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Gary Atkin

Posts: 10
In 2006, a settlement agreement was reached for employer to pay subsistence benefits to employee until his return to work or further order of ALJ.  Employer agreed to diligently pursue a rehabilitative Return to Work Plan and Employee agreed to fully cooperate.  It stated that, if rehab was not possible, the ALJ would enter an order for PTD (Permanent Total Disability) benefits and, if successful, a specified number of weeks of PPD (Permanent Partial Disability) benefits would continue after the return to work. Employee completed an electronics technician certification program but still could not find work.  The parties then amended the settlement to allow him to complete a two year degree in information technology, during which he diligently continued to search for work.  Unfortunately, he only received one offer in four years, an offer he determined he could not perform due to his medical restrictions.  In 2008, a second settlement was reached so that if he was still unemployed after completing his schooling and after the PPD payments had ceased, the parties could revisit the claim for further benefits through medication or the filing of an Application for Hearing.  In 2009, the employee filed a "Motion for Final Determination of PTD, arguing rehab was not possible.  Employer argued it could not be done on a Motion and that a new Application for Hearing was required to start the process over again.  The ALJ determined that, through no fault of the employee, the Return to Work Plan was unsuccessful and, therefore, the employee was entitled to PTD benefits, a decision the Commission Affirmed.  The Court of Appeals affirmed the decision explaining that there is no specific form for initiating a final determination of PTD benefits when rehab is not possible.  Employer further argued that he had been rehabilitated due to all of his training and glowing reports from his instructors.  The Court explained that, regardless of all of that, the Commission found he could not find work in the field which complied with his medical restrictions, and that was a factual finding for the Commission to make.  A & B Mechanical Contractors v. Labor Comm'n, 2013 UT App. 230, 311 P. 3d 528 (Utah App., 2013)
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