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MEDICAL PANEL GOVERNMENTAL IMMUNITY

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AMENDMENTS

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2022 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: James A. Dunnigan

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Senate Sponsor: Curtis S. Bramble

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8     LONG TITLE
9     General Description:
10          This bill amends provisions related to medical panels appointed under the Workers'
11     Compensation Act.
12     Highlighted Provisions:
13          This bill:
14          ▸     establishes that a member of a medical panel acting within the scope of duties of a
15     medical panel member is considered an employee of the state for purposes of
16     indemnification under the Governmental Immunity Act of Utah; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          34A-2-601, as last amended by Laws of Utah 2013, Chapter 428
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 34A-2-601 is amended to read:

28          34A-2-601. Medical panel, director, or consultant -- Findings and reports --
29     Objections to report -- Hearing -- Expenses.
30          (1) (a) The Division of Adjudication may refer the medical aspects of a case described
31     in this Subsection (1)(a) to a medical panel appointed by an administrative law judge:
32          (i) upon the filing of a claim for compensation arising out of and in the course of
33     employment for:
34          (A) disability by accident; or
35          (B) death by accident; and
36          (ii) if the employer or the employer's insurance carrier denies liability.
37          (b) An administrative law judge may appoint a medical panel upon the filing of a claim
38     for compensation based upon disability or death due to an occupational disease.
39          (c) A medical panel appointed under this section shall consist of one or more
40     physicians specializing in the treatment of the disease or condition involved in the claim.
41          (d) A member of a medical panel appointed under this section, when acting within the
42     scope of duties of a medical panel member, is considered an employee of this state for purposes
43     of indemnification under Title 63G, Chapter 7, Governmental Immunity Act of Utah.
44          [(d)] (e) As an alternative method of obtaining an impartial medical evaluation of the
45     medical aspects of a controverted case, the division may employ a medical director or one or
46     more medical consultants:
47          (i) on a full-time or part-time basis; and
48          (ii) for the purpose of:
49          (A) evaluating medical evidence; and
50          (B) advising an administrative law judge with respect to the administrative law judge's
51     ultimate fact-finding responsibility.
52          [(e)] (f) If all parties agree to the use of a medical director or one or more medical
53     consultants, the medical director or one or more medical consultants is allowed to function in
54     the same manner and under the same procedures as required of a medical panel.
55          (2) (a) A medical panel, medical director, or medical consultant may do the following
56     to the extent the medical panel, medical director, or medical consultant determines that it is
57     necessary or desirable:
58          (i) conduct a study;

59          (ii) take an x-ray;
60          (iii) perform a test; or
61          (iv) if authorized by an administrative law judge, conduct a post-mortem examination.
62          (b) A medical panel, medical director, or medical consultant shall make:
63          (i) a report in writing to the administrative law judge in a form prescribed by the
64     Division of Adjudication; and
65          (ii) additional findings as the administrative law judge may require.
66          (c) In an occupational disease case, in addition to the requirements of Subsection
67     (2)(b), a medical panel, medical director, or medical consultant shall certify to the
68     administrative law judge:
69          (i) the extent, if any, of the disability of the claimant from performing work for
70     remuneration or profit;
71          (ii) whether the sole cause of the disability or death, in the opinion of the medical
72     panel, medical director, or medical consultant results from the occupational disease; and
73          (iii) (A) whether any other cause aggravated, prolonged, accelerated, or in any way
74     contributed to the disability or death; and
75          (B) if another cause contributed to the disability or death, the extent in percentage to
76     which the other cause contributed to the disability or death.
77          (d) (i) An administrative law judge shall promptly distribute full copies of a report
78     submitted to the administrative law judge under this Subsection (2) by mail to:
79          (A) the applicant;
80          (B) the employer;
81          (C) the employer's insurance carrier; and
82          (D) an attorney employed by a person listed in Subsections (2)(d)(i)(A) through (C).
83          (ii) Within 20 days after the day on which the report described in Subsection (2)(d)(i) is
84     deposited in the United States post office, the following may file with the administrative law
85     judge a written objection to the report:
86          (A) the applicant;
87          (B) the employer; or
88          (C) the employer's insurance carrier.
89          (iii) If no written objection is filed within the period described in Subsection (2)(d)(ii),

90     the report is considered admitted in evidence.
91          (e) (i) An administrative law judge may base the administrative law judge's finding and
92     decision on the report of:
93          (A) a medical panel;
94          (B) the medical director; or
95          (C) one or more medical consultants.
96          (ii) Notwithstanding Subsection (2)(e)(i), an administrative law judge is not bound by a
97     report described in Subsection (2)(e)(i) if other substantial conflicting evidence in the case
98     supports a contrary finding.
99          (f) (i) If a written objection to a report is filed under Subsection (2)(d), the
100     administrative law judge may set the case for hearing to determine the facts and issues
101     involved.
102          (ii) At a hearing held pursuant to this Subsection (2)(f), any party may request the
103     administrative law judge to have any of the following present at the hearing for examination
104     and cross-examination:
105          (A) the chair of the medical panel;
106          (B) the medical director; or
107          (C) the one or more medical consultants.
108          (iii) For good cause shown, an administrative law judge may order the following to be
109     present at the hearing for examination and cross-examination:
110          (A) a member of a medical panel, with or without the chair of the medical panel;
111          (B) the medical director; or
112          (C) a medical consultant.
113          (g) (i) A written report of a medical panel, medical director, or one or more medical
114     consultants may be received as an exhibit at a hearing described in Subsection (2)(f).
115          (ii) Notwithstanding Subsection (2)(g)(i), a report received as an exhibit under
116     Subsection (2)(g)(i) may not be considered as evidence in the case except as far as the report is
117     sustained by the testimony admitted.
118          (h) For a claim referred under Subsection (1) to a medical panel, medical director, or
119     medical consultant before July 1, 1997, the commission shall pay out of the Employers'
120     Reinsurance Fund established in Section 34A-2-702:

121          (i) expenses of a study or report of the medical panel, medical director, or medical
122     consultant; and
123          (ii) the expenses of the medical panel's, medical director's, or medical consultant's
124     appearance before an administrative law judge.
125          (i) (i) For a claim referred under Subsection (1) to a medical panel, medical director, or
126     medical consultant on or after July 1, 1997, the commission shall pay out of the Uninsured
127     Employers' Fund established in Section 34A-2-704 the expenses of:
128          (A) a study or report of the medical panel, medical director, or medical consultant; and
129          (B) the medical panel's, medical director's, or medical consultant's appearance before
130     an administrative law judge.
131          (ii) Notwithstanding Section 34A-2-704, the expenses described in Subsection (2)(i)(i)
132     shall be paid from the Uninsured Employers' Fund whether or not the employment relationship
133     during which the industrial accident or occupational disease occurred is localized in Utah as
134     described in Subsection 34A-2-704(20).
135          (3) (a) The commission may employ a qualified physician as medical panel director
136     who, in addition to the other duties outlined in this section for a medical director, is responsible
137     for:
138          (i) assisting the commission in creating and enforcing standards for medical panels and
139     medical consultants;
140          (ii) training members of medical panels or medical consultants;
141          (iii) increasing the number of physicians who participate on medical panels;
142          (iv) ensuring medical panels include appropriate specialists; and
143          (v) monitoring the quality of medical panel and medical consultant reports.
144          (b) The commission shall pay the expenses of employing a medical panel director
145     described in this Subsection (3) out of the Uninsured Employers' Fund established in Section
146     34A-2-704.