H.B. 132

1

WORKERS' COMPENSATION - FIRE
2 DEPARTMENT EMPLOYEES
3 2003 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
20 permanent total disability compensation, the employee has the burden of proof to show by a
21 preponderance 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
27 employee's permanent total disability.

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

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

90 (5) Notwithstanding the minimum rate established in Subsection (2), the compensation
91 payable by the employer, its insurance carrier, or the Employers' Reinsurance Fund, after an
92 employee has received compensation from the employer or the employer's insurance carrier for
93 any combination of disabilities amounting to 312 weeks of compensation at the applicable total
94 disability compensation rate, shall be reduced, to the extent allowable by law, by the dollar
95 amount of 50% of the Social Security retirement benefits received by the employee during the
96 same period.
97 (6) (a) A finding by the commission of permanent total disability is not final, unless
98 otherwise agreed to by the parties, until:
99 (i) an administrative law judge reviews a summary of reemployment activities
100 undertaken pursuant to Chapter 8, Utah Injured Worker Reemployment Act;
101 (ii) the employer or its insurance carrier submits to the administrative law judge a
102 reemployment plan as prepared by a qualified rehabilitation provider reasonably designed to
103 return the employee to gainful employment or the employer or its insurance carrier provides the
104 administrative law judge notice that the employer or its insurance carrier will not submit a plan;
105 and
106 (iii) the administrative law judge, after notice to the parties, holds a hearing, unless
107 otherwise stipulated, to consider evidence regarding rehabilitation and to review any
108 reemployment plan submitted by the employer or its insurance carrier under Subsection
109 (6)(a)(ii).
110 (b) Prior to the finding becoming final, the administrative law judge shall order:
111 (i) the initiation of permanent total disability compensation payments to provide for the
112 employee's subsistence; and
113 (ii) the payment of any undisputed disability or medical benefits due the employee.
114 (c) The employer or its insurance carrier shall be given credit for any disability
115 payments made under Subsection (6)(b) against its ultimate disability compensation liability
116 under this chapter or Chapter 3, Utah Occupational Disease Act.
117 (d) An employer or its insurance carrier may not be ordered to submit a reemployment
118 plan. If the employer or its insurance carrier voluntarily submits a plan, the plan is subject to
119 Subsections (6)(d)(i) through (iii).
120 (i) The plan may include retraining, education, medical and disability compensation

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

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

183 (c) The reexamination may include:
184 (i) the review of medical records;
185 (ii) employee submission to reasonable medical evaluations;
186 (iii) employee submission to reasonable rehabilitation evaluations and retraining
187 efforts;
188 (iv) employee disclosure of Federal Income Tax Returns;
189 (v) employee certification of compliance with Section 34A-2-110 ; and
190 (vi) employee completion of sworn affidavits or questionnaires approved by the
191 division.
192 (d) The insurer or self-insured employer shall pay for the cost of a reexamination with
193 appropriate employee reimbursement pursuant to rule for reasonable travel allowance and per
194 diem as well as reasonable expert witness fees incurred by the employee in supporting the
195 employee's claim for permanent total disability benefits at the time of reexamination.
196 (e) If an employee fails to fully cooperate in the reasonable reexamination of a
197 permanent total disability finding, an administrative law judge may order the suspension of the
198 employee's permanent total disability benefits until the employee cooperates with the
199 reexamination.
200 (f) (i) Should the reexamination of a permanent total disability finding reveal evidence
201 that reasonably raises the issue of an employee's continued entitlement to permanent total
202 disability compensation benefits, an insurer or self-insured employer may petition the Division
203 of Adjudication for a rehearing on that issue. The petition shall be accompanied by
204 documentation supporting the insurer's or self-insured employer's belief that the employee is no
205 longer permanently totally disabled.
206 (ii) If the petition under Subsection (11)(f)(i) demonstrates good cause, as determined
207 by the Division of Adjudication, an administrative law judge shall adjudicate the issue at a
208 hearing.
209 (iii) Evidence of an employee's participation in medically appropriate, part-time work
210 may not be the sole basis for termination of an employee's permanent total disability
211 entitlement, but the evidence of the employee's participation in medically appropriate, part-time
212 work under Subsection (7) may be considered in the reexamination or hearing with other
213 evidence relating to the employee's status and condition.

214 (g) In accordance with Section 34A-1-309 , the administrative law judge may award
215 reasonable attorneys fees to an attorney retained by an employee to represent the employee's
216 interests with respect to reexamination of the permanent total disability finding, except if the
217 employee does not prevail, the attorneys fees shall be set at $1,000. The attorneys fees shall be
218 paid by the employer or its insurance carrier in addition to the permanent total disability
219 compensation benefits due.
220 (h) During the period of reexamination or adjudication if the employee fully
221 cooperates, each insurer, self-insured employer, or the Employers' Reinsurance Fund shall
222 continue to pay the permanent total disability compensation benefits due the employee.
223 (12) If any provision of this section, or the application of any provision to any person
224 or circumstance, is held invalid, the remainder of this section shall be given effect without the
225 invalid provision or application.
226 Section 2. Section 34A-3-113 is enacted to read:
227 34A-3-113. Presumption for fire department employees.
228 (1) As used in this section:
229 (a) (i) "Fire department employee" means an individual that:
230 (A) is a member of a fire department or other organization that:
231 (I) provides fire suppression and other fire-related services; and
232 (II) is an agency of a political subdivision of the state; and
233 (B) (I) is in a capacity that includes responsibility for the extinguishment of fire; or
234 (II) is an emergency medical service provider, as defined in Section 26-8a-102 , who is
235 a member of a fire department or other organization described in Subsection (1)(a)(i) when
236 providing services as an emergency medical service provider.
237 (ii) "Fire department employee" includes a volunteer member of a fire department or
238 other organization described in Subsection (1)(a)(i).
239 (b) "Line-of-duty employment" means an activity of a fire department employee for
240 which the fire department employee is obligated or authorized to perform as a fire department
241 employee by:
242 (i) rule;
243 (ii) condition of employment or service; or
244 (iii) law.

245 (c) "Presumptive occupational disease" means one of the following cancers:
246 (i) brain cancer;
247 (ii) cancer of the digestive system;
248 (iii) genitourinary tract cancer;
249 (iv) leukemia;
250 (v) lymphoma, except for Hodgkin's disease;
251 (vi) melanoma;
252 (vii) multiple myeloma; or
253 (viii) respiratory cancer.
254 (2) Notwithstanding the other provisions of this chapter or Chapter 2, Workers'
255 Compensation Act, for a claim for compensation under this chapter that meets the requirements
256 of Subsection (3), there is a rebuttable presumption that a presumptive occupational disease:
257 (a) arose out of and in the course of line-of-duty employment; and
258 (b) is medically caused or aggravated by the line-of-duty employment described in
259 Subsection (2)(a).
260 (3) The presumption described in Subsection (2) is created if:
261 (a) the claim for compensation under this chapter is filed within the time periods
262 provided in Sections 34A-3-108 and 34A-3-109 ;
263 (b) the fire department employee for which the claim is filed is employed in the
264 line-of-duty employment:
265 (i) for at least 36 months; and
266 (ii) (A) on the day on which the claim for compensation is filed; or
267 (B) within no more than three years before the day on which the claim for
268 compensation is filed;
269 (c) (i) as a condition of being employed in line-of-duty employment, the fire
270 department employee passed a physical examination before the day on which the fire
271 department employee made a claim under this chapter for a presumptive occupational disease;
272 and
273 (ii) the examination described in Subsection (3)(c)(i) did not indicate evidence of a
274 presumptive occupational disease; and
275 (d) the claim for compensation under this chapter is for a presumptive occupational

276 disease.
277 (4) The presumption described in Subsection (2) may be rebutted if the employer or the
278 employer's insurer establishes by a preponderance of the evidence that the presumptive
279 occupational disease:
280 (a) did not arise out of and in the course of the line-of-duty employment; and
281 (b) was not medically caused or aggravated by the line-of-duty employment described
282 in Subsection (4)(a).
283 (5) Notwithstanding Subsection (3), an employer is not liable for a presumptive
284 occupational disease if after a fire department employee is no longer employed in the
285 line-of-duty employment, the fire department employee is injuriously exposed to the hazards of
286 the presumptive occupational disease as provided in Section 34A-3-105 .
287 (6) Notwithstanding the other provisions of this section, Title 26, Chapter 6a, Disease
288 Testing and Workers' Compensation Presumption for Benefit of Emergency Medical Services
289 Providers, governs whether there is or is not a presumption that a disease, as defined in Section
290 26-6a-1 , is compensable under this chapter or Chapter 2, Workers' Compensation Act.
291 (7) This section may not be construed as preventing a fire department employee from
292 receiving workers' compensation benefits under this chapter or Chapter 2, Workers'
293 Compensation Act, because the fire department employee fails to meet the requirements under
294 this section to establish the rebuttable presumption described in Subsection (3).

Legislative Review Note
as of 1-16-03 6:38 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.

Office of Legislative Research and General Counsel