Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 279 First Substitute (2020GS)

Sponsor

Rep. King, Brian S.

Final action

House/ filed 3/12/2020

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• allows an eligible employee to receive certain disability benefits for an objective medical impairment regardless of whether the impairment is physical or mental; and
• makes technical and corresponding changes.

Every vote on this bill

Bill text

DISABILITY BENEFIT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brian S. King
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill amends the Public Employees' Long-Term Disability Act.
Highlighted Provisions:
This bill:
▸ allows an eligible employee to receive certain disability benefits for an objective
medical impairment regardless of whether the impairment is physical or mental; and
▸ makes technical and corresponding changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
49-21-102
, as last amended by Laws of Utah 2018, Chapter 185
49-21-401
, as last amended by Laws of Utah 2018, Chapter 185
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
49-21-102
 is amended to read:
49-21-102.
Definitions.
As used in this chapter:
(1) "Date of disability" means the date on which a period of total disability begins, and
may not begin on or before the last day of performing full-duty work in the eligible employee's
regular occupation.
(2) (a) "Eligible employee" means the following employee whose employer provides
coverage under this chapter:
(i) (A) any regular full-time employee as defined under Section 
49-12-102
, 
49-13-102
,
or 
49-22-102
;
(B) any public safety service employee as defined under Section 
49-14-102
, 
49-15-102
,
or 
49-23-102
;
(C) any firefighter service employee or volunteer firefighter as defined under Section
49-23-102
 who began firefighter service on or after July 1, 2011;
(D) any judge as defined under Section 
49-17-102
 or 
49-18-102
; or
(E) the governor of the state;
(ii) an employee who is exempt from participating in a retirement system under
Subsection 
49-12-203
(4), 
49-13-203
(4), 
49-14-203
(1), or 
49-15-203
(1); and
(iii) an employee who is covered by a retirement program offered by a public or private
system, organization, or company designated by the State Board of Regents.
(b) "Eligible employee" does not include:
(i) any employee that is exempt from coverage under Section 
49-21-201
; or
(ii) a retiree.
(3) "Elimination period" means the three months at the beginning of each continuous
period of total disability for which no benefit will be paid. The elimination period begins on
the nearest first day of the month from the date of disability. The elimination period may
include a one-time trial return to work period of less than 15 consecutive calendar days.
(4) (a) "Gainful employment" means any occupation or employment position in the
state that:
(i) contemplates continued employment during a fiscal or calendar year; and
(ii) would pay an amount equal to or greater than 40 hours per week at the legally
required minimum wage, regardless of the number of hours worked.
(b) "Gainful employment" does not mean that an occupation or employment position in
the state is:
(i) available within any geographic boundaries of the state;
(ii) offered at a certain level of wages;
(iii) available at a particular number of hours per week; or
(iv) currently available.
(5) "Maximum benefit period" means the maximum period of time the monthly
disability income benefit will be paid under Section 
49-21-403
 for any continuous period of
total disability.
(6) "Monthly disability benefit" means the monthly payments and accrual of service
credit under Section 
49-21-401
.
(7) "Objective medical impairment" means an impairment resulting from an injury or
illness which is diagnosed by a physician and which is based on accepted objective medical
tests or findings rather than subjective complaints.
(8) [
(a)
] "Ongoing disability" means, after the elimination period and the first 24
months of disability benefits, the complete inability[
, as determined under Subsection (8)(b),
]
due to objective medical impairment, whether physical or mental,
 to engage in any gainful
employment which is reasonable, considering the eligible employee's education, training, and
experience.
[
(b) For purposes of Subsection (8)(a), inability is determined:
]
[
(i) based solely on physical objective medical impairment; and
]
[
(ii) regardless of the existence or absence of any mental impairment.
]
(9) "Own occupation disability" means the complete inability, due to objective medical
impairment, whether physical or mental, to engage in the eligible employee's regular
occupation during the elimination period and the first 24 months of disability benefits.
(10) "Physician" means a licensed physician.
(11) "Regular monthly salary" means the amount certified by the participating
employer as the monthly salary of the eligible employee, unless there is a discrepancy between
the certified amount and the amount actually paid, in which case the office shall determine the
regular monthly salary.
(12) "Regular occupation" means either:
(a) the primary duties performed by the eligible employee for the 12 months preceding
the date of disability; or
(b) a permanent assignment of duty to the eligible employee, as long as the eligible
employee has actually performed all the required duties of the permanent assignment of duty.
(13) "Rehabilitative employment" means any occupation or employment for wage or
profit, for which the eligible employee is reasonably qualified to perform based on education,
training, or experience.
(14) "Total disability" means:
(a) own occupation disability; or
(b) ongoing disability.
(15) (a) "Workers' compensation indemnity benefits" means benefits provided that are
designed to replace wages under Title 34A, Chapter 2, Part 4, Compensation and Benefits,
including wage replacement for a temporary disability, temporary partial disability, permanent
partial disability, or permanent total disability.
(b) "Workers' compensation indemnity benefits" includes a settlement amount
following a claim for indemnity benefits.
Section 2. Section 
49-21-401
 is amended to read:
49-21-401.
Disability benefits -- Application -- Eligibility.
(1) An eligible employee shall apply for long-term disability benefits under this chapter
by:
(a) completing an application form prepared by the office;
(b) signing a consent form allowing the office access to the eligible employee's medical
records; and
(c) providing any documentation or information reasonably requested by the office.
(2) (a) If an eligible employee is unable to apply on the employee's own behalf, the
application may be made by a person who is:
(i) the attorney for an eligible employee; or
(ii) appointed as a conservator or guardian of the eligible employee.
(b) A person described in Subsection (2)(a), may not make an application for a
deceased employee.
(3) Upon request by the office, the participating employer of the eligible employee
shall provide to the office documentation and information concerning the eligible employee.
(4) The office:
(a) shall review all relevant information;
(b) may request additional information; and
(c) shall determine whether or not the eligible employee has a total disability.
(5) (a) If the office determines that the eligible employee has a total disability due to
accidental bodily injury or [
physical
] illness which is not the result of the performance of an
employment duty, the eligible employee shall receive a monthly disability benefit equal to:
(i) two-thirds of the eligible employee's regular monthly salary, for each month the total
disability continues beyond the elimination period, not to exceed the maximum benefit period;
minus
(ii) any required reductions or reimbursements under Section 
49-21-402
.
(b) For an eligible employee under an own occupation disability, the office shall, at the
end of the two-year disability period or when a claim for total disability is made by an eligible
employee:
(i) review and determine whether the eligible employee qualifies for ongoing disability
benefits;
(ii) make the determination under Subsection (5)(b)(i) as of the day after the eligible
employee's own occupation disability benefits end;
(iii) consider only [
physical
] objective medical impairment that the office determines
as a disabling condition on the date of disability; and
(iv) exclude any new intervening causes or new diagnoses during the own occupation
disability period.
[
(6) If the office determines that the eligible employee has a total disability due to
psychiatric illness, the eligible employee shall receive:
]
[
(a) a maximum of two years of monthly disability benefits equal to two-thirds of the
eligible employee's regular monthly salary for each month the total disability continues beyond
the elimination period;
]
[
(b) a maximum of $10,000 for psychiatric expenses, including rehabilitation expenses
preauthorized by the office's consultants, paid during the period of monthly disability benefits;
and
]
[
(c) payment of monthly disability benefits according to contractual provisions for a
period not to exceed five years if the eligible employee is institutionalized due to psychiatric
illness.
]
[
(7)
] 
(6)
 (a) An eligible employee shall receive a monthly disability benefit equal to
100% of the eligible employee's regular monthly salary for each month the total disability
continues beyond the elimination period, not to exceed the maximum benefit period, but
reduced by any required reductions and reimbursements under Section 
49-21-402
, if the office
determines that the employee meets all of the following:
(i) the eligible employee has a total disability due [
solely to a physical
] 
to an
 objective
medical impairment
, whether physical or mental
;
(ii) the [
physical
] objective medical impairment described in Subsection [
(7)(a)(i)
]
(6)(a)(i)
 resulted from 
physical
 external force or violence [
as a result of
] 
to the body of the
eligible employee in
 the performance of an employment duty; and
(iii) the eligible employee received workers' compensation indemnity benefits for the
[
physical
] objective medical impairment described in Subsection [
(7)(a)(i)
] 
(6)(a)(i)
.
(b) An eligible employee who receives workers' compensation indemnity benefits for
[
a physical
] 
an
 objective medical impairment is not guaranteed to receive the 100% monthly
disability benefit described in Subsection [
(7)(a)
] 
(6)(a)
.
[
(8)
] 
(7)
 (a) Successive periods of disability are considered as a continuous period of
disability if the period of disability:
(i) results from the same or related causes;
(ii) is separated by less than six months of continuous full-time work at the individual's
usual place of employment; and
(iii) commences while the individual is an eligible employee covered by this chapter.
(b) The inability to work for a period of less than 15 consecutive calendar days is not
considered as a period of disability.
(c) If Subsection [
(8)(a)
] 
(7)(a)
 or (b) does not apply, successive periods of disability
are considered as separate periods of disability.
[
(9)
] 
(8)
 The office may, at any time, have any eligible employee claiming to have a
disability examined by a physician chosen by the office to determine if the eligible employee
has a total disability.
[
(10)
] 
(9)
 A claim brought by an eligible employee for long-term disability benefits
under the Public Employee's Long-Term Disability Program is barred if it is not commenced
within six months from the eligible employee's date of disability, unless the office determines
that under the surrounding facts and circumstances, the eligible employee's failure to comply
with the time limitations was reasonable.
[
(11)
] 
(10)
 (a) If the office denies or terminates a claim for long-term disability
benefits, the eligible employee shall have the right to appeal the denial or termination:
(i) to the executive director of the office within 60 days of the denial or termination of
long-term disability benefits; and
(ii) in accordance with Section 
49-11-613
.
(b) An appeal of a denial or termination of long-term disability benefits described in
Subsection [
(11)(a)
] 
(10)(a)
 is barred if it is not commenced within the time limit described in
Subsection [
(11)(a)
] 
(10)(a)
.
[
(12)
] 
(11)
 Medical or psychiatric conditions which existed prior to eligibility may not
be a basis for disability benefits until the eligible employee has had one year of continuous
eligibility in the Public Employees Long-Term Disability Program.
[
(13)
] 
(12)
 If there is a valid benefit protection contract, service credit shall accrue
during the period of total disability, unless the disabled eligible employee is:
(a) exempted from a system;
(b) eligible to retire with an unreduced retirement allowance; or
(c) otherwise ineligible for service credit.
[
(14)
] 
(13)
 Regardless of any medical evidence provided by the employee to support
the application for disability, an employee is not eligible for long-term disability benefits
during any period in which the employee:
(a) makes a claim that the employee is able to work; or
(b) has a pending action in a court or before any federal, state, or local administrative
body in which the employee has made a claim that the employee is able to work.
[
(15)
] 
(14)
 Notwithstanding the provisions of Section 
49-11-618
, upon written request
by an employer, information obtained under this part may, upon an order of a court or an
administrative law judge, be released to an employer who is a party in an action under
Subsection [
(14)
] 
(13)
.