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This document includes Senate Committee Amendments incorporated into the bill on Fri, Jan 25, 2008 at 8:38 AM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Thu, Jan 31, 2008 at 7:03 PM by rday. -->
8 LONG TITLE
9 General Description:
10 This bill modifies the Workers' Compensation Act to address issues related to benefits.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . imposes penalties if an employer unlawfully, directly pays workers' compensation
16 . addresses benefits paid a dependent; and
17 . makes technical amendments.
18 Monies Appropriated in this Bill:
20 Other Special Clauses:
21 S. [
21a Social Security, to make technical changes. .S
22 Utah Code Sections Affected:
24 34A-2-102, as last amended by Laws of Utah 2000, Chapter 222
25 34A-2-403, as renumbered and amended by Laws of Utah 1997, Chapter 375
26 34A-2-414, as renumbered and amended by Laws of Utah 1997, Chapter 375
27 34A-2-415, as last amended by Laws of Utah 1998, Chapter 13
29 34A-2-702, as renumbered and amended by Laws of Utah 1997, Chapter 375
30 34A-2-801, as last amended by Laws of Utah 2006, Chapter 295
32 34A-2-201.3, Utah Code Annotated 1953
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 34A-2-102 is amended to read:
36 34A-2-102. Definition of terms.
37 (1) As used in this chapter:
39 under Section 34A-2-409 .
41 compensation due:
45 or Chapter 3, Utah Occupational Disease Act.
47 (A) an administrative law judge; or[
48 (B) in accordance with Section 34A-2-801 [
49 (I) the commissioner; or
50 (II) the Appeals Board [
51 (ii) "Decision" includes:
53 benefit under this chapter or Chapter 3, Utah Occupational Disease Act; or
55 Occupational Disease Act.
60 Disability can be total or partial, temporary or permanent, industrial or nonindustrial.
63 functional abnormality or loss. Impairment may be either temporary or permanent, industrial
64 or nonindustrial.
66 duties, privileges, immunities, or other interests of one or more specific persons, but not a class
67 of persons.
69 employment" includes [
70 against an employee because of the employee's employment.
72 does not include a disease, except as the disease results from the injury.
74 employment, means the freedom from danger to the life or health of employees reasonably
75 permitted by the nature of the employment.
77 corporation created in Title 31A, Chapter 33, Workers' Compensation Fund.
78 (2) As used in this chapter and Chapter 3, Utah Occupational Disease Act:
79 (a) "Brother or sister" includes a half brother or sister.
80 (b) "Child" includes:
81 (i) a posthumous child; or
82 (ii) a child legally adopted prior to an injury.
83 Section 2. Section 34A-2-201.3 is enacted to read:
84 34A-2-201.3. Direct payments prohibited except by self-insured employer.
85 (1) An employer who is not a self-insured employer, as defined in Section
86 34A-2-201.5 , may not pay a benefit provided for under this chapter and Chapter 3, Utah
87 Occupational Disease Act, directly:
88 (a) to an employee; or
89 (b) for the employee.
90a 90a the division S. [
91 (1), the division shall send written notice to the employer of the requirements of this section
92 and Section 34A-2-201 .
93 (b) The division shall send the notice described in Subsection (2)(a) to the last address
94 on the records of the commission for the employer.
95 (3) (a) If, after the division mails the notice required by Subsection (2) to an employer,
96 the employer S. again .S violates Subsection (1), the division S. [
96a penalty against the employer
97 of S. up to .S $1,000 for each violation.
98 (b) If, after the division imposes a penalty under Subsection (3)(a) against the
99 employer, the employer S. again .S violates Subsection (1), the division S. [
99a 99a impose a penalty of up to
100 $5,000 for each violation.
101 (4) The division shall deposit a penalty imposed under Subsection (3) into the
102 Uninsured Employers' Fund created by Section 34A-2-704 to be used for the purposes of that
104 (5) A penalty under this section is in addition to any other penalty imposed under this
105 chapter or Chapter 3 against an employer who fails to comply with Section 34A-2-201 .
106 (6) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
107 commission shall adopt rules to implement this section.
108 Section 3. Section 34A-2-403 is amended to read:
109 34A-2-403. Dependents -- Presumption.
110 (1) (a) The following persons [
111 support upon a deceased employee:
113 (1)(b) and (2) S. [
114 (ii) a child who is 18 years of age or older:
115 (A) if the child is:
116 (I) physically or mentally incapacitated; and
117 (II) dependent upon the parent[
120 (B) subject to the conditions of Subsections (1)(b) and (2)(b); and
122 34A-2-702 (5)[
123 time of the employee's death.
124 (b) Subsections (1)(a)(i) and (ii) require that:
125 (i) the deceased employee be S. [
127 S. [
128 S. [
130 (2) (a) In a case not provided for in Subsection (1), the question of dependency, in
131 whole or in part, shall be determined in accordance with the facts in each particular case
132 existing at the time of the injury or death of an employee[
133 (i) except for purposes of a dependency [
134 34A-2-702 (5)[
135 (ii) subject to the other provisions of this section.
136 (b) A person may not be considered [
137 (i) a member of the family of the deceased employee;
138 (ii) the spouse of the deceased employee;
139 (iii) a lineal descendant or ancestor of the deceased employee; or
140 (iv) a brother or sister of the deceased employee.
146 Section 4. Section 34A-2-414 is amended to read:
147 34A-2-414. Benefits in case of death -- Distribution of award to dependents --
148 Death of dependents -- Remarriage of surviving spouse.
149 (1) (a) [
150 an employee shall be paid to one or more of the dependents of the decedent employee for the
151 benefit of all the dependents[
153 determined by the commission, benefits in case of death of an employee shall be apportioned
154 among the dependents [
158 (i) dividing the amount of benefits by the number of dependents; and
159 (ii) allotting each dependent an equal share.
160 (c) If one or more of the dependents described in Subsection (1)(a) is partly dependent,
161 the commission may apportion the benefits in a manner different than Subsection (1)(b).
162 (d) In the case of a minor child who is a dependent, a benefit shall be paid to:
163 (i) the minor child's surviving parent; or
164 (ii) if there is no surviving parent, a court appointed custodian or guardian.
165 (2) [
166 benefit is paid for a dependent, shall apply the [
167 more beneficiaries [
169 (3) In all cases of death [
170 (a) the dependents are a surviving spouse and one or more minor children, it [
171 is sufficient for the surviving spouse to [
172 apply for benefits on behalf of [
174 (b) all of the dependents are [
176 (4) [
177 and interests of [
179 have a surviving parent or court appointed custodian or guardian, direct that the benefits be
180 deposited into an interest bearing account for the purpose of receiving a payment due the minor
182 (b) Monies deposited into an interest bearing account under Subsection (4)(a) shall be
184 (i) a court appointed custodian or guardian of the minor dependent when the custodian
185 or guardian is appointed; or
186 (ii) a minor dependent when the minor dependent becomes 18 years of age.
187 (c) The commission, in accordance with Title 63, Chapter 46a, Utah Administrative
188 Rulemaking Act, may make rules related to the requirements of an interest bearing account
189 described in Subsection (4)(a).
190 (5) [
191 covered by weekly payments authorized by this section, the right of the deceased dependent to
192 compensation under this chapter or Chapter 3, Utah Occupational Disease Act, [
194 (6) (a) If a surviving spouse, who is a dependent of a deceased employee and who is
195 receiving the benefits of this chapter or Chapter 3, remarries, [
196 spouse's sole right after the remarriage to further [
197 is the right to receive in a lump sum the lesser of:
198 (i) the balance of the weekly compensation payments unpaid:
199 (A) from the [
200 (B) to the end of [
201 resulted; or
202 (ii) an amount equal to 52 weeks of compensation at the weekly compensation rate the
203 surviving spouse [
204 (b) [
205 day on which a surviving spouse remarries, benefits payable under this chapter or Chapter 3,
209 section shall be paid at intervals of not less than four weeks.
210 Section 5. Section 34A-2-415 is amended to read:
211 34A-2-415. Increase of benefits to a dependent -- Effect of death, marriage,
212 majority, or termination of dependency of children -- Death, divorce, or remarriage of
215 dependent minor child [
216 Occupational Disease Act, the [
217 shall cease [
220 (1) a minor child:
221 (a) dies;
222 (b) marries;
223 (c) becomes 18 years of age; or
224 (d) is no longer dependent; or
225 (2) [
226 (a) dies;
227 (b) divorces the employee; or
228 (c) subject to [
229 spouse, remarries.
230 Section 6. Section 34A-2-416 is amended to read:
231 34A-2-416. Additional benefits in special cases.
232 (1) [
233 a wholly dependent person under this chapter or Chapter 3, Utah Occupational Disease Act,
234 extend indefinitely if at the termination of the benefits:
235 (a) the wholly dependent person is still in a dependent condition; and
236 (b) under all reasonable circumstances the wholly dependent person should be entitled
237 to additional benefits.
238 (2) If benefits are extended under Subsection (1):
239 (a) the liability of the employer or insurance carrier involved may not be extended; and
240 (b) the additional benefits allowed shall be paid out of the Employers' Reinsurance
241 Fund created in Subsection 34A-2-702 (1).
242 Section 7. Section 34A-2-702 is amended to read:
243 34A-2-702. Employers' Reinsurance Fund -- Injury causing death -- Burial
244 expenses -- Payments to dependents.
247 disease occurring on or before June 30, 1994. [
248 section shall be made in accordance with this chapter or Chapter 3, Utah Occupational Disease
249 Act. The Employers' Reinsurance Fund [
251 (b) The Employers' Reinsurance Fund [
252 previously held in the "Special Fund," the "Combined Injury Fund," or the "Second Injury
254 (c) The commissioner shall appoint an administrator of the Employers' Reinsurance
256 (d) The state treasurer shall be the custodian of the Employers' Reinsurance Fund[
258 (e) The administrator shall make provisions for and direct [
259 Employers' Reinsurance Fund.
261 fees may be paid from the [
262 (2) The state treasurer shall:
263 (a) receive workers' compensation premium assessments from the State Tax
264 Commission; and
265 (b) invest the Employers' Reinsurance Fund to ensure maximum investment return for
266 both long and short term investments in accordance with Section 51-7-12.5 .
267 (3) (a) The administrator may employ, retain, or appoint counsel to represent the
268 Employers' Reinsurance Fund in [
269 claim against or on behalf of the [
270 (b) If requested by the commission, the attorney general shall aid in representation of
271 the [
272 (4) The liability of the state, its departments, agencies, instrumentalities, elected or
273 appointed officials, or other duly authorized agents, with respect to payment of [
274 compensation benefits, expenses, fees, medical expenses, or disbursement properly chargeable
275 against the Employers' Reinsurance Fund, is limited to the cash or assets in the Employers'
277 obligations of the Employers' Reinsurance Fund.
278 (5) (a) If injury causes death within a period of 312 weeks from the date of the
279 accident, the employer or insurance carrier shall pay:
280 (i) the burial expenses of the deceased as provided in Section 34A-2-418 [
282 (ii) benefits in the [
285 death, the payment by the employer or its insurance carrier shall be:
286 (A) subject to Subsections (5)(b)(i)(B) and (C), 66-2/3% of the decedent's average
287 weekly wage at the time of the injury[
288 (B) not more than a maximum of 85% of the state average weekly wage at the time of
289 the injury per week; and
290 (C) (I) not less than a minimum of $45 per week, plus:
291 (Aa) $5 for a dependent spouse[
292 (Bb) $5 for each dependent minor child under the age of 18 years, up to a maximum of
293 four such dependent minor children[
294 (II) not exceeding:
295 (Aa) the average weekly wage of the employee at the time of the injury[
297 (Bb) 85% of the state average weekly wage at the time of the injury per week.
298 (ii) Compensation shall continue during dependency for the remainder of the period
299 between the date of the death and the expiration of 312 weeks after the date of the injury.
300 (iii) The payment by the employer or its insurance carrier to a wholly dependent
302 described in Subsection (5)(a)(i) shall be an amount equal to the weekly benefits paid to [
303 the wholly dependent [
304 any weekly federal Social Security death benefits paid to [
306 (iv) The issue of dependency [
308 If in [
309 time, the applicant is no longer a wholly dependent person, the applicant:
310 (A) may be considered a partly dependent or nondependent person; and
311 (B) shall be paid [
312 may be determined under Subsection (5)[
314 deceased employee [
315 period from the date of death of the employee. This presumption [
316 the initial 312-week period [
317 (ii) In determining the [
318 initial 312-week period, [
319 Security death benefits received by that surviving spouse shall be excluded.
321 the payment shall be:
322 (A) subject to Subsection (5)(d)(i)(B) and (C), 66-2/3% of the decedent's average
323 weekly wage at the time of the injury[
324 (B) not more than a maximum of 85% of the state average weekly wage at the time of
325 the injury per week; and
326 (C) not less than a minimum of $45 per week.
327 (ii) Compensation shall continue during dependency for the remainder of the period
328 between the date of death and the expiration of 312 weeks after the date of injury [
330 than a maximum of $30,000.
331 (iii) The benefits provided for in this Subsection (5)(d) shall be in keeping with the
332 circumstances and conditions of dependency existing at the date of injury, and any amount
334 with the general provisions of this chapter and Chapter 3, Utah Occupational Disease Act.
335 (iv) Benefits to [
337 (A) shall be determined [
339 (B) may be paid in an amount not exceeding the maximum weekly rate that a partly
340 dependent [
341 (v) [
342 during [
347 34A-2-414 .
348 (ii) The total benefits awarded to all parties concerned [
349 maximum provided for by law.
350 (6) The Employers' Reinsurance Fund:
351 (a) shall be:
352 (i) used only in accordance with Subsection (1) for:
353 (A) the purpose of making [
354 or occupational [
355 this section and Section 34A-2-703 ; and
356 (B) payment of:
357 (I) reasonable costs of administering the Employers' Reinsurance Fund; or
358 (II) fees required to be paid by the Employers' Reinsurance Fund;
359 (ii) expended according to processes that can be verified by audit; and
360 (b) may not be used for:
361 (i) administrative costs unrelated to the [
362 (ii) [
364 Section 8. Section 34A-2-801 is amended to read:
365 34A-2-801. Initiating adjudicative proceedings -- Procedure for review of
366 administrative action.
367 (1) (a) To contest an action of the employee's employer or its insurance carrier
368 concerning a compensable industrial accident or occupational disease alleged by the
370 Division of Adjudication:
371 (i) the employee; [
372 (ii) a representative of the employee, the qualifications of whom are defined in rule by
373 the commission[
374 (iii) a dependent as described in Section 34A-2-403 .
375 (b) To appeal the imposition of a penalty or other administrative act imposed by the
376 division on the employer or its insurance carrier for failure to comply with this chapter or
377 Chapter 3, Utah Occupational Disease Act, any of the following shall file an application for
378 hearing with the Division of Adjudication:
379 (i) the employer;
380 (ii) the insurance carrier; or
381 (iii) a representative of either the employer or the insurance carrier, the qualifications
382 of whom are defined in rule by the commission.
383 (c) A person providing goods or services described in Subsections 34A-2-407 (12) and
384 34A-3-108 (12) may file an application for hearing in accordance with Section 34A-2-407 or
385 34A-3-108 .
386 (d) An attorney may file an application for hearing in accordance with Section
387 34A-1-309 .
388 (2) Unless a party in interest appeals the decision of an administrative law judge in
389 accordance with Subsection (3), the decision of an administrative law judge on an application
390 for hearing filed under Subsection (1) is a final order of the commission 30 days after the [
391 day on which the decision is issued.
392 (3) (a) A party in interest may appeal the decision of an administrative law judge by
393 filing a motion for review with the Division of Adjudication within 30 days of the date the
394 decision is issued.
395 (b) Unless a party in interest to the appeal requests under Subsection (3)(c) that the
396 appeal be heard by the Appeals Board, the commissioner shall hear the review.
397 (c) A party in interest may request that an appeal be heard by the Appeals Board by
398 filing the request with the Division of Adjudication:
399 (i) as part of the motion for review; or
401 days of the [
403 (d) A case appealed to the Appeals Board shall be decided by the majority vote of the
404 Appeals Board.
405 (4) All records on appeals shall be maintained by the Division of Adjudication. Those
406 records shall include an appeal docket showing the receipt and disposition of the appeals on
408 (5) Upon appeal, the commissioner or Appeals Board shall make its decision in
409 accordance with Section 34A-1-303 .
410 (6) The commissioner or Appeals Board shall promptly notify the parties to [
412 (7) The decision of the commissioner or Appeals Board is final unless within 30 days
413 after the date the decision is issued further appeal is initiated under the provisions of this
414 section or Title 63, Chapter 46b, Administrative Procedures Act.
415 (8) (a) Within 30 days after the [
416 or Appeals Board is issued, [
417 commencing an action in the court of appeals against the commissioner or Appeals Board for
418 the review of the decision of the commissioner or Appeals Board.
419 (b) In an action filed under Subsection (8)(a):
420 (i) any other party to the proceeding before the commissioner or Appeals Board shall
421 be made a party; and
422 (ii) the commission shall be made a party.
423 (c) A party claiming to be aggrieved may seek judicial review only if the party [
425 (d) At the request of the court of appeals, the commission shall certify and file with the
426 court all documents and papers and a transcript of all testimony taken in the matter together
427 with the decision of the commissioner or Appeals Board.
427a S. Section 9. S.B. 58 coordinating with S.B. 108 -- Technical amendments.
427b If this S.B. 58 and S.B. 108, Offset of Workers' Compensation and Social Security, both pass, it
427c is the intent of the Legislature that the Office of Legislative Research and General Counsel in
427d preparing the Utah Code database for publication coordinate the bills as follows:
427e (1) the amendments to Subsection 34A-2-702(5)(b)(i) in this bill supersede the amendments to
427f that subsection in S.B. 108; .S
427h to that subsection in this bill;
427i (3) the amendments to Subsections 34A-2-702(5)(b)(iv) and (5)(c)(i) in this bill supersede the
427j amendments to those subsections in S.B. 108;
427k (4) the amendments to Subsection 34A-2-702(5)(c)(ii) in S.B. 108 supersede the amendments to
427l that subsection in this bill, except that the introductory phrase in Subsection
427m 34A-2-702(5)(c)(ii)(A) is deleted and replaced with the following:
427n "(ii)(A) In determining the annual income of the surviving spouse after the initial 312-week
427o period, there shall be excluded 50% of a federal Social Security death benefit that the
427p surviving spouse:"; and
427q (5) the amendments to Subsection 34A-2-702(5)(d) and (e) in this bill supersede the
427r amendments to those subsections in S.B. 108. .S
Legislative Review Note
as of 1-3-08 1:46 PM