No. 26930 (Repeal and Reenact): R994-404. Wage Freeze Following Workers' Compensation

DAR File No.: 26930
Filed: 02/02/2004, 01:57
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The unemployment rules are being rewritten to ensure that they comply with current law and practice.

 

Summary of the rule or change:

The current rule does not define how long a person must be off work due to a work -related injury or illness before the provisions take effect. The reenacted rule defines that period to be seven weeks. Other changes were made to bring the rule into compliance with current Department practice and law and stylistic and nonsubstantive changes were made.

 

State statutory or constitutional authorization for this rule:

Section 35A-4-401

 

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made to this rule. These changes reflect current Department practices.

 

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

 

other persons:

There will be no costs or savings to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule but rather defines current Department practice.

 

Compliance costs for affected persons:

There will be no compliance costs to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule apart from defining current Department practice.

 

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

This rule change will have no fiscal impact on any business. There are no compliance costs and the change reflects current law and Department practice.

 

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

Workforce Services
Workforce Information and Payment Services
140 E 300 S
SALT LAKE CITY UT 84111-2333

 

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, 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:

03/19/2004

 

This rule may become effective on:

03/22/2004

 

Authorized by:

Raylene G. Ireland, Executive Director

 

 

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

[R994-404. Wage Freeze Following Workers' Compensation.

R994-404-101. General Definition.

The purpose of this provision is to extend the protection of the unemployment insurance program to individuals who, because of the period of illness or injury that was the result of a work related incident insured by a Workers' Compensation and Occupational Disease Program, may not have qualifying wages in the calendar quarters designated by the statute as the base period. The term "freezing of base period wages" comes from the ability to use employment and earnings from an earlier base period.

 

R994-404-102. Qualifying Elements to Use Wages Outside Normal Base Period.

(1) To be eligible to use wages from calendar quarters that began prior to the normal base period, all of the following elements must exist:

(a) the claimant must have been off work due to a job related illness or injury,

(b) the claimant must have filed for and been determined eligible to receive compensation for the illness or injury under a qualifying Workers' Compensation or Occupational Disease Program of the State of Utah or a Federal Program.

(c) the initial claim for unemployment insurance benefits must have been filed within 90 days after he was released:

(i) by his medical consultant to return to full time work (this does not include release to limited or light duty work), and

(ii) following a continuous period of sickness or injury; and

(d) the unemployment insurance claim must have been filed within 36 months of the week the covered injury or illness occurred.

(2) At the time the claimant is released from the doctor and reports to the Department to file an unemployment insurance claim, the claimant may elect to continue an existing claim or cancel the existing claim. If he cancels the existing claim, he may file a new claim using wages paid during the first four of the last five completed calendar quarters prior to the date of his illness or injury that caused the claimant to leave work and file for worker's compensation. If the claimant elects to continue the existing claim, it cannot later be canceled in favor of the wage freezing provisions even within the 90 days, nor will the wage freeze provisions apply to any subsequent claim. If a prior claim is canceled, no overpayment will be established even if payments have been made.

 

R994-404-103. 90-Day Filing Limitation.

(1) The 90 day time limitation for filing an unemployment insurance claim following an insured illness or injury means 90 calendar days after the claimant was released for full-time work by his doctor, not the end of the period of coverage under workers' compensation. Regardless of the day the claimant contacts the Department to file a claim, the effective date of the eligible claim must be within the 90 days. For example, if the 90th day falls on Wednesday and the claimant files a claim on Thursday, the effective date of the claim would be Sunday of that calendar week and would fall within the 90 day time limitation.

(2) Good Cause for Filing Beyond 90 Days.

Good cause may be established for filing beyond the 90 day period if there is substantial confusion as to the date the individual was released to return to work or the claimant was prevented from filing due to circumstances beyond his control. Returning to work immediately subsequent to receiving a medical release may establish good cause for filing beyond the 90 day period if there is no substantial delay between the time the employment ended and the filing of the claim. A lack of knowledge about the wage freeze provisions due to the claimant's failure to inquire or the employer's failure to provide information does not establish good cause for failure to file within the 90 day period.

 

R994-404-104. The Effective Date of the Claim.

The effective date of the claim for benefits shall be the Sunday of the week in which the claimant makes application for benefits. Although the Act provides for the protection of the benefit year, it does not extend coverage to the weeks that were not filed timely, in accordance with provisions of Subsection 35A-4-403(1)(a).

 

R994-404-105. Base Period Wages.

The claimant has only two options. He can file a claim using wages paid during the first four of the last five completed calendar quarters prior to the week he files a valid claim, or he can use those wages paid during the first four of the last five completed calendar quarters prior to the date of his illness or injury that caused the claimant to leave his work and file for workers' compensation.

 

KEY: unemployment compensation, workers' compensation

October 29, 2001

Notice of Continuation May 23, 2002

35A-4-404]R994-404. Payments Following Workers' Compensation.

R994-404-101. Claimants Who Qualify for an Adjustment to the Base Period.

(1) A claimant who does not have sufficient qualifying wages in the base period because he or she was off work due to a work related illness or injury may qualify for an adjusted base period if all of the following elements are satisfied:

(a) the claimant must have been off work for at least seven weeks during the normal base period due to a work related illness or injury. The weeks need not be consecutive;

(b) the claimant must have received temporary total disability (TTD) compensation for the illness or injury under the worker's compensation or occupational disease laws of this state or under federal law;

(c) the initial claim for unemployment insurance benefits must have been filed no later than 90 calendar days after the claimant was released by his or her health care provider to return to full-time work. This does not include release to limited or light duty work. The effective date of the eligible claim must be within the 90 days regardless of the date on which the claimant contacts the Department to file a claim. For example, if the 90th day falls on Wednesday and the claimant files a claim on Thursday, the effective date of the claim would be Sunday of that calendar week and would fall within the 90 day time limitation;

(d) the initial claim for unemployment insurance benefits must have been filed within 36 months of the week the covered injury or illness occurred.

(3) Wages previously used to establish a benefit year cannot be re-used.

 

R994-404-102. Good Cause for Late Filing.

(1) Good cause for not filing within the 90 day period can be established if:

(a) the claimant contested the release to work date by filing for a hearing with the appropriate administrative agency and there was no substantial delay between the date of the decision of the agency and the filing of the claim;

(b) the delay in filing was due to circumstances beyond the claimant's control;

(c) the claimant delayed filing due to circumstances which were compelling and reasonable; or

(d) the claimant returned to work immediately after receiving a release from his health care provider and there was no substantial delay between the time the employment ended and the filing of the claim.

(2) A lack of knowledge about the wage freeze provisions due to the claimant's failure to inquire or the employer's failure to provide information does not establish good cause for failure to file within the 90 day period.

 

R994-404-103. The Effective Date of the Claim.

The effective date of the claim for benefits shall be the Sunday of the week in which the claimant makes application for benefits. Although the Act provides for the use of an alternate benefit year, it does not extend coverage to the weeks that were not filed timely in accordance with provisions of Subsection 35A-4-403(1)(a).

 

R994-404-104. Adjustment of the Base Period.

The claimant can file a claim using wages paid during the first four of the last five completed calendar quarters immediately preceding the week the claim was filed (normal base period) or the first four of the last five completed calendar quarters prior to the date the claimant left work due to the illness or injury.

 

KEY: unemployment compensation, workers' compensation

2004

Notice of Continuation May 23, 2002

35A-4-404