No. 34732 (Amendment): Section R602-4-4. Pleadings and Discovery

(Amendment)

DAR File No.: 34732
Filed: 04/28/2011 10:29:51 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Under authority granted to the Labor Commission by H.B. 188, enacted by the 2011 General Session of the Utah Legislature, and in conjunction with amendments that are currently pending for Rule R602-1, the proposed amendment establishes procedures for electronic delivery of documents in proceedings before the Commission's Adjudication Division. (DAR NOTE: The proposed amendment to Rule R602-1 is under DAR No. 34728 in this issue, May 15, 2011, of the Bulletin. H.B. 188 is effective as of 05/10/2011.)

Summary of the rule or change:

Section R602-4-4 is amended to allow for submission of electronic documents in Adjudicative Proceedings for Termination of Temporary Total Disability Compensation. There is also a nonsubstantive spelling correction.

State statutory or constitutional authorization for this rule:

• Section 34A-2-410.5
• Subsection 34A-1-104(1) et seq.

Anticipated cost or savings to:

the state budget:

There are no costs to the state budget associated with the proposed rule amendments. However, by allowing the Adjudication Division to deliver adjudicative documents electronically instead of by mail, the Division will marginally reduce its postage and paper costs, thereby resulting in some minor savings to the state budget.

local governments:

No costs to local government are associated with the proposed rule amendments. However, by allowing local governments participating in proceedings before the Adjudication Division to deliver adjudicative documents electronically instead of by mail, local governments will marginally reduce postage and paper costs, thereby resulting in some minor savings.

small businesses:

No costs to small businesses are associated with the proposed rule amendments. However, by allowing small businesses to deliver adjudicative documents electronically instead of by mail, small businesses will marginally reduce postage and paper costs, thereby resulting in some minor savings.

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

Other persons participating in proceedings before the Adjudication Division will experience the same minor savings as small businesses from electronic delivery of documents.

Compliance costs for affected persons:

In view of the wide availability and acceptance of electronic means for sending and receiving documents, the Commission does not expect the proposed rule to result in any compliance costs for affected persons.

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

While the Commission expects participants in its adjudicative proceedings to experience some cost savings as a result of electronic document delivery, the Commission views convenience, speed and efficiency as the more significant benefits to be realized from these proposed amendments.

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
Adjudication
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Richard Lajeunesse at the above address, by phone at 801-536-7928, by FAX at 801-530-6333, 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:

06/15/2011

This rule may become effective on:

06/22/2011

Authorized by:

Sherrie Hayashi, Commissioner

RULE TEXT

R602. Labor Commission, Adjudication.

R602-4. Procedures for Termination of Temporary Total Disability Compensation Pursuant to Reemployment Under Section 34A-2-410.5.

R602-4-4. Pleadings and Discovery.

A. Definitions.

1. "Application" means an Application for Hearing for Termination or Reduction of Compensation (Adjudication Form 402), all supporting documents, proof of service and Notice of Request for Termination or Reduction of Compensation (Adjudication Form 404) which together constitute the request for agency action regarding termination or reduction of benefits pursuant to Section 34A-2-410.5.

2. "Supporting medical documentation" means any medical provider's report or treatment note that addresses the employee's medical condition or functional restrictions.

3. "Supporting documents" means supporting medical documentation. Persons with Knowledge List (Adjudication Form 403), any documents related to reasons for the requested termination or reduction, and any documents describing the employee's work duties.

4. "Proof of Service" means any of the following: 1) the employee's signed and dated acceptance of service of the Application and all supporting documents; 2) a certificate of service of the Application and all supporting documents signed by the employer or insurer's counsel and accompanied by a return receipt signed by the employee; or 3) a return of service showing personal service of the Application and all supporting documents on the employee according to Utah Rule of Civil Procedure 4(d)(1).

5. "persons with Knowledge List" (Adjudication Form 403) means a party's list of all persons who have material knowledge regarding the reasons for the request to terminate or reduce compensation. The list must specify the full name of the person, a summary of the knowledge possessed by the person, and a statement whether the party will produce the person as a witness at hearing.

6. "Notice of Request for Termination or Reduction of Compensation" means Adjudication Form 404.

7. "Petitioner" means the employer who has filed an Application for Hearing.

8. "Respondent" means the employee against whom the Application for Hearing was filed.

B. Application for Hearing.

1. An employer may request Commission approval to terminate or reduce an employee's temporary disability compensation under section 34A-2-410.5 by filing an Application with the Commission' Adjudication Division.

2. An Application is not deemed filed with the Division until the employer submits a completed Application with all required documentation.

C. Discovery.

1. At least 15 days prior to a hearing on an Application, each party shall mail or otherwise serve on the opposing party a list of all witnesses that party will produce at the hearing. Because it is presumed that the employee will appear at the hearing, the employee is not required to list himself or herself on the list. The employer will also mail to or otherwise serve on the employee a copy of all exhibits the employer intends to submit at the hearing.

2. Testimony of witnesses and exhibits not disclosed as required by this Rule shall not be admitted into evidence at the hearing. A party's failure to subpoena or otherwise produce an individual previously identified by that party as an intended witness may give rise to an inference that the individual's testimony would have been adverse to the party failing to produce the witness.

3. Other than disclosures required by this rule and voluntary exchanges of information, the parties may not engage in any other discovery procedures.

4. Subpoenas may be used only to compel attendance of witnesses at hearing, and not for obtaining documents or compelling attendance at depositions. All subpoenas shall be signed by an administrative law judge.

D. Defaults and Motions.

1. Defaults in proceedings under Section 34A-2-410.5 shall only be issued at the time of hearing based on nonattendance of a party at the hearing.

2. Motions will only be considered at the time of hearing.

E. Hearings.

1. Scheduling and Notice.

A hearing will be held within 30 days after an Application is filed with the Commission's Adjudication Division. The Division will send notice of hearings [by regular mail] to the addresses of the employer and employee set forth on the Application. A party must immediately notify the Division of any change or correction [fo]of the addresses listed on the Application. The Division will also mail notice to the address of any party's attorney as disclosed on the Application or by an Appearance of counsel filed with the Division. Notice by the Division to a party's attorney is considered notice to the party itself.

2. Hearings.

Each hearing pursuant to section 34A-2-410.5 shall be conducted by an administrative law judge as a formal evidentiary hearing. The evidentiary record shall be deemed closed at the conclusion of the hearing, and no additional evidence will be accepted thereafter. After hearing, the administrative law judge shall issue a decision within 45 days from the date the Application was filed.

F. Motions for Review.

Commission review of an administrative law judge's decision is subject to the provisions of section 63G-4-301, section 34A-1-1-303, and R602-2-1(M).

 

KEY: workers' compensation, administrative procedures, hearings, settlements

Date of Enactment or Last Substantive Amendment: [November 25, 2008]2011

Authorizing, and Implemented or Interpreted Law: 34A-1-104(1) et seq.; 34A-2-410.5

 

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