekly wage at the time of the
77     injury, limited as follows:
78          (a) compensation per week may not be more than 85% of the state average weekly
79     wage at the time of the injury;
80          (b) (i) subject to Subsection (2)(b)(ii), compensation per week may not be less than the
81     sum of $45 per week and:
82          (A) $5 for a dependent spouse; and
83          (B) $5 for each dependent child under the age of 18 years, up to a maximum of four
84     dependent minor children; and
85          (ii) the amount calculated under Subsection (2)(b)(i) may not exceed:
86          (A) the maximum established in Subsection (2)(a); or
87          (B) the average weekly wage of the employee at the time of the injury; and
88          (c) after the initial 312 weeks, the minimum weekly compensation rate under
89     Subsection (2)(b) is 36% of the current state average weekly wage, rounded to the nearest

90     dollar.
91          (3) This Subsection (3) applies to claims resulting from an accident or disease arising
92     out of and in the course of the employee's employment on or before June 30, 1994.
93          (a) The employer or the employer's insurance carrier is liable for the initial 312 weeks
94     of permanent total disability compensation except as outlined in Section 34A-2-703 as in effect
95     on the date of injury.
96          (b) The employer or the employer's insurance carrier may not be required to pay
97     compensation for any combination of disabilities of any kind, as provided in this section and
98     Sections 34A-2-410 through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of
99     compensation payable over the initial 312 weeks at the applicable permanent total disability
100     compensation rate under Subsection (2).
101          (c) The Employers' Reinsurance Fund shall for an overpayment of compensation
102     described in Subsection (3)(b), reimburse the overpayment:
103          (i) to the employer or the employer's insurance carrier; and
104          (ii) out of the Employers' Reinsurance Fund's liability to the employee.
105          (d) After an employee receives compensation from the employee's employer, the
106     employer's insurance carrier, or the Employers' Reinsurance Fund for any combination of
107     disabilities amounting to 312 weeks of compensation at the applicable permanent total
108     disability compensation rate, the Employers' Reinsurance Fund shall pay all remaining
109     permanent total disability compensation.
110          (e) Employers' Reinsurance Fund payments shall commence immediately after the
111     employer or the employer's insurance carrier satisfies its liability under this Subsection (3) or
112     Section 34A-2-703.
113          (4) This Subsection (4) applies to claims resulting from an accident or disease arising
114     out of and in the course of the employee's employment on or after July 1, 1994.
115          (a) The employer or the employer's insurance carrier is liable for permanent total
116     disability compensation.
117          (b) The employer or the employer's insurance carrier may not be required to pay
118     compensation for any combination of disabilities of any kind, as provided in this section and
119     Sections 34A-2-410 through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of
120     compensation payable over the initial 312 weeks at the applicable permanent total disability

121     compensation rate under Subsection (2).
122          (c) The employer or the employer's insurance carrier may recoup the overpayment of
123     compensation described in Subsection (4) by reasonably offsetting the overpayment against
124     future liability paid before or after the initial 312 weeks.
125          (5) (a) A finding by the commission of permanent total disability is not final, unless
126     otherwise agreed to by the parties, until:
127          (i) an administrative law judge reviews a summary of reemployment activities
128     undertaken pursuant to Section 34A-2-413.5;
129          (ii) the employer or the employer's insurance carrier submits to the administrative law
130     judge:
131          (A) a reemployment plan as prepared by a qualified rehabilitation provider reasonably
132     designed to return the employee to gainful employment; or
133          (B) notice that the employer or the employer's insurance carrier will not submit a plan;
134     and
135          (iii) the administrative law judge, after notice to the parties, holds a hearing, unless
136     otherwise stipulated, to:
137          (A) consider evidence regarding rehabilitation; and
138          (B) review any reemployment plan submitted by the employer or the employer's
139     insurance carrier under Subsection (5)(a)(ii).
140          (b) Before commencing the procedure required by Subsection (5)(a), the administrative
141     law judge shall order:
142          (i) the initiation of permanent total disability compensation payments to provide for the
143     employee's subsistence; and
144          (ii) the payment of any undisputed disability or medical benefits due the employee.
145          (c) Notwithstanding Subsection (5)(a), an order for payment of benefits described in
146     Subsection (5)(b) is considered a final order for purposes of Section 34A-2-212.
147          (d) The employer or the employer's insurance carrier shall be given credit for any
148     disability payments made under Subsection (5)(b) against its ultimate disability compensation
149     liability under this chapter or Chapter 3, Utah Occupational Disease Act.
150          (e) An employer or the employer's insurance carrier may not be ordered to submit a
151     reemployment plan. If the employer or the employer's insurance carrier voluntarily submits a

152     plan, the plan is subject to Subsections (5)(e)(i) through (iii).
153          (i) The plan may include, but not require an employee to pay for:
154          (A) retraining;
155          (B) education;
156          (C) medical and disability compensation benefits;
157          (D) job placement services; or
158          (E) incentives calculated to facilitate reemployment.
159          (ii) The plan shall include payment of reasonable disability compensation to provide
160     for the employee's subsistence during the rehabilitation process.
161          (iii) The employer or the employer's insurance carrier shall diligently pursue the
162     reemployment plan. The employer's or insurance carrier's failure to diligently pursue the
163     reemployment plan is cause for the administrative law judge on the administrative law judge's
164     own motion to make a final decision of permanent total disability.
165          (f) If a preponderance of the evidence shows that successful rehabilitation is not
166     possible, the administrative law judge shall order that the employee be paid weekly permanent
167     total disability compensation benefits.
168          (g) If a preponderance of the evidence shows that pursuant to a reemployment plan, as
169     prepared by a qualified rehabilitation provider and presented under Subsection (5)(e), an
170     employee could immediately or without unreasonable delay return to work but for the
171     following, an administrative law judge shall order that the employee be denied the payment of
172     weekly permanent total disability compensation benefits:
173          (i) incarceration in a facility operated by or contracting with a federal, state, county, or
174     municipal government to house a criminal offender in either a secure or nonsecure setting; or
175          (ii) not being legally eligible to be employed because of a reason unrelated to the
176     impairment or combination of impairments.
177          (6) (a) The period of benefits commences on the date the employee acquired the
178     permanent, total disability, as determined by a final order of the commission based on the facts
179     and evidence, and ends:
180          (i) with the death of the employee; or
181          (ii) when the employee is capable of returning to regular, steady work.
182          (b) An employer or the employer's insurance carrier may provide or locate for a

183     permanently totally disabled employee reasonable, medically appropriate, part-time work in a
184     job earning at least minimum wage, except that the employee may not be required to accept the
185     work to the extent that it would disqualify the employee from social security disability benefits.
186          (c) An employee shall:
187          (i) fully cooperate in the placement and employment process; and
188          (ii) accept the reasonable, medically appropriate, part-time work.
189          (d) In a consecutive four-week period when an employee's gross income from the work
190     provided under Subsection (6)(b) exceeds $500, the employer or insurance carrier may reduce
191     the employee's permanent total disability compensation by 50% of the employee's income in
192     excess of $500.
193          (e) If a work opportunity is not provided by the employer or the employer's insurance
194     carrier, an employee with a permanent, total disability may obtain medically appropriate,
195     part-time work subject to the offset provisions of Subsection (6)(d).
196          (f) (i) The commission shall establish rules regarding the part-time work and offset.
197          (ii) The adjudication of disputes arising under this Subsection (6) is governed by Part
198     8, Adjudication.
199          (g) The employer or the employer's insurance carrier has the burden of proof to show
200     that medically appropriate part-time work is available.
201          (h) The administrative law judge may:
202          (i) excuse an employee from participation in any work:
203          (A) that would require the employee to undertake work exceeding the employee's:
204          (I) medical capacity; or
205          (II) residual functional capacity; or
206          (B) for good cause; or
207          (ii) allow the employer or the employer's insurance carrier to reduce permanent total
208     disability benefits as provided in Subsection (6)(d) when reasonable, medically appropriate,
209     part-time work is offered, but the employee fails to fully cooperate.
210          (7) When an employee is rehabilitated or the employee's rehabilitation is possible but
211     the employee has some loss of bodily function, the award shall be for permanent partial
212     disability.
213          (8) As determined by an administrative law judge, an employee is not entitled to

214     disability compensation, unless the employee fully cooperates with any evaluation or
215     reemployment plan under this chapter or Chapter 3, Utah Occupational Disease Act. The
216     administrative law judge shall dismiss without prejudice the claim for benefits of an employee
217     if the administrative law judge finds that the employee fails to fully cooperate, unless the
218     administrative law judge states specific findings on the record justifying dismissal with
219     prejudice.
220          (9) (a) The loss or permanent and complete loss of the use of the following constitutes
221     total and permanent disability that is compensated according to this section:
222          (i) both hands;
223          (ii) both arms;
224          (iii) both feet;
225          (iv) both legs;
226          (v) both eyes; or
227          (vi) any combination of two body members described in this Subsection (9)(a).
228          (b) A finding of permanent total disability pursuant to Subsection (9)(a) is final.
229          (10) (a) An insurer or self-insured employer may periodically reexamine a permanent
230     total disability claim, except those based on Subsection (9), for which the insurer or
231     self-insured employer had or has payment responsibility to determine whether the employee
232     continues to have a permanent, total disability.
233          (b) Reexamination may be conducted no more than once every three years after an
234     award is final, unless good cause is shown by the employer or the employer's insurance carrier
235     to allow more frequent reexaminations.
236          (c) The reexamination may include:
237          (i) the review of medical records;
238          (ii) employee submission to one or more reasonable medical evaluations;
239          (iii) employee submission to one or more reasonable rehabilitation evaluations and
240     retraining efforts;
241          (iv) employee disclosure of Federal Income Tax Returns;
242          (v) employee certification of compliance with Section 34A-2-110; and
243          (vi) employee completion of one or more sworn affidavits or questionnaires approved
244     by the division.

245          (d) The insurer or self-insured employer shall pay for the cost of a reexamination with
246     appropriate employee reimbursement pursuant to rule for reasonable travel allowance and per
247     diem as well as reasonable expert witness fees incurred by the employee in supporting the
248     employee's claim for permanent total disability benefits at the time of reexamination.
249          (e) If an employee fails to fully cooperate in the reasonable reexamination of a
250     permanent total disability finding, an administrative law judge may order the suspension of the
251     employee's permanent total disability benefits until the employee cooperates with the
252     reexamination.
253          (f) (i) If the reexamination of a permanent total disability finding reveals evidence that
254     reasonably raises the issue of an employee's continued entitlement to permanent total disability
255     compensation benefits, an insurer or self-insured employer may petition the Division of
256     Adjudication for a rehearing on that issue. The insurer or self-insured employer shall include
257     with the petition, documentation supporting the insurer's or self-insured employer's belief that
258     the employee no longer has a permanent, total disability.
259          (ii) If the petition under Subsection (10)(f)(i) demonstrates good cause, as determined
260     by the Division of Adjudication, an administrative law judge shall adjudicate the issue at a
261     hearing.
262          (iii) Evidence of an employee's participation in medically appropriate, part-time work
263     may not be the sole basis for termination of an employee's permanent total disability
264     entitlement, but the evidence of the employee's participation in medically appropriate, part-time
265     work under Subsection (6) may be considered in the reexamination or hearing with other
266     evidence relating to the employee's status and condition.
267          [(g) In accordance with Section 34A-1-309, the administrative law judge may award
268     reasonable attorney fees to an attorney retained by an employee to represent the employee's
269     interests with respect to reexamination of the permanent total disability finding, except if the
270     employee does not prevail, the attorney fees shall be set at $1,000. The attorney fees awarded
271     shall be paid by the employer or the employer's insurance carrier in addition to the permanent
272     total disability compensation benefits due.]
273          [(h)] (g) During the period of reexamination or adjudication, if the employee fully
274     cooperates, each insurer, self-insured employer, or the Employers' Reinsurance Fund shall
275     continue to pay the permanent total disability compensation benefits due the employee.

276          (11) If any provision of this section, or the application of any provision to any person
277     or circumstance, is held invalid, the remainder of this section is given effect without the invalid
278     provision or application.
279          Section 3. Section 34A-2-801 is amended to read:
280          34A-2-801. Initiating adjudicative proceedings -- Procedure for review of
281     administrative action.
282          (1) (a) To contest an action of the employee's employer or its insurance carrier
283     concerning a compensable industrial accident or occupational disease alleged by the employee
284     or a dependent any of the following shall file an application for hearing with the Division of
285     Adjudication:
286          (i) the employee;
287          (ii) a representative of the employee, the qualifications of whom are defined in rule by
288     the commission; or
289          (iii) a dependent as described in Section 34A-2-403.
290          (b) To appeal the imposition of a penalty or other administrative act imposed by the
291     division on the employer or its insurance carrier for failure to comply with this chapter or
292     Chapter 3, Utah Occupational Disease Act, any of the following shall file an application for
293     hearing with the Division of Adjudication:
294          (i) the employer;
295          (ii) the insurance carrier; or
296          (iii) a representative of either the employer or the insurance carrier, the qualifications
297     of whom are defined in rule by the commission.
298          (c) A person providing goods or services described in Subsections 34A-2-407(12) and
299     34A-3-108(13) may file an application for hearing in accordance with Section 34A-2-407 or
300     34A-3-108.
301          [(d) An attorney may file an application for hearing in accordance with Section
302     34A-1-309.]
303          (2) (a) Unless all parties agree to the assignment in writing, the Division of
304     Adjudication may not assign the same administrative law judge to hear a claim under this
305     section by an injured employee if the administrative law judge previously heard a claim by the
306     same injured employee for a different injury or occupational disease.

307          (b) Unless all parties agree to the appointment in writing, an administrative law judge
308     may not appoint the same medical panel or individual panel member to evaluate a claim by an
309     injured employee if the medical panel or individual panel member previously evaluated a claim
310     by the same injured employee for a different injury or occupational disease.
311          (3) Unless a party in interest appeals the decision of an administrative law judge in
312     accordance with Subsection (4), the decision of an administrative law judge on an application
313     for hearing filed under Subsection (1) is a final order of the commission 30 days after the day
314     on which the decision is issued. An administrative law judge shall issue a decision by no later
315     than 60 days from the day on which the hearing is held under this part unless:
316          (a) the parties agree to a longer period of time; or
317          (b) a decision within the 60-day period is impracticable.
318          (4) (a) A party in interest may appeal the decision of an administrative law judge by
319     filing a motion for review with the Division of Adjudication within 30 days of the date the
320     decision is issued.
321          (b) Unless a party in interest to the appeal requests under Subsection (4)(c) that the
322     appeal be heard by the Appeals Board, the commissioner shall hear the review.
323          (c) A party in interest may request that an appeal be heard by the Appeals Board by
324     filing the request with the Division of Adjudication:
325          (i) as part of the motion for review; or
326          (ii) if requested by a party in interest who did not file a motion for review, within 20
327     days of the day on which the motion for review is filed with the Division of Adjudication.
328          (d) A case appealed to the Appeals Board shall be decided by the majority vote of the
329     Appeals Board.
330          (5) The Division of Adjudication shall maintain a record on appeal, including an
331     appeal docket showing the receipt and disposition of the appeals on review.
332          (6) Upon appeal, the commissioner or Appeals Board shall make its decision in
333     accordance with Section 34A-1-303. The commissioner or Appeals Board shall issue a
334     decision under this part by no later than 90 days from the day on which the motion for review is
335     filed unless:
336          (a) the parties agree to a longer period of time; or
337          (b) a decision within the 90-day period is impracticable.

338          (7) The commissioner or Appeals Board shall promptly notify the parties to a
339     proceeding before it of its decision, including its findings and conclusions.
340          (8) (a) Subject to Subsection (8)(b), the decision of the commissioner or Appeals
341     Board is final unless within 30 days after the date the decision is issued further appeal is
342     initiated under the provisions of this section or Title 63G, Chapter 4, Administrative
343     Procedures Act.
344          (b) In the case of an award of permanent total disability benefits under Section
345     34A-2-413, the decision of the commissioner or Appeals Board is a final order of the
346     commission unless set aside by the court of appeals.
347          (9) (a) Within 30 days after the day on which the decision of the commissioner or
348     Appeals Board is issued, an aggrieved party may secure judicial review by commencing an
349     action in the court of appeals against the commissioner or Appeals Board for the review of the
350     decision of the commissioner or Appeals Board.
351          (b) In an action filed under Subsection (9)(a):
352          (i) any other party to the proceeding before the commissioner or Appeals Board shall
353     be made a party; and
354          (ii) the commission shall be made a party.
355          (c) A party claiming to be aggrieved may seek judicial review only if the party exhausts
356     the party's remedies before the commission as provided by this section.
357          (d) At the request of the court of appeals, the commission shall certify and file with the
358     court all documents and papers and a transcript of all testimony taken in the matter together
359     with the decision of the commissioner or Appeals Board.
360          (10) (a) The commission shall make rules, in accordance with Title 63G, Chapter 3,
361     Utah Administrative Rulemaking Act, to facilitate timely completion of administrative actions
362     under this part.
363          (b) The commission shall monitor the time from filing of an application for a hearing
364     to issuance of a final order of the commission for cases brought under this part.






Legislative Review Note
Office of Legislative Research and General Counsel