The State of Workers Compensation in Utah. (Spoiler alert: it's really bad)
Workers compensation is a strange anomaly in the area of law. Under most causes of action for injury, you are compensated for your loses. For example, if I suffer an injury from negligence on the part of another, I can recover any lost wages and benefits past and future as a result of the injury as well medical costs and damages for pain and suffering past and future.
This is not the same under workers compensation. Under Utah Workers Compensation, the average weekly wage is capped at a specific amount determined each year. Right now, it is around $840 a week. If you make more than that, you will not recover the full amount of lost wages and benefits. If you make less than that, you can recover 66 ⅔% of your weekly wage. (This presumably is with taxes in mind and you should not have to pay taxes on your workers compensation award but may also depend on other facts like if you also receive Social Security Disability Insurance or Supplemental Security Income)
Also, there is no pain and suffering compensation damages. Your recovery is based on an impairment rating based on your average weekly wage. This also depends on if you are permanently impaired. This can only be determined after the injury and after surgery. You have to reach a “maximum medical improvement” meaning, where you are is the most you can recover medically and essentially what your body part will be like moving forward.
Once you have reached that point, you can get an impairment rating. Each part of the body has a specific amount of weeks attached to it. For example, if you lose an arm it has a set number of weeks attached to it. The loss of an arm is 218 weeks. A hand is 168 weeks. If you lose your finger you will get 30 weeks of your average weekly wage. There is also a maximum amount of the whole person you can recover. You cannot recover more than 312 weeks in total. So if you lose your arm at work and you are maxed at the $840, you will receive a maximum of $183,120 for the loss of your arm. You will get a maximum of $25,200 for your lost finger.
If you are not permanently impaired you can’t recover for such losses and only are able to obtain compensation for time off work. You only get payments for time off work up to 312 weeks. So if you have a permanent impairment rating of a complete body loss of 312 weeks and you can’t work more than 312 weeks the max recovery you can obtain is $366,240.00. Also, payment for time off work ceases if an individual dies. So a death could also result in a lesser amount of compensation.
The theory under workers compensation is that the company gives something up and you give something up. The company gives up the negligence portion. In most typical personal injury cases, you have to prove the other party was negligent and more negligent than your own actions to recover. Under Workers Compensation, the proof is only whether or not the injury occurred on the job site. This also in theory makes it so the cost of litigation isn’t as high as that is the only question and the timing of litigation goes much quicker than other typical personal injury cases. That is in theory. That isn’t necessarily the reality.
The reality is and from my experience, these cases can take much, much longer than your typical personal injury cases. A personal injury case from start to finish, if you file a claim and take it to trial can take two years.
Under Worker’s Compensation, you first have to put your employer on notice of the injury. You have 180 days to do so. Your doctor can do this for you or you can contact your employer. Your employer is either self-insured or has a workers compensation policy. From my experience, the bigger companies are self-insured and have a third-party administrator determine liability. This in itself creates a big conflict of interest for the self-insured. You are asking your employer to pay for damages. The insurance entity and claims review team typically have around 21 days to review your claim and either deny your claim or approve your claim. They have to state a basis for the denial.
From my experience, insurance companies will deny your claim without explanation. The reason is because the theory of the Utah Worker’s Compensation system does not hold true to reality. It is easy to deny a claim and see if that person gives-up or if they know what to do at that point. At that point, the person has to file a claim with the Utah Labor Division and enter the litigation stage to contest the denial. Also, the claims that have a potential for big liability, such as older people that may never be able to return to work, and are most needy for their compensation will get denied.
From there, the company has 30 days to respond once the claim is filed. Thereafter, medical documents are exchanged. The company gets to investigate the accident and facts to the accident as well as you. The company can sit down and depose you, meaning they can ask you questions under oath as to the accident.
Most importantly, which is what makes these cases contentious, is the company will take your medical records and send them to their own “independent medical examiner.” That examiner will form an opinion on whether or not your injury was work-related or not. If the company doesn’t like their opinion, they don’t disclose the opinion to you. You are also in the dark what that medical examiner reviewed and what the company sent for its review. It is also important to note that if a medical examiner doesn’t give a favorable opinion for the company, they won’t be called on again. The company seeks out examiners they know will give them a favorable opinion.
Most people that are older have the hardest time. The examiners will skewer over your medical history. If there is any kind of injury remotely or just slightly related that you suffered from the past, the examiner will claim that the injury was not work-related but stemmed from a pre-existing condition. Even if you slammed your head into the back of another truck, if you had a prior neck injury, they will claim it is a pre-existing condition to claim it wasn’t work-related. So the case seems easy. Was it at work or wasn’t it?
That is the contentious legal fight in Worker’s Compensation and the medical causation is focused on more heavily than a personal injury claim. From experience, I can tell you that many medical examiner reports are absolutely bogus. Some make conclusions without facts to back the conclusions. Some make conclusions that are based on the medical evidence. Many of their logical reasoning is flawed. They don’t rule out other factors before concluding that it couldn’t be a work-site injury. On top of this, many of these examiners you will never talk to in person. They will just review the medical records. They won’t conduct the same tests as your medical providers to determine if it was work-related or not.
They will only point out flaws in what your medical providers did to claim that their tests weren’t sufficient to determine whether it was work-related or not without conducting tests on their own to see if it was work-related or not. Also, the funny thing about all this from my experience is these reports were never made at the time of your workers compensation denial. So the go-to for insurance companies is to deny now, come up with an excuse for the denial later if you file for a hearing and no recourse for this type of action. You also have no clue that this report exists at the time you file a claim for a hearing.
All you have in response to these examinations is your medical notes from your medical doctor on their determination that it was work-related. In order to rebut the company’s medical opinion, you have to seek your own medical examiner and pay out of pocket for it or you have to ask your doctor to write a rebuttal letter for them. Many doctors don’t like getting into the legal realm of its patients and some may refuse to do so. So you either have to subpoena your doctor to testify at the hearing or look for another doctor that can reput the company’s medical examiner.
This is also not to mention that the company which has more cash than you, may and can pay for multiple medical examiners and for follow-up reports from these examiners. Meaning, you have to rebut more than one report from one examiner and other examiners.
This whole process can take well over 9 months if not longer. During this time, if you are so injured you cannot return to work how are you providing for yourself? This whole process can make an individual destitute, homeless, crippled and without an ability to provide. On top of this, how do you intend to fight this whole battle? Some attorneys take contingency fees. However, as explained in how much you could get compensated for these cases generally have little value to make it an attorney’s time worth it to delve into a heated battle for so little in return.
At some point, you are going to get a hearing. At the hearing you are before an administrative law judge. The medical record is evidence that can be talked about without testimony. So if you really think your doctor had some good things to say in his doctor notes, you don’t have to call your doctor and can just point to his notes.
You will have to testify to your version of events, but it really is just a formality as what really matters is the medical records in most all cases. The big issue here and biggest loop-hole is that these independent medical examiners do not have to testify to either. So not only do you have to somehow find a way to rebut their conclusions, you don’t get to cross-examine these medical examiners on their conclusions. You can’t question them as to their qualifications or to their bias. You can’t ask what documents they reviewed and you can’t ask them about documents that are favorable to you. This is a gaping due-process issue. These medical examiners can be in New Jersey and don’t have to step foot in court and won’t have licenses to practice medicine in the State of Utah.
Also, the Utah Labor Commission hears your case through an Administrative Law Judge. The Utah Labor Commission is located in Salt Lake City. It covers all workers compensation injuries in the state. The judges also hear unemployment claims, whistleblower claims and discrimination claims. There is only a handful of judges. Because of this, you will not even get a hearing scheduled until a year after you file your claim. If for whatever reason one side asks for the case to be moved, you may not get another hearing until six months after that.
Here is also the biggest anomaly to Workers Compensation cases: If there is a controversy to medical causation, meaning if the company has its own independent medical exam report, and they will to claim that this was not work-related, the Judge will send it out to a medical review panel to make a determination on medical causation. So in the end, even though you are starving and destitute and ready for the judge to make a ruling that day, the judge won’t make a ruling.
I had a hearing and it was sent to the medical review panel. Between the hearing and the medical panel decision nine months had passed. We called the Labor Division to see what the hold-up was and the response was the Division is at the mercy of the Doctors and their schedules with their willingness to help and the Division could not give us a time-line on when they would examine my client and write an opinion for my client.
Also, this essentially takes the decision-making out of the judges’ hands. It goes to someone who is not a designated judge to make the final decision. I can also say from experience, many of the decisions of the panel also can contain illogical conclusions and conclusions without facts. Some can say essentially because you are so old there is no way that this could be a work-site injury and completely disregard the facts that you slammed your face into the back of a truck.
Statistically, if you suffer from an actual traumatic accident and wasn’t something you developed through time, the odds of the injury not being contributed to the traumatic incident are very, very slim. Despite this, medical examiners make this the go-to conclusion.
If you don’t agree with the opinion of the medical panel, you have 30 days to write an appeal and you again have to find medical authority on your own to rebut the conclusions. From there, you have to wait on the judge to make a decision to either have a hearing, call a new examiner or deny the appeal and approve the decision. There have been cases that have questioned the constitutionality of this process of sending the cases to medical review panels. The Utah Supreme Court has essentially said the judges don’t have to rely on the decision of the medical panel and that it’s just an opinion. However, in reality, what reason would a judge have to go against a medical expert and instead rely on its own medical conclusions?
The Constitutionality of the payments to injured workers has been raised with the Utah Supreme Court and the Supreme Court has said that is what injured workers give-up in workers compensation without having to prove negligence, is a higher award amount. I have had a case extend over four years since the original injury. Four years to determine whether or not someone was injured on the job or not.
There was a section for attorney fees from the Commission and the Supreme Court struck it down saying the Commission cannot regulate attorney fees and is a power of the Supreme Court. Company attorneys say that moving forward there is no award for attorney fees. Attorneys for the injured say that the decision means the award for attorney is still good but the Commission cannot set a specific percentage on how much attorney fees can be.
The Commission so far, sides with the company which again, makes the cases worthless and unappealing for attorneys to pursue on behalf of individuals. Because of this, many people have to fight their battles without an attorney. Also because of this, without knowing what the focus and fight is in the facts and what is needed to best prove the case, and without being able to know how to properly rebut an medical evaluation, the injured get swept over in court and the credibility of the injured goes down.
Due to the fact that in reality the litigation can and does take longer than a typical personal injury case, and since the injured are destitute and unable to provide for themselves, the injured will take very bad settlements. The company knows this and drags out these cases so the injured will take bad settlements. $10,000.00 sounds appealing if you have no home and food and income whereas in reality it will only last you a few months even though you may be unable to work for much longer than that. Or on the other hand, even if the case is only $5,000.00 a company may spend well over $30,000.00 in attorney fees and litigation costs to fight it. Also, how can you get an attorney that will fight for you for $5,000.00?
The other problem with settling these cases is companies will not settle with an open checkbook. In Workers Compensation, if you are injured, you are awarded for your time off work. If you are still off work, it is unknown to insurance companies on how much time you will be off. It is an unknown on what your future medical expenses will be. Companies never settle for an open check-book. They always want a “large-lump sum.”
You as the injured don’t know how much more time you will need off work or what your future medicals will be. If you settle the case for a lump-sum you could find yourself short-handed. Since companies only want a large lump sum, it also complicates and undermines the ability for both sides to properly settle even though companies may know it is a work-site injury, they will refuse to write an open check and force the injured to go to a hearing if they want an open check.
I have also filed Motions for Summary Judgment on my cases to try and resolve them without going to a hearing. In some decisions I was told that it was the policy of the Division not to rule of Summary Judgment and were dissuaded from doing so without a hearing. Other times, I have had judges that completely forgot to rule on the motions.
There are also issues with the rules of evidence that are applied. The Commission is very loose on hearsay at the hearing. This creates an arbitrary standard on what will and won’t be ruled on. I had testimony admitted to a person that heard about a meeting after the fact he was not a part of instead of having a person that was actually at the meeting present.
So in theory, Workers Compensation sounds safe and simple. You just have to prove a work-site injury. In reality, it can be a nightmare for the injured. What makes matter worse, this is the exclusive remedy for the injured. Meaning, that if the injury came from the employer and nothing from another third-party or a third-party product, the employee can only recover under workers compensation. Then cannot recover under any other civil claim in a State District Court for their injuries. This is what employees are given when they are wronged and or injured on the job-site.
So what needs to change? First, companies should never be allowed to be self-insured. That is a huge conflict of interest. It’s like walking up to the guy that hit you in a car accident and demanding that person to pay you money. Companies should never be able to influence in and have a say on their own liability. There needs to be a neutral third-party to review the claims.
Even a third-party claims administrator is incentivized to save the company as much money as possible on their liabilities, which can have the common practice to deny now and come up with a reason for the denial later. Also, since the company is self-insured, it is a financial hit on them out of their own pocket and not from an insurance company with aggregate limits.
Companies never want to pay out liabilities. They will fight you tooth and nail from taking money from their pockets. Companies will also be self-insured because it is cheaper. What is also at issue is this isn’t just a car accident with a stranger, this is an accident with one of your employees and employees should have a heightened duty of loyalty toward their employees and reviewing their claims.
I have also grave concern that many companies abuse the self-insured loop-hole and hand the Labor Division policies to make it look like they are insured when in reality the policy has nothing to do with Workers Compensation or is just an umbrella policy and they really are in reality self-insured even though they are not approved for self-insurance and meet the requirements.
With that, companies should be required to get workers compensation coverage and should not be allowed to be self-insured. Or, in the very least, there needs to be stricter requirements, review and penalties on companies that do not have a basis for the denial at the time of the denial.
There also needs to be transparency on the facts that the company relies on for the denial, including full disclosure of any medical examiner report where the basis comes from at the time of the denial. Most claim reviews companies are not reviewing the claims in good-faith and there needs to be accountability for that. The Utah Department of Insurance and the Utah Labor Commission does not know where a review of bad-faith claims should go. The Utah Labor Commission also claims they only review insurance fraud on the account of the employee, not the employer. So essentially, there is no accountability for fraud and the basis for denials against the company.
There needs to be clear legislation as to workers compensation fraud and claim reviews made in bad faith. There needs to be a standard for review that holds the claim reviewers accountable legally if they do not review the claim in bad faith. Many courts have said there is no fiduciary duty owed toward the injured employees from the insured. Many courts have said there is no privity of contract between the insurance policy and the injured. So the injured has essentially no legal recourse for a claim reviewed in bad-faith either under a breach of fiduciary duty or a bad-faith claim.
Employees should be put on notice on when their records are sent to a medical examiner to have full transparency. Employees should also be able to have a say on who the “independent medical examiner” is. The Utah Labor Division should have a list of approved medical examiners that are licensed to practice medicine, their background and Curriculum Vitae should be fully disclosed in the State of Utah. Both sides should be able to object and give reviews on these medical examiners.
Every independent medical examiner that the company uses to rebut the injured own doctors should be required to be cross-examined in person at the hearing at the expense of the company and all documents required for expert disclosures, including disclosures on documents that were given to the examiner and the full credentials of the examiner should be disclosed without the need for the other party to make a request beforehand.
Also, a “medical review panel” usually consists of one doctor that is an expert in the field that makes the conclusions and opinions and another examiner that isn’t an expert and just signs off on what the other has to say. Each medical review panel should be an actual panel of at least three experts that are in the same field.
Either party should also be able to object to the appointment of the medical panel and their credentials before they make any examination and form an opinion just as the Utah Rules of Civil Procedure allow under a court-appointed expert. If the court thinks there needs to be a medical panel, then it should appoint the panel and have them form an opinion before the hearing. Not after.
The delay after the hearing violates the open court’s clause under Article I Section 11 of Utah Constitution as there is no time limit on the decision of the panel and a decision more than nine months after the hearing is a clear violation in that regard. The State of Kentucky has found that the delay in the medical panel for medical malpractice was unconstitutional and the same principles would apply to a medical panel in a workers compensation claim.
Compensation should be based on an individual’s actual wages. The cap on damages also violates the ability to seek redress for damages and is not based in fact under the same Article of the Utah Constitution. The decision to raise the amount is arbitrary and cannot be a proper damage award based on the factual circumstances surrounding the injury and in many cases would not fairly compensate an individual for their injury. The State of Pennsylvania found that the impairment rating guidelines were unconstitutional as they were not fact specific and was not proper law as far as notice and opportunity to be heard on how the impairment ratings were made.
Each case should be fact-specific as to proper compensation for a lost limb. Essentially, the amount of compensation for a lost limb depends on how much you make. If you make more you are compensated more. It does not focus on the specific issues a lost limb does to one’s career and their ability to continue to work in that career. The damages award should be fact-specific and properly compensate an individual for a lost or impaired limb based on the individual circumstances.
Also, there is grave concern as to the caseload of the judges with the Utah Labor Commission. Each County in the State of Utah has judges assigned to hear civil and criminal cases. Each County has Commissioners to hear domestic cases. There are only a handful of judges that hear unemployment appeals, whistleblower appeals, discrimination appeals and workers compensation hearings for the entire State of Utah.
There is also concern with the fact that these are not judges appointed by the Governor. Given the caseload of each judge, there is concern that their caseload and the time it takes to get a hearing, continue a hearing, have a decision issued violates Article I Section 11 with unnecessary delay. This is also not to mention the issues of getting an administrative law judge on the phone with an issue that might arise during a deposition.
These are also judges that apply for the position and there is no public scrutiny on their background. It also raises questions on how the Utah Labor Commission has authority to adjudicate a Workers Compensation claim as a tribunal if the case involves a private employee and a private employer. This also raises issues on whether or not this violates Article I Section 11 of the Utah Open Court’s Clause as each individual has an injury done to them and has a remedy by due course of law but are denied a neutral judicial tribunal.
Finally, there needs to be clear legislation that attorney fees are allowed to the injured that prevail on the case to incentivize companies to settle bad cases. There also needs to be more penalties on companies that defend frivolous claims.
This is the State of the Utah Workers Compensation program. This is bad for the State of Utah. This is bad for Utah’s economy. This is bad for the reputation of the Utah Government. Companies are essentially walking all over the Utah workers compensation program with no checks on how they act and go about on their injured employee’s claims. It is so bad that claim adjusters know to just deny at the onset if the claim is in the state of Utah because of how terrible the system is for the employee and the injured.