'Twas the Work Day Before Christmas

Article published Dec 23, 2013 as part of a monthly workers' compensation column in the Barre Time Argus and The Rutland Herald posted with permission

Workers’ Comp Corner: ‘Twas the work day before Christmas
By JOHN W. VALENTE

Twas two days before Christmas, when all though the corridors, the employees were hurrying to complete all the orders.


The call centers were busy, as the phones they would ring,

supervisors were shouting, “Making quota’s the thing!”



When out in the warehouse, there arose such a clatter,

folks looked up from their work, to see what was the matter.



The lights that shone down, on the shelves and the aisles,

outlined the best worker, lying flat on the tiles.



With a face that looked pained, and tears on a cheek,

it appeared she had slipped on some liquid that leaked.



“What happened? What happened? What’s that spill on the ground?”

“And look at the product, piled up all around.”



The supervisor took charge and helped out the worker,

he tried to figure out what had happened that hurt her.



And then in a twinkling, we heard all around,

the bells as they jingled, when the sleigh hit the ground.



It seems that ol’ Santa was watching the plight,

of the people at work in the warehouse that night.



He was dressed with a hard hat, and safety eye glasses,

as he strode though the doors and walked by the masses.



His face was concerned as he looked up and down,

while the ends of his mouth, descended down in a frown.



His eyes did not twinkle, his belly did not shake,

he realized at once, just what was at stake.



The first thing they did, was wipe the tears from her face,

and sent her off to the doctor to get checked, just in case.



He had them remove all the piles and clean up the spill,

making sure that they knew he meant them no ill.



But reminding each worker and supervisor, too,

that while it may be very busy, they know what to do.



Without making quota, good profits are rare,

but the more that we hurry the more we must care.
 


And watch for our safety and that of our friends,

while working together, for all of our ends.



He sprang to his sleigh, and nodded his head,

the reindeer shot forward, Rudolph’s nose glowing red.



But I heard him explain as he soared with his haul,

“Don’t forget to be safe, and Merry Christmas to all.”



John W. Valente is an attorney with Ryan Smith & Carbine in Rutland. He is the author of “Understanding Workers’ Compensation: Managing Workplace Injuries and Lowering Costs.”

Mileage Reimbursement Reduced to $.56 a Mile

The Department of Labor has announced that effective January 1, 2014 the Workers’ Compensation mileage reimbursement rate will be $.56 per mile. According to the Department's email the mileage reimbursement rate as determined by Rule 12.2100 is for "mileage traveled for medical treatment, to attend an employer's independent medical examination, or attend a vocational rehabilitation meeting, beyond the distance normally traveled to the workplace."  This is a slight reduction from the current rate of $.565. 

 

 

Department of Labor Bars PTD Claim Based on Statute of Limitations

The Vermont Department of Labor has granted summary judgment to an employer and denied a permanent total disability claim as being time barred by the statute of limitations. Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013)

In Vermont a permanent total disability claim cannot accrue until "it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant will most likely never be able to return to gainful employment." Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013) (citing  Hoisington v. Ingersoll Electric, Op. No. 52-09WC (December 28, 2009)). In this instance over ten years had passed between the date three doctors opined that the claimant was "100 percent disabled", "essentially unemployable and 100 percent disabled" and "totally disabled" with "no functional work capacity" and the filing of the PTD claim.  Id. The Department concluded that the cumulative effect of those three opinions should have made it reasonably apparent that the worker will most likely never be able to return to gainful employment and "should have triggered her to take action to protect her rights." Id.

Making Settlement Payments Payable to Claimant's Attorneys

Common practice in Vermont has been that a lump sum payment for benefits is made payable to the claimant and sent to the claimant's attorney with Department approval.  It appears that, due to IOLTA (Interest on Lawyer's Trust Accounts) trust account requirements, attorney's representing injured workers have recently requested that drafts be made payable jointly to the injured worker and the attorney. 

The Vermont Workers' Compensation Rules provide that, "a check for a claimant's workers' compensation benefits may not be made payable either solely or jointly to the claimant's attorney unless approved, in writing, by the commissioner." Vermont Workers' Compensation Rules, Rule 10.5  Carriers may consider incorporating language into the settlement documents that allows the settlement draft to be made payable to the injured worker and the injured worker's attorney.  This can be done in addition to the language allowing for the settlement draft to be sent to the injured worker's attorney.


 

Preathorization of Medical Treatment

At the recent Vermont Workers' Compensation Adjusters' Continuing Education Conference a number of participants had questions regarding pre-authorization under Vermont law.  The statute sets forth time lines and other obligations that are placed on a carrier/employer that receives a written pre-authorization request and supporting documentation.

 

The statute requires that a pre-authorization request must be submitted to the insurer with supporting medical documentation. Within 14 days of receipt of the request the carrier/employer shall either (1) authorize the treatment; (2) deny the treatment with appropriate documentation; or (3) notify the health care provider, the injured worker, and the department that the insurer has scheduled an examination of the employee or ordered a medical record review.  In that event the carrier/employer must notify the department, health care provider and the injured worker within 45 days of the request for pre-authorization of the decision to pre-authorize or not.  21 VSA §640b.

 

The statute is located here:

 

http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=21&Chapter=009&Section=00640b

 

The Director of Workers' Compensation has issued guidance regarding the pre-authorization statute.  Those memorandum are located here:

http://www.labor.vermont.gov/Portals/0/WC/preauthmemo.pdf

http://www.labor.vermont.gov/Portals/0/WC/preauthclarify.pdf

A form providers may choose to use for a pre-authorization request is located at: 

 

http://www.labor.vermont.gov/Portals/0/WC/preauthform.pdf. 

Medical Marijuana Not Required to Be Paid By Workers’ Compensation Carriers

The Vermont legislature recently passed a medical marijuana statute and some providers have prescribed marijuana as part of an injured worker’s treatment plan.  However, it should be noted that the statute itself states, in part, that the law shall not be construed to require that coverage or reimbursement for the use of marijuana for symptom relief be provided by an employer or for purposes of workers' compensation, an employer as defined in 21 V.S.A. § 601(3).  18 V.S.A. § 4474C(b)(3)(4). Additionally, marijuana remains a controlled substance under the Controlled Substances Act.  21 U.S.C. § 811 and § 812.

Department Reiterates Worsening of Preexsting Condition Compensable

Where a pre-existing condition is worsened by any degree because of a work injury or condition of work, resulting medical treatment is compensable.  Goodwin v. AmeriGas Propone, Op. No. 21-13WC (September 10, 2013). When considering a progressively degenerative disease, where "the disease, if left to itself, and apart from any  injury, would, in time, have inevitably caused a complete disability," the causation test becomes whether, due to a work injury or the work environment, "the disability came upon the claimant earlier than otherwise would have occurred." Stannard v. Stannard, 2003 VT 52 ¶11 (May 29, 2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989) (internal quotations and citations omitted).

 

The Department of Labor decision can be found here:

http://www.labor.vt.gov/portals/0/WC/GoodwinDecision.pdf

 

 

Department Rules No Wage Replacement When No Wages are Earned Prior to TTD Period

If an injured worker has not earned any wages at all during the weeks preceding a period of total disability, then unless the failure to earn wages was the result of an injury-related consequence rather than a personal choice, in most cases no benefits will be due. Duffy v. Sisler Builders, Op. No. 20-13WC (August 28, 2013), (citing See, e.g., Bacon v. Gerald E. Morrissey, Inc., Opinion No. 32-11WC (October 12, 2011); Giacobbe v. Verizon, Opinion No. 72-05WC (December 30, 2005); Knoff v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005); see also, Plante v. State of Vermont Agency of Transportation, Opinion No. 19-13WC (August 22, 2013) (applying same analysis to compensation rate computation for successive period of disability); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010) (same)). There are exceptions as noted in Machia v. Comet Confectionary, Op. No, 32-07WC (December 4, 2007).

 

The Duffy decision can be found at the Department of Labor Website:

 

http://www.labor.vt.gov/portals/0/WC/DuffyDecision.pdf

 

 

Schedule Announced For Continuing Education Confenence

Vermont Department of Labor’s

Adjusters’ Continuing Education

October 24 & 25, 2013 Schedule

Thurs. Oct. 24	ADIRONDACK AB	ADIRONDACK C	ADIRONDACK D
12:30 pm	Update on Issues
12:50	Basics of Workers’ Compensation (Jurisdiction-Compensability)	Permanent Total Claims	Traumatic Brain Injuries
1:50	Basics of Workers’ Compensation Benefits Issues	Ethics in Workers’ Compensation	Causation Issues in Workers’ Compensation Part 1
2:50	Break
3:00	Low Back Pain-What Do We Really Know	Vocational Rehabilitation	Causation Issues in Workers’ Compensation Part 2
3:50	Break
4:00	Observations on Opioids in Chronic Musculoskeletal Pain	Calculating Average Weekly Wage and Preparing Forms	Manipulative Therapy in Workers’ Compensation
5pm	Day 1 Ends
Friday Oct. 25
8:15 am	Breakfast
8:30	Legal Update	Meet the DOL - Situations That Cause the Most Confusion in Adjusting a Claim	Pain Disorders in Litigation
9:30	Break
9:45	Mock Mediation	Meet the DOL - Situations That Cause the Most Confusion in Adjusting a Claim	The FCE
10:50	Mock Trial	Meet the DOL - Situations That Cause the Most Confusion in Adjusting a Claim	Medicare Set A Side
12:00	Conference Ends

 

Vermont Workers’ Compensation Adjusters’ Continuing Education Approved for CLE Credits for Vermont Lawyers

The  "Vermont Workers’ Compensation Adjusters’ Continuing Education" to be held on October 24 & 25, 2013 has been approved for 7.5 general credits, including 1.0 ethics credits of continuing legal education. 

DOL Specialist Assignments Effective September 5

The Vermont Department of Labor has reassigned files, effective September 5, 2013, due to the departure of specialist Lisa Brassard.  Questions should be directed to the Department of Labor, (802) 828-2286.   

The Department Memo states in part:

Specialist II Reassignments, effective September 5, 2013:            

This reassignment plan contemplates the abandonment of the number –0.  If you have a claim ending in “-0,” for example EE-56090, go to the number immediately preceding to identify your assigned WC Specialists II and I.  In this example, given that the number previous to the “-0” is “-9,” your assigned Specialists would be WC Specialist II Anne Coutermarsh and WC Specialist I Shirley Houghton.

Assigned Specialist II                    Assigned Specialist I                                

-1        Anne Coutermarsh                   Shirley Houghton

-2        Anne Coutermarsh                   Shirley Houghton

-9        Anne Coutermarsh                   Shirley Houghton

-3        Mary Sarazin                            Muriel Landis

-4        Mary Sarazin                            Muriel Landis
-5*      Mary Sarazin                            Muriel Landis
 

-6        Julie Charonko                          Wendell Sargent

-7        Julie Charonko                          Wendell Sargent
-8        Julie Charonko                          Wendell Sargent

* In the short-term, some Form 27s and other matters in “-5” claims may be temporarily assigned to other staff to handle.  Nevertheless, all correspondence related to contested “-5” matters should be directed to Mary Sarazin until further notice.

Department Revises Vocational Rehabilitation Referral Form

The Vermont Department of Labor has revised the form used to refer injured workers for vocational rehabilitation services.

The new Vocational Rehabilitation Referral Form (VR-1) requires the following new information:
(1)  electronic mail addresses for the claimant, claimant's attorney, the vocational provider and the adjuster/defense attorney; and 
(2)  the name of a contact person at the employer. 

The revisions move the lines to identify the name of the treating physician and the type of injury sustained to the section entitled, "Employee Information."

The Department has noted, that as of now, companies should discontinue use of the prior version of the VR-1.

 

The new form is located at the following link:

http://labor.vermont.gov/LinkClick.aspx?link=VR%2fVRreferral82013fillin.pdf&tabid=170&mid=583

Hilton Hotel Room Block Filling Quickly For Vermont Workers' Compensation Conference

The Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education is scheduled for October 24 and 25^th at the Hilton Hotel, Burlington, Vermont.   Ryan Smith & Carbine, Ltd. has been informed that the original room block has filled.  Arrangements have been made to add a number of additional rooms to the block.  Due to increased interest in this final seminar of the two year cycle, it is suggested that participants register and reserve their rooms early.

The link below takes you to the registration for the October 24 & 25 conference.

http://www.cvent.com/d/z4qnkd/4W

The Hilton Hotel, Burlington, Vermont has a block of rooms has been secured for the conference. The link below will provide access to easy online reservations. Guests can also contact 1-800-Hiltons using the code: VTD for the discounted rate.

http://www.hilton.com/en/hi/groups/personalized/B/BTTVTHF-VTD-20131023/index.jhtml

Employer Ordered to Pay for Medications

The worker suffered a low back injury at work.  The parties subsequently agreed to a settlement that allowed the claimant to continue to receive medically reasonable and necessary treatment that was related to the work injury.  The employer filed for discontinuance of medications based on a records review that concluded the medications were not necessary for treatment of a work-related injury but rather for other personal medical conditions.  The doctor also questioned whether the use of some of the medications, which were being used in “an off-label context,” was medically appropriate.  Perry v. State of Vermont, Op. No. 13-13WC (2013).

The Department of Labor concluded that the employer is responsible only for those medical treatments that are reasonable and causally related to the injury.  Perry v. State of Vermont, Op. No. 13-13WC (2013) (citing 21 V.S.A. §640(a); Baraw v. F.R. Lafayette, Inc., Op. No. 01-10WC (2010); MacAskill v. Kelley Servs., Op. No. 04-09WC (2009)).  Utilizing the commonly cited five factor test, the Department concluded that the claimant’s treating doctor’s opinions as to causality and necessity were more credible than the employer’s doctor’s opinions. Perry v. State of Vermont, Op. No. 13-13WC (2013) (citing Geiger v. Hawk Mountain Inn, Op. No. 37-03 (2003)).  Specifically, the Department cited the fact that the claimant’s expert was a treating physician and that relationship allowed him to: differentiate between the work-related injury symptoms and the symptoms that resulted from personal medical issues; and use trial and error to create a successful pharmacology regime evidence by better pain control, fewer drugs and lower dosages.  Perry v. State of Vermont, Op. No. 13-13WC (2013).  The Department further concluded that the employer’s expert opinion was based on an assumption, rejected by the Department, that the claimant’s personal medical diagnosis excluded all other possible causes for the worker’s pain complaints.  Such reliance rendered his opinion unpersuasive.  Perry v. State of Vermont, Op. No. 13-13WC (2013).

Employer Ordered to Pay for Cervical Myelopathy

The worker, a short haul freight driver, hit his head while in the employ of the defendant when moving out from underneath a trailer.  He was dazed and suffered a cut to his head but completed his route that day.  He continued to work his regular shifts, “without incident” until he began experiencing symptoms in his lower extremities a number of days later.  Then while at the bank preparing for vacation, he described upper extremity symptoms.  His arms felt heavy and weak.  His hands were numb and unresponsive.  On his vacation, the claimant traveled via motorcycle to South Dakota.  While in South Dakota, his symptoms worsened, his balance was off, he could not walk well and he was unable to return on his motorcycle.  A neurosurgeon at Fletcher Allen Health Care diagnosed him with a disc herniation that was pressing on the spinal cord rather than a nerve root (cervical spondylotic myelopathy) and performed a disc excision and fusion.  He opined the claimant suffered a disc herniation when he hit his head on the underside of the trailer and over the subsequent three weeks he developed the progressive cervical myelopathy.  The employer denied the surgery utilizing a medical opinion that the disc herniation was the result of a natural degenerative process in the claimant’s cervical spine.  The employer’s expert relied on the radiographs of the claimant’s cervical spine taken on the date of the injury which showed an advanced degenerative process, in support of his position.  He also opined that the motorcycle trip was a more likely cause of an aggravation of the pre-existing condition due to the relationship between the trip and the worsening of symptoms. Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

The Department of Labor concluded that the treating doctor’s opinion was more credible than the employer’s expert, relying heavily on the “clarity, thoroughness and objective support underlying the opinion.” See Geiger v. Hawk Mountain Inn, Op. No. 37-03 (2003) (citing the five-part test for assessing physician credibility: (1) the nature of the treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all the pertinent medical records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the expert’s qualifications). The claimant’s doctor adequately explained how the progression of symptoms, though intermittent, explained the worsening of the myelopathy subsequent to the injury.  The defendant’s expert did not adequately address how the motorcycle trip was the cause of the injury when the symptoms began prior to the trip and could not explain what specific elements of the trip were responsible for the causal relationship.  Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

Department of Labor Announces Vermont Workers' Compensation Licensing Contact

Adjusters with questions about whether attendance at the final Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education is required in order to meet continuing education requirements in Vermont should contact Sandra Fraser at the Department of Financial Regulation.  Her phone number is 802-828-5923 and her e-mail is Sandra.fraser@state.vt.us.

The Department of Financial Regulation website is www.dfr.vermont.gov.         

The seminar begins at 12:30pm on Thursday October 24th, and finishes at 5pm that day.  On Friday October 25th, the seminar runs from 8:30am until noon.  This is the last continuing education conference of the cycle.  Pursuant to 8 VSA §4791 any person (other than a licensed attorney) who investigates claims and negotiates settlement of claims arising under policies of workers’ compensation insurance in behalf of insurers under such policies, or who advertises or solicits business from insurers as an adjuster, is a workers’ compensation adjuster for purposes of the statute.  In order to renew a WC Adjusters license you must attend and satisfactorily participate in a continuing education seminar administered by the Vermont Department of Labor and Industry.

The link below takes you to the registration for the October 24 & 25 conference.

http://www.cvent.com/d/z4qnkd/4W

Department of Labor Updates Change of Vocational Provider Form

Today the Vermont Department of Labor has issued an update to the Change of Vocational Provider Form (VR-8).  The Department has asked that previous versions of the Form be discontinued as of this date.  

 

The new form is available at the following link:

http://labor.vermont.gov/FormsPublications/WCFormsandPublications/VRForms/tabid/185/Default.aspx

Vermont Workers' Compensation Conference To Be Held October 24 & 25

The Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education is scheduled for October 24 and 25^th at the Hilton Hotel, Burlington, Vermont.   The seminar begins at 12:30pm on Thursday, finishing at 5pm and runs from 8:30am until noon on Friday.  This is the last continuing education conference of the cycle.  Pursuant to 8 VSA §4791 any person (other than a licensed attorney) who investigates claims and negotiates settlement of claims arising under policies of workers’ compensation insurance in behalf of insurers under such policies, or who advertises or solicits business from insurers as an adjuster, is a workers’ compensation adjuster for purposes of the statute.  In order to renew a WC Adjusters license you must attend and satisfactorily participate in a continuing education seminar administered by the Vermont Department of Labor and Industry.

The link below takes you to the registration for the October 24 & 25 conference.

http://www.cvent.com/d/z4qnkd/4W

 

The Hilton Hotel, Burlington, Vermont has a block of rooms has been secured for the conference. The link below will provide access to easy online reservations. Guests can also contact 1-800-Hiltons using the code: VTD for the discounted rate.

http://www.hilton.com/en/hi/groups/personalized/B/BTTVTHF-VTD-20131023/index.jhtml

State Auditor’s Report Focuses on Vermont’s Workplace Safety Efforts for State Employees

The Vermont State Auditor, Doug Hoffer, has issued an audit of The Office of State Employee Workers’ Compensation and Injury Prevention (WIP).  The WIP is responsible for administering the state’s workers’ compensation program and for prevention of workplace injuries for state employees.

According to a press release from the Vermont State Auditor’s Office the audit found, “shortfalls, failures and gaps” in injury prevention efforts and errors in the data collection system. The transmittal letter from the Auditor noted, prior recommendations of the WIP to improve safety for state employees, were adopted by less than two thirds of the Departments with high workers’ compensation claims.

As a result of the report, the Vermont State Auditor has urged the state to make a “stronger commitment to workplace safety.”

The press release is located at:

http://auditor.vermont.gov/sites/auditor/files/WCP%20press%20release%207-22-13.pdf

The link for the transmittal letter from the Auditor’s Office is located here:

http://auditor.vermont.gov/sites/auditor/files/Final%20WCP%20transmittal%20letter.pdf

A link for a three page summary of the audit is located here:

http://auditor.vermont.gov/sites/auditor/files/Final%20WCP%20highlights.pdf

The link for the full 55 page audit is located here:

http://auditor.vermont.gov/sites/auditor/files/Final%20WCP%20report.pdf

Department of Labor Creates "Health Care Provider Report" Form

The Vermont Department of Labor has created a new form to assist physicians in providing the employer/carrier with information regarding the treatment of an injured worker.  The form is called the “Health Care Provider Report” and is also known as the HCP1. The form is not required to be filed.  The Department describes this as a tool to assist in obtaining relevant medical information regarding workers’ compensation injuries/illnesses. 

The form is a one page document that provides basic information such as: The employee’s name, address, date of birth and phone number; Information regarding the injury itself, such as, the date of the injury, the body part injured, the date of the examination, the diagnosis and whether the injury was work related; A line is provided for documenting test results, interpretation of the results, what medications are prescribed and what the treatment plan is; and there is a section for a brief comment on return to work.

This form is not required.  It does not change the law that requires that any provider seeking reimbursement for services must provide legible, supporting documentation. Vermont Workers’ Compensation Rules, Rule 40.021(C).  That supporting documentation is described as, “documentation for each service provided which is sufficiently detailed to allow for the review of the medical necessity of the service and the appropriateness of the fee charged.” Vermont Workers’ Compensation Rules, Rule 40.021(E).

The link to the new form is:

http://www.labor.vermont.gov/Portals/0/WC/healthcareprovidersrpt.pdf

Is An Injury At the Company Picnic Compensable?

The leading commentator on workers’ compensation law has concluded that "Even if the employer is the sponsor of a regular annual company picnic, the employment connection may be inadequate if there is nothing more--no compulsion of any kind to attend, no pep talks or other business, no transportation, no wearing of uniforms." 1A Larson, at § 22.23(a).  For a company picnic to be compensable the facts must support that the event was sufficiently related to the claimant's employment.  Factors to consider are: whether the picnic took place on company time; whether the participants are paid for their attendance; whether people who do not attend the picnic are required to work; whether a percentage of the employees not participate; and whether  the company uses the occasion for any politicking amongst its employees. Delorme v. Johnson Printing Co., Opinion No. 4-90WC (1990); Michael Riley v. Norrell Services Opinion No. 20-95WC (1995).  There must be a correlation between obligations of work and the activity.

Employer’s Contribution to Health Insurance Premium Is Not Included In Calculation of Average Weekly Wage

Today the Vermont Supreme Court ruled in a 3-2 decision that employer-paid health insurance premiums are not wages as defined by the Vermont Workers’ Compensation Act.  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 (3–2)

The injured worker argued the Department of Labor's long held interpretation that the employer’s contributions to health insurance premiums are not to be included in the calculation of average weekly wage was incorrect as a matter of law.  Today's decision upheld the Commissioner's interpretation of the statute as expressed in this case and cited favorably the earlier DOL decision,  Pelissier v. Hannaford Bros., No. 26-11WC (Sept. 9, 2011).  Justice Skoglund, writing for the majority noted that, “The costs [of health insurance premiums] are not tied to the employee’s labors and instead are based on factors unconnected to the employee.  The existence of the insurance and the calculation of the employer’s contribution to it does not equate to a measurement of the benefit to the employee.”  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 ¶ 14.  In Vermont the employers’ contributions to health insurance “do not reflect the employee’s labors or compensation as defined through wages.” The amounts paid by the employer for health insurance premiums are not included in the calculation of average weekly wage.

It’s Almost July 1st, Remind Me Again: What Do I Have to Do?

As July 1st approaches, licensed Vermont workers' compensation adjusters need to:

Adjust the COLA

Any worker who has been receiving temporary total or temporary partial disability compensation for 26 or more weeks is entitled to a COLA. The new maximum for those injuries arising after June 30, 1986 is $1,166.00.  The new maximum for injuries prior to that date is $777.00.  The minimum in all cases is $389.00. The new Form 28(FY14) and the Form 28A(FY14) are now available and may be downloaded from the Vermont Department of Labor website located at: http://labor.vermont.gov/Default.aspx?tabid=170. 

Determine If Medicaid Has Paid Bills

Insurers must take reasonable steps to discover whether the Department of Vermont Health Access has paid medical bills associated with workers’ compensation claims. 33 V.S.A. §1910 (b)(2). The State of Vermont Human Service Agency has a lien against the insurer for monies paid for medical expenses on behalf of a person who has an injury, illness or disease and the person initiates a claim against an insurer for that injury, illness or disease. The Department has noted that “the claim file should contain documentation (electronic, recorded language, typed or handwritten) to support the insurer's actions.”  The procedure sets forth that reasonable steps to determine the existence of such a lien include: (1) Asking the claimant or claimant’s representative at the beginning of the process by telephone, letter or electronic mail if he or she was a Medicaid recipient at the time of the injury.  If the answer is yes then the insurer should contact the Department of Vermont Health Access and refrain from payment until the lien is determined.  If the answer is no then the insurer must continue to review bills to determine if there is evidence that the Department of Vermont Health Access has paid bills on the claimant’s behalf and if so the insurer should determine the amount of the lien.  If not the insurer may proceed to resolve the claim; (2) An insurer may contact the Department of Vermont Health Access at any time to determine if a lien exists by contacting  the Department at: DVHATPLTeam@state.vt.us; by telephone at 802-879-5646; or by fax at 802-879-5959. The outreach document prepared by the Department of Vermont Health Access is located here: http://dvha.vermont.gov/budget-legislative/insurer-procedure-medicaid-liens.pdf

CRPS Impairment Allowed Despite The Diagnosis' Failure to Meet AMA Guides Criteria

 

The Vermont Supreme Court has ruled by a 3-2 majority that the Commissioner of Labor may determine a permanent impairment rating for Complex Regional Pain Syndrome (CRPS) under the AMA guides even though claimant was not diagnosed with CRPS under the criteria listed in the AMA Guides. The Court's decision rejected the rulings by the superior court and the Commissioner. Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (June 21, 2013).  The statute provides: “Any determination of the existence and degree of permanent partial impairment shall be made only in accordance with the whole person determination as set out in the fifth edition of the [AMA Guides].” 21 V.S.A. §648(b). The Claimant's expert in this case diagnosed the injured worker as suffering from CRPS but did not use the AMA Guides criteria as the basis for the diagnosis.  The Vermont Supreme Court has held that the statute requires that the Guides be used for the determination of percentage of impairment, not the diagnosis of a condition.

Burden of Proof for Firefighters, Rescue and Ambulance Workers

Effective July 1, 2013 firefighters, rescue and ambulance workers who suffer an infectious disease or lung disease will be presumed to have acquired the disease from their employment.  Entitled "An act relating to workers’ compensation for firefighters and rescue or ambulance workers" the bill creates a presumption that a firefighter or rescue or ambulance worker with lung disease or an infectious disease has acquired the disease as a result of his or her employment.  The presumption does not apply if a vaccine was refused by worker who later contacts the infectious disease. Also, the presumption of compensability shall not apply to a worker who has used tobacco product within 10 years of the date of diagnosis.

The Bill that passed out of the Vermont Legislature may be found here:
http://www.leg.state.vt.us/docs/2014/bills/Passed/S-085.pdf

Vermont Department of Labor Publishes COLA, Maximum and Minimum Compensation Rates Effective July 1st

 

Today the Department of Labor issued the annual COLA applied to temporary total and temporary partial benefits for the next year.  The statute requires that “Compensation... shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage... as computed under this chapter as it did at the time of injury. Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.” 21 V.S.A. §650(d).

The new maximum for those injuries arising after June 30, 1986 is $1,166.00.  The new maximum for injuries prior to that date is $777.00.  The minimum in all cases is $389.00.

The new Form 28(FY14) and the Form 28A(FY14) are now available and may be downloaded from the Vermont Department of Labor website located at:

http://labor.vermont.gov/Default.aspx?tabid=170. 

Temporary total and temporary partial rates are to be updated as of July 1, 2013.

Awaiting Decision on Employer’s Contributions to Group Health Insurance Premium

On February 8, 2012, the Vermont Department of Labor, citing Pellisser v. Hannaford Brothers, Op. No. 26-11 WC (2011), affirmed its longstanding ruling that the employer’s contributions to a claimant’s group health insurance premium should not be included in average weekly wage and compensation rate calculations.  The case, Lydy v. Trustaff, Inc., Op. No. 05-12 WC (2012), was appealed to the Vermont Supreme Court.  The matter was briefed to the Court and oral arguments were held on September 12, 2012. A decision is expected shortly.