No. 32056 (New Rule): R602-5. Procedures for Resolving Disputes Regarding "Cooperation" and "Diligent Pursuit" Under Subsection34A-2-413(6)(e)(iii) and Subsection 34A-2-413(9) Consistent with Utah Administrative Code Subsection R612-1-10(D)(4)

DAR File No.: 32056
Filed: 10/15/2008, 01:12
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes and clarifies procedures for expedited adjudication of disputes regarding cooperation and diligence with respect to reemployment and rehabilitation under the Workers' Compensation Act's permanent total disability provisions.

Summary of the rule or change:

This rule explains that its provisions are applicable to disputes arising from the parties' efforts to implement rehabilitation and reemployment plans pursuant to the permanent total disability provisions of Section 34A-2-413. The rule encourages the parties to attempt voluntary mediation of their disputes; and defines terms used in the rule and explains the procedures, forms and time requirements for bringing their disputes before the Commission's administrative law judges.

State statutory or constitutional authorization for this rule:

Subsections 34A-1-104(1), 34-A-2-413(6)(e)(iii), and 34A-2-413(9)

Anticipated cost or savings to:

the state budget:

The Commission anticipates no cost or savings to the state budget. This rule applies to a small category of workers' compensation proceedings that deal with implementation of reemployment/rehabilitation plans under the Workers' Compensation Act's provisions for permanent total disability. The rule clarifies existing practice and does not impose any additional obligations on the state, either in its capacity as an employer or with respect to its administration of the workers' compensation system.

local governments:

The Commission anticipates no cost or savings to the local government. This rule applies to a small category of workers' compensation proceedings that deal with implementation of reemployment/rehabilitation plans under the Workers' Compensation Act's provisions for permanent total disability. The rule clarifies existing practice and does not impose any additional obligations on local governments in their capacity as employers.

small businesses and persons other than businesses:

The Commission anticipates no cost or savings to the small businesses. This rule applies to a small category of workers' compensation proceedings that deal with implementation of reemployment/rehabilitation plans under the Workers' Compensation Act's provisions for permanent total disability. The rule clarifies existing practice and do not impose any additional obligations on small businesses in their capacity as employers.

Compliance costs for affected persons:

This rule defines procedures for adjudication of reemployment and rehabilitation disputes. It does not impose additional obligations on the parties beyond what are customarily engaged in such adjudicative proceedings and is not expected to result in any additional compliance costs for affected persons.

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

By providing simple, expedited procedures for resolving the conflicts that can arise from efforts to reemploy or rehabilitate injured workers who would otherwise be permanently and totally disabled, the Commission expects this rule to reduce business litigation costs. While the scope of the anticipated reduction in costs is small due the small number of this type of conflict, the reduction will nevertheless have a corresponding positive fiscal impact on businesses and their insurance companies. 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
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

Direct questions regarding this rule to:

Richard M. 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:

12/01/2008

This rule may become effective on:

12/08/2008

Authorized by:

Sherrie Hayashi, Commissioner

RULE TEXT

R602. Labor Commission, Adjudication.

R602-5. Procedures for Resolving Disputes Regarding "Cooperation" and "Diligent Pursuit" Under Subsection 34A-2-413(6)(e)(iii) and Subsection 34A-2-413(9) Consistent with Utah Administrative Code Subsection R612-1-10(D)(4).

R602-5-1. Purpose, Authority and Scope.

Section 34A-2-413(6)(e)(iii) states an administrative law judge shall make a final decision of permanent total disability based on an employer's failure to diligently pursue an approved reemployment plan. Section 34A-2-413(9) states that an administrative law judge shall dismiss a claim for benefits based on an employee's failure to fully cooperate with an approved reemployment plan. Under authority of section 34A-1-104, the Commission establishes these rules to govern hearings under this section. The provisions of R602-5 pertaining to applications for hearing pursuant to Section 34A-2-413(6)(e)(iii) and Section 34A-2-413(9) supersede the Administrative Rules contained in R602-2, R602-3, and R602-4 as to any actions brought pursuant to Section 34A-2-413(6)(e)(iii) and Section 34A-2-413(9).

 

R602-5-2. Mediation in Section 34A-2-413(6)(e)(iii) Cases.

Prior to filing an application for a final determination of permanent total disability based on an employer's failure to diligently pursue the reemployment plan pursuant to Section 34A-2-413(6)(e)(iii) the parties are encouraged to request assistance from the Mediation Unit of the Commission's Industrial Accidents Division.

 

R602-5-3. Pleadings and Discovery in Section 34A-2-413(6)(e)(iii) Cases.

A. Definitions.

1. "Application for Hearing" means the Application for Hearing for Final Determination of Permanent Total Disability form (Adjudication Form 502), all supporting documents, and proof of service which together constitute the request for agency action for final determination of permanent total disability based on an employer's failure to diligently pursue the reemployment plan pursuant to Section 34A-2-413(6)(e)(iii).

2. "Supporting medical documentation" means any medical report or treatment note completed by a medical provider or physician that references, describes or otherwise sets forth the employee's medical or functional capacities, restrictions and/or abilities.

3. "Supporting documents" means supporting medical documentation, Persons with Knowledge List (Adjudication Form 403), an outline of the specific instances of lack of diligence as required by R612-1-10.D.4. and all documents in any way related to reasons identified for the requested final determination of permanent total disability whether tending to prove or disprove the same.

4. "Proof of Service" means any of the following: 1) the respondent(s)'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 employee and accompanied by a return receipt signed by the respondent(s); or 3) a return of service showing personal service of the Application and all supporting documents on the respondent(s) 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 employer's alleged failure to diligently pursue the reemployment plan pursuant to Section 34A-2-413(6)(e)(iii). The list must specify the full name of the person, a summary of the knowledge possessed by the person, and a statement whether the employee will produce the person as a witness at hearing.

6. "Petitioner" means the petitioner in the original case determining permanent total disability.

7. "Respondent" means the respondent(s) in the original case determining permanent total disability.

B. Application for Hearing.

1. Whenever a final determination of permanent total disability is requested by petitioner pursuant to Section 34A-2-413(6)(e)(iii), the burden rests with the petitioner to initiate agency action by filing a Application for Hearing with the Division.

2. An Application for Hearing is not deemed filed pursuant to Section 34A-2-413(6)(e)(iii) until the petitioner files with the Division a completed Application for Hearing (Adjudication Form 502) together with all supporting documents and proof of service.

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 respondent will also mail to or otherwise serve on the employee a copy of all exhibits the respondent intends to submit at the hearing.

2. Testimony of the 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.

Defaults in proceedings under Section 34A-2-413(6)(e)(iii) and as set forth in R612-1-10.D.4. shall only be ordered at the time of hearing based on nonattendance of a party at the hearing. Motions will only be considered at the time of hearing.

 

R602-5-4. Hearings in Section 34A-2-413(6)(e)(iii) Cases.

A. Scheduling and Notice.

A hearing on an Application for Hearing filed pursuant to Section 34A-2-413(6)(e)(iii) and as set forth in R612-1-10.D.4. will be set within 30 days of the date the Application for Hearing is filed with the Division. The Division will send notice of hearings by regular mail to the addresses of the parties as set forth on the Application. A party must immediately notify the Division of any change or correction 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.

B. Hearings.

Each hearing pursuant to Section 34A-2-413(6)(e)(iii) and as set forth in R612-1-10.D4. 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.

 

R602-5-5. Mediation in Section 34A-2-413(9) Cases.

Prior to filing an application for hearing for dismissal of claim for benefits pursuant to Section 34A-2-413(9) the parties are encouraged to request assistance from the Mediation Unit of the Commission's Industrial Accidents Division.

 

R602-5-6. Pleadings and Discovery in Section 34A-2-413(9) Cases.

A. Definitions.

1. "Application for Hearing" means the Application for Hearing for Termination or Reduction of Compensation form (Adjudication form 602), with all supporting documents and proof of service which together constitute the request for agency action regarding termination or reduction of benefits pursuant to Section 34A-2-413(9).

2. "Supporting medical documentation" means any medical report or treatment note completed by a medical provider or physician that references, describes or otherwise sets forth the employee's medical or functional capacities, restrictions and/or abilities.

3. "Support documents" means supporting medical documentation, Persons with Knowledge List (Adjudication Form 403), an outline of the specific instances of non-cooperation as required by R612-1-10.D.4. and all documents in any way related to reasons identified for the requested termination whether tending to prove or disprove the same and all documents describing the employee's work duties during his or her employment with respondent employer.

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 respondent'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 list of any person who may have knowledge of the events and/or circumstances relating to the reasons for the request to terminate or reduce compensation whether tending to prove or disprove the reason(s) set forth in the Application for Hearing. The Persons with Knowledge list must specify the full name, address and phone number of the person if know, a short statement of the knowledge believed possessed by the person and a statement as to whether or not the respondent will actually produce the person with knowledge as a witness at the evidentiary hearing.

6. "Petitioner" means the petitioner in the original case determining permanent total disability.

7. "Respondent" means the respondent(s) in the original case determining permanent total disability.

B. Application for Hearing.

1. Respondent may request a dismissal of claim for permanent total disability compensation pursuant to Section 34A-2-413(9) by filing an Application with the Commission's Adjudication Division.

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

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 employee will also mail to or otherwise serve on the employer a copy of all exhibits the employee 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.

Defaults shall only be issued at the time of hearing based on nonattendance of a party. Motions will only be considered at the time of hearing.

 

R602-5-7. Hearings in Section 34A-2-413(9) Cases.

A. 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 hearing by regular mail to the addresses of parties as set forth on the Application. A party must immediately notify the Division of any change or correction 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.

B. Hearings.

Each hearing pursuant to Section 34A-2-413(9) 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.

 

R602-5-8. Motions for Review.

Commission review of an administrative law judge's decision is subject to the provisions of section 63G-4-301, section 34A-1-303, and R602-2.1(M).

 

KEY: workers' compensation, administrative procedures, hearings

Date of Enactment or Last Substantive Amendment: 2008

Authorizing, and Implemented or Interpreted Law: 34A-1-104(1) et seq.; 34A-2-413(6)(e)(iii); and 34A-2-413(9)