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Workers' Compensation in Utah
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Workers' Compensation in Utah Workers' Compensation in Utah Presentation Transcript

  • WORKERS’ COMPENSATION IN UTAH Susan Baird Motschiedler June 12, 2014 Lorman Education Seminar, Salt Lake City parsonsbehle.com
  • 2  Workers’ compensation is a no-fault insurance system established in Utah in 1917.  Pays medical expenses and helps offset lost wages for employees with work- related injuries or illnesses. What is Workers’ Compensation?
  • 3  Public purpose – take care of injured workers so they don’t become wards of the state and can return to self sufficiency  Trade off for compulsory employer participation: – No fault – Employee cannot bring lawsuit against employer for injury • Exception for intentional injury What is Workers’ Compensation?
  • 4  WC does not cover intentional self-inflicted injuries.  Medical benefits will not be denied for injuries involving alcohol, drugs, or failure to use safety devices or follow safety rules.  However, disability benefits maybe be denied for injuries resulting from drug or alcohol abuse.  Disability compensation can be reduced by 15% for willful failure to use safety devices or follow safety rules. Employee at Fault?
  • 5  Employee has 180 days to report injury or illness to employer.  Employer has 7 days to submit a report to the industrial accidents division and insurance company.  Employer or insurance company must provide worker a copy of the report and a written statement of the employer’s rights and responsibilities under WC. Reporting Injuries
  • 6  Medical Expenses – Medical care – Surgical procedures – Medications – Chiropractic treatments – Dental care – Medical rehabilitation  Mileage to medical care  Wages Workers’ Compensation Benefits
  • 7  Compensation Benefits – Temporary total disability • No compensation paid for first 3 days, unless injury prevents employee from working more than 14 days, total. • Ends when employee returns to work or reaches medical stability. • Maximum duration of temporary total disability is 312 weeks. – Temporary partial disability • Paid during time employee is still recovering. • Employee working fewer hours than normal or is on a light duty job that pays less than regular job. Workers’ Compensation Benefits
  • 8  Upon permission from the Labor Commission, temporary disability can be reduced or terminated if employee is terminated from light- duty work for – Criminal conduct – Violent conduct – Violation of workplace health, safety, licensure, or nondiscrimination rules – Failing a drug or alcohol test Reduction or Termination of Disability Compensation
  • 9 – Permanent partial disability • Paid if employee is left with permanent impairment • Duration of compensation determined by “impairment rating” from doctor – Permanent total disability • Paid if work-related injury left employee with a permanent disability that prevents employee from returning to former work or work that is reasonably available to employee. • Employee potentially eligible for SSA disability Workers’ Compensation Benefits
  • 10  Vocational Rehabilitation  Death/Survivor benefits – Burial expenses – Survivor Benefits • Similar to deceased worker’s benefits, but includes provisions for dependents • 312 weeks; adjustable for reduction of dependents • Assumption is that spouse will remarry • After 312 weeks, yearly review and reduction of benefits Workers’ Compensation Benefits
  • 11  Utah administers its workers’ compensation system via the Labor Commission – Industrial Accidents Division  In Utah, workers' compensation is compulsory, and no employee waivers are permitted and there is no exemption for employers with small numbers of employees. – Employees cannot waive coverage  State has affordable insurance available: Workers’ Compensation Fund (“WCF”)  Private coverage also available  Can be “self insured” with approval Administration of Workers’ Compensation
  • 12  The Labor Commission of Utah, Division of Industrial Accidents is responsible for administering Workers' Compensation in Utah. – http://www.laborcommission.utah.gov/IndustrialAccidents/index.h tml  Relevant Statutes and Rules: – Utah Code Title 34A Chapter 2 – Worker’s Compensation Act – Utah Code Title 34A Chapter 8a – Utah Injured Worker Reemployment Act – Utah Admin. Code R602-2 – Adjudication of Workers’ Compensation and Occupational Disease Claims – Utah Admin. Code R612 – 100-500 – Workers’ Compensation Rules Utah Workers’ Compensation Summary
  • 13 Covered Employers 1) Original employers 2) Statutory employers
  • 14 Covered Employers – Original “Each person … who regularly employs one or more workers or operatives in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written . . . .”
  • 15 Covered Employers – Statutory Statutory employers are persons who – procure any work to be done wholly or in part for the employer, – by a contractor over whose work the employer retains supervision or control, • Retention, not actual exercise of control – when the work is a part or process in the trade or business of the employer.
  • 16 Covered Employers – Statutory When a person is a statutory employer, he must secure workers’ compensation benefits for – the contractor, – the contractor's employees, – his subcontractors, and – the subcontractors' employees.
  • 17 Covered Employers – Statutory Exceptions to being a statutory employer: 1) Work on own residence, 2) Partner or sole proprietor, if reliance on a) Certificate of insurance, or b) Certificate of waiver for solo 3) Corporate officer or director excluded from WC coverage 4) Contractor or subcontractor, if reliance on a) Certificate of insurance, or b) Certificate of waiver for solo
  • 18  Key Inquiries:  Where’s the contract?  How completely has your company surrendered the right to control how these “workers” do their job?  . . . And 33 other factors! Independent Contractor Analysis
  • 19  If he’s not an employee, we don’t need to pay for workers’ compensation coverage – right?  True, but what if you take him off workers’ comp coverage, he gets hurt doing something in the scope and course of employment. . .  And then is determined to be a statutory employee with no workers’ comp coverage? The Biggest Risk from Improper “1099” Classifications is NOT from the IRS. Would you Believe it’s likely Workers’ Compensation?
  • 20  This company is now looking at a very nasty surprise:  34A-2-207 Noncompliance – Civil Action by employee – Now, this employer is stripped of benefit of exclusive remedy provision – Employer “shall be liable” in a civil action to the employee for damages suffered because of personal injury – Proof of the injury shall constitute prima facie evidence of employer’s negligence and burden shall be upon employer to show freedom from negligence  Employer may not try to defend with: – Employee’s contributory negligence – Employee’s assumption of risk – Fellow servant rule  Employer shall pay employee’s attorney’s fees . . . About that “worker” you 1099’d . . .
  • 21  The company-and every officer of the company are guilty of a class B misdemeanor  Labor Division can, on five days written notice ask the District Court to issue an injunction, without bond, restraining further operation of the business . . . And that’s not all
  • 22 Covered Employers – Exclusive Remedy The exclusive remedy provision: "The right to recover compensation pursuant to this chapter for injuries sustained by an employee, whether resulting in death or not, shall be the exclusive remedy against the employer and shall be the exclusive remedy against any officer, agent, or employee of the employer ... on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee’s employment …." Utah Code Ann. §34A-2-105
  • 23 Covered Employers – Exclusive Remedy Workers’ compensation benefits: “… shall be in place of any and all other civil liability whatsoever, at common law or otherwise, to the employee or to the employee's spouse, widow, children, parents, dependents, next of kin, heirs, personal representatives, guardian, or any other person … and no action at law may be maintained against an employer or against any officer, agent, or employee of the employer based upon any accident, injury, or death of an employee." Utah Code Ann. §34A-2-105
  • 24 Intentional Injury = Potential Lawsuit  Exclusive remedy does not apply in case of “intentional injury”  Helf v. Chevron, 2009 UT 11: Utah Supreme Court held employee could bring lawsuit against employer for injury as result of exposure to toxic gases. Employee need not show motive to injure. Need only show injury resulted from an act that actor knew or expected would cause injury.
  • 25 Intentional Injury = Potential Lawsuit  Employee must show that employer had actual knowledge of the dangerous condition and consequences were virtually certain to result  Employer must know that specific employee will be injured by a specific task  Employee stated case where noxious fumes were released earlier in day, other employees became ill, no safety measures were taken, and employer directed employee to perform task that caused earlier release of fumes
  • 26 Covered Employers – Eligible Employer A person who is eligible to take advantage of the exclusive remedy provision in certain circumstances is an “eligible employer.” To be eligible, he:  Must be an employer, and  Must have procured the work to be done wholly or in part by a contractor (and his employees, subcontractors, and subcontractors’ employees).
  • 27 Covered Employers – Eligible Employer He can take advantage of the exclusive remedy provision in 3 circumstances: 1) If he is liable for and pays workers’ compensation benefits as an original employer due to the contractor or subcontractors failure to maintain insurance;
  • 28 Covered Employers – Eligible Employer 3 circumstances (continued): 2) If he a) secures the payment of workers’ compensation benefits for the contractor or subcontractor, and b) procures work to be done that is part or process of the eligible employer’s trade or business, and c) adopts, posts, and enforces a workplace accident and injury reduction program that meets certain statutory requirements;
  • 29 Covered Employers – Eligible Employer 3 circumstances (continued): 3) If he a) has obtained a valid certification, or policy or proof of coverage from the contractor, and b) is liable as a statutory employer for the payment of workers’ compensation benefits if the contractor or subcontractor fails to provide them, and c) procures work to be done that is part or process of the eligible employer’s trade or business, and d) adopts, posts, and enforces a workplace accident and injury reduction program that meets certain statutory requirements.
  • 30 Covered Employees Public employees:  Elective and appointive officers, and other persons in the service of, serving, or hired by the state, or any county, city, town, or school district, or while in the National Guard.
  • 31 Covered Employees Private employees:  A person in the service of any employer who employs one or more workers or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, and oral or written.  Minors and illegal workers are included.  Casual employees working outside the usual course of the trade, business or occupation of the employer are not.
  • 32 Covered Employees Partners and sole proprietors:  With appropriate written notice to the workers’ compensation insurance carrier, advising it of the desire to be considered an employee covered by workers’ compensation.
  • 33 Covered Employees Corporate officers and directors:  UNLESS they have given appropriate written notice to the workers’ compensation insurance carrier, advising it that they do not desire to be considered an employee covered by workers’ compensation.  Company can only obtain waiver for five officers and directors.
  • 34 Covered Employees – Exceptions Real estate agents and brokers:  if substantially all of the worker’s income is from real estate commissions, and  the services are provided under a written contract that states the broker is an independent contractor who is not to be treated as an employee for federal income tax purposes.
  • 35 Covered Employees – Exceptions Criminal offenders:  If they are performing labor as inmates for the Corrections Department or under contracts that the Corrections Department has with others.
  • 36 Covered Employees – Exceptions Insurance company workers:  If they solicit, negotiate, place or procure insurance for insurance producers, and  Substantially all of their income is from insurance commissions, and  Their services are provided under a written contract that states they are an independent contractor who is not to be treated as an employee for federal income tax purposes, and  If they can derive income from more than one insurance company.
  • 37 Covered Employees – Exceptions Domestic workers:  Who are working for a person who receives or is eligible to receive the work under a government program designed to pay the costs of domestic work to prevent the person from being placed in an institution or a more restrictive placement than his residence  If the worker is paid by a person designated by the Secretary of the Treasury in accordance with IRS provisions as a fiduciary, agent or other person that has the control, receipt, custody, or disposal of, or pays the wages of the worker, and  The worker has a written contract that tells him he is not an employee for purposes of the Workers’ Compensation Act.
  • 38 Leave Entitlement  No “leave” entitlement under WC – Retaliation risks for denying leave – Customary provision of leave – Light duty assignments – Leave entitlements under other laws or policies • ADA • FMLA
  • 39 Basis for Leave  Leave for injuries caused – “by accident arising out of and in the course of the employee’s employment, wherever such injury occurred, if the accident was not purposely self- inflicted ….”  This may not include – leave for physical, mental or emotional injuries related to mental stress. – leave in circumstances that would provide "good cause" to fire.
  • 40  What kind of medical information can you get? – Medical report from employee’s doctor. – Can request additional reports. – Can work with employee’s doctor to determine what their work limitations are as a result of the on-the-job injury. – Can request an IME.  Note: Must store medical records separate from personnel file Medical Information Available
  • 41  No anti-retaliation provision in the WC statute  Case law provides that termination for exercising WC rights violates public policy and provides a cause of action for wrongful termination  Constructive discharge also a violation of public policy  However, mere harassment and discrimination, not rising to the level of constructive discharge, not actionable See Touchard v. La-Z-Boy, Inc., 148 P.3d 945 (Utah 2006). Retaliation
  • 42 Benefits Continuation  No benefits entitlement under WC – Retaliation risks for constructive discharge – Customary provision of benefits – Light duty assignments – Benefits entitlements under other laws or policies
  • 43 Reinstatement Rights  No reinstatement entitlement under WC – Retaliation risks for denying reinstatement – Customary reinstatement – Light duty assignments – Reinstatement entitlements under other laws or policies
  • 44  Goal: get employee back to work  Many different issues – not all addressed by WC – Light duty/intermittent leave/reduced schedule – Has the job necessarily been filled by others? – Capable of returning to full time work without further injury? – Back on full time schedule, but medical condition persists and prevents performance – Excessive absenteeism  Many of these issues are intersections among laws  Remember: cannot use WC standards to make determinations under other laws Return to Work
  • 45  Medical Provider must disclose information to employer – When employee can return to work – What restrictions an employee is subject to – Employer, Employee or Physician can initiate Return to Work
  • 46  Light Duty – Not required under the statute – Release to work light duty can be initiated by physician, employee or employer  Benefits of Light Duty – The quicker employees are back to work, the quicker they are to rehabilitate, and the less likely to seek medical care they are – Maintaining contact with employee decreases recovery time – Saves time and money on recruitment and training of new employees – If no light duty, employee entitled to continue receiving temporary total disability until at medical stability or at 312 week entitlement limit! Return to Work
  • 47  Can an employee refuse light duty? – Not without a good reason – Employee is required to accept the work or risk losing temporary disability compensation Return to Work
  • 48  Karl works for A-1 Auto Service as a mechanic. He is a difficult employee, absent a lot. He reports to work at 6 a.m. in the morning. At 1:00 p.m., he tells you he feels lousy and is going home. He doesn’t call in the next day, his sick leave is exhausted, and you decide to fire him. What do you do?
  • 49  You are preparing a pink slip. Just then Karl calls you and tells you he has been “out of it” at home since he left work, has called the doctor, and is going to the hospital for tests. His doctor suspects carbon monoxide poisoning. What do you do?
  • 50  Karl’s wife calls that afternoon and says Karl was admitted to the hospital.  You report the “injury” to OSHA, they do a site inspection and find raised carbon monoxide levels at the A-1 Auto Shop. What do you do?
  • 51  Medical report from employee’s doctor.  Can request additional reports.  You can work with employee’s doctor to figure out what their work limitations are as a result of the on-the-job injury.  You can request IME. What kind of medical information can you get?
  • 52  Karl’s wife says the doctor doesn’t know how long Karl will be out, and they fear he will have some lasting problems. It’s summertime, business is busy. The remaining two mechanics will be overworked due to Karl’s absence in about two weeks. What do you do?
  • 53  Wife suggests you go with Karl to his next doctor’s appointment. You show up, Karl says he doesn’t want you there, and he won’t let you talk with his doctor. What do you do?
  • 54  The doctor tells you Karl has sustained a brain injury. The doctor says Karl is currently able to do simple mechanical tasks with direction, but he cannot exercise independent judgment in diagnosing problems or in recognizing dangers. The doctor says brain injuries usually heal slowly, but surprises can occur, and he does not know yet if the brain injury will be permanent. What do you do?
  • 55 That’s it!