State Codes and Statutes

Statutes > Utah > Title-34a > Chapter-02 > 34a-2-413

34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
(1) (a) In the case of a permanent total disability resulting from an industrial accident oroccupational disease, the employee shall receive compensation as outlined in this section.
(b) To establish entitlement to permanent total disability compensation, the employeemust prove by a preponderance of evidence that:
(i) the employee sustained a significant impairment or combination of impairments as aresult of the industrial accident or occupational disease that gives rise to the permanent totaldisability entitlement;
(ii) the employee is permanently totally disabled; and
(iii) the industrial accident or occupational disease is the direct cause of the employee'spermanent total disability.
(c) To establish that an employee is permanently totally disabled the employee mustprove by a preponderance of the evidence that:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or combination of impairments that limit theemployee's ability to do basic work activities;
(iii) the industrial or occupationally caused impairment or combination of impairmentsprevent the employee from performing the essential functions of the work activities for which theemployee has been qualified until the time of the industrial accident or occupational disease thatis the basis for the employee's permanent total disability claim; and
(iv) the employee cannot perform other work reasonably available, taking intoconsideration the employee's:
(A) age;
(B) education;
(C) past work experience;
(D) medical capacity; and
(E) residual functional capacity.
(d) Evidence of an employee's entitlement to disability benefits other than those providedunder this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:
(i) may be presented to the commission;
(ii) is not binding; and
(iii) creates no presumption of an entitlement under this chapter and Chapter 3, UtahOccupational Disease Act.
(e) In determining under Subsections (1)(b) and (c) whether an employee cannot performother work reasonably available, the following may not be considered:
(i) whether the employee is incarcerated in a facility operated by or contracting with afederal, state, county, or municipal government to house a criminal offender in either a secure ornonsecure setting; or
(ii) whether the employee is not legally eligible to be employed because of a reasonunrelated to the impairment or combination of impairments.
(2) For permanent total disability compensation during the initial 312-week entitlement,compensation is 66-2/3% of the employee's average weekly wage at the time of the injury,limited as follows:
(a) compensation per week may not be more than 85% of the state average weekly wageat the time of the injury;

(b) (i) subject to Subsection (2)(b)(ii), compensation per week may not be less than thesum of $45 per week and:
(A) $5 for a dependent spouse; and
(B) $5 for each dependent child under the age of 18 years, up to a maximum of fourdependent minor children; and
(ii) the amount calculated under Subsection (2)(b)(i) may not exceed:
(A) the maximum established in Subsection (2)(a); or
(B) the average weekly wage of the employee at the time of the injury; and
(c) after the initial 312 weeks, the minimum weekly compensation rate under Subsection(2)(b) is 36% of the current state average weekly wage, rounded to the nearest dollar.
(3) This Subsection (3) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or before June 30, 1994.
(a) The employer or its insurance carrier is liable for the initial 312 weeks of permanenttotal disability compensation except as outlined in Section 34A-2-703 as in effect on the date ofinjury.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The Employers' Reinsurance Fund shall for an overpayment of compensationdescribed in Subsection (3)(b), reimburse the overpayment:
(i) to the employer or its insurance carrier; and
(ii) out of the Employers' Reinsurance Fund's liability to the employee.
(d) After an employee receives compensation from the employee's employer, itsinsurance carrier, or the Employers' Reinsurance Fund for any combination of disabilitiesamounting to 312 weeks of compensation at the applicable permanent total disabilitycompensation rate, the Employers' Reinsurance Fund shall pay all remaining permanent totaldisability compensation.
(e) Employers' Reinsurance Fund payments shall commence immediately after theemployer or its insurance carrier satisfies its liability under this Subsection (3) or Section34A-2-703.
(4) This Subsection (4) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or after July 1, 1994.
(a) The employer or its insurance carrier is liable for permanent total disabilitycompensation.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The employer or its insurance carrier may recoup the overpayment of compensationdescribed in Subsection (4) by reasonably offsetting the overpayment against future liability paidbefore or after the initial 312 weeks.
(5) (a) A finding by the commission of permanent total disability is not final, unless

otherwise agreed to by the parties, until:
(i) an administrative law judge reviews a summary of reemployment activitiesundertaken pursuant to Chapter 8a, Utah Injured Worker Reemployment Act;
(ii) the employer or its insurance carrier submits to the administrative law judge:
(A) a reemployment plan as prepared by a qualified rehabilitation provider reasonablydesigned to return the employee to gainful employment; or
(B) notice that the employer or its insurance carrier will not submit a plan; and
(iii) the administrative law judge, after notice to the parties, holds a hearing, unlessotherwise stipulated, to:
(A) consider evidence regarding rehabilitation; and
(B) review any reemployment plan submitted by the employer or its insurance carrierunder Subsection (5)(a)(ii).
(b) Before commencing the procedure required by Subsection (5)(a), the administrativelaw judge shall order:
(i) the initiation of permanent total disability compensation payments to provide for theemployee's subsistence; and
(ii) the payment of any undisputed disability or medical benefits due the employee.
(c) Notwithstanding Subsection (5)(a), an order for payment of benefits described inSubsection (5)(b) is considered a final order for purposes of Section 34A-2-212.
(d) The employer or its insurance carrier shall be given credit for any disability paymentsmade under Subsection (5)(b) against its ultimate disability compensation liability under thischapter or Chapter 3, Utah Occupational Disease Act.
(e) An employer or its insurance carrier may not be ordered to submit a reemploymentplan. If the employer or its insurance carrier voluntarily submits a plan, the plan is subject toSubsections (5)(e)(i) through (iii).
(i) The plan may include, but not require an employee to pay for:
(A) retraining;
(B) education;
(C) medical and disability compensation benefits;
(D) job placement services; or
(E) incentives calculated to facilitate reemployment.
(ii) The plan shall include payment of reasonable disability compensation to provide forthe employee's subsistence during the rehabilitation process.
(iii) The employer or its insurance carrier shall diligently pursue the reemployment plan. The employer's or insurance carrier's failure to diligently pursue the reemployment plan is causefor the administrative law judge on the administrative law judge's own motion to make a finaldecision of permanent total disability.
(f) If a preponderance of the evidence shows that successful rehabilitation is not possible,the administrative law judge shall order that the employee be paid weekly permanent totaldisability compensation benefits.
(g) If a preponderance of the evidence shows that pursuant to a reemployment plan, asprepared by a qualified rehabilitation provider and presented under Subsection (5)(e), anemployee could immediately or without unreasonable delay return to work but for the following,an administrative law judge shall order that the employee be denied the payment of weeklypermanent total disability compensation benefits:

(i) incarceration in a facility operated by or contracting with a federal, state, county, ormunicipal government to house a criminal offender in either a secure or nonsecure setting; or
(ii) not being legally eligible to be employed because of a reason unrelated to theimpairment or combination of impairments.
(6) (a) The period of benefits commences on the date the employee became permanentlytotally disabled, as determined by a final order of the commission based on the facts andevidence, and ends:
(i) with the death of the employee; or
(ii) when the employee is capable of returning to regular, steady work.
(b) An employer or its insurance carrier may provide or locate for a permanently totallydisabled employee reasonable, medically appropriate, part-time work in a job earning at leastminimum wage, except that the employee may not be required to accept the work to the extentthat it would disqualify the employee from Social Security disability benefits.
(c) An employee shall:
(i) fully cooperate in the placement and employment process; and
(ii) accept the reasonable, medically appropriate, part-time work.
(d) In a consecutive four-week period when an employee's gross income from the workprovided under Subsection (6)(b) exceeds $500, the employer or insurance carrier may reduce theemployee's permanent total disability compensation by 50% of the employee's income in excessof $500.
(e) If a work opportunity is not provided by the employer or its insurance carrier, apermanently totally disabled employee may obtain medically appropriate, part-time work subjectto the offset provisions of Subsection (6)(d).
(f) (i) The commission shall establish rules regarding the part-time work and offset.
(ii) The adjudication of disputes arising under this Subsection (6) is governed by Part 8,Adjudication.
(g) The employer or its insurance carrier has the burden of proof to show that medicallyappropriate part-time work is available.
(h) The administrative law judge may:
(i) excuse an employee from participation in any work:
(A) that would require the employee to undertake work exceeding the employee's:
(I) medical capacity; or
(II) residual functional capacity; or
(B) for good cause; or
(ii) allow the employer or its insurance carrier to reduce permanent total disabilitybenefits as provided in Subsection (6)(d) when reasonable, medically appropriate, part-time workis offered, but the employee fails to fully cooperate.
(7) When an employee is rehabilitated or the employee's rehabilitation is possible but theemployee has some loss of bodily function, the award shall be for permanent partial disability.
(8) As determined by an administrative law judge, an employee is not entitled todisability compensation, unless the employee fully cooperates with any evaluation orreemployment plan under this chapter or Chapter 3, Utah Occupational Disease Act. Theadministrative law judge shall dismiss without prejudice the claim for benefits of an employee ifthe administrative law judge finds that the employee fails to fully cooperate, unless theadministrative law judge states specific findings on the record justifying dismissal with prejudice.

(9) (a) The loss or permanent and complete loss of the use of the following constitutestotal and permanent disability that is compensated according to this section:
(i) both hands;
(ii) both arms;
(iii) both feet;
(iv) both legs;
(v) both eyes; or
(vi) any combination of two body members described in this Subsection (9)(a).
(b) A finding of permanent total disability pursuant to Subsection (9)(a) is final.
(10) (a) An insurer or self-insured employer may periodically reexamine a permanenttotal disability claim, except those based on Subsection (9), for which the insurer or self-insuredemployer had or has payment responsibility to determine whether the employee remainspermanently totally disabled.
(b) Reexamination may be conducted no more than once every three years after an awardis final, unless good cause is shown by the employer or its insurance carrier to allow morefrequent reexaminations.
(c) The reexamination may include:
(i) the review of medical records;
(ii) employee submission to one or more reasonable medical evaluations;
(iii) employee submission to one or more reasonable rehabilitation evaluations andretraining efforts;
(iv) employee disclosure of Federal Income Tax Returns;
(v) employee certification of compliance with Section 34A-2-110; and
(vi) employee completion of one or more sworn affidavits or questionnaires approved bythe division.
(d) The insurer or self-insured employer shall pay for the cost of a reexamination withappropriate employee reimbursement pursuant to rule for reasonable travel allowance and perdiem as well as reasonable expert witness fees incurred by the employee in supporting theemployee's claim for permanent total disability benefits at the time of reexamination.
(e) If an employee fails to fully cooperate in the reasonable reexamination of a permanenttotal disability finding, an administrative law judge may order the suspension of the employee'spermanent total disability benefits until the employee cooperates with the reexamination.
(f) (i) If the reexamination of a permanent total disability finding reveals evidence thatreasonably raises the issue of an employee's continued entitlement to permanent total disabilitycompensation benefits, an insurer or self-insured employer may petition the Division ofAdjudication for a rehearing on that issue. The insurer or self-insured employer shall includewith the petition, documentation supporting the insurer's or self-insured employer's belief that theemployee is no longer permanently totally disabled.
(ii) If the petition under Subsection (10)(f)(i) demonstrates good cause, as determined bythe Division of Adjudication, an administrative law judge shall adjudicate the issue at a hearing.
(iii) Evidence of an employee's participation in medically appropriate, part-time workmay not be the sole basis for termination of an employee's permanent total disability entitlement,but the evidence of the employee's participation in medically appropriate, part-time work underSubsection (6) may be considered in the reexamination or hearing with other evidence relating tothe employee's status and condition.

(g) In accordance with Section 34A-1-309, the administrative law judge may awardreasonable attorney fees to an attorney retained by an employee to represent the employee'sinterests with respect to reexamination of the permanent total disability finding, except if theemployee does not prevail, the attorney fees shall be set at $1,000. The attorney fees awardedshall be paid by the employer or its insurance carrier in addition to the permanent total disabilitycompensation benefits due.
(h) During the period of reexamination or adjudication, if the employee fully cooperates,each insurer, self-insured employer, or the Employers' Reinsurance Fund shall continue to paythe permanent total disability compensation benefits due the employee.
(11) If any provision of this section, or the application of any provision to any person orcircumstance, is held invalid, the remainder of this section is given effect without the invalidprovision or application.

Amended by Chapter 59, 2010 General Session

State Codes and Statutes

Statutes > Utah > Title-34a > Chapter-02 > 34a-2-413

34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
(1) (a) In the case of a permanent total disability resulting from an industrial accident oroccupational disease, the employee shall receive compensation as outlined in this section.
(b) To establish entitlement to permanent total disability compensation, the employeemust prove by a preponderance of evidence that:
(i) the employee sustained a significant impairment or combination of impairments as aresult of the industrial accident or occupational disease that gives rise to the permanent totaldisability entitlement;
(ii) the employee is permanently totally disabled; and
(iii) the industrial accident or occupational disease is the direct cause of the employee'spermanent total disability.
(c) To establish that an employee is permanently totally disabled the employee mustprove by a preponderance of the evidence that:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or combination of impairments that limit theemployee's ability to do basic work activities;
(iii) the industrial or occupationally caused impairment or combination of impairmentsprevent the employee from performing the essential functions of the work activities for which theemployee has been qualified until the time of the industrial accident or occupational disease thatis the basis for the employee's permanent total disability claim; and
(iv) the employee cannot perform other work reasonably available, taking intoconsideration the employee's:
(A) age;
(B) education;
(C) past work experience;
(D) medical capacity; and
(E) residual functional capacity.
(d) Evidence of an employee's entitlement to disability benefits other than those providedunder this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:
(i) may be presented to the commission;
(ii) is not binding; and
(iii) creates no presumption of an entitlement under this chapter and Chapter 3, UtahOccupational Disease Act.
(e) In determining under Subsections (1)(b) and (c) whether an employee cannot performother work reasonably available, the following may not be considered:
(i) whether the employee is incarcerated in a facility operated by or contracting with afederal, state, county, or municipal government to house a criminal offender in either a secure ornonsecure setting; or
(ii) whether the employee is not legally eligible to be employed because of a reasonunrelated to the impairment or combination of impairments.
(2) For permanent total disability compensation during the initial 312-week entitlement,compensation is 66-2/3% of the employee's average weekly wage at the time of the injury,limited as follows:
(a) compensation per week may not be more than 85% of the state average weekly wageat the time of the injury;

(b) (i) subject to Subsection (2)(b)(ii), compensation per week may not be less than thesum of $45 per week and:
(A) $5 for a dependent spouse; and
(B) $5 for each dependent child under the age of 18 years, up to a maximum of fourdependent minor children; and
(ii) the amount calculated under Subsection (2)(b)(i) may not exceed:
(A) the maximum established in Subsection (2)(a); or
(B) the average weekly wage of the employee at the time of the injury; and
(c) after the initial 312 weeks, the minimum weekly compensation rate under Subsection(2)(b) is 36% of the current state average weekly wage, rounded to the nearest dollar.
(3) This Subsection (3) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or before June 30, 1994.
(a) The employer or its insurance carrier is liable for the initial 312 weeks of permanenttotal disability compensation except as outlined in Section 34A-2-703 as in effect on the date ofinjury.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The Employers' Reinsurance Fund shall for an overpayment of compensationdescribed in Subsection (3)(b), reimburse the overpayment:
(i) to the employer or its insurance carrier; and
(ii) out of the Employers' Reinsurance Fund's liability to the employee.
(d) After an employee receives compensation from the employee's employer, itsinsurance carrier, or the Employers' Reinsurance Fund for any combination of disabilitiesamounting to 312 weeks of compensation at the applicable permanent total disabilitycompensation rate, the Employers' Reinsurance Fund shall pay all remaining permanent totaldisability compensation.
(e) Employers' Reinsurance Fund payments shall commence immediately after theemployer or its insurance carrier satisfies its liability under this Subsection (3) or Section34A-2-703.
(4) This Subsection (4) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or after July 1, 1994.
(a) The employer or its insurance carrier is liable for permanent total disabilitycompensation.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The employer or its insurance carrier may recoup the overpayment of compensationdescribed in Subsection (4) by reasonably offsetting the overpayment against future liability paidbefore or after the initial 312 weeks.
(5) (a) A finding by the commission of permanent total disability is not final, unless

otherwise agreed to by the parties, until:
(i) an administrative law judge reviews a summary of reemployment activitiesundertaken pursuant to Chapter 8a, Utah Injured Worker Reemployment Act;
(ii) the employer or its insurance carrier submits to the administrative law judge:
(A) a reemployment plan as prepared by a qualified rehabilitation provider reasonablydesigned to return the employee to gainful employment; or
(B) notice that the employer or its insurance carrier will not submit a plan; and
(iii) the administrative law judge, after notice to the parties, holds a hearing, unlessotherwise stipulated, to:
(A) consider evidence regarding rehabilitation; and
(B) review any reemployment plan submitted by the employer or its insurance carrierunder Subsection (5)(a)(ii).
(b) Before commencing the procedure required by Subsection (5)(a), the administrativelaw judge shall order:
(i) the initiation of permanent total disability compensation payments to provide for theemployee's subsistence; and
(ii) the payment of any undisputed disability or medical benefits due the employee.
(c) Notwithstanding Subsection (5)(a), an order for payment of benefits described inSubsection (5)(b) is considered a final order for purposes of Section 34A-2-212.
(d) The employer or its insurance carrier shall be given credit for any disability paymentsmade under Subsection (5)(b) against its ultimate disability compensation liability under thischapter or Chapter 3, Utah Occupational Disease Act.
(e) An employer or its insurance carrier may not be ordered to submit a reemploymentplan. If the employer or its insurance carrier voluntarily submits a plan, the plan is subject toSubsections (5)(e)(i) through (iii).
(i) The plan may include, but not require an employee to pay for:
(A) retraining;
(B) education;
(C) medical and disability compensation benefits;
(D) job placement services; or
(E) incentives calculated to facilitate reemployment.
(ii) The plan shall include payment of reasonable disability compensation to provide forthe employee's subsistence during the rehabilitation process.
(iii) The employer or its insurance carrier shall diligently pursue the reemployment plan. The employer's or insurance carrier's failure to diligently pursue the reemployment plan is causefor the administrative law judge on the administrative law judge's own motion to make a finaldecision of permanent total disability.
(f) If a preponderance of the evidence shows that successful rehabilitation is not possible,the administrative law judge shall order that the employee be paid weekly permanent totaldisability compensation benefits.
(g) If a preponderance of the evidence shows that pursuant to a reemployment plan, asprepared by a qualified rehabilitation provider and presented under Subsection (5)(e), anemployee could immediately or without unreasonable delay return to work but for the following,an administrative law judge shall order that the employee be denied the payment of weeklypermanent total disability compensation benefits:

(i) incarceration in a facility operated by or contracting with a federal, state, county, ormunicipal government to house a criminal offender in either a secure or nonsecure setting; or
(ii) not being legally eligible to be employed because of a reason unrelated to theimpairment or combination of impairments.
(6) (a) The period of benefits commences on the date the employee became permanentlytotally disabled, as determined by a final order of the commission based on the facts andevidence, and ends:
(i) with the death of the employee; or
(ii) when the employee is capable of returning to regular, steady work.
(b) An employer or its insurance carrier may provide or locate for a permanently totallydisabled employee reasonable, medically appropriate, part-time work in a job earning at leastminimum wage, except that the employee may not be required to accept the work to the extentthat it would disqualify the employee from Social Security disability benefits.
(c) An employee shall:
(i) fully cooperate in the placement and employment process; and
(ii) accept the reasonable, medically appropriate, part-time work.
(d) In a consecutive four-week period when an employee's gross income from the workprovided under Subsection (6)(b) exceeds $500, the employer or insurance carrier may reduce theemployee's permanent total disability compensation by 50% of the employee's income in excessof $500.
(e) If a work opportunity is not provided by the employer or its insurance carrier, apermanently totally disabled employee may obtain medically appropriate, part-time work subjectto the offset provisions of Subsection (6)(d).
(f) (i) The commission shall establish rules regarding the part-time work and offset.
(ii) The adjudication of disputes arising under this Subsection (6) is governed by Part 8,Adjudication.
(g) The employer or its insurance carrier has the burden of proof to show that medicallyappropriate part-time work is available.
(h) The administrative law judge may:
(i) excuse an employee from participation in any work:
(A) that would require the employee to undertake work exceeding the employee's:
(I) medical capacity; or
(II) residual functional capacity; or
(B) for good cause; or
(ii) allow the employer or its insurance carrier to reduce permanent total disabilitybenefits as provided in Subsection (6)(d) when reasonable, medically appropriate, part-time workis offered, but the employee fails to fully cooperate.
(7) When an employee is rehabilitated or the employee's rehabilitation is possible but theemployee has some loss of bodily function, the award shall be for permanent partial disability.
(8) As determined by an administrative law judge, an employee is not entitled todisability compensation, unless the employee fully cooperates with any evaluation orreemployment plan under this chapter or Chapter 3, Utah Occupational Disease Act. Theadministrative law judge shall dismiss without prejudice the claim for benefits of an employee ifthe administrative law judge finds that the employee fails to fully cooperate, unless theadministrative law judge states specific findings on the record justifying dismissal with prejudice.

(9) (a) The loss or permanent and complete loss of the use of the following constitutestotal and permanent disability that is compensated according to this section:
(i) both hands;
(ii) both arms;
(iii) both feet;
(iv) both legs;
(v) both eyes; or
(vi) any combination of two body members described in this Subsection (9)(a).
(b) A finding of permanent total disability pursuant to Subsection (9)(a) is final.
(10) (a) An insurer or self-insured employer may periodically reexamine a permanenttotal disability claim, except those based on Subsection (9), for which the insurer or self-insuredemployer had or has payment responsibility to determine whether the employee remainspermanently totally disabled.
(b) Reexamination may be conducted no more than once every three years after an awardis final, unless good cause is shown by the employer or its insurance carrier to allow morefrequent reexaminations.
(c) The reexamination may include:
(i) the review of medical records;
(ii) employee submission to one or more reasonable medical evaluations;
(iii) employee submission to one or more reasonable rehabilitation evaluations andretraining efforts;
(iv) employee disclosure of Federal Income Tax Returns;
(v) employee certification of compliance with Section 34A-2-110; and
(vi) employee completion of one or more sworn affidavits or questionnaires approved bythe division.
(d) The insurer or self-insured employer shall pay for the cost of a reexamination withappropriate employee reimbursement pursuant to rule for reasonable travel allowance and perdiem as well as reasonable expert witness fees incurred by the employee in supporting theemployee's claim for permanent total disability benefits at the time of reexamination.
(e) If an employee fails to fully cooperate in the reasonable reexamination of a permanenttotal disability finding, an administrative law judge may order the suspension of the employee'spermanent total disability benefits until the employee cooperates with the reexamination.
(f) (i) If the reexamination of a permanent total disability finding reveals evidence thatreasonably raises the issue of an employee's continued entitlement to permanent total disabilitycompensation benefits, an insurer or self-insured employer may petition the Division ofAdjudication for a rehearing on that issue. The insurer or self-insured employer shall includewith the petition, documentation supporting the insurer's or self-insured employer's belief that theemployee is no longer permanently totally disabled.
(ii) If the petition under Subsection (10)(f)(i) demonstrates good cause, as determined bythe Division of Adjudication, an administrative law judge shall adjudicate the issue at a hearing.
(iii) Evidence of an employee's participation in medically appropriate, part-time workmay not be the sole basis for termination of an employee's permanent total disability entitlement,but the evidence of the employee's participation in medically appropriate, part-time work underSubsection (6) may be considered in the reexamination or hearing with other evidence relating tothe employee's status and condition.

(g) In accordance with Section 34A-1-309, the administrative law judge may awardreasonable attorney fees to an attorney retained by an employee to represent the employee'sinterests with respect to reexamination of the permanent total disability finding, except if theemployee does not prevail, the attorney fees shall be set at $1,000. The attorney fees awardedshall be paid by the employer or its insurance carrier in addition to the permanent total disabilitycompensation benefits due.
(h) During the period of reexamination or adjudication, if the employee fully cooperates,each insurer, self-insured employer, or the Employers' Reinsurance Fund shall continue to paythe permanent total disability compensation benefits due the employee.
(11) If any provision of this section, or the application of any provision to any person orcircumstance, is held invalid, the remainder of this section is given effect without the invalidprovision or application.

Amended by Chapter 59, 2010 General Session


State Codes and Statutes


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State Codes and Statutes

Statutes > Utah > Title-34a > Chapter-02 > 34a-2-413

34A-2-413. Permanent total disability -- Amount of payments -- Rehabilitation.
(1) (a) In the case of a permanent total disability resulting from an industrial accident oroccupational disease, the employee shall receive compensation as outlined in this section.
(b) To establish entitlement to permanent total disability compensation, the employeemust prove by a preponderance of evidence that:
(i) the employee sustained a significant impairment or combination of impairments as aresult of the industrial accident or occupational disease that gives rise to the permanent totaldisability entitlement;
(ii) the employee is permanently totally disabled; and
(iii) the industrial accident or occupational disease is the direct cause of the employee'spermanent total disability.
(c) To establish that an employee is permanently totally disabled the employee mustprove by a preponderance of the evidence that:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or combination of impairments that limit theemployee's ability to do basic work activities;
(iii) the industrial or occupationally caused impairment or combination of impairmentsprevent the employee from performing the essential functions of the work activities for which theemployee has been qualified until the time of the industrial accident or occupational disease thatis the basis for the employee's permanent total disability claim; and
(iv) the employee cannot perform other work reasonably available, taking intoconsideration the employee's:
(A) age;
(B) education;
(C) past work experience;
(D) medical capacity; and
(E) residual functional capacity.
(d) Evidence of an employee's entitlement to disability benefits other than those providedunder this chapter and Chapter 3, Utah Occupational Disease Act, if relevant:
(i) may be presented to the commission;
(ii) is not binding; and
(iii) creates no presumption of an entitlement under this chapter and Chapter 3, UtahOccupational Disease Act.
(e) In determining under Subsections (1)(b) and (c) whether an employee cannot performother work reasonably available, the following may not be considered:
(i) whether the employee is incarcerated in a facility operated by or contracting with afederal, state, county, or municipal government to house a criminal offender in either a secure ornonsecure setting; or
(ii) whether the employee is not legally eligible to be employed because of a reasonunrelated to the impairment or combination of impairments.
(2) For permanent total disability compensation during the initial 312-week entitlement,compensation is 66-2/3% of the employee's average weekly wage at the time of the injury,limited as follows:
(a) compensation per week may not be more than 85% of the state average weekly wageat the time of the injury;

(b) (i) subject to Subsection (2)(b)(ii), compensation per week may not be less than thesum of $45 per week and:
(A) $5 for a dependent spouse; and
(B) $5 for each dependent child under the age of 18 years, up to a maximum of fourdependent minor children; and
(ii) the amount calculated under Subsection (2)(b)(i) may not exceed:
(A) the maximum established in Subsection (2)(a); or
(B) the average weekly wage of the employee at the time of the injury; and
(c) after the initial 312 weeks, the minimum weekly compensation rate under Subsection(2)(b) is 36% of the current state average weekly wage, rounded to the nearest dollar.
(3) This Subsection (3) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or before June 30, 1994.
(a) The employer or its insurance carrier is liable for the initial 312 weeks of permanenttotal disability compensation except as outlined in Section 34A-2-703 as in effect on the date ofinjury.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The Employers' Reinsurance Fund shall for an overpayment of compensationdescribed in Subsection (3)(b), reimburse the overpayment:
(i) to the employer or its insurance carrier; and
(ii) out of the Employers' Reinsurance Fund's liability to the employee.
(d) After an employee receives compensation from the employee's employer, itsinsurance carrier, or the Employers' Reinsurance Fund for any combination of disabilitiesamounting to 312 weeks of compensation at the applicable permanent total disabilitycompensation rate, the Employers' Reinsurance Fund shall pay all remaining permanent totaldisability compensation.
(e) Employers' Reinsurance Fund payments shall commence immediately after theemployer or its insurance carrier satisfies its liability under this Subsection (3) or Section34A-2-703.
(4) This Subsection (4) applies to claims resulting from an accident or disease arising outof and in the course of the employee's employment on or after July 1, 1994.
(a) The employer or its insurance carrier is liable for permanent total disabilitycompensation.
(b) The employer or its insurance carrier may not be required to pay compensation forany combination of disabilities of any kind, as provided in this section and Sections 34A-2-410through 34A-2-412 and Part 5, Industrial Noise, in excess of the amount of compensationpayable over the initial 312 weeks at the applicable permanent total disability compensation rateunder Subsection (2).
(c) The employer or its insurance carrier may recoup the overpayment of compensationdescribed in Subsection (4) by reasonably offsetting the overpayment against future liability paidbefore or after the initial 312 weeks.
(5) (a) A finding by the commission of permanent total disability is not final, unless

otherwise agreed to by the parties, until:
(i) an administrative law judge reviews a summary of reemployment activitiesundertaken pursuant to Chapter 8a, Utah Injured Worker Reemployment Act;
(ii) the employer or its insurance carrier submits to the administrative law judge:
(A) a reemployment plan as prepared by a qualified rehabilitation provider reasonablydesigned to return the employee to gainful employment; or
(B) notice that the employer or its insurance carrier will not submit a plan; and
(iii) the administrative law judge, after notice to the parties, holds a hearing, unlessotherwise stipulated, to:
(A) consider evidence regarding rehabilitation; and
(B) review any reemployment plan submitted by the employer or its insurance carrierunder Subsection (5)(a)(ii).
(b) Before commencing the procedure required by Subsection (5)(a), the administrativelaw judge shall order:
(i) the initiation of permanent total disability compensation payments to provide for theemployee's subsistence; and
(ii) the payment of any undisputed disability or medical benefits due the employee.
(c) Notwithstanding Subsection (5)(a), an order for payment of benefits described inSubsection (5)(b) is considered a final order for purposes of Section 34A-2-212.
(d) The employer or its insurance carrier shall be given credit for any disability paymentsmade under Subsection (5)(b) against its ultimate disability compensation liability under thischapter or Chapter 3, Utah Occupational Disease Act.
(e) An employer or its insurance carrier may not be ordered to submit a reemploymentplan. If the employer or its insurance carrier voluntarily submits a plan, the plan is subject toSubsections (5)(e)(i) through (iii).
(i) The plan may include, but not require an employee to pay for:
(A) retraining;
(B) education;
(C) medical and disability compensation benefits;
(D) job placement services; or
(E) incentives calculated to facilitate reemployment.
(ii) The plan shall include payment of reasonable disability compensation to provide forthe employee's subsistence during the rehabilitation process.
(iii) The employer or its insurance carrier shall diligently pursue the reemployment plan. The employer's or insurance carrier's failure to diligently pursue the reemployment plan is causefor the administrative law judge on the administrative law judge's own motion to make a finaldecision of permanent total disability.
(f) If a preponderance of the evidence shows that successful rehabilitation is not possible,the administrative law judge shall order that the employee be paid weekly permanent totaldisability compensation benefits.
(g) If a preponderance of the evidence shows that pursuant to a reemployment plan, asprepared by a qualified rehabilitation provider and presented under Subsection (5)(e), anemployee could immediately or without unreasonable delay return to work but for the following,an administrative law judge shall order that the employee be denied the payment of weeklypermanent total disability compensation benefits:

(i) incarceration in a facility operated by or contracting with a federal, state, county, ormunicipal government to house a criminal offender in either a secure or nonsecure setting; or
(ii) not being legally eligible to be employed because of a reason unrelated to theimpairment or combination of impairments.
(6) (a) The period of benefits commences on the date the employee became permanentlytotally disabled, as determined by a final order of the commission based on the facts andevidence, and ends:
(i) with the death of the employee; or
(ii) when the employee is capable of returning to regular, steady work.
(b) An employer or its insurance carrier may provide or locate for a permanently totallydisabled employee reasonable, medically appropriate, part-time work in a job earning at leastminimum wage, except that the employee may not be required to accept the work to the extentthat it would disqualify the employee from Social Security disability benefits.
(c) An employee shall:
(i) fully cooperate in the placement and employment process; and
(ii) accept the reasonable, medically appropriate, part-time work.
(d) In a consecutive four-week period when an employee's gross income from the workprovided under Subsection (6)(b) exceeds $500, the employer or insurance carrier may reduce theemployee's permanent total disability compensation by 50% of the employee's income in excessof $500.
(e) If a work opportunity is not provided by the employer or its insurance carrier, apermanently totally disabled employee may obtain medically appropriate, part-time work subjectto the offset provisions of Subsection (6)(d).
(f) (i) The commission shall establish rules regarding the part-time work and offset.
(ii) The adjudication of disputes arising under this Subsection (6) is governed by Part 8,Adjudication.
(g) The employer or its insurance carrier has the burden of proof to show that medicallyappropriate part-time work is available.
(h) The administrative law judge may:
(i) excuse an employee from participation in any work:
(A) that would require the employee to undertake work exceeding the employee's:
(I) medical capacity; or
(II) residual functional capacity; or
(B) for good cause; or
(ii) allow the employer or its insurance carrier to reduce permanent total disabilitybenefits as provided in Subsection (6)(d) when reasonable, medically appropriate, part-time workis offered, but the employee fails to fully cooperate.
(7) When an employee is rehabilitated or the employee's rehabilitation is possible but theemployee has some loss of bodily function, the award shall be for permanent partial disability.
(8) As determined by an administrative law judge, an employee is not entitled todisability compensation, unless the employee fully cooperates with any evaluation orreemployment plan under this chapter or Chapter 3, Utah Occupational Disease Act. Theadministrative law judge shall dismiss without prejudice the claim for benefits of an employee ifthe administrative law judge finds that the employee fails to fully cooperate, unless theadministrative law judge states specific findings on the record justifying dismissal with prejudice.

(9) (a) The loss or permanent and complete loss of the use of the following constitutestotal and permanent disability that is compensated according to this section:
(i) both hands;
(ii) both arms;
(iii) both feet;
(iv) both legs;
(v) both eyes; or
(vi) any combination of two body members described in this Subsection (9)(a).
(b) A finding of permanent total disability pursuant to Subsection (9)(a) is final.
(10) (a) An insurer or self-insured employer may periodically reexamine a permanenttotal disability claim, except those based on Subsection (9), for which the insurer or self-insuredemployer had or has payment responsibility to determine whether the employee remainspermanently totally disabled.
(b) Reexamination may be conducted no more than once every three years after an awardis final, unless good cause is shown by the employer or its insurance carrier to allow morefrequent reexaminations.
(c) The reexamination may include:
(i) the review of medical records;
(ii) employee submission to one or more reasonable medical evaluations;
(iii) employee submission to one or more reasonable rehabilitation evaluations andretraining efforts;
(iv) employee disclosure of Federal Income Tax Returns;
(v) employee certification of compliance with Section 34A-2-110; and
(vi) employee completion of one or more sworn affidavits or questionnaires approved bythe division.
(d) The insurer or self-insured employer shall pay for the cost of a reexamination withappropriate employee reimbursement pursuant to rule for reasonable travel allowance and perdiem as well as reasonable expert witness fees incurred by the employee in supporting theemployee's claim for permanent total disability benefits at the time of reexamination.
(e) If an employee fails to fully cooperate in the reasonable reexamination of a permanenttotal disability finding, an administrative law judge may order the suspension of the employee'spermanent total disability benefits until the employee cooperates with the reexamination.
(f) (i) If the reexamination of a permanent total disability finding reveals evidence thatreasonably raises the issue of an employee's continued entitlement to permanent total disabilitycompensation benefits, an insurer or self-insured employer may petition the Division ofAdjudication for a rehearing on that issue. The insurer or self-insured employer shall includewith the petition, documentation supporting the insurer's or self-insured employer's belief that theemployee is no longer permanently totally disabled.
(ii) If the petition under Subsection (10)(f)(i) demonstrates good cause, as determined bythe Division of Adjudication, an administrative law judge shall adjudicate the issue at a hearing.
(iii) Evidence of an employee's participation in medically appropriate, part-time workmay not be the sole basis for termination of an employee's permanent total disability entitlement,but the evidence of the employee's participation in medically appropriate, part-time work underSubsection (6) may be considered in the reexamination or hearing with other evidence relating tothe employee's status and condition.

(g) In accordance with Section 34A-1-309, the administrative law judge may awardreasonable attorney fees to an attorney retained by an employee to represent the employee'sinterests with respect to reexamination of the permanent total disability finding, except if theemployee does not prevail, the attorney fees shall be set at $1,000. The attorney fees awardedshall be paid by the employer or its insurance carrier in addition to the permanent total disabilitycompensation benefits due.
(h) During the period of reexamination or adjudication, if the employee fully cooperates,each insurer, self-insured employer, or the Employers' Reinsurance Fund shall continue to paythe permanent total disability compensation benefits due the employee.
(11) If any provision of this section, or the application of any provision to any person orcircumstance, is held invalid, the remainder of this section is given effect without the invalidprovision or application.

Amended by Chapter 59, 2010 General Session


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