DEFINITIONS

Employer

Utah’s Workers’ Compensation Act defines an employer as each person, including each public utility and each independent contractor, who regularly employs one or more workers in or about the same establishment, under any contract of hire, express or implied, oral or written. This definition also includes all government agencies, partnerships, profit and non-profit companies, and municipal corporations. Utah Code Ann. § 34A-2-103. Agricultural employers are included, but they are exempt from providing worker’s compensation benefits if their employees are immediate family members, or, in the case of non-immediate family employees, if they are paid less than $8,000 annually as a group. § 34A-2-103(5); Peterson Hunting v. Labor Comm'n, 2012 UT App 14, 269 P.3d 998. Domestic servants may be excepted employees if they work less than forty hours per week, but an employer may bring them within the provisions of Utah Code section 34A-2-103 if the employer:
(1) secures and keeps insurance;
(2) files notice of insurance together with a copy of the policy with the Industrial Commission; and
(3) posts typewritten or printed notices on or about the premises showing that he has complied with the law. Murray v. Strike, 76 Utah 118, 287 P. 922 (1930); § 34A-2-103(6).

Statutory Employer

Although the phrase “statutory employer” does not appear in the Utah Worker’s Compensation Act, Utah Courts have used this phrase to describe the statutory mandate that “if an employer procures any work to be done wholly or in part for the employer by a contractor over whose work the employer retains supervision or control, and this work is a part or process in the trade or business of the employer, the contractor, all persons employed by the contractor, all subcontractors under the contractor, and all persons employed by any of these subcontractors, are considered employees of the original employer” and that employer is considered a statutory employer. Utah Code Ann. § 34A-2-103(7)(a)(ii); Pinnacle Homes, Inc. v. Labor Comm'n, 2007 UT App 368, ¶ 23 (Utah Ct. App. 2007). In other words, the critical question in determining whether an employer is a statutory employer is whether that employer exercises control or supervision over the employee, and those terms only require “that the general contractor retain ultimate control over the project.” Bennett v. Industrial Comm'n, 726 P.2d 427, 432 (Utah 1986).

The statutory employer mandate is a “legislatively created scheme by which conceded nonemployees are deliberately brought within the coverage of the Workers' Compensation Act.” English v. Kienke, 848 P.2d 153, 158 (Utah 1993). The policy underlying this encompassing mandate is “to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has it within his power, in choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation protection for their workers.” Bennett, 726 P.2d at 432. In the Pinnacle case, a roofer who was an employee of a subcontractor was injured after he fell off a roof. See Utah Code Ann. § 34A-2-103(7)(a)(ii); 2007 UT App 368, ¶ 23. The injured roofer sought workers’ compensation, but neither the subcontractor or general contractor had procured proper workers’ compensation insurance. See id. In holding both parties liable for the employee’s injuries, the Utah Court of Appeals noted that the general contractor retained control over the work being performed by the roofing subcontractor and its employee who was injured. See id. The general contractor was found to be a “statutory employer” and was responsible for the injured employee’s workers’ compensation award.

Employee

An “employee” under Utah’s Worker’s Compensation Act is any person in the service of any employer under any contract of hire, and who operates regularly in the same business as the employer. Utah Code Ann. § 34A-2-104. This includes any person who works for a governmental agency and also includes aliens and minors. It does not include any person “whose employment is casual and not in the usual course of the… business… of the employer.” For example, a painter was employed by a cleaning and dyeing establishment to paint smokestack on its place of business. Capitol Cleaners & Dyers, Inc. v. Industrial Comm'n, 85 Utah 295, 39 P.2d 681 (1935). Because he used tools of the cleaning establishment, was paid an hourly rate, and was subject to the supervision of the cleaning establishment, his employment was not casual. See id.

Independent Contractor

An independent contractor is any person engaged in the performance of any work for another who is independent as it pertains to the execution of the work, is not subject to the control of the other, and is answerable only for a bargained result. Utah Code Ann. § 34A-2-103(2)(b)(i). Independent contractors will be precluded from recovery if the evidence establishes an absence of control on the part of the employer over the independent contractor. Sommerville v. Industrial Comm'n, 113 Utah 504, 196 P.2d 718 (1948). For example, an insurance salesman was properly found by the industrial commission to have been an independent contractor, and not an employee, when killed as a result of a collision while en route in his car for the purpose of soliciting insurance. Christean v. Industrial Comm'n, 113 Utah 451, 196 P.2d 502 (1948). The contract between the salesman and the insurance company provided that the relationship between them should be that of an independent contractor, and the only control that the company could exercise consisted in limiting the salesman's right to bind the company contractually and the right to control the results of his work, and did not extend to directing how the work should be done.; see also § 34A-2-104(5)(c).

EXCLUSIVE REMEDY

General Rule

The Utah Worker’s Compensation Act is the exclusive remedy available to employees who sustain work-related injuries, illnesses, or diseases. Utah Code Ann. § 34A-2-105. Specifically, the Act states:

“The right to recover compensation pursuant to this chapter for injuries sustained by an employee, whether resulting in death or not, is the exclusive remedy against the employer and is the exclusive remedy against any officer, agent, or employee of the employer and the liabilities of the employer imposed by this chapter is in place of any and all other civil liability whatsoever, at common law or otherwise, to the employee or to the employee's spouse, widow, children, parents, dependents, next of kin, heirs, personal representatives, guardian, or any other person whomsoever, on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee's employment, and an action at law may not be maintained against an employer or against any officer, agent, or employee of the employer based upon any accident, injury, or death of an employee.”

Id. The Workers' Compensation Act was enacted “to assure the injured employee and his family an income during the period of his total disability as well as compensation for any resulting permanent disability, to eliminate the expense, delay, and uncertainty of the employee having to prove the employer's negligence, and to place the burden of industrial injuries on industry.” Merrill v. Utah Labor Comm'n, 2009 UT 26, ¶ 24 (Utah 2009). Essentially, “Utah adopted workers' compensation as a tort liability reform measure.” Other states have used similar reasoning. See Golden v. Westark Cmty. Coll., 333 Ark. 41, 969 S.W.2d 154, 158 (Ark. 1998) (explaining “workers' compensation benefits are a substitute for access to the courts for redress for torts and are not a welfare benefit for wage loss” and “[w]orkers' compensation benefits are paid from insurance provided by employers in exchange for the employee's forbearance from suing the employer in tort”)(internal quotation marks and citations omitted); West Virginia v. Richardson, 198 W. Va. 545, 482 S.E.2d 162, 166 (W. Va. 1996) (“Permanent total disability awarded under workers' compensation is part of a comprehensive plan designed to rectify the results of an injury in the workplace. The payments to the claimants and other benefits are in lieu of such elements of damage in the common law tort system as lost wages, lost earning capacity, reimbursement of past and future medical expenses, past and present pain and suffering, emotional distress, and other factors.”).

Limited Exceptions

Beyond the two exceptions discussed below, Utah Courts have consistently rejected efforts to circumvent the exclusive remedy section of Utah’s Worker’s Compensation Act. Under this section, “when the injury is caused by the negligent act of the employer, no willful misconduct being claimed, the injured employee, or when the injury causes death his dependents, must be content to accept the compensation provided by the act.” Halling v. Industrial Comm'n, 71 Utah 112, 263 P. 78 (1927); see also Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 191 P.2d 612, appeal dismissed, 335 U.S. 866 (1948) (“This section abrogates the employee's common-law right to sue the employer for injuries suffered while in course of employment, except where the employer is not subject to this act or if the common-law remedy of the employee is expressly reserved”). The only exceptions to the exclusivity of the Utah Workers' Compensation Act are (1) an injury caused by a willful or intentional tortious act of an employer or fellow employee, or (2) an employer failing to comply with the state employer insurance requirements. Horvath v. Savage Mfg., Inc., 18 F. Supp. 2d 1296 (D. Utah 1998).

If the injury is caused by the willful or intentional act of another, regardless of whether it is the employer, agent, or employee, the injured employee can maintain a separate action against that party. Utah Code Ann. § 34A-2-301(1). The “policy of [Utah] law has always been to allow one injured through the intentional act of another, to seek redress from the one intending harm.” Bryan v. Utah Int'l, 533 P.2d 892, 894 (Utah 1975). The Utah Supreme Court has reasoned that “it would serve no social purpose to allow an employee to intentionally injure another employee engaged in the same employment, then use an otherwise socially beneficial, remedial, statute [such as workers’ compensation] as a shield for such wrongdoing.” Id. However, the intent or mens rea necessary for an action based on the intentional actions of another party must run to the injury itself rather than just to the action that caused the injury. See Lantz v. National Semiconductor Corp., 775 P.2d 937 (Utah Ct. App. 1989). “[T]he intentional injury exception only applie[s] in situations characterized by 'a conscious and deliberate intent directed to the purpose of inflicting injury. ’” Helf v. Chevron U.S.A., Inc., 2009 UT 11, ¶ 23 (Utah 2009).

Injuries Caused Intentionally or by Third Parties

If an injury or death for which compensation is payable under the Act, is caused by the act of a person other than the employer, then the injured employee may claim compensation from the employer as well as maintain an action against the third party person who caused the injury or death. Utah Code Ann. § 34A-2-106. Before an action is commenced against a third person to recover for the injuries to or death of an employee, notice of the action must first be provided to the state insurance fund or other party obligated to make the worker’s compensation payments to the employee. § 34A-2-106(3); see also Robinson v. Industrial Comm'n, 72 Utah 203, 269 P. 513 (1928). Additionally, if any recovery is obtained against a third party, it must be disbursed first by paying the reasonable expenses of the action, including attorney fees, proportionally against the parties as their interests may appear. Esquivel v. Labor Comm'n, 2000 Utah 47 (2000). Next, the person liable for compensation payments is reimbursed, minus the proportionate share of costs and attorney fees. Id. Lastly, the balance is paid to the injured employee, or the employee’s heirs in the case of death. Hamilton v. Commission of Fin., 108 Utah 574, 162 P.2d 758 (1945).

Co-employees are not deemed to be third parties under the Act. Claims against co-employees are still barred due to the plain language of the Act, which specifically states that an employee can maintain a third party action if the person who caused the injury is not “an employer, officer, agent, or employee of the employer.” Utah Code Ann. § 34A-2-105(1) (emphasis added). If the party responsible for the injury is an agent or employee of the employer, then a third party action is barred against that agent or employee. Stamper v. Johnson, 2010 UT 26, P12 (Utah 2010).

Void Agreements

An agreement by an employee to waive that employee’s right to compensation under Utah’s Worker’s Compensation Act is invalid. Utah Code Ann. § 34A-2-108. This limitation on the right to contractually allocate risk has been upheld as constitutional. Barber Asphalt Corp. v. Industrial Comm'n, 103 Utah 371, 135 P.2d 266 (1943). However, there is nothing in this section that either expressly or impliedly restricts the right of an employer and employee to make settlements. Accordingly, an employer and employee's dependents may settle for an employee's death after an award by the commission since such settlement does not amount to a waiver. Brigham Young Univ. v. Industrial Comm'n, 74 Utah 349, 352 (Utah 1929).

SECURING WORKERS’ COMPENSATION BENEFITS FOR EMPLOYEES

Employers to Secure Benefits

An employer must secure workers’ compensation benefits for its employees in one of three ways:
(1)insure the employee through the Workers’ Compensation Fund,
(2) insure the employee through any stock corporation or mutual association that is authorized to offer workers’ compensation benefits in Utah, or
(3) obtain approval to pay direct compensation as a self-insured employer. Utah Code Ann. § 34A-2-201. Utah imposes an unconditional obligation on employers to be properly insured. An employer's good-faith effort to obtain insurance was found to be irrelevant where his insurance agent absconded with the employer's premium and failed to arrange for a policy. Thomas A. Paulsen Co. v. Industrial Comm'n, 770 P.2d 125 (Utah 1989). Unless an employer is properly self-insured pursuant to the Act, an employer cannot pay a benefit directly to the employee and may be subject to penalty for such a violation of the Act. Utah Code Ann. § 34A-2-201(3). If an employer fails to secure the benefits under Utah Code section 34A-2-201, the employer is deemed liable in a civil action for any damages suffered by an employee due to a personal injury arising out of or in the course of employment, and the employee is entitled to necessary costs and attorney fees. Utah Code Ann. § 34A-2-207.

Notice to Employees

Every employer that provides workers’ compensation insurance must post printed notices that the employer has complied with the requirements of the Utah’s Workers’ Compensation Act and is authorized to compensate the employees or their dependents. Utah Code Ann. § 34A-2-204. The purpose of requiring these notices to be posted is to inform all potential employees that payment of compensation to which they may become entitled is secured as provided in the Act. Industrial Comm'n v. Daly Mining Co., 51 Utah 602, 172 P. 301 (1918). Oral notice to an employee is not sufficient notice. Murray v. Strike, 76 Utah 118, 287 P. 922 (1930).

Notice to Division

Any insurance carrier that issues workers’ compensation insurance for Utah, regardless of the state in which it is written, must notify the Division of Industrial Accidents (the “Division”) within 30 days after the inception date of the policy. Utah Code Ann. § 34A-2-205. Noncompliance with this section can also carry significant penalties, including a revocation of an insurance carrier’s certificate of authority. Id.

In addition to the information that an insurance carrier must provide to the Division, each employer must also file an annual July statement containing the following:
(1)       The number of persons employed during the preceding year;
(2)       The number of persons employed at each kind of employment;
(3)       The scale of wages paid in each class of employment, showing the minimum and maximum wages paid; and
(4)       The aggregate amount of wages paid to all employees.

Utah Code Ann. § 34A-2-206(1)(b). Additionally, the Division may require the information be given under oath. § 34A-2-206(3). Utah Courts have pointed out that the legislative history for this section suggests that the word "employer" refers only to those employers whose employees are regularly employed. United Airlines Transp. Corp. v. Industrial Comm'n, 110 Utah 590, 175 P.2d 752 (1946).

PROTECTION OF LIFE, HEALTH, AND SAFETY

Places of employment

An employer has a duty to make sure the place of employment is safe and to provide safety devices and safeguards to protect its employees. Utah Code Ann. § 34A-2-301. The United States District Courts for the District of Utah found that aggravation of an employee's asthma, allegedly caused by the employer's failure to comply with OSHA standards by not providing a fresh air pump, is the kind of injury that the workers' compensation act was intended to protect. Horvath v. Savage Mfg., Inc., 18 F. Supp. 2d 1296 (D. Utah 1998).

Willful Violation

An employee’s compensation under Utah’s Workers’ Compensation Act can be increased by 15% if the employer is found to have willfully failed to provide a safe workplace, or to have willfully violated any portion of the Act. Utah Code Ann. § 34A-2-301. Willful, as used in this section, implies something in addition to mere negligence. Park Utah Mining Co. v. Industrial Comm'n, 62 Utah 421, 220 P. 389 (1923). This award is separate and distinct from the ability of an employee to maintain an independent action against an employer, agent, or employee for an injury as a result of an intentional action. See Helf v. Chevron U.S.A., Inc., 2009 UT 11, ¶ 23 (Utah 2009).

Similarly, an employee’s compensation under Utah’s Worker’s Compensation Act can be reduced by 15% when injury is caused by the willful failure of the employee to use safety devices provided, or failure to obey any safety rule. Utah Code Ann. § 34A-2-302(3). However, an employee's removal of safety goggles because they had fogged and had therefore made it unsafe for him to perform his task was not deemed to be a willful failure to use a safety device. Van Waters & Rogers v. Workman, 700 P.2d 1096 (Utah 1985).

Unless permitted by the employer, an employee cannot receive compensation for any injury for which substance abuse was a major contributing factor, including having a blood alcohol concentration of .08 or greater. § 34A-2-302(3)(b). Any reduction in compensation because of substance abuse applies to any and all compensation for an industrial accident including permanent disability benefits, except where injury results in death. Lopez v. Kaiser Steel Corp., 660 P.2d 250 (Utah 1983). Also, an employee can rebut a presumption under this section for compensation if that employee can provide evidence that he/she was not impaired by the substance at the time of the accident, or that the effect of the controlled substance was not the major contributing cause of the injury. § 34A-2-302(4)(b); see Barron v. Labor Comm'n, 2012 UT App 80, 274 P.3d 1016.

COMPENSATION AND BENEFITS

Jurisdiction

If an employee who has been hired or is regularly employed in Utah is injured in an accident arising out of and in the course of such employment outside of Utah, that employee, or his/her dependents in case of death, are entitled to compensation. Utah Code Ann. § 34A-2-405; Allen v. Industrial Comm'n, 110 Utah 328, 335 (Utah 1946); Shaw v. Layton Constr. Co., 872 P.2d 1059 (Utah Ct. App. 1994). However, such compensation only applies to injuries received by the employee within six months after leaving Utah. Utah Code Ann. § 34A-2-405(2). This time limit applies regardless of whether the employer is insured under the laws of another state. Pickering v. Industrial Comm'n, 59 Utah 35, 201 P. 1029 (1921).

Additionally, if the original employment contract is entered into outside of Utah, and the accident occurs outside of Utah, as long as the employer-employee relationship is maintained in Utah, then the Commission has jurisdiction to make an award. Fay v. Industrial Comm'n, 100 Utah 542, 114 P.2d 508 (1941).

However, an employee hired in another state is not entitled to compensation under Utah’s Workers’ Compensation Act if that employee’s employer has provided workers’ compensation insurance under the law of that other state and such insurance covers the employee while in Utah, and such other state recognizes the extraterritorial provisions of Utah’s Workers’ Compensation Act. Utah Code Ann. § 34A-2-406(1). For example, an airline stewardess who was employed by a California corporation by a contract entered into in California was barred from recovery under Utah’s Workers’ Compensation Act. United Air Lines Transp. Corp. v. Industrial Comm'n, 110 Utah 590, 175 P.2d 752 (1946).

Compensation for Industrial Accidents

If an employee is injured or killed arising out of the course of the employee’s employment, the employee, or the employee’s dependents, are entitled to receive compensation for the loss the employee sustained, which also includes medical or funeral expenses. Utah Code Ann. § 34A-2-401. Utah Courts have held that the words "arising out of" as used in this section refer to the origin or cause of injury, whereas the words "in the course of" refer to time, place and circumstances under which it occurred. Utah Apex Mining Co. v. Industrial Comm'n, 67 Utah 537, 248 P. 490 (1926). For example, an employee is deemed not to be within the course of his employment if he furnishes his own transportation and is injured while going to or from the place where he is employed. Barney v. Industrial Comm'n, 29 Utah 2d 179, 506 P.2d 1271 (1973).

When an employee interrupts or breaks the continuity of his employment for his own purposes, whether for recreation or pleasure, and an accident happens before he brings himself back into the line of his employment, the resulting injury is not compensable because it does not arise out of or in the course of his employment. Sullivan v. Industrial Comm'n, 79 Utah 317, 10 P.2d 924 (1932). The burden to prove that the injury arose out of or was sustained in the course of the employee’s employment rests with the employee or the employee’s dependents. Higley v. Industrial Comm'n, 75 Utah 361, 285 P. 306 (1930); D.H. Peery Estate v. Industrial Comm'n, 79 Utah 8, 7 P.2d 269 (1932). Additionally an employee with a preexisting condition must show that the employment contributed something substantial to increase the risk the employee already faced in everyday life due to the condition. Sisco Hilte v. Industrial Comm'n, 766 P.2d 1089 (Utah Ct. App. 1988).

Mental or emotional injuries are also compensable if there is sufficient legal and medical causation to prove that it arose out of the course of employment. Utah Code Ann. § 34A-2-402. Legal causation consists of “extraordinary mental stress from a sudden stimulus arising predominantly and directly from employment,” while medical causation consists of “physical, mental, or emotional injury caused by the mental stress.” § 34A-2-402(2). Additionally, any mental stress claims arising from alleged discrimination are not compensable if they are otherwise actionable at law. § 34A-2-402(5). Although Utah Courts have not had an opportunity to consider this section of Utah’s Workers’ Compensation Act, it has been discussed in several secondary sources. See e.g., 84 A.L.R.5th 249; 97 A.L.R.5th 1.

Dependents

Dependents are entitled to compensation under Utah Workers’ Compensation Act if the qualifying injury resulted in the death of the employee. Utah Code Ann. § 34A-2-401(1). The following are presumed to be dependent under the Act:
(1) a child under 18 years old as long as that child is the employee’s child, or the employee is legally responsible to support the child and the child lives with the employee;
(2) a child over 18 years old subject to the same requirements as a child under 18 years old, but that also must be physically or mentally incapacitated;
(3) a surviving spouse that the deceased employee lived with at the time of death. Utah Code Ann. § 34A-2-403(1).

To determine dependency, a fact finder must determine whether contributions made by a deceased employee to his or her dependents were necessary and needed in order to maintain a certain standard of living to which those dependents had grown accustomed. Hancock v. Industrial Comm'n, 58 Utah 192, 198 P. 169 (1921). In making this determination, the fact finder “should consider acts covering at least a period of one year prior to the decedent’s death, in order that all evidence bearing on dependency can be viewed in terms of its effect over and in relation to a significant period of time.” Tuom v. Duane Hall Trucking, 675 P.2d 1200, 1203 (Utah 1984).

Reporting of Accident

If an employee sustains an injury in the course of employment, that employee, or his next of kin or attorney, must notify his employer of the injury “promptly.” Utah Code Ann. § 34A-2-407(2). An employee is barred for any claim of benefits arising from an injury if the employee fails to notify either the employee’s employer or the Division of Industrial Accidents within 180 days. Utah Code Ann. § 34A-2-407(3). Additionally, the employee must submit a report of the accident to the Division of Industrial Accidents even if that employee is not claiming benefits. Id. Accident reporting requirements are designed to give the employer an opportunity to make an early investigation of the circumstances surrounding the alleged accident and to assure the employer the opportunity of giving prompt and proper medical aid where it is deemed necessary. Salt Lake City v. Industrial Comm'n, 104 Utah 436, 140 P.2d 644 (Utah 1943). However, there is authority for the proposition that an untimely notice of an accident does not ipso facto defeat a claim. In one case, the Utah Courts held that a delay in giving notice of an injury did not require a reduction in the compensation due to the employee because there was no intention to mislead or prejudice the employer, and the employer was not, in fact, prejudiced by the delay. Interstate Elec. Co. v. Industrial Comm'n, 591 P.2d 436 (Utah 1979). On the other hand, in another case the failure of an employee to report an accident to the employee’s employer within one year barred his claim for benefits. R.W. Frank & Co. v. Industrial Comm'n, 27 Utah 2d 301, 495 P.2d 821 (1972).

Computation of Weekly Wage

Under Utah Code Ann. § 34A-2-409, if an injured employee is entitled to compensation, that employee’s weekly compensation rate is determined as follows:
(a)       if at the time of the injury the wages are fixed by the year, the average weekly wage shall be that yearly wage divided by 52;
(b)       if at the time of the injury the wages are fixed by the month, the average weekly wage shall be that monthly wage divided by 4 1/3;
(c)       if at the time of the injury the wages are fixed by the week, that amount shall be the average weekly wage;
(d)       if at the time of the injury the wages are fixed by the day, the weekly wage shall be determined by multiplying the daily wage by the greater of:
a.       the number of days and fraction of days in the week during which the employee under a contract of hire was working at the time of the accident, or would have worked if the accident had not intervened; or
b.       three days;
(e)       if at the time of the injury the wages are fixed by the hour, the average weekly wage shall be determined by multiplying the hourly rate by the greater of:
a. the number of hours the employee would have worked for the week if the accident had not intervened; or
b. 20 hours;
(f)       if at the time of the injury the hourly wage has not been fixed or cannot be ascertained, the average weekly wage for the purpose of calculating compensation shall be the usual wage for similar services where those services are rendered by paid employees

Additionally, an employee’s weekly wage compensation can be increased if it is established that the employee’s wages were expected to increase. Utah Code Ann. § 34A-2-409(4). When determining average weekly wage, all sources of income are included. Produce v. Industrial Comm'n, 657 P.2d 1354 (Utah 1983). In the case of temporary disability, the average weekly wage is reduced to 66-2/3% of the employee’s average weekly wage, and the maximum period for which an employee can receive temporary disability is 312 weeks. Utah Code Ann. § 34A-2-410.

Loss of Use

An employee who sustains a permanent impairment of a specific body part as a result of an industrial accident may receive a permanent partial disability award. Utah Code Ann. § 34A-2-412(1). The amount of available compensation is set forth in a schedule in Section 34A-2-412(4). Additionally, if an employee receives temporary total disability compensation commencing with the date of his injury and later is paid permanent total disability benefits prior to his return to work, then that employee is not entitled to maximum compensation for both temporary total and permanent partial disability but only to permanent partial disability benefits. Johnson v. Harsco/Heckett, 737 P.2d 986 (Utah 1987).

Permanent Total Disability

If the injury results in a permanent total disability then the employee must show the following to receive compensation:

       (i) the employee is not gainfully employed;

       (ii) the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities;

       (iii) the industrial or occupationally caused impairment or combination of impairments prevent the employee from performing the essential functions of the work activities for which the employee has been qualified until the time of the industrial accident or occupational disease that is the basis for the employee's permanent total disability claim; and

       (iv) the employee cannot perform other work reasonably available, taking into consideration the employee's age, education, past work experience, mental capacity, and residual functional capacity. Utah Code Ann. § 34A-2-413(c).

Whether an employee is totally disabled or permanently disabled is a question of fact to be decided by the Industrial Commission, upon all of the evidence in the case. Kerans v. Industrial Comm'n, 713 P.2d 49 (Utah 1985). In a proceeding before the Industrial Commission, once an employee presents evidence that can no longer perform his normal duties as a result of a work related accident, and that he cannot be rehabilitated, the burden shifts to the employer to prove that suitable, steady work is available, considering the age, mental capacity, and education of the employee, in order to preclude a determination of total and permanent disability. Marshall v. Industrial Comm'n, 681 P.2d 208, 212 (Utah 1984).

Benefits in case of death

In the case of death of an employee, any benefits are paid to the employee’s dependents by dividing the amount of benefits among the dependents equally. Utah Code Ann. § 34A-2-414(1). However, another apportionment could be determined by the Commission if it determines that it will best serve the interests, needs, and welfare of the dependents. Sizemore v. Industrial Comm'n, 4 Utah 2d 126, 288 P.2d 788 (1955). Any award must bear a proper relationship to the legal or moral obligations the deceased employee had to the dependents in question. Id. In the absence of a showing that an award was so capricious, arbitrary, or unreasonable as amounts to a failure to exercise discretion in the matter, the allocation is deemed reasonable. Id. Where the award is to minor children, a surviving spouse or guardian can apply for benefits on behalf of the minor children. Utah Code Ann. § 34A-2-414. Additionally, this section provides that the award shall be paid to one of the dependents for benefit of all dependents. Utah Code Ann. § 34A-2-414.

Effect of Death, Marriage, or Majority

If a dependent is awarded a benefit under Utah’s Workers’ Compensation Act, then that award ends when a minor child dies, marries, becomes 18 years old, or is no longer dependent. Utah Code Ann. § 34A-2-415. In the case of a spouse, the award ends when the spouse dies, divorces the employee, or remarries. For example, after an employee's widow remarried within a year of receiving an award, the commission's decision to allow her two children to collect compensation for support beyond their eighteenth birthdays without any showing of dependency was found to be erroneous. Trail Mt. Coal Co. v. Kenner, 737 P.2d 992 (Utah 1987).

Special Circumstances for Additional Benefits

A dependent may continue to receive benefits even after termination of benefits would normally ensue if that person is still in a dependent condition and “under all reasonable circumstances the wholly dependent person should be entitled to additional benefits.” Utah Code Ann. § 34A-2-416. The extension of benefits permitted under this section is wholly discretionary. Hales v. Industrial Comm'n, 854 P.2d 537 (Utah Ct. App. 1993). Any benefits awarded under this section are paid by the Employer’s Reinsurance Fund, rather than the employer. Utah Code Ann. § 34A-2-416.

Time Limits for Filing

For any disability claim, an employee must submit an application for hearing with the Division of Adjudication within 6 years from the date of the accident. Utah Code Ann. § 34A-2-417(2)(a)(i). An employee has 12 years from the date of the accident to meet his/her burden of proving that compensation is due under Utah’s Workers’ Compensation Act. Utah Code Ann. § 34A-2-417(2)(a)(ii). All injured workers are subject to the same limitations period within which to file a claim for compensation, and limiting the compensation claim period for employees bears a reasonable relationship to the achievement of a legitimate legislative purpose. Avis v. Board of Review, 837 P.2d 584 (Utah Ct. App. 1992), cert. denied, 853 P.2d 897 (Utah 1993). In another case, the Court held that an injured worker must file an application for a hearing with the Commission within six years after the date of an accident to avoid barring his claim for compensation and to invoke the Commission's continuing jurisdiction. Burgess v. Siaperas Sand & Gravel, 965 P.2d 583 (Utah Ct. App. 1998).

Effect of Additional Agreements

An employer subject to Utah’s Workmen's Compensation Act cannot by contract or otherwise escape liability to pay compensation to injured employee, or in case of death, to the dependents. Empey v. Industrial Comm'n, 91 Utah 234 (Utah 1937). The employer can provide additional compensation to that required under the Act subject to the approval of the division. Utah Code Ann. § 34A-2-419(1).

Continuing Jurisdiction of the Commission

The commission has continuing jurisdiction over each case. Utah Code Ann. § 34A-2-420(1)(a). The purpose of this section is to take care of changed conditions or developments justifying a modification of a previous award. This may be in favor of the applicant or against him. Hardy v. Industrial Comm'n, 89 Utah 561, 58 P.2d 15 (Utah1936). For example, when the stump of an amputated leg failed to heal and the stump was not sufficient to permit use of an artificial leg, the commission could change the award to grant the employee additional compensation. Spring Canyon Coal Co. v. Industrial Comm'n, 60 Utah 553, 210 P. 611 (1922). Any modification of an award needs to be supported by evidence of some significant change or new development in the employee’s injury or proof of the previous award's inadequacy. Spencer v. Industrial Comm'n, 733 P.2d 158 (Utah 1987).

Lump-sum Payments

Under special circumstances, an ALJ may commute periodic payments to lump-sum payments. Utah Code Ann. § 34A-2-421. Lump-sum payments are the exception because of the possibility that the beneficiaries may dissipate the fund and so defeat one important purpose of the Act. State Ins. Fund v. Renak, 621 P.2d 714 (Utah 1980). When a lump-sum payment in advance is ordered, there must be a reasonable and proper reduction on an actuarial basis so that the amount to be paid by the obligor will be equal to the present value of the extended payments. Id.

Compensation Exempt from Execution

Compensation under Utah’s Workers’ Compensation Act is exempt from any claims of creditors or for attachment or execution. Utah Code Ann. § 34A-2-422. So, the Utah Labor Commission must comply with an employee's directions about where to send disability payments, and the Commission cannot send payments directly to a creditor for payment of a debt if an employee has requested direct payments. Fla. Asset Fin. Corp. v. Utah Labor Comm'n, 2004 UT App 273, 98 P.3d 436. This section is for the protection of employees and their dependents and was not meant to deprive the estate of a deceased employee. Parker v. Industrial Comm'n, 87 Utah 468, 50 P.2d 278 (1935).

Employers’ Reinsurance Fund

Utah has a reinsurance fund for the purpose of making a payment for an industrial accident or occupational disease occurring on or before June 30, 1994. Utah Code Ann. § 34A-2-702. Under this section it is the legal duty of every employer, in case an employee is killed in the course of his employment leaving no dependents, to make the payments as required by this section. Utah Oil Ref. Co. v. Industrial Comm'n, 63 Utah 599, 227 P. 1031 (1924). The statutes do not require the fund to be a participant or even a party in every proceeding before the commission, but once the prospect of fund liability appears, the fund is an "interested party" or a "party in interest" under the statutes and is entitled to receive, in its own right and through its own authorized representative rather than through the commission generally, a notice of the hearing, a copy of the administrative law judge's findings, notice of entry of the commission's order, and it is entitled to file a motion for review with the commission. Paoli v. Cottonwood Hosp., 656 P.2d 420 (Utah 1982). For example, a coal miner who lost sight in his eye before Workmen's Compensation Act was effective and who thereafter lost use of his leg was entitled to compensation from Special Fund (Employers' Reinsurance Fund) as provided by this section notwithstanding that first injury was incurred before Act became effective. Marker v. Industrial Comm'n, 84 Utah 587, 37 P.2d 785, 98 A.L.R. 722 (1934). Additionally, the purpose of this section is to apportion liability only where an industrial injury measurably contributes to a permanent disability caused in part by a pre-existing condition, not simply to impose liability on the Employer's Reinsurance Fund any time a worker's disability is caused by a pre-existing condition. Virgin v. Board of Review, 803 P.2d 1284 (Utah Ct. App. 1990).

INDUSTRIAL NOISE

Definitions

Harmful industrial noise means sounds that result in acoustic trauma such as sudden instantaneous temporary noise or impulsive or impact noise exceeding 140 dB peak sound pressure levels, or exceeding the sounds levels described in this section. Utah Code Ann. § 34A-2-501. Loss of hearing means binaural hearing loss measured in decibels. Id. The Commission can conduct tests to determine the intensity of noise at places of employment. Utah Code Ann. § 34A-2-502.

Loss of Hearing

Permanent hearing loss caused by exposure to harmful industrial noise or by direct head injury is compensable under Utah Code Ann. § 34A-2-503. However, loss of hearing associated with advanced age is not compensable. Wayman v. Western Coal Carrier Corp., 665 P.2d 1294 (Utah 1983). The hearing loss must arise out of and in the course of the employee’s employment. Utah Code Ann. § 34A-2-504.

Compensation and Time Limitation

Compensation for permanent partial disability for binaural hearing loss shall be determined by multiplying the percentage of binaural hearing loss by 109 weeks of compensation benefits. Utah Code Ann. § 34A-2-505. The employee must report the hearing loss within 180 days of the date the employee first suffered the hearing loss and reasonably knew that it was caused by his employment. Utah Code Ann. § 34A-2-506.

MEDICAL EVALUATIONS

Medical Panel

The Division of Adjudication can refer the medical aspects of a case for benefits to a medical panel appointed by an ALJ if the employer, or insurer, deny liability. Utah Code Ann. § 34A-2-601(1)(ii). The function of the medical panel is to give the commission the benefit of its diagnosis relating to those matters within its expertise, and not to infringe upon the Commission's responsibility to decide the issues in a workmen's compensation case. IGA Food Fair v. Martin, 584 P.2d 828 (Utah 1978). Within 20 days of the issuance of a medical report, any party can object to it, and an ALJ is not bound by the report. Utah Code Ann. § 34A-2-601(2)(e)(ii). If an employee objects to the findings of the report, the burden is on the commission or the employer to sustain the report by oral testimony. If this is not done, the report cannot be considered as evidence. Hackford v. Industrial Comm'n, 11 Utah 2d 312, 358 P.2d 899 (1961).

Physical Examination

An administrative law judge may require an employee claiming compensation to submit to a medical examination. Utah Code Ann. § 34A-2-602. If an employee refuses to submit to a medical examination, or obstructs it in any way, any award is suspended until the employee complies. Id.

Autopsy in Death Cases

If the Commissioner determines that the determining the cause of death of an employee is necessary, an autopsy can be ordered. Utah Code Ann. § 34A-2-603. Any interested person can designate a licensed physician to attend the autopsy if they choose. Id. The results of the autopsy are filed with the commission. Id.

ADJUDICATION

Initiating Proceedings

To challenge the actions of an employer or insurance carrier as it relates to a compensable accident, an application must be filed with the Division of Adjudication by the employee, his representative, or his dependent. Utah Code Ann. § 34A-2-801. To appeal the imposition of a penalty or other administrative act imposed by the Division on the employer or its insurance carrier, the employer, insurance carrier, or a representative of either can file an application with the Division of Adjudication. Utah Code Ann. § 34A-2-801. An ALJ that is assigned to hear a claim under this section cannot have previously heard a claim involving the same injured employee, unless all parties agree to the appointment in writing. Utah Code Ann. § 34A-2-801. In order for any party to prevail in adjudication, the burden of proof is proof by a preponderance of the evidence. Lipman v. Industrial Comm'n, 592 P.2d 616 (Utah 1979).

Rules of Evidence and Procedure

Workers’ Compensation cases are not bound by the rules of evidence or procedure, and the commission or an ALJ may hear any relevant information including, but not limited to, depositions, physician reports, investigative reports, employer records, and hospital records. Utah Code Ann. § 34A-2-802. The Utah Appellate Court noted that the Labor Commission is not bound by the usual rules of evidence or any formal rules of procedure. Color Country Mgmt. v. Labor Comm'n, 2001 UT App 370, 38 P.3d 969.

Violation of Judgment or Order

If any lawful order is given by the Commission or an ALJ under Utah’s Workers’ Compensation Act, and an employee, or employer, or any other person, refuses to obey that order in any way, then that individual is guilty of a misdemeanor, and each day during which the person fails to observe and comply with the order constitutes a separate offense. Utah Code Ann. § 34A-2-803.