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.