Legislative Happenings - 11/12/18
Medical Evaluations and Home Inspectors
On October 17, the Utah Business and Labor Interim Committee met and discussed several issues. They also were presented with hundreds of pages of reports detailing financial organizations, technological incentive programs, and the current state of amendments to international fire codes and building codes as adopted by state code, as well as recommended changes to those codes. Having finally read through that material and currently reviewing the transcript from the meeting, my last report detailed the first three issues considered by the committee, which included discussion related to draft legislation for support animals, suggested amendments to the fire code, and suggested amendments to the building code. This report covers the discussions on the remaining two topics: medical evaluation panels for worker's compensation and licensing for home inspectors.
The committee heard the process and standards used by the Division of Adjudication medical panels to adjudicate workers’ compensation cases, delays in medical panels’ adjudication of cases, and whether administrative rule or statute governing these processes should be amended.
Stony Olsen, an attorney, works a lot in the worker’s compensation field representing injured workers. In Administrative Rules, they focused on the lack of a speedy recovery for an injured worker. Every time the process is delayed, it means no pay for the injured worker, and increases the chance of divorce or having to go on welfare. Right now, there is no speedy remedy when the employer decides to fight the compensation. Mr. Olsen put together the timeline of a labor case, A hearing occurs several months after the time of the injury. An applicant can wait five months before they even see a judge. Medical disputes go to a medical panel, which takes nine months to review. If the commissioner decides in their favor it takes an additional month for the insurance company to issue a check. The vast majority of the 21 month delay is in the medical panel period. The commission by rule made the panel mandatory in every case. Mr. Olsen believes that it is unconscionable to wait longer for a check than if they had filed in civil court.
Virginius Dabney, also an attorney, was around when the medical panel was made mandatory. He presented the case of a 60-year-old woman for whom it has taken almost four years and counting to get her compensation. He is also in a case that is in its 8th, 9th, and 10th years in an attempt to get remedy. The biggest problem, he stated, is that with a speedy remedy you won’t get as much compensation. He questions why a medical panel is even necessary. A judge or a jury are already making discretionary decisions in personal injury claims in district court. The statute says that a panel is discretionary, but the commission’s rule makes panels mandatory. Mandatory panels were considered problematic 30 years ago. Even though the statute the panels discretionary, the commission's rule that they be mandatory means that the statute and the rule of the commission are essentially in conflict. Part of the rule requires permanent disability cases go before a medical panel and he feels that needs to go. An administrative law judge is given one month to file an answer and five months to do discovery. The only thing that is usually found in discovery is one or two medical reports that could have been obtained in five days. Injured workers don’t want to go through a discovery process, he stated, because they need funds to support themselves and their family. The administrative law judge takes 90 days to write their decision--a process which should be doable in 60 days. The commission currently has 7 ½ judges that handle worker’s compensation cases all day long. They are very competently trained and should be able to figure out all the questions that come up in worker’s compensation cases. He stated that judges should be able to make the determination and bring in their own experts if necessary, cutting the overall time by nine months.
Jaceson Maughan, Commissioner, Labor Commission, brought with him Aurora Holly, an administrative law judge. Mr. Maughan stated that all the rules that the commission created go through a rule-making process which includes open hearings. Nothing they do, including the rule on medical panels, happens in a vacuum. The five month delay before a hearing is set is at the request of the parties to do discovery. The commission has the ability to set a hearing a week after the hearing is requested if so desired. He argued that the average number of days that a case is at the medical panel is 143 days (about four months). The majority of cases is resolved at three months. Interim orders and objections to the medical panel report can delay the judge’s decision. There is a lot of digging into the medical records to make sure the right decision is made. The average number of days for the entire process, he stated, is 289 days. He believes that the medical panel is a vital part of the process as an independent third-party evaluator of the evidence. The number of medical panelists has increased from six in 2014 to 27 today. In addition, there is a medical director who has as one of his jobs recruiting and training medical panelists in their work.
There was no action taken on this item.
Home Inspector Licensing
There are no state requirements or standards for an individual to become a home inspector. Presenters sought to provide perspective on home inspector licensing, potential standards to consider, and other states’ approach to the issue.
Senator Karen Mayne said that a piece of legislation she is working on requiring home inspectors to be licensed was started about a year or so ago. A realtor had spoken to her about how there is no licensing or structure for inspectors inspecting homes. As a consequence, she reached out to the inspectors to find out more information. KUTV has done an expose about no licensing. Ms. Mayne took a journey to see if licensing is needed. A former representative sent a realtor to her with all kinds of information, including that the inspectors have an association she reached out to.
Time ran out in the committee meeting for further consideration, so a committee bill file was directed to be opened addressing this issue.
The next interim meeting of the Business and Labor Interim Committee is scheduled for November 14 at 1:15 pm in the Utah Senate Building Room 210. The Judiciary Interim Committee will be meeting at 8:00 am in House Building Room 20 and discussing the draft gender marker change bill. The meeting schedule and transcripts are available at http://le.utah.gov
Always in Service,
Sophia Hawes-Tingey is Chair of the Community Council of Midvale City, Chair of the Board of Directors for the Transgender Inclusion Project, Legislative Liaison for the Utah Gay and Lesbian Chamber of Commerce, Co-Chair of the Business and Labor Committee of the Women’s State Legislative Council of Utah, member of the Board of Directors for the Utah Stonewall Democrats, and co-founder of People Empowered, LLC. You can visit Sophia’s webpage at http://www.sophiahawes.com or follow her on Facebook and Twitter.