H.B. 174

1

WORKERS' COMPENSATION - FIRE
2 DEPARTMENT EMPLOYEES
3 2002 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Joseph G. Murray
6 This act modifies the Utah Labor Code to provide for a presumption that certain
7 occupational diseases are employment related for fire department employees and to make
8 technical changes.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 34A-2-413, as renumbered and amended by Chapter 375, Laws of Utah 1997
12 ENACTS:
13 34A-3-113, Utah Code Annotated 1953
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 34A-2-413 is amended to read:
16 34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
17 (1) (a) In cases of permanent total disability resulting from an industrial accident or
18 occupational disease, the employee shall receive compensation as outlined in this section.
19 (b) [To] Except as provided in Section 34A-3-113 , to establish entitlement to permanent
20 total disability compensation, the employee has the burden of proof to show by a preponderance
21 of evidence that:
22 (i) the employee sustained a significant impairment or combination of impairments as a
23 result of the industrial accident or occupational disease that gives rise to the permanent total
24 disability entitlement;
25 (ii) the employee is permanently totally disabled; and
26 (iii) the industrial accident or occupational disease was the direct cause of the employee's
27 permanent total disability.

28 (c) To find an employee permanently totally disabled, the commission shall conclude that:
29 (i) the employee is not gainfully employed;
30 (ii) the employee has an impairment or combination of impairments that limit the
31 employee's ability to do basic work activities;
32 (iii) the industrial or occupationally caused impairment or combination of impairments
33 prevent the employee from performing the essential functions of the work activities for which the
34 employee has been qualified until the time of the industrial accident or occupational disease that
35 is the basis for the employee's permanent total disability claim; and
36 (iv) the employee cannot perform other work reasonably available, taking into
37 consideration the employee's age, education, past work experience, medical capacity, and residual
38 functional capacity.
39 (d) Evidence of an employee's entitlement to disability benefits other than those provided
40 under this chapter and Chapter 3, Utah Occupational Disease Act, if relevant, may be presented
41 to the commission, but is not binding and creates no presumption of an entitlement under this
42 chapter and Chapter 3, Utah Occupational Disease Act.
43 (2) For permanent total disability compensation during the initial 312-week entitlement,
44 compensation shall be 66-2/3% of the employee's average weekly wage at the time of the injury,
45 limited as follows:
46 (a) compensation per week may not be more than 85% of the state average weekly wage
47 at the time of the injury;
48 (b) compensation per week may not be less than the sum of $45 per week, plus $5 for a
49 dependent spouse, plus $5 for each dependent child under the age of 18 years, up to a maximum
50 of four dependent minor children, but not exceeding the maximum established in Subsection (2)(a)
51 nor exceeding the average weekly wage of the employee at the time of the injury; and
52 (c) after the initial 312 weeks, the minimum weekly compensation rate under Subsection
53 (2)(b) shall be 36% of the current state average weekly wage, rounded to the nearest dollar.
54 (3) For claims resulting from an accident or disease arising out of and in the course of the
55 employee's employment on or before June 30, 1994:
56 (a) The employer or its insurance carrier is liable for the initial 312 weeks of permanent
57 total disability compensation except as outlined in Section 34A-2-703 as in effect on the date of
58 injury.

59 (b) The employer or its insurance carrier may not be required to pay compensation for any
60 combination of disabilities of any kind, as provided in this section and Sections 34A-2-410 through
61 34A-2-412 and Sections 34A-2-501 through 34A-2-507 in excess of the amount of compensation
62 payable over the initial 312 weeks at the applicable permanent total disability compensation rate
63 under Subsection (2).
64 (c) Any overpayment of this compensation shall be reimbursed to the employer or its
65 insurance carrier by the Employers' Reinsurance Fund and shall be paid out of the Employers'
66 Reinsurance Fund's liability to the employee.
67 (d) After an employee has received compensation from the employee's employer, its
68 insurance carrier, or the Employers' Reinsurance Fund for any combination of disabilities
69 amounting to 312 weeks of compensation at the applicable permanent total disability compensation
70 rate, the Employers' Reinsurance Fund shall pay all remaining permanent total disability
71 compensation.
72 (e) Employers' Reinsurance Fund payments shall commence immediately after the
73 employer or its insurance carrier has satisfied its liability under this Subsection (3) or Section
74 34A-2-703 .
75 (4) For claims resulting from an accident or disease arising out of and in the course of the
76 employee's employment on or after July 1, 1994:
77 (a) The employer or its insurance carrier is liable for permanent total disability
78 compensation.
79 (b) The employer or its insurance carrier may not be required to pay compensation for any
80 combination of disabilities of any kind, as provided in this section and Sections 34A-2-410 through
81 34A-2-412 and Sections 34A-2-501 through 34A-2-507 , in excess of the amount of compensation
82 payable over the initial 312 weeks at the applicable permanent total disability compensation rate
83 under Subsection (2).
84 (c) Any overpayment of this compensation shall be recouped by the employer or its
85 insurance carrier by reasonably offsetting the overpayment against future liability paid before or
86 after the initial 312 weeks.
87 (5) Notwithstanding the minimum rate established in Subsection (2), the compensation
88 payable by the employer, its insurance carrier, or the Employers' Reinsurance Fund, after an
89 employee has received compensation from the employer or the employer's insurance carrier for any

90 combination of disabilities amounting to 312 weeks of compensation at the applicable total
91 disability compensation rate, shall be reduced, to the extent allowable by law, by the dollar amount
92 of 50% of the Social Security retirement benefits received by the employee during the same period.
93 (6) (a) A finding by the commission of permanent total disability is not final, unless
94 otherwise agreed to by the parties, until:
95 (i) an administrative law judge reviews a summary of reemployment activities undertaken
96 pursuant to Chapter 8, Utah Injured Worker Reemployment Act;
97 (ii) the employer or its insurance carrier submits to the administrative law judge a
98 reemployment plan as prepared by a qualified rehabilitation provider reasonably designed to return
99 the employee to gainful employment or the employer or its insurance carrier provides the
100 administrative law judge notice that the employer or its insurance carrier will not submit a plan;
101 and
102 (iii) the administrative law judge, after notice to the parties, holds a hearing, unless
103 otherwise stipulated, to consider evidence regarding rehabilitation and to review any reemployment
104 plan submitted by the employer or its insurance carrier under Subsection (6)(a)(ii).
105 (b) Prior to the finding becoming final, the administrative law judge shall order:
106 (i) the initiation of permanent total disability compensation payments to provide for the
107 employee's subsistence; and
108 (ii) the payment of any undisputed disability or medical benefits due the employee.
109 (c) The employer or its insurance carrier shall be given credit for any disability payments
110 made under Subsection (6)(b) against its ultimate disability compensation liability under this
111 chapter or Chapter 3, Utah Occupational Disease Act.
112 (d) An employer or its insurance carrier may not be ordered to submit a reemployment
113 plan. If the employer or its insurance carrier voluntarily submits a plan, the plan is subject to
114 Subsections (6)(d)(i) through (iii).
115 (i) The plan may include retraining, education, medical and disability compensation
116 benefits, job placement services, or incentives calculated to facilitate reemployment funded by the
117 employer or its insurance carrier.
118 (ii) The plan shall include payment of reasonable disability compensation to provide for
119 the employee's subsistence during the rehabilitation process.
120 (iii) The employer or its insurance carrier shall diligently pursue the reemployment plan.

121 The employer's or insurance carrier's failure to diligently pursue the reemployment plan shall be
122 cause for the administrative law judge on the administrative law judge's own motion to make a
123 final decision of permanent total disability.
124 (e) If a preponderance of the evidence shows that successful rehabilitation is not possible,
125 the administrative law judge shall order that the employee be paid weekly permanent total
126 disability compensation benefits.
127 (7) (a) The period of benefits commences on the date the employee became permanently
128 totally disabled, as determined by a final order of the commission based on the facts and evidence,
129 and ends:
130 (i) with the death of the employee; or
131 (ii) when the employee is capable of returning to regular, steady work.
132 (b) An employer or its insurance carrier may provide or locate for a permanently totally
133 disabled employee reasonable, medically appropriate, part-time work in a job earning at least
134 minimum wage provided that employment may not be required to the extent that it would
135 disqualify the employee from Social Security disability benefits.
136 (c) An employee shall fully cooperate in the placement and employment process and
137 accept the reasonable, medically appropriate, part-time work.
138 (d) In a consecutive four-week period when an employee's gross income from the work
139 provided under Subsection (7)(b) exceeds $500, the employer or insurance carrier may reduce the
140 employee's permanent total disability compensation by 50% of the employee's income in excess
141 of $500.
142 (e) If a work opportunity is not provided by the employer or its insurance carrier, a
143 permanently totally disabled employee may obtain medically appropriate, part-time work subject
144 to the offset provisions contained in Subsection (7)(d).
145 (f) (i) The commission shall establish rules regarding the part-time work and offset.
146 (ii) The adjudication of disputes arising under Subsection (7) is governed by Part 8,
147 Adjudication.
148 (g) The employer or its insurance carrier shall have the burden of proof to show that
149 medically appropriate part-time work is available.
150 (h) The administrative law judge may:
151 (i) excuse an employee from participation in any job that would require the employee to

152 undertake work exceeding the employee's medical capacity and residual functional capacity or for
153 good cause; or
154 (ii) allow the employer or its insurance carrier to reduce permanent total disability benefits
155 as provided in Subsection (7)(d) when reasonable, medically appropriate, part-time employment
156 has been offered but the employee has failed to fully cooperate.
157 (8) When an employee has been rehabilitated or the employee's rehabilitation is possible
158 but the employee has some loss of bodily function, the award shall be for permanent partial
159 disability.
160 (9) As determined by an administrative law judge, an employee is not entitled to disability
161 compensation, unless the employee fully cooperates with any evaluation or reemployment plan
162 under this chapter or Chapter 3, Utah Occupational Disease Act. The administrative law judge
163 shall dismiss without prejudice the claim for benefits of an employee if the administrative law
164 judge finds that the employee fails to fully cooperate, unless the administrative law judge states
165 specific findings on the record justifying dismissal with prejudice.
166 (10) (a) The loss or permanent and complete loss of the use of both hands, both arms, both
167 feet, both legs, both eyes, or any combination of two such body members constitutes total and
168 permanent disability, to be compensated according to this section.
169 (b) A finding of permanent total disability pursuant to Subsection (10)(a) is final.
170 (11) (a) An insurer or self-insured employer may periodically reexamine a permanent total
171 disability claim, except those based on Subsection (10), for which the insurer or self-insured
172 employer had or has payment responsibility to determine whether the worker remains permanently
173 totally disabled.
174 (b) Reexamination may be conducted no more than once every three years after an award
175 is final, unless good cause is shown by the employer or its insurance carrier to allow more frequent
176 reexaminations.
177 (c) The reexamination may include:
178 (i) the review of medical records;
179 (ii) employee submission to reasonable medical evaluations;
180 (iii) employee submission to reasonable rehabilitation evaluations and retraining efforts;
181 (iv) employee disclosure of Federal Income Tax Returns;
182 (v) employee certification of compliance with Section 34A-2-110 ; and

183 (vi) employee completion of sworn affidavits or questionnaires approved by the division.
184 (d) The insurer or self-insured employer shall pay for the cost of a reexamination with
185 appropriate employee reimbursement pursuant to rule for reasonable travel allowance and per diem
186 as well as reasonable expert witness fees incurred by the employee in supporting the employee's
187 claim for permanent total disability benefits at the time of reexamination.
188 (e) If an employee fails to fully cooperate in the reasonable reexamination of a permanent
189 total disability finding, an administrative law judge may order the suspension of the employee's
190 permanent total disability benefits until the employee cooperates with the reexamination.
191 (f) (i) Should the reexamination of a permanent total disability finding reveal evidence that
192 reasonably raises the issue of an employee's continued entitlement to permanent total disability
193 compensation benefits, an insurer or self-insured employer may petition the Division of
194 Adjudication for a rehearing on that issue. The petition shall be accompanied by documentation
195 supporting the insurer's or self-insured employer's belief that the employee is no longer
196 permanently totally disabled.
197 (ii) If the petition under Subsection (11)(f)(i) demonstrates good cause, as determined by
198 the Division of Adjudication, an administrative law judge shall adjudicate the issue at a hearing.
199 (iii) Evidence of an employee's participation in medically appropriate, part-time work may
200 not be the sole basis for termination of an employee's permanent total disability entitlement, but
201 the evidence of the employee's participation in medically appropriate, part-time work under
202 Subsection (7) may be considered in the reexamination or hearing with other evidence relating to
203 the employee's status and condition.
204 (g) In accordance with Section 34A-1-309 , the administrative law judge may award
205 reasonable attorneys fees to an attorney retained by an employee to represent the employee's
206 interests with respect to reexamination of the permanent total disability finding, except if the
207 employee does not prevail, the attorneys fees shall be set at $1,000. The attorneys fees shall be
208 paid by the employer or its insurance carrier in addition to the permanent total disability
209 compensation benefits due.
210 (h) During the period of reexamination or adjudication if the employee fully cooperates,
211 each insurer, self-insured employer, or the Employers' Reinsurance Fund shall continue to pay the
212 permanent total disability compensation benefits due the employee.
213 (12) If any provision of this section, or the application of any provision to any person or

214 circumstance, is held invalid, the remainder of this section shall be given effect without the invalid
215 provision or application.
216 Section 2. Section 34A-3-113 is enacted to read:
217 34A-3-113. Presumption for fire department employees.
218 (1) As used in this section:
219 (a) (i) "Fire department employee" means an individual that:
220 (A) is a member of a fire department or other organization that:
221 (I) provides fire suppression and other fire-related services; and
222 (II) is an agency of a political subdivision; and
223 (B) (I) is in a capacity that includes responsibility for the extinguishment of fire; or
224 (II) is an emergency medical service provider, as defined in Section 26-8a-102 , who is a
225 member of a fire department or other organization described in Subsection (1)(a)(i) when
226 providing services as an emergency medical service provider.
227 (ii) "Fire department employee" includes a volunteer member of a fire department or other
228 organization described in Subsection (1)(a)(i).
229 (b) (i) "Line-of-duty employment" means an activity of a fire department employee for
230 which the fire department employee is obligated or authorized to perform as a fire department
231 employee by:
232 (A) rule;
233 (B) condition of employment or service; or
234 (C) law.
235 (ii) "Line-of-duty employment" includes a social, ceremonial, or athletic function that the
236 fire department employee is assigned to or compensated for by the fire department or other
237 organization that is being served by the fire department employee.
238 (c) "Presumptive occupational disease" means:
239 (i) heart disease, including:
240 (A) coronary sclerosis; or
241 (B) myocarditis;
242 (ii) hypertension;
243 (iii) lung disease, including pneumonia;
244 (iv) one of the following cancers;

245 (A) aden cancer;
246 (B) bladder cancer;
247 (C) brain cancer;
248 (D) breast cancer;
249 (E) cancer of the blood or lymphatic systems;
250 (F) cancer of the digestive system;
251 (G) colon cancer;
252 (H) kidney cancer;
253 (I) leukemia;
254 (J) liver cancer;
255 (K) lung cancer;
256 (L) lymphoma, except for Hodgkin's disease;
257 (M) mesothelioma of the respiratory tract;
258 (N) multiple myeloma;
259 (O) pancreatic cancer;
260 (P) prostate cancer;
261 (Q) rectal cancer;
262 (R) skin cancer;
263 (S) testicular cancer; or
264 (T) throat cancer; or
265 (v) the following infectious diseases:
266 (A) botulinum toxin;
267 (B) cholera;
268 (C) diphtheria;
269 (D) ebola;
270 (E) hemorrhagic fever;
271 (F) hepatitis A, B, or C;
272 (G) inhalation anthrax;
273 (H) meningococcal disease;
274 (I) pneumonic plague;
275 (J) Q fever;

276 (K) rabies;
277 (L) ricin;
278 (M) smallpox;
279 (N) staphylococcal enterotoxin B;
280 (O) T-2 mycotoxins;
281 (P) tuberculosis;
282 (Q) tularemia;
283 (R) Venezuelan equine encephalitis; or
284 (S) any uncommon infectious disease the contraction of which the commission by rule,
285 made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, determines
286 to be related to the hazards which a fire department employee would be subject.
287 (2) Notwithstanding the other provisions of this chapter or Chapter 2, Workers'
288 Compensation Act, for a claim for compensation under this chapter that meets the requirements
289 of Subsection (3), there is a rebuttable presumption that a presumptive occupational disease:
290 (a) arose out of and in the course of line-of-duty employment; and
291 (b) is medically caused or aggravated by the line-of-duty employment described in
292 Subsection (2)(a).
293 (3) The presumption described in Subsection (2) is created if:
294 (a) the claim for compensation under this chapter is filed within the time periods provided
295 in Sections 34A-3-108 and 34A-3-109 ;
296 (b) the fire department employee for which the claim is filed is employed in the
297 line-of-duty employment:
298 (i) for at least 36 months; and
299 (ii) (A) at the time the claim for compensation is filed; or
300 (B) within no more than three years before the claim for compensation is filed;
301 (c) (i) as a condition of being employed in line-of-duty employment, the fire department
302 employee passed a physical examination before the fire department employee made a claim under
303 this chapter for a presumptive occupational disease; and
304 (ii) the examination described in Subsection (3)(c)(i) did not indicate evidence of a
305 presumptive occupational disease; and
306 (d) the claim for compensation under this chapter is for a presumptive occupational

307 disease.
308 (4) The presumption described in Subsection (2) may be rebutted if the employer or the
309 employer's insurer establishes by a preponderance of the evidence that the presumptive
310 occupational disease:
311 (a) did not arise out of and in the course of the line-of-duty employment; and
312 (b) was not medically caused or aggravated by the line-of-duty employment described in
313 Subsection (4)(a).
314 (5) Notwithstanding Subsection (3), an employer is not liable for a presumptive
315 occupational disease if after a fire department employee is no longer employed in the line-of-duty
316 employment, the fire department employee is injuriously exposed to the hazards of the presumptive
317 occupational disease as provided in Section 34A-3-105 .
318 (6) Notwithstanding the other provisions of this section, Title 26, Chapter 6a, Disease
319 Testing and Workers' Compensation Presumption for Benefit of Emergency Medical Services
320 Providers, governs whether there is or is not a presumption that a disease, as defined in Section
321 26-6a-1 , is compensable under this chapter or Chapter 2, Workers' Compensation Act.
322 (7) This section may not be construed as preventing a fire department employee from
323 receiving workers' compensation benefits under this chapter or Chapter 2, Workers' Compensation
324 Act, because the fire department employee fails to meet the requirements under this section to
325 establish the rebuttable presumption described in Subsection (2).

Legislative Review Note
as of 1-29-02 7:11 AM


This bill creates a class consisting of certain firefighters and medical providers of fire departments.
For this class the bill provides a rebuttable presumption that certain diseases presumptively arose
as a result of working for the fire department and therefore are compensable under workers'
compensation statutes. Under equal protection principles of the Constitution of the United States
and the uniform operation of the laws provisions of the Utah Constitution, there are limits on a
legislature's ability to establish classifications and then treat members of the classes differently.
In addition, because of the exclusive remedy element of workers' compensation, the open courts
provision of the Utah Constitution may be implicated if the remedies provided under workers'
compensation are found inadequate. In examining the permissibility of classes, courts look to
factors such as the relationship between the class and the legislative objective being pursued. For
example, a court may look at the relationship between the creation of the presumption and the level
of exposure fire department employees may experience because of the nature of their employment.

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