1     
WORKERS' COMPENSATION DEPENDENT BENEFIT

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 related to workers' compensation disability benefits.
11     Highlighted Provisions:
12          This bill:
13          ▸     modifies the calculation of benefits paid to one or more dependents of an employee
14     with a disability under the Workers' Compensation Act.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          This bill provides a special effective date.
19     Utah Code Sections Affected:
20     AMENDS:
21          34A-2-410, as last amended by Laws of Utah 2015, Chapter 258
22          34A-2-411, as last amended by Laws of Utah 1999, Chapter 261
23          34A-2-412, as renumbered and amended by Laws of Utah 1997, Chapter 375
24          34A-2-413, as last amended by Laws of Utah 2016, Chapter 31
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 34A-2-410 is amended to read:
28          34A-2-410. Temporary disability -- Amount of payments -- State average weekly
29     wage defined.

30          (1) (a) Subject to Subsections (1)(b) and (5), in case of temporary disability, so long as
31     the disability is total, the employee shall receive 66-2/3% of that employee's average weekly
32     wages at the time of the injury but:
33          (i) not more than a maximum of 100% of the state average weekly wage at the time of
34     the injury per week; and
35          (ii) (A) subject to Subsections (1)(a)(ii)(B) and (C), not less than a minimum of $45
36     per week plus:
37          (I) [$5] $20 for a dependent spouse; and
38          (II) [$5] $20 for each dependent child under the age of 18 years, up to a maximum of
39     four dependent children;
40          (B) not to exceed the average weekly wage of the employee at the time of the injury;
41     and
42          (C) not to exceed 100% of the state average weekly wage at the time of the injury per
43     week.
44          (b) In no case shall the compensation benefits exceed 312 weeks at the rate of 100% of
45     the state average weekly wage at the time of the injury over a period of 12 years from the date
46     of the injury.
47          (2) If a light duty medical release is obtained before the employee reaches a fixed state
48     of recovery and no light duty employment is available to the employee from the employer,
49     temporary disability benefits shall continue to be paid.
50          (3) The "state average weekly wage" as referred to in this chapter and Chapter 3, Utah
51     Occupational Disease Act, shall be determined by the commission as follows:
52          (a) On or before June 1 of each year, the total wages reported on contribution reports to
53     the Unemployment Insurance Division for the preceding calendar year shall be divided by the
54     average monthly number of insured workers determined by dividing the total insured workers
55     reported for the preceding year by 12.
56          (b) The average annual wage obtained under Subsection (3)(a) shall be divided by 52.
57          (c) The average weekly wage determined under Subsection (3)(b) is rounded to the

58     nearest dollar.
59          (4) The state average weekly wage determined under Subsection (3) shall be used as
60     the basis for computing the maximum compensation rate for:
61          (a) injuries or disabilities arising from occupational disease that occurred during the
62     12-month period commencing July 1 following the June 1 determination; and
63          (b) any death resulting from the injuries or disabilities arising from occupational
64     disease.
65          (5) The commission may reduce or terminate temporary disability compensation in
66     accordance with Section 34A-2-410.5.
67          Section 2. Section 34A-2-411 is amended to read:
68          34A-2-411. Temporary partial disability -- Amount of payments.
69          (1) If the injury causes temporary partial disability for work, the employee shall receive
70     weekly compensation equal to:
71          (a) 66-2/3% of the difference between the employee's average weekly wages before the
72     accident and the weekly wages the employee is able to earn after the accident, but not more
73     than 100% of the state average weekly wage at the time of injury; plus
74          (b) [$5] $20 for a dependent spouse and [$5] $20 for each dependent child under the
75     age of 18 years, up to a maximum of four such dependent children, but only up to a total
76     weekly compensation that does not exceed 100% of the state average weekly wage at the time
77     of injury.
78          (2) The commission may order an award for temporary partial disability for work at
79     any time prior to 12 years after the date of the injury to an employee:
80          (a) whose physical condition resulting from the injury is not finally healed and fixed 12
81     years after the date of injury; and
82          (b) who files an application for hearing under Section 34A-2-417.
83          (3) The duration of weekly payments may not exceed 312 weeks nor continue more
84     than 12 years after the date of the injury. Payments shall terminate when the disability ends or
85     the injured employee dies.

86          Section 3. Section 34A-2-412 is amended to read:
87          34A-2-412. Permanent partial disability -- Scale of payments.
88          (1) An employee who sustained a permanent impairment as a result of an industrial
89     accident and who files an application for hearing under Section 34A-2-417 may receive a
90     permanent partial disability award from the commission.
91          (2) Weekly payments may not in any case continue after the disability ends, or the
92     death of the injured person.
93          (3) (a) In the case of the injuries described in Subsections (4) through (6), the
94     compensation shall be 66-2/3% of that employee's average weekly wages at the time of the
95     injury, but not more than a maximum of 66-2/3% of the state average weekly wage at the time
96     of the injury per week and not less than a minimum of $45 per week plus [$5] $20 for a
97     dependent spouse and [$5] $20 for each dependent child under the age of 18 years, up to a
98     maximum of four dependent children, but not to exceed 66-2/3% of the state average weekly
99     wage at the time of the injury per week.
100          (b) The compensation determined under Subsection (3)(a) shall be:
101          (i) paid in routine pay periods not to exceed four weeks for the number of weeks
102     provided for in this section; and
103          (ii) in addition to the compensation provided for temporary total disability and
104     temporary partial disability.
105          (4) For the loss of:                                   Number of Weeks
106          (a) Upper extremity
107          (i) Arm
108          (A) Arm and shoulder (forequarter amputation)
......................................... 218

109          (B) Arm at shoulder joint, or above deltoid insertion
................................. 187

110          (C) Arm between deltoid insertion and elbow joint, at elbow joint, or
111     below elbow joint proximal to insertion of biceps tendon
....................................... 178

112          (D) Forearm below elbow joint distal to insertion of biceps tendon
........... 168

113          (ii) Hand

114          (A) At wrist or midcarpal or midmetacarpal amputation
............................ 168

115          (B) All fingers except thumb at metacarpophalangeal joints
...................... 101

116          (iii) Thumb
117          (A) At metacarpophalangeal joint or with resection of
118      carpometacarpal bone
................................................................................................ 67

119          (B) At interphalangeal joint
.......................................................................... 50

120          (iv) Index finger
121          (A) At metacarpophalangeal joint or with resection of metacarpal bone
...... 42

122          (B) At proximal interphalangeal joint
........................................................... 34

123          (C) At distal interphalangeal joint
................................................................ 18

124          (v) Middle finger
125          (A) At metacarpophalangeal joint or with resection of metacarpal bone
...... 34

126          (B) At proximal interphalangeal joint
........................................................... 27

127          (C) At distal interphalangeal joint
................................................................. 15

128          (vi) Ring finger
129          (A) At metacarpophalangeal joint or with resection of metacarpal bone
...... 17

130          (B) At proximal interphalangeal joint
........................................................... 13

131          (C) At distal interphalangeal joint
................................................................... 8

132          (vii) Little finger
133          (A) At metacarpophalangeal joint or with resection of metacarpal bone
........ 8

134          (B) At proximal interphalangeal joint
............................................................. 6

135          (C) At distal interphalangeal joint
................................................................... 4

136          (b) Lower extremity
137          (i) Leg
138          (A) Hemipelvectomy (leg, hip and pelvis)
.................................................. 156

139          (B) Leg at hip joint or three inches or less below tuberosity of ischium
...... 125

140          (C) Leg above knee with functional stump, at knee joint or Gritti-Stokes
141      amputation or below knee with short stump (three inches or less below

142     intercondylar notch)
.................................................................................................. 112

143          (D) Leg below knee with functional stump
................................................... 88

144          (ii) Foot
145          (A) Foot at ankle
........................................................................................... 88

146          (B) Foot partial amputation (Chopart's)
........................................................ 66

147          (C) Foot midmetatarsal amputation
............................................................... 44

148          (iii) Toes
149          (A) Great toe
150          (I) With resection of metatarsal bone
............................................................ 26

151          (II) At metatarsophalangeal joint
................................................................... 16

152          (III) At interphalangeal joint
.......................................................................... 12

153          (B) Lesser toe (2nd -- 5th)
154          (I) With resection of metatarsal bone
.............................................................. 4

155          (II) At metatarsophalangeal joint
..................................................................... 3

156          (III) At proximal interphalangeal joint
............................................................ 2

157          (IV) At distal interphalangeal joint
................................................................. 1

158          (C) All toes at metatarsophalangeal joints
.................................................... 26

159          (iv) Miscellaneous
160          (A) One eye by enucleation
......................................................................... 120

161          (B) Total blindness of one eye
..................................................................... 100

162          (C) Total loss of binaural hearing
............................................................... 109

163          (5) Permanent and complete loss of use shall be deemed equivalent to loss of the
164     member. Partial loss or partial loss of use shall be a percentage of the complete loss or loss of
165     use of the member. This Subsection (5) does not apply to the items listed in Subsection
166     (4)(b)(iv).
167          (6) (a) For any permanent impairment caused by an industrial accident that is not
168     otherwise provided for in the schedule of losses in this section, permanent partial disability
169     compensation shall be awarded by the commission based on the medical evidence.

170          (b) Compensation for any impairment described in Subsection (6)(a) shall, as closely as
171     possible, be proportionate to the specific losses in the schedule set forth in this section.
172          (c) Permanent partial disability compensation may not:
173          (i) exceed 312 weeks, which shall be considered the period of compensation for
174     permanent total loss of bodily function; and
175          (ii) be paid for any permanent impairment that existed prior to an industrial accident.
176          (7) The amounts specified in this section are all subject to the limitations as to the
177     maximum weekly amount payable as specified in this section, and in no event shall more than a
178     maximum of 66-2/3% of the state average weekly wage at the time of the injury for a total of
179     312 weeks in compensation be required to be paid.
180          Section 4. Section 34A-2-413 is amended to read:
181          34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
182          (1) (a) In the case of a permanent total disability resulting from an industrial accident
183     or occupational disease, the employee shall receive compensation as outlined in this section.
184          (b) To establish entitlement to permanent total disability compensation, the employee
185     shall prove by a preponderance of evidence that:
186          (i) the employee sustained a significant impairment or combination of impairments as a
187     result of the industrial accident or occupational disease that gives rise to the permanent total
188     disability entitlement;
189          (ii) the employee has a permanent, total disability; and
190          (iii) the industrial accident or occupational disease is the direct cause of the employee's
191     permanent total disability.
192          (c) To establish that an employee has a permanent, total disability the employee shall
193     prove by a preponderance of the evidence that:
194          (i) the employee is not gainfully employed;
195          (ii) the employee has an impairment or combination of impairments that reasonably
196     limit the employee's ability to do basic work activities;
197          (iii) the industrial or occupationally caused impairment or combination of impairments

198     prevent the employee from performing the essential functions of the work activities for which
199     the employee has been qualified until the time of the industrial accident or occupational disease
200     that is the basis for the employee's permanent total disability claim; and
201          (iv) the employee cannot perform other work reasonably available, taking into
202     consideration the employee's:
203          (A) age;
204          (B) education;
205          (C) past work experience;
206          (D) medical capacity; and
207          (E) residual functional capacity.
208          (d) Evidence of an employee's entitlement to disability benefits other than those
209     provided under this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:
210          (i) may be presented to the commission;
211          (ii) is not binding; and
212          (iii) creates no presumption of an entitlement under this chapter and Chapter 3, Utah
213     Occupational Disease Act.
214          (e) In determining under Subsections (1)(b) and (c) whether an employee cannot
215     perform other work reasonably available, the following may not be considered:
216          (i) whether the employee is incarcerated in a facility operated by or contracting with a
217     federal, state, county, or municipal government to house a criminal offender in either a secure
218     or nonsecure setting; or
219          (ii) whether the employee is not legally eligible to be employed because of a reason
220     unrelated to the impairment or combination of impairments.
221          (2) For permanent total disability compensation during the initial 312-week
222     entitlement, compensation is 66-2/3% of the employee's average weekly wage at the time of the
223     injury, limited as follows:
224          (a) compensation per week may not be more than 85% of the state average weekly
225     wage at the time of the injury;

226          (b) (i) subject to Subsection (2)(b)(ii), compensation per week may not be less than the
227     sum of $45 per week and:
228          (A) [$5] $20 for a dependent spouse; and
229          (B) [$5] $20 for each dependent child under the age of 18 years, up to a maximum of
230     four dependent minor children; and
231          (ii) the amount calculated under Subsection (2)(b)(i) may not exceed:
232          (A) the maximum established in Subsection (2)(a); or
233          (B) the average weekly wage of the employee at the time of the injury; and
234          (c) after the initial 312 weeks, the minimum weekly compensation rate under
235     Subsection (2)(b) is 36% of the current state average weekly wage, rounded to the nearest
236     dollar.
237          (3) This Subsection (3) applies to claims resulting from an accident or disease arising
238     out of and in the course of the employee's employment on or before June 30, 1994.
239          (a) The employer or the employer's insurance carrier is liable for the initial 312 weeks
240     of permanent total disability compensation except as outlined in Section 34A-2-703 as in effect
241     on the date of injury.
242          (b) The employer or the employer's insurance carrier may not be required to pay
243     compensation for any combination of disabilities of any kind, as provided in this section and
244     Sections 34A-2-410 through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of
245     compensation payable over the initial 312 weeks at the applicable permanent total disability
246     compensation rate under Subsection (2).
247          (c) The Employers' Reinsurance Fund shall for an overpayment of compensation
248     described in Subsection (3)(b), reimburse the overpayment:
249          (i) to the employer or the employer's insurance carrier; and
250          (ii) out of the Employers' Reinsurance Fund's liability to the employee.
251          (d) After an employee receives compensation from the employee's employer, the
252     employer's insurance carrier, or the Employers' Reinsurance Fund for any combination of
253     disabilities amounting to 312 weeks of compensation at the applicable permanent total

254     disability compensation rate, the Employers' Reinsurance Fund shall pay all remaining
255     permanent total disability compensation.
256          (e) Employers' Reinsurance Fund payments shall commence immediately after the
257     employer or the employer's insurance carrier satisfies its liability under this Subsection (3) or
258     Section 34A-2-703.
259          (4) This Subsection (4) applies to claims resulting from an accident or disease arising
260     out of and in the course of the employee's employment on or after July 1, 1994.
261          (a) The employer or the employer's insurance carrier is liable for permanent total
262     disability compensation.
263          (b) The employer or the employer's insurance carrier may not be required to pay
264     compensation for any combination of disabilities of any kind, as provided in this section and
265     Sections 34A-2-410 through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of
266     compensation payable over the initial 312 weeks at the applicable permanent total disability
267     compensation rate under Subsection (2).
268          (c) The employer or the employer's insurance carrier may recoup the overpayment of
269     compensation described in Subsection (4) by reasonably offsetting the overpayment against
270     future liability paid before or after the initial 312 weeks.
271          (5) (a) A finding by the commission of permanent total disability is not final, unless
272     otherwise agreed to by the parties, until:
273          (i) an administrative law judge reviews a summary of reemployment activities
274     undertaken pursuant to Section 34A-2-413.5;
275          (ii) the employer or the employer's insurance carrier submits to the administrative law
276     judge:
277          (A) a reemployment plan as prepared by a qualified rehabilitation provider reasonably
278     designed to return the employee to gainful employment; or
279          (B) notice that the employer or the employer's insurance carrier will not submit a plan;
280     and
281          (iii) the administrative law judge, after notice to the parties, holds a hearing, unless

282     otherwise stipulated, to:
283          (A) consider evidence regarding rehabilitation; and
284          (B) review any reemployment plan submitted by the employer or the employer's
285     insurance carrier under Subsection (5)(a)(ii).
286          (b) Before commencing the procedure required by Subsection (5)(a), the administrative
287     law judge shall order:
288          (i) the initiation of permanent total disability compensation payments to provide for the
289     employee's subsistence; and
290          (ii) the payment of any undisputed disability or medical benefits due the employee.
291          (c) Notwithstanding Subsection (5)(a), an order for payment of benefits described in
292     Subsection (5)(b) is considered a final order for purposes of Section 34A-2-212.
293          (d) The employer or the employer's insurance carrier shall be given credit for any
294     disability payments made under Subsection (5)(b) against its ultimate disability compensation
295     liability under this chapter or Chapter 3, Utah Occupational Disease Act.
296          (e) An employer or the employer's insurance carrier may not be ordered to submit a
297     reemployment plan. If the employer or the employer's insurance carrier voluntarily submits a
298     plan, the plan is subject to Subsections (5)(e)(i) through (iii).
299          (i) The plan may include, but not require an employee to pay for:
300          (A) retraining;
301          (B) education;
302          (C) medical and disability compensation benefits;
303          (D) job placement services; or
304          (E) incentives calculated to facilitate reemployment.
305          (ii) The plan shall include payment of reasonable disability compensation to provide
306     for the employee's subsistence during the rehabilitation process.
307          (iii) The employer or the employer's insurance carrier shall diligently pursue the
308     reemployment plan. The employer's or insurance carrier's failure to diligently pursue the
309     reemployment plan is cause for the administrative law judge on the administrative law judge's

310     own motion to make a final decision of permanent total disability.
311          (f) If a preponderance of the evidence shows that successful rehabilitation is not
312     possible, the administrative law judge shall order that the employee be paid weekly permanent
313     total disability compensation benefits.
314          (g) If a preponderance of the evidence shows that pursuant to a reemployment plan, as
315     prepared by a qualified rehabilitation provider and presented under Subsection (5)(e), an
316     employee could immediately or without unreasonable delay return to work but for the
317     following, an administrative law judge shall order that the employee be denied the payment of
318     weekly permanent total disability compensation benefits:
319          (i) incarceration in a facility operated by or contracting with a federal, state, county, or
320     municipal government to house a criminal offender in either a secure or nonsecure setting; or
321          (ii) not being legally eligible to be employed because of a reason unrelated to the
322     impairment or combination of impairments.
323          (6) (a) The period of benefits commences on the date the employee acquired the
324     permanent, total disability, as determined by a final order of the commission based on the facts
325     and evidence, and ends:
326          (i) with the death of the employee; or
327          (ii) when the employee is capable of returning to regular, steady work.
328          (b) An employer or the employer's insurance carrier may provide or locate for a
329     permanently totally disabled employee reasonable, medically appropriate, part-time work in a
330     job earning at least minimum wage, except that the employee may not be required to accept the
331     work to the extent that it would disqualify the employee from social security disability benefits.
332          (c) An employee shall:
333          (i) fully cooperate in the placement and employment process; and
334          (ii) accept the reasonable, medically appropriate, part-time work.
335          (d) In a consecutive four-week period when an employee's gross income from the work
336     provided under Subsection (6)(b) exceeds $500, the employer or insurance carrier may reduce
337     the employee's permanent total disability compensation by 50% of the employee's income in

338     excess of $500.
339          (e) If a work opportunity is not provided by the employer or the employer's insurance
340     carrier, an employee with a permanent, total disability may obtain medically appropriate,
341     part-time work subject to the offset provisions of Subsection (6)(d).
342          (f) (i) The commission shall establish rules regarding the part-time work and offset.
343          (ii) The adjudication of disputes arising under this Subsection (6) is governed by Part
344     8, Adjudication.
345          (g) The employer or the employer's insurance carrier has the burden of proof to show
346     that medically appropriate part-time work is available.
347          (h) The administrative law judge may:
348          (i) excuse an employee from participation in any work:
349          (A) that would require the employee to undertake work exceeding the employee's:
350          (I) medical capacity; or
351          (II) residual functional capacity; or
352          (B) for good cause; or
353          (ii) allow the employer or the employer's insurance carrier to reduce permanent total
354     disability benefits as provided in Subsection (6)(d) when reasonable, medically appropriate,
355     part-time work is offered, but the employee fails to fully cooperate.
356          (7) When an employee is rehabilitated or the employee's rehabilitation is possible but
357     the employee has some loss of bodily function, the award shall be for permanent partial
358     disability.
359          (8) As determined by an administrative law judge, an employee is not entitled to
360     disability compensation, unless the employee fully cooperates with any evaluation or
361     reemployment plan under this chapter or Chapter 3, Utah Occupational Disease Act. The
362     administrative law judge shall dismiss without prejudice the claim for benefits of an employee
363     if the administrative law judge finds that the employee fails to fully cooperate, unless the
364     administrative law judge states specific findings on the record justifying dismissal with
365     prejudice.

366          (9) (a) The loss or permanent and complete loss of the use of the following constitutes
367     total and permanent disability that is compensated according to this section:
368          (i) both hands;
369          (ii) both arms;
370          (iii) both feet;
371          (iv) both legs;
372          (v) both eyes; or
373          (vi) any combination of two body members described in this Subsection (9)(a).
374          (b) A finding of permanent total disability pursuant to Subsection (9)(a) is final.
375          (10) (a) An insurer or self-insured employer may periodically reexamine a permanent
376     total disability claim, except those based on Subsection (9), for which the insurer or
377     self-insured employer had or has payment responsibility to determine whether the employee
378     continues to have a permanent, total disability.
379          (b) Reexamination may be conducted no more than once every three years after an
380     award is final, unless good cause is shown by the employer or the employer's insurance carrier
381     to allow more frequent reexaminations.
382          (c) The reexamination may include:
383          (i) the review of medical records;
384          (ii) employee submission to one or more reasonable medical evaluations;
385          (iii) employee submission to one or more reasonable rehabilitation evaluations and
386     retraining efforts;
387          (iv) employee disclosure of Federal Income Tax Returns;
388          (v) employee certification of compliance with Section 34A-2-110; and
389          (vi) employee completion of one or more sworn affidavits or questionnaires approved
390     by the division.
391          (d) The insurer or self-insured employer shall pay for the cost of a reexamination with
392     appropriate employee reimbursement pursuant to rule for reasonable travel allowance and per
393     diem as well as reasonable expert witness fees incurred by the employee in supporting the

394     employee's claim for permanent total disability benefits at the time of reexamination.
395          (e) If an employee fails to fully cooperate in the reasonable reexamination of a
396     permanent total disability finding, an administrative law judge may order the suspension of the
397     employee's permanent total disability benefits until the employee cooperates with the
398     reexamination.
399          (f) (i) If the reexamination of a permanent total disability finding reveals evidence that
400     reasonably raises the issue of an employee's continued entitlement to permanent total disability
401     compensation benefits, an insurer or self-insured employer may petition the Division of
402     Adjudication for a rehearing on that issue. The insurer or self-insured employer shall include
403     with the petition, documentation supporting the insurer's or self-insured employer's belief that
404     the employee no longer has a permanent, total disability.
405          (ii) If the petition under Subsection (10)(f)(i) demonstrates good cause, as determined
406     by the Division of Adjudication, an administrative law judge shall adjudicate the issue at a
407     hearing.
408          (iii) Evidence of an employee's participation in medically appropriate, part-time work
409     may not be the sole basis for termination of an employee's permanent total disability
410     entitlement, but the evidence of the employee's participation in medically appropriate, part-time
411     work under Subsection (6) may be considered in the reexamination or hearing with other
412     evidence relating to the employee's status and condition.
413          (g) In accordance with Section 34A-1-309, the administrative law judge may award
414     reasonable attorney fees to an attorney retained by an employee to represent the employee's
415     interests with respect to reexamination of the permanent total disability finding, except if the
416     employee does not prevail, the attorney fees shall be set at $1,000. The attorney fees awarded
417     shall be paid by the employer or the employer's insurance carrier in addition to the permanent
418     total disability compensation benefits due.
419          (h) During the period of reexamination or adjudication, if the employee fully
420     cooperates, each insurer, self-insured employer, or the Employers' Reinsurance Fund shall
421     continue to pay the permanent total disability compensation benefits due the employee.

422          (11) If any provision of this section, or the application of any provision to any person
423     or circumstance, is held invalid, the remainder of this section is given effect without the invalid
424     provision or application.
425          Section 5. Effective date.
426          This bill takes effect on July 1, 2018.