Tuesday, June 20, 2017

S.56: New Standard for Mental-Mental Claims; Presumption For Emergency Personnel Diagnosed with PTSD

Governor Phil Scott signed Senate Bill 56 on June 15, 2017. The pertinent section of the Bill for workers’ compensation purposes is Section 18, which contains a new standard for so-called “mental-mental” claims.  

“Mental-mental” claims are claims for workers’ compensation benefits for a mental condition that arose from a mental stimulus.  Previously,  the injured worker was required to prove a causal connection between the stress and the injury, that the stresses encountered while working for the employer were significant and objectively real, that the job placed greater emotional strain and tension on him/her than other employees, and the stress could not be the result of bona fide personnel issues.  However, the amendment to  21 V.S.A. §601(11)(J)(i) provides that a mental condition resulting from a work-related event or stress shall be a compensable claim if it is demonstrated by the preponderance of the evidence that: “(I) the work-related event or work-related stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee across all occupations; and (II) the work-related event or work-related stress, and not some other event or source of stress, was the predominant cause of the mental condition.”  The section also provides that a mental condition is not compensable if it results from disciplinary action, work evaluation, job transfer, layoff, demotion, termination or similar action taken in good faith by the employer.  The employee will still have the burden of proof to demonstrate that he/she can meet the standard by a preponderance of the evidence, but it is likely that employers and carriers will see a rise in mental-mental claims with the change in the standard.

Section 18 also amends 21 V.S.A. §601(11) to state that “in the case of police officers, rescue or ambulance workers, or firefighters, post-traumatic stress disorder that is diagnosed by a mental health professional shall be presumed to have been incurred during service in the line of duty and shall be compensable, unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by nonservice-connected risk factors or nonservice-connected exposure.”  The amendment further states that a police officer, rescue or ambulance worker or firefighter who is diagnosed with post-traumatic stress disorder within three years of his/her last date of employment as a police officer, rescue or ambulance worker, or firefighter shall be eligible for workers’ compensation benefits under this section.  The amendment creates a presumption that any emergency worker diagnosed with post-traumatic stress disorder has a compensable workers’ compensation claim for benefits.  In order to deny the compensability of the claim, the carrier/employer will have to show by a preponderance of the evidence that the post-traumatic stress disorder was caused by something unrelated to the emergency service work.

A “mental health professional” is defined as a person with professional training, experience and demonstrated competence in the treatment and diagnosis of mental conditions, who is certified or licensed to provide mental health care services and for whom diagnosis of mental conditions are within his/her scope of practice, including a physician, nurse with recognized psychiatric specialties, psychologist, clinical social worker, mental health counselor, or alcohol or drug abuse counselor.  The categories of mental health professionals are very broad as written in the amended statute.  In Vermont, there are specific licensure requirements for some, but not all, categories of mental health care providers.  There will likely be future challenges and disputes regarding whether specific providers fit within the definition as amended by the Legislature.  It does not appear that licensure is required.

The effective date for S.56 is July 1, 2017.


Monday, June 19, 2017

Annual Adjustment of Workers' Compensation Benefits - JULY 1, 2017

The new Form 28(FY18) and the Form 28A(FY18), which you should use to update claimant’s rates as of July 1, 2017, are now available.  You can download both forms from the Department of Labor's website at:  http://labor.vermont.gov/forms/#comp.  Please make copies as needed.


The new maximum for those injuries arising after June 30, 1986 is $1,281.00.  The new maximum for injuries prior to June 30, 1986 is $854.00.  The minimum in all cases is $427.00.

To calculate the July 1, 2017 COLA increase, multiply the July 1, 2016 compensation rate by 1.018 and add the appropriate dependency benefit, if any.


Please be aware of the requirement to forward a copy of the Form 28 to the injured worker or dependent.




Friday, March 24, 2017

Federal Bill Introduced to De-schedule Marijuana

by Corina N. Schaffner-Fegard, Esq.

On February 27, 2017, US House Representative Thomas Garrett Jr., a Republican, introduced H.R.1227 — 115th Congress (2017-2018). (Ending Federal Marijuana Prohibition Act of 2017).  This bill is a legislative attempt to de-schedule marijuana entirely.   That would mean it would no longer be regulated under the Controlled Substances Act and would be placed on par with alcohol.   Currently, marijuana is classified as a Schedule I substance under the CSA.  The bill does place limitations on interstate transportation of marijuana and applies penalties for violations under Sec. 103.   As of March 16, 2017, the bill was referred to the Committee on Crime, Terrorism, Homeland Security, and Investigations and is awaiting action before the House Judiciary Committee.  Given statements made by Attorney General Sessions, which could be interpreted as his endorsing an increase in prosecutions when it comes to marijuana, the fate of the bill is unclear.   We will be following this legislation, as its passing will impact whether  health insurers, including workers' compensation carriers, are required to pay for medical marijuana.  

Friday, February 17, 2017

Registration Link for June 2017 Adjusters' Conference

The next Adjusters' Conference will be held at the Hilton Hotel in Burlington, Vermont on June 29 and 30, 2017.  Below are the registration links for the Conference and for the Hilton.  We look forward to seeing you in June!

Registration Link:  http://www.cvent.com/d/d5q7v0/4W   

Wednesday, February 1, 2017

SAVE THE DATE!!!! June and October 2017 conference dates for Vermont Adjusters

There will be Vermont adjusters' continuing education conferences presented by the Vermont Department of Labor and Ryan Smith & Carbine, Ltd. in both June and October 2017.  The dates are as follows: June 29 and 30, 2017 and October 26 and 27, 2017.  Please save the dates on your calendar.  We will provide you with registration information once it is available.  We look forward to seeing you in June and October!

Thursday, January 19, 2017

New Forms on Department of Labor Website

The Vermont Department of Labor, Workers' Compensation Division announced that two of the common forms used in workers' compensation claims have been revised as of January 2017.  The updated Preauthorization form can be found at: http://labor.vermont.gov/wordpress/wp-content/uploads/preauthformfillin.pdf .  PLEASE NOTE: the Vermont Preauthorization Form is not a required form.  Denials filed with the Department based on a failure to use the Preauthorization form will not be found supported.

The updated Medical Release form (Form 7) can be found at: http://labor.vermont.gov/wordpress/wp-content/uploads//Form07FillIn.pdf .