No. 33063 (Repeal and Reenact): Rule R612-8. Procedural Guidelines for the Reemployment Act

(Repeal and Reenact)

DAR File No.: 33063
Filed: 10/15/2009 12:59:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In enacting S.B. 15, the 2009 Utah Legislature renumbered and substantially modified the Utah Injured Worker Reemployment Act (Title 34A, Chapter 8a). Among other changes, the newly amended Act imposes several reporting requirements on insurers and self-insured employers. The purpose of the "proposed repeal and reenactment" is to eliminate the Commissions former rule, which reflected the previous version of the Injured Worker Reemployment Act, and to substitute a new rule that is consistent with the recently amended provisions of the Injured Worker Reemployment Act. (DAR NOTE: S.B. 15 (2009) is found at Chapter 85, Laws of Utah 2009, and was effective 03/20/2009.)

Summary of the rule or change:

The Commission's existing rule R612-8 is repealed and replaced with a new rule. The new rule explains the rule's purpose and the Commission's authority to promulgate the rule. It also references applicable definitions from the Injured Worker Reemployment Act. The rule authorizes and describes the forms insurers or employers must use to satisfy their reporting requirements under the Act. Finally, the rule references the statutory penalties that may be imposed for failure to comply with the Act's quarterly reporting requirements and defines the nature of administrative proceedings that may be used to resolve disputes under the Act.

State statutory or constitutional authorization for this rule:

• Section 34A-8-109
• Section 34A-1-104

Anticipated cost or savings to:

the state budget:

The Labor Commission will incur some costs in monitoring and enforcing the reporting requirements of the Utah Injured Worker Reemployment Act. The Commission anticipates these duties will require approximately one-quarter of a staff position, which translates to approximately $20,000. As to the cost to the state in its capacity as an employer, the state's workers' compensation insurance carrier will submit any necessary reports on behalf of the state, at no cost to the state.

local governments:

In those cases where local governments purchase workers' compensation insurance, their insurance carrier will submit any necessary reports at no cost to the local government entity. If a local government is self-insured, it will be required to submit such reports on its own behalf. The reports are limited in number, simple to complete, and require information that should be readily available. The Commission therefore anticipates that the cost of completing such forms will be minimal.

small businesses:

Small businesses are almost always covered by workers' compensation insurance. Their insurance carrier will submit any necessary reports at no cost to the business. In the rare instances in which a small business is self-insured, it will be required to submit such reports on its own behalf. The reports are limited in number, simple to complete, and require information that should be readily available. The Commission therefore anticipates negligible costs to such businesses.

persons other than small businesses, businesses, or local governmental entities:

Workers' compensation insurance carriers will be required to comply with the reporting requirements of this rule. The reports are limited in number, simple to complete, and require information that should be readily available. The Commission therefore anticipates negligible costs to workers' compensation insurance carriers or any other persons.

Compliance costs for affected persons:

The Utah Injured Worker Reemployment Act imposes various monitoring, referral, and reporting requirements on insurance carriers and self-insured employers regarding efforts to return injured workers to employment. In implementing the Act, the Commission has required submission of only those forms and reports required by the Act itself. The Commission has also designed the forms as simply as possible. The Commission expects that insurance carriers and self-insured employers will be able to incorporate these reports into routine business processes and that the cost of compliance will be minimal.

Comments by the department head on the fiscal impact the rule may have on businesses:

In reenacting and amending the Utah Injured Worker Reemployment Act, the Utah Legislature declared a public policy in favor of monitoring the efforts of insurance carriers and employers to return injured workers to gainful employment. While the monitoring and reporting requirements of the Act and this proposed rule impose some compliance costs on insurance carriers and employers, the Commission has attempted to minimize such costs by proposing simple rules and forms. But to the extent that the Act and rules assist insurance carriers and employers in returning injured workers to employment, there will be a much greater cost savings from reduced workers' compensation payments and increased worker productivity.

Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Industrial Accidents
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Larry Bunkall at the above address, by phone at 801-530-6988, by FAX at 801-530-6844, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/01/2009

This rule may become effective on:

12/08/2009

Authorized by:

Sherrie Hayashi, Commissioner

RULE TEXT

R612. Labor Commission, Industrial Accidents.

R612-8. Procedural Guidelines for the Reemployment Act.

[R612-8-1. Definitions.

A. The definitions under Title 34A, Chapter 8 apply to this rule.

B. In addition to the foregoing definitions, all definitions in Rule R612-1 apply to this section.

 

R612-8-2. Authority.

This rule is enacted under the authority of Section 34A-8-111.

 

R612-8-3. Procedural Guidelines.

This rule is enacted to outline the procedural guidelines for the reemployment program.

 

R612-8-4. Initial Status Report.

Status Report - Form 206. When it appears that an injured worker is or shall be a disabled worker, or when the period of the injured worker's temporary total disability compensation period exceeds 90 days, whichever comes first, the employer or its workers' compensation insurance carrier shall, within 30 days thereafter file with the division and serve on the injured worker a Status Report. The report shall contain claimant demographics, insurance coverage details, and address the need for vocational assistance. The report shall also contain information regarding employer and employee expectations of return-to-work. In the event an injured worker returns to employment, or is deemed to have transferable skills but doesn't have a job to return to, the insurance carrier shall monitor the injured worker for sixty (60) days prior to closure to ensure transition into employment. If the injured worker is unsuccessful in a return to work effort, the issue of need for vocational assistance will then be addressed. A final 206 shall be submitted at the end of the monitoring period indicating whether the injured worker was successful or unsuccessful in a return to work effort.

 

R612-8-5. Initial Assessment.

An initial assessment shall be completed for injured workers who are unable to return to work in the same or similar occupation because of functional limitations, and for workers who have been unsuccessful in their return to work effort. The initial assessment shall be completed by a qualified rehabilitation provider and shall include the employee's work history, functional limitations, transferable skills analysis detailing a list of transferable skills and recommendations for viable job opportunities. The assessment shall be filed with the Reemployment Office within 120 days of the date of injury. For injured workers that have been unsuccessful in their return to work effort, the initial assessment shall be filed within 30 days after the determination.

 

R612-8-6. Postponement.

a. In the event an insurance carrier postpones an injured worker's status due to medical reasons, the insurance carrier shall submit a summary statement outlining the diagnosis and medical treatment plan, along with the Status Report (Form 206), documenting the need for postponement to the Reemployment Program. An updated summary of the medical status shall be provided by the insurance carrier every 90 days of postponement, or at the time the injured worker's status changes.

b. The potential for rehabilitation shall be addressed during the period of postponement, and the insurance carrier/rehabilitation provider shall identify possible work related activities and/or training options the injured worker might engage in to encourage return to work at the end of medical treatment, i.e., attaining their G.E.D., attending English as a second language (E.S.L.) classes, on-the-job training with an employer, or other work related activities. These work related activities or training options may be suggested to the injured worker, as an alternative to light duty during postponement, in the event light duty work is not available.

 

R612-8-7. Administrative Review.

The Request for Administrative Review (Form 207) shall be made available to the injured worker upon request. This form is completed when the employee wishes to contest the information/decision made by the carrier or employer on the Status Report (206) or initial assessment. In the event it is determined through Administrative Review that the employee has a valid dispute, the division may initiate a voluntary alternative dispute resolution conference between all parties involved, i.e., carrier, rehabilitation agency, medical personnel, employer, and employee.

 

R612-8-8. Rehabilitation Progress Report.

A Rehabilitation Progress Report (Form 208A) shall be requested from the Utah State Office of Rehabilitation at each stage of the reemployment process (eligibility determination, reemployment plan development/implementation and case closure) or at any interruption of the process. An Individualized Written Rehabilitation Program (USOR 5 IWRP) shall also be requested when a plan is developed. All other private rehabilitation providers shall submit a Form 206 for any plan progress, postponement, or interruption in the plan.

 

R612-8-9. Reemployment Plan.

A Reemployment Plan (Form 209) shall be provided for injured workers who are identified on the initial assessment as needing reemployment assistance, due to an industrial accident or illness which creates a significant barrier preventing a return to the work force. Significant barriers include, but are not limited to: 1) impairment(s) resulting from the industrial accident(s) or illness which prevent the employee from performing the essential functions of the work activity for which the employee has been qualified until the time of the industrial accident; 2) lack of transferable skills; 3) education/training; and 4) age. The plan shall not be provided for those injured workers who have previously been screened out through Form 206. The report should contain a return-to-work plan outlining employee demographics, functional limitations, type of plan, specific job target or employment category, specific tasks, time frames for completion and costs. Parties responsible for carrying out each task shall be identified (i.e., employee, employer, qualified rehabilitation provider, and insurance carrier). The plan shall be completed by a qualified rehabilitation provider (as defined by Section 34A-8-109) and filed within 30 days of the Initial Assessment.

 

R612-8-10. Reemployment Plan Closure.

Upon completion of the Reemployment Plan, a Reemployment Plan Closure Report (Form 210) shall be submitted to the division. The closure report shall detail costs in dollar amounts. The report shall also contain all the details on the return to work status of the employee.]

R612-8-1. Purpose, Authority and Definitions.

A. These rules guide insurance carriers and employers in complying with reporting and other requirements of the Utah Injured Workers Reemployment Act, Title 34A, Chapter 8a, Utah Code Annotated.

B. The Utah Labor Commission enacts these rules under the authority of section 34A-8a-202 and section 34A-8a-203.

C. Definitions established by section 34A-8a-102, section 34A-8a-203(1) and rule R612-1 apply to this rule. The following definitions also apply to this rule:

1. "Insurance Carrier" includes insurance carriers providing workers' compensation coverage and the Uninsured Employers Fund;

2. "Employer" includes self-insured employers and uninsured employers that are paying an injured workers' claim for benefits.

3. "disabled Injured Worker" means an injured worker who:

a. because of the injury or disease that is the basis fo the employee being an injured worker:

i. is or will be unable to return to work in the injured worker's usual and customary occupation; or

ii. is unable to perform work for which the injured worker has previous training and experience; and

b. reasonably can be expected to attain gainful employment after an evaluation provided for in accordance with the Utah Injured Worker Reemployment Act, Title 34A, Chapter 8a.

 

R612-8-2. Form 206 - Insurer/Employer Initial Reemployment Report for Injured Worker.

A. Pursuant to section 34A-8a-301, a worker who has suffered a work-related injury or disease must be provided an initial written report (Form 206) that assesses the injured worker's need for vocational reemployment assistance. Form 206 is only required in those instances in which:

1. it appears the injured worker is or will be a "disabled injured worker"; or

2. the duration of the injured workers' temporary total disability compensation exceeds 90 days.

B. If the injured worker was covered by workers' compensation insurance at the time of injury or disease or the claim is being paid by the Uninsured employers' Fund (UEF), the insurance carrier or UEF must prepare and submit Form 206. If the injured worker's claim is being paid by a self-insured employer or an uninsured employer, the employer must prepare and submit From 206.

C. Form 206 must be mailed or otherwise delivered to the injured worker and to the Division within 30 days after the insurance carrier or employer knows or should know that the injured worker's circumstances satisfy either of the conditions described in subsection A. (1)of A. (2).

 

R612-8-3. Referral of Disabled Injured Worker for Evaluation; Permission to Waive or Postpone Referral.

A. If Form 206 determinates that an injured worker satisfies the definition of a "disabled injured worker", the insurance carrier or employer shall refer the injured worker to the Utah State Office of Rehabilitation or to a private rehabilitation or reemployment service for evaluation and development of a reemployment plan. This referral must be made within 10 days after the insurance carrier or employer submits From 206 to the Division unless the Division grants a waiver or postponement as provided in the following submstion B of this rule.

B. Section 34A-8a-302(3) authorizes the Labor Commission through the Division of Industrial Accidents to waive or postpone an insurance carrier or employer's referral obligation. An insurance carrier or employer shall make its request by completing and submitting "Form 215 - Insurer/Employer Request to Waive/Postpone Reemployment Referral" to the Division and mailing a copy of the completed form to the injured worker. The Division will consider such requests on a case-by-case basis. The Division will generally grant requests for waiver or postponement for the following reasons, or for other reasons similarly establishing good cause:

1. the injured worker was not medically stable;

2. the injured worker's physical capacity has not been determined; or

3. liability for the injured worker's claim is under review provided, however, that the Division may require the insurance carrier or employer to refer the injured worker for the free services offered by the Utah State Office of Rehabilitation.

 

R612-8-4. Form 239 - Insurer/Employer Quarterly Report on Reemployment Efforts to the Division; Penalties.

A. Beginning with the calendar quarter commencing on July 1, 2009, and continuing for each quarter thereafter, section 34A-8a-203(2) requires insurance carriers and employers (referred to as "reporting entities") to file quarterly reports enumerating their efforts to return injured workers to gainful employment.

B. Reporting entities shall submit their quarterly reports by completing Form 239 - Insurer/Employer Quarterly Report on Reemployment Efforts," and filing the form with the Division no later than 45 days after the end of each calendar quarter.

C. Section 34A-8a-203(4) requires the Commission to impose a civil penalty of up to $500 against a reporting entity that fails to file Form 206. Initial proceedings to assess such penalty are hereby designated as informal adjudicatory proceedings, while all subsequent proceedings with respect to assessment of such penalty are hereby designated as formal proceedings.

 

R612-8-5. Administrative Review.

An injured worker, insurance carrier or employer may submit any dispute arising from the provisions of the Utah Injured Worker Reemployment Act or these rules to the Labor Commission's Adjudication Division for resolution according to the procedures established by the Utah Administrative Procedures Act, Title 63G, Chapter 4, Utah Code Annotated.

 

KEY: reemployment workers' compensation guidelines

Date of Enactment or Last Substantive Amendment: [June 15, 1995]2009

Notice of Continuation: September 30, 2004

Authorizing, and Implemented or Interpreted Law: 34A-1-104; 34A-8-109

 

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