Department Seeks Input on VR Rules

The Vermont Department of Labor has announced that they are in the process of reviewing the vocational rehabilitation rules.  This is the first substantial revision of the rules since 2007.  The Department is accepting suggestions for changes during this informal, pre-filing comment period.   Please submit your written comments (hard copy or email) on or before January 15, 2015 to Phyllis Phillips, Esq. at the address noted below.

Phyllis G. Phillips, Esq.

Workers' Compensation Hearing Officer

Vermont Department of Labor

P.O. Box 488

Montpelier, VT  05601-0488

(802) 828-4043

(802) 828-2195 fax

phyllis.phillips@state.vt.us

Attorney Lien Rules Of Note

Attorneys who represent injured workers sometimes file liens with the Department of Labor. This has prompted questions about what effect such a filing has on the employer/carrier.

Attorneys may request for acknowledgement of a lien to the commissioner at any time after the representation commences, if the following steps are taken:  (1) it must be in writing; (2) copied to the claimant; and (3) it must be accompanied by a copy of the written fee agreement executed by the claimant. Vermont Workers’ Compensation Rules, Rule 10.4010.  The Commissioner will acknowledge the lien and mail notice of the claim against future benefits to the employer/carrier and to the claimant.  Vermont Workers’ Compensation Rules, Rule 10.4011.

Once an employer/carrier has been provided notice by the commissioner of an acknowledged attorney’s lien, the carrier must reserve $15,000.00 or 20% of the amount of any permanent disability compensation due, and/or any lump sum payment of retroactive temporary total disability benefits, whichever is less.  Vermont Workers’ Compensation Rules, Rule 10.4012.  The carrier must also notify the claimant’s attorney prior to issuing payment to the claimant. Vermont Workers’ Compensation Rules, Rule 10.4012.  Failure to reserve the amounts from permanent disability compensation due, and/or any lump sum payment of retroactive temporary total disability benefits “shall make the employer/carrier liable, in the commissioner’s discretion, for payment to the attorney of the amount of an acknowledged lien.”  Vermont Workers’ Compensation Rules, Rule 10.4012. 

An attorney representing an injured worker may request enforcement of a lien but it must made prior to the date the benefits subject to the lien are due and payable, and it must be done in a timely fashion so as not to impede disbursement of benefits payments to the injured worker.  Vermont Workers’ Compensation Rules, Rule 10.4020, Rule 10.4021.  The request for enforcement should be in writing and include:  a copy of the fee agreement executed by the claimant; and an itemized statement detailing both the work performed and the hours billed. Vermont Workers’ Compensation Rules, Rule 10.4020. If approved, “the commissioner shall direct the employer/carrier to deduct the amount approved and advance it to the attorney against the end of any permanent disability compensation due, and/or against any lump sum payment of retroactive temporary disability benefits.”  Vermont Workers’ Compensation Rules, Rule 10.4030.

Schedule Posted for Conference

The schedule for the Vermont Department of Labor's Workers' Compensation Adjusters' Continuing Education Conference Schedule has now been posted.

As part of the conference, Phyllis Phillips, Esq. from the Vermont Department of Labor, will do a two hour presentation Wednesday afternoon, on the draft Workers' Compensation Rules.  Registration is not limited to adjusters and all attorneys and others interested in Vermont workers' claims are welcome to attend.

Here is a link to the registration page:

http://www.cvent.com/d/q4q5vb/4W



Here is the link to the schedule:

http://labor.vermont.gov/wordpress/wp-content/uploads/WCAdjustersScheduleOctober2014.pdf

Department Issues New Link for Draft Rules

The Vermont Department of Labor has issued a new link for the Draft Workers' Compensation Rules that were posted last week.

The new link is:
http://labor.vermont.gov/wordpress/wp-content/uploads/rules-1-27-final-10-2014.pdf

Draft Workers' Compensation Rules Published For Comment

The Vermont Department of Labor has provided draft revisions to the Workers' Compensation Rules for comment in advance of a formal proposal under the Administrative Rules making process.  The draft is posted for comment on the Department's website.  You can view them by clicking on the following link: http://labor.vermont.gov/wordpress/wp-content/uploads/Rules-1-46-Final-10-2014.pdf.

This is the first major rules revision since 2006 and the Department has noted these reflect legislative changes and both Supreme Court and Department rulings in a number of areas.  Constructive written comments, preferably on or before November 14, 2014, via email to phyllis.phillips@state.vt.us, or via US Mail to Phyllis Phillips, Esq., Vermont Department of Labor, P.O. Box 488, Montpelier, VT  05601-0488.

The Hearing Officer for the Vermont Department of Labor will present an overview of the draft rules at the Vermont Department of Labor's Workers' Compensation Adjusters Continuing Education Conference.  The presentations will occur during the October 29th afternoon sessions.

The registration for the conference is located on line at:

http://www.cvent.com/d/q4q5vb/4W

Reservation Deadline For Adjuster's Conference Approaches

October 7, 2014 is the room reservation cut-off date at the Hilton Hotel in Burlington, Vermont for the Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education Conference.   

The link for hotel registration is:

http://www.hilton.com/en/hi/groups/personalized/B/BTTVTHF-DOL-20141028/index.jhtml?WT.mc_id=POG

The phone number for the Hilton Burlington is: 802-859-5037

The fall 2014 conference is Wednesday October 29th & Thursday October 30th.   The conference will begin at 12:30 pm on Wednesday and run until 5pm.  On Thursday the conference begins at 8:30 am and ends at noon.

The link for registration for the conference is:

http://www.cvent.com/d/q4q5vb/4W

Vermont Department of Labor Proposes Administrative Penalties Rule

The Department of Labor has promulgated rules for the administration of penalties due to the failure to comply with the Vermont Workers’ Compensation Statute or Rules.  The proposed rules completely replace the prior administrative penalties.  The comment period ends September 26, 2014.  Comments may be sent to J. Stephen Monahan, Vermont Department of Labor, PO Box 488, Montpelier, Vermont 05601-0488.

The proposed rules are located online at: http://labor.vermont.gov/legal-information/proposed-rules/

The Commissioner’s proposal has a number of components:

The Commissioner, after a citation and hearing, may assess an administrative penalty against a person or entity that violates: the workers’ compensation statute, rules adopted by the Commissioner, or an order issued by the Commissioner.

Citations may be served upon employees, employers, attorneys, medical providers, insurers or representatives of insurers when the Commissioner has found that the person or entity refused or neglected to:

Comply with the workers’ compensation act;

Comply with the Department’s rules;

File in a complete and timely fashion any reports that are required by the act, rule, or order; or

Comply with any interim order issued by the Department.

Additionally a citation may issue if a person has willfully made a false statement or representation for the purpose of any benefit or payment for him or herself, or any other person.

The proposed penalties are specifically referenced, including penalty reduction factors.

The proposed penalties include: employers who willfully make a false statement or representation for the purpose of obtaining a lower workers’ compensation premium shall be prevented from working with the State of Vermont for up to three years. An employer who fails to maintain workers’ compensation insurance shall be fined $100 a day for the first seven days of failure to have insurance and $150 a day per day thereafter.  The proposed rules also provide that any employer must ensure that any subcontractor it hires has workers’ compensation insurance and is in compliance with the statute.  In addition to financial penalties, employers who fail to comply with the requirement of obtaining insurance may be cited with a stop-work order. 

An employer that fails to submit a first report of injury within 72 hours of “notice or knowledge of a claimed work related injury causing an absence of one day or more, or necessitating medical attendance,” shall be fined $100.00 for each violation.  Failure to give the employee a copy of the form will result in a $50.00 fine. 

An employer or carrier who fails to submit a required form to the Department shall be fined $100.00 for each violation. Proposed Rule 45.5630 lists a number of additional fines for failure to timely file required reports under the statute.

Non-compliance with an interim order of the Department of Labor shall result in a penalty of $500 per occurrence, plus $100 for every day of non compliance after the date set for compliance.  The total penalty shall not exceed $5,000.00.

A self insured employer or insurance carrier who fails to ensure its agents or subcontractors comply with the statute and rules, or with an order of the Commissioner shall be fined $500.00 for each offense.  In addition the agent or subcontractor shall be assessed a penalty of $50.00 for each offense.

Registration is Open For October's DOL Workers' Compensation Adjusters' Continuing Education

Registration is now open for the Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education Conference.  The conference will be held at the Hilton Hotel, Burlington, Vermont.   

Please note the fall 2014 conference is Wednesday October 29th & Thursday October 30th.   Due to hotel availability these are different weekdays than in the past so please be aware of the Wednesday -Thursday time frame for the conference.  The conference will begin at 12:30 pm on Wednesday and run until 5pm.  On Thursday the conference begins at 8:30 am and ends at noon.  

The link for registration for the conference is:

http://www.cvent.com/d/q4q5vb/4W

Department of Labor Revises Form 16 Release and Form 27 Notice to Discontinue Benefits

The Vermont Department of Labor has revised the Form 16 and the Form 27.  The new forms are now available on the Department's website and should be used from this point forward:

http://labor.vermont.gov/forms/#comp

The Department has asked that parties discontinue use of all previous versions of the Form 16 and Form 27. 

Specialist Assignments at Workers' Compensation Division Announced

The Vermont Department of Labor has announced that Lisa Brassard has returned to the Workers' Compensation Division as a Specialist II after an assignment with the Department of Financial Regulation.

All new claims are being assigned to our WC Specialist IIs and Is according to the following schedule. 

Please note that any claims ending in -9 or -0 will be assigned based on the next preceding numbers, 1 through 8.  For example, State File No. EE-65109 will be assigned to Anne Coutermarsh and Shirley Houghton based on the fact that “1” is the next recognized number immediately preceding “9” and “0.”

State #             WC Specialist II                     WC Specialist I

-1                     Anne Coutermarsh                  Shirley Houghton

-2                     Anne Coutermarsh                  Shirley Houghton

-3                     Mary Sarazin                           Muriel Landis

-4                     Mary Sarazin                           Muriel Landis

-5                     Lisa Brassard                          Muriel Landis

-6                     Lisa Brassard                          Wendell Sargent

-7                     Julie Charonko                        Wendell Sargent

-8                     Julie Charonko                        Wendell Sargent 

Department of Labor Releases Forms for COLA Adjustments

On June 20, 2014 the Vermont Department of Labor published a memorandum with the new forms for COLA increases.  These rates go into effect July 1.

The new Form 28(FY15) and the Form 28A(FY15), may be downloaded at: http://labor.vermont.gov/wordpress/wp-content/uploads//Form28FY15FillIn.pdf. 

The new maximum for those injuries arising after June 30, 1986 is $1,197.00.  The new maximum for injuries prior to that date is $798.00.  The minimum in all cases is $399.00.

Historical wage rates are available at:

 http://labor.vermont.gov/wordpress/wp-content/uploads//wcRule-16.pdf.

Vermont Department of Labor Announces Cost of Living Adjustment

The Vermont Department of Labor has announced the annual increases for cost of living adjustment as well as the new maximum and minimum rates.  These rates go into effect July 1, 2014.  They are as follows:

The annual cost of living adjustment multiplier is 1.027%.

The maximum rate for injuries occurring before July 1, 1986 is $798.00.

The maximum rate for injuries occurring after June 30, 1986 is $1,197.00.

The minimum rate is $399.00.

The link to historical rates is located at:

http://labor.vermont.gov/wordpress/wp-content/uploads//wcRule-16.pdf

Legislative Changes Include Changes in Third Party Recovery, Recoverable Costs, Investigation of Fraud, Access to Workplace Safety Records and Promulgation of Rules

The economic development bill that was recently passed by the Vermont Legislature contains a number of provisions that will change certain aspects of workers’ compensation claims administration.  A summary of those changes is located at: http://vtcompbulletin.blogspot.com/2014/05/new-laws-place-limits-on-ime-increase.html.

However, there are other changes as well. They include: Reimbursement to the employer/carrier from the claimant’s third party recovery; Recoverable costs at hearing or trial; Investigation of Fraud; Employee access to workplace safety records; and The Commissioner must adopt rules for prescription of opiods and for promoting cost effective, early, return to work programs.  Assuming the Governor signs the legislation, these changes will be effective July 1, 2014.

Reimbursement from Third Party Recovery:

The legislature has changed the way an employer and workers’ compensation insurance carrier is reimbursed for benefits paid under the Workers’ Compensation Act.  If, after deducting expenses of recovery, the recovery is less than the full value of the claim, the reimbursement to the employer shall be limited to that portion of the recovery allocated for damages covered by the Act.  If the Court has not allocated the recovery or the parties have not agreed to an allocation, then either party may request that the Commissioner make an administrative decision as to the allocation. When a request is made, mediation shall be ordered and, if unsuccessful, the Commissioner may make a determination or order arbitration on the matter.  See 21 VSA §624(e).

Recoverable Costs:

The legislature has now included deposition fees, subpoena fees and expert witness fees as recoverable costs for prevailing claimants.  See 21 VSA §678(a). 

Investigation of Fraud:

The statute contains a provision requiring that any claim of fraud first be investigated by the employer, or carrier and shall then be submitted in a written report to the Department.  Once received by the Department the worker shall have 30 days to respond in person or in writing.  The Department shall issue a determination on the allegation to which any party may appeal.  See 21 VSA §663b(a). An employee found to have committed fraud in order to receive workers’ compensation shall be ordered to repay the compensation fraudulently received in addition to any other penalties.  See 21 VSA §663b(b).  The Department has been mandated to study and report by January 2015 on the best practices to detect and deter workers’ compensation fraud.

Employee and Commissioner Access to Workplace Safety Records:

It has been mandated that an employer shall post a notice advising employees of where they may review the employer’s record of workplace safety in accordance with rules to be adopted by the Commissioner.  These records shall be reviewable by the employees and the Commissioner but shall not otherwise be publicly available.  See 21 VSA §691a.

Rules for Prescribing Opiods:

The Legislature, intending to protect employees from the dangers of prescription drug abuse, and the Commissioner, in consultation with other state departments, agencies and boards, has been charged with adopting rules consistent with best practices for prescribing opiods to employees who have suffered work related injuries. The rules will include patient screening, drug screening and claims adjudication.   See 21 VSA §640c(a)(b).

Rules for Cost Effective, Early, Return to Work Programs:

In an attempt to return an injured employee to work as soon as possible within any limitations, the Commissioner shall adopt rules promoting the implementation and development of cost effective, early, return to work programs.  See 21 VSA §641.

New Laws Place Limits on IME, Increase Amounts Paid for Burial and Funeral Expenses; Change Procedures for Discontinuances; and Requires Notice on Communications

The Vermont legislature has passed a bill with sections that will change certain aspects of workers’ compensation claims administration.  Assuming the Governor signs the legislation, the following changes go into effect July 1, 2014.

Below are summaries of four sections of the bill that will impact the handling of claims including: limitations on the employer’s ability to obtain a second opinion; increases to the maximum amounts paid for burial and funeral expenses in death claims; changes to the process for obtaining a discontinuance; and a requirement that contact with injured workers contain a statement regarding the ability to contact the Department of Labor.

Second Opinions:

The Legislature has limited the ability of an employer to have a medical provider conduct a second opinion with regards to a workers’ compensation claim.  Previously any exam performed at the request of the employer must be reasonable as to time and place.  With this legislation employers are limited to scheduling examinations within a two hour driving distance of the residence of the employee.  The Commissioner may permit an examination outside of the two hour driving radius if it is necessary to obtain the services of a provider that specializes in evaluation and treatment specific to the nature and extent of the employee’s injury.  See, 21 VSA §655.

Burial and Funeral Expenses:

The legislation increases the amount paid by employers for burial expenses when a work related injury results in death.  When death results from a work related injury the employer is responsible for paying the actual costs of burial and funeral expenses in an amount not to exceed $10,000 and the actual expenses for out of state transportation of the decedent to the place of burial in an amount not to exceed $5,000.  Previously an employer was to pay $5,500 for burial and funeral expenses and $1,000 for transportation.  Also, every two years the Commissioner is tasked with evaluating the average amount for burial and funeral expenses, and provide a recommendation to the Legislature as to whether an adjustment is warranted. See, 21 VSA §632. 

If a person has suffered a work injury and dies from some other cause while receiving disability or impairment benefits if the person does not have a dependent, then the employer is liable to pay the remaining amount due but no more than the actual burial and funeral expenses not to exceed $10,000.00 and the actual expenses for out-of-state transportation of the decedent to the place of burial not to exceed $5,000.00. See, 21 VSA §639.

Discontinuance of Benefits:

When an employer seeks to discontinue benefits the employer shall continue to give the employee seven days notice from receipt of the discontinuance before terminating the benefit.  However, new language has been added that “if the claimant disputes the discontinuance, the Claimant may file with the Commissioner an objection to the discontinuance and seek an extension of 14 days.  The objection to the discontinuance shall be specific as to the reasons and shall include supporting evidence.  A copy of the objection shall be provided to the employer at the time the request is made to the Commissioner.” The statute continues to provide that the payments are made without prejudice and may be deducted from any amounts due for impairment if the Commissioner approves the discontinuance.  See, 21 VSA §643a.  The statute has a sunset provision repealing it on July 1, 2018 and replacing it with statute that was in effect prior to this amendment. 

There is also a provision that the Commissioner assess the financial and administrative impacts of the provisions and provide the Legislature with a report in 2017 that addresses: whether the statutory provisions expedited the discontinuance process; whether the statutory provisions affected workers’ compensation rates; how many requests were received, acted on, the time required for action; whether there was an order for reinstatement of benefits; and any other matters deemed relevant by the Commissioner.  See, 21 VSA §654c.

Notice Required on Communications with Claimants:

A new provision requires that any communication from the employer or insurance carrier to the claimant that is not required to be on a form must include a statement advising the claimant that he or she should contact the Department of Labor’s Workers’ Compensation Division to determine any right to object or appeal, as provided by law and to seek information from the Department on process and procedures. See, 21 VSA §602.

Mileage To/From Work Deducted From Travel To/From Medical Appointments

The Vermont Department of Labor has reiterated that an employer/carrier is entitled to deduct mileage for the normal commute distance from the mileage to and from physician visits. Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

A worker who travels to receive medical treatment is entitled to mileage reimbursement for "mileage beyond the distance normally traveled to the workplace."  Id., (citing Workers' Compensation Rule, 12.21).  Such a rule denies reimbursement for regular commuting expenses but serves to "make the worker whole by providing compensation that he or she would not have incurred but for the work injury." Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014)(citing, Fosher v. Fletcher Allen Health Care, Op. No. 11-11 WC (May 5, 2011).  The deduction of mileage for the commute occurs whether the injured worker is employed or receiving temporary benefits at the time of the medical service.

Employer Not Required to Pay for Services Provided By Unlicensed Provider

The Vermont Department of Labor has ruled an employer/carrier is not responsible for paying for treatment provided by an unlicensed or uncertified provider if Vermont law requires that only a licensed or certified practitioner can provide a particular type of medical service.  Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

The workers' compensation statute requires the employer to pay for reasonable medical services caused by a work injury, provided they were "lawfully delivered medical services."  Id. (citing 21 V.S.A. §640). If a practitioner is not required to be licensed or certified to provide treatment under Vermont law, then the employer may be responsible for paying a charge for service.  V.O. Windsor Hospital, Op. No. 12-08 WC (March 27, 2008)(citing 21 V.S.A. §640(a)).

Additionally, the decision reaffirms that an employer is not obligated to to pay charges of a provider who fails to maintain treatment records or submit appropriately documented medical bills.  Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

Lent Employee Doctrine Revisited

The lent employee doctrine occurs when one employer, the general employer, lends an employee to another employer, the special employer. The presumption is that employment continues under the general employer and the general employer remains liable for injuries suffered by the employee. See Thorn v. Albany Ladder, Op. No. 17-02WC (Apr. 2, 2002) (citing 3 Larson’s Workers’ Compensation Law §67.03). This presumption may be overcome if there is “a clear demonstration that a new temporary employer has been substituted for the old.” Id. In order for the special employer to become liable: “[T]here must be a contract of hire, express or implied between the special employer and employee. . . . This involves an informed consent by the employee before the employment-relation can be said to exist. This requirement being met, there remains the necessity of showing that the work being done is essentially that of the special employer and lastly that such special employer has the right to control the details of the work.” Mercier v. Holmes, 119 Vt. 368, 375 (1956).

Vermont Senate Considers Workers' Compensation Bill

The Vermont House has passed H. 645 an act relating to workers’ compensation.  The legislation is now pending in the Vermont Senate where it is being considered in the Senate Finance Committee.

The Bill’s provisions include:

·         An increase the amount payable for funeral expenses from $5,500.00 to $10,000.00;

·         An increase in the amount payable for transportation of the decedent to the place of burial to $5,000.00;

·         An injured worker who disputes a discontinuance may file for an extension of the seven day waiting period extending the liability for payment for an additional seven days;

·         Only relevant evidence is to be filed with a discontinuance;

·         That the Commissioner adopt Rules governing prescription of opiods; and

·         That the Commissioner adopt Rules promoting development and implementation of cost-effective, early return-to- work programs.

The legislation is located at the following link:  http://www.leg.state.vt.us/database/status/summary.cfm?Bill=H%2E0645&Session=2014

Insurer Not Responsible For Paying Wages When Employee Misses Work to Attend Medical Appointment

The Department of Labor has ruled that a workers’ compensation insurance carrier has no obligation to pay wages to an employee when that employee misses work to attend a medical appointment for treatment of a work injury.  Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).  The Act states that, “an employer shall not withhold wages from an employee for an employee’s absence from work for treatment of a work injury, or to attend a medical examination related to a work injury.” 21 V.S.A. § 640(c).  The Department has concluded that the term “employer” in this context does not include the insurance carrier as the statute confers on the carrier an obligation to pay “compensation,” or “benefits” and those terms are not synonymous with “wages”. Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).

The Department has mandated that the current employer of a worker who has suffered a work injury not withhold the employee’s wages while attending a medical appointment for treatment of a work related injury.  Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).  This is true whether the worker was injured at the current place of work, or at an earlier workplace.  The Department found a distinction in the Act between the use of the term “an employer” versus the term “the employer” concluding that the, “indefinite article “a” connotes a more general reference.” Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014); See, e.g., State Farm Fire & Casualty Co. v. Old Republic Insurance Co., 644 N.W. 2d 715,718 n.5 (Mich. 2002).  The Commissioner concluded the specific language was a choice by the Legislature of an intent to broaden the prohibition against wage withholding to encompass not only the employer where the injury occurred but any future employer. Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).

Department of Labor Posts Adjuster Licensing and Continuing Education Materials on Its Website

The Vermont Department of Labor has posted information on adjusters' licensing and continuing education on a page of their website. 

The licensing and continuing education section is located at:

http://labor.vermont.gov/workers-compensation/adjusters-attorneys-insurers/adjuster-licensing-training/

The page includes a link to the Department of Financial Regulation for how someone obtains a license to adjust workers compensation claims in Vermont.  The link should also be used for people who have re-licensing questions.

The link is: http://www.dfr.vermont.gov/insurance/producer-licensing/producer-individual-licensing

The page includes a link to the Vermont Department of Labor's Adjusters' Continuing Education Conference. That link is: The link for registration for the conference.

Registration is Open For DOL Workers' Compensation Adjusters' Continuing Education

Registration is now open for the Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education Conference.  The conference will be held at the Hilton Hotel, Burlington, Vermont.  

The spring 2014 conference is Thursday May 29th  & Friday May 30^th.   The conference will begin at 12:30 pm on Thursday and run until 5pm.  On Friday the conference begins at 8:30am and ends at noon. 

The link for registration for the conference is:

http://www.cvent.com/d/d4qz38/4W

DOL Rules the Claimant's Expert Fails to Provide Credible Evidence

The Vermont Department of Labor has affirmed its prior holdings that a claimant must provide a persuasive medical opinion to meet its burden of proof on medical causation.  Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014). 

The Department's opinion held that an expert, "merely stating a conclusion to a reasonable degree of medical certainty does not make it so." Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014), citing Seymour v. Genesis Health Care Corp., Op. No. 53-08WC (December 29, 2008). Even if the analysis of the Defendant's expert has weaknesses, the claimant's expert must still provide an opinion strong enough on its own to persuade the Commissioner.  Specifically, when a medical provider claims medical literature supports the opinion proffered, there must be sufficient specificity for the finder of fact to evaluate the strength of the assertion.  See, Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014).

DOL Rules Temporary Partial Benefits are Not Capped By Maximum Weekly Compensation

The Department of Labor has found that temporary partial disability benefits are not subject to the maximum weekly cap set forth in 21 V.S.A. §642.  Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014). 

In the decision the Department noted the language differences in the statute.  While the temporary total disability section of the statute includes specific language limiting temporary total benefits to "not more than the maximum nor less than the minimum weekly compensation," the temporary partial disability section of the statute has no such corresponding language.  See,  21 V.S.A. §642; 21 V.S.A. §646.  The decision notes, "Where the Legislature includes particular language in one section of a statute, but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly."  Pawley, supra., citing In re Munson Earth Moving Corp., 169 VT 455, 465 (1999); see also, Archer v. Department of Employment Security, 133 VT 279, 281 (1975).

The plain language requires a finding that temporary total benefits are capped while temporary partial benefits are not. Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014). 

Vermont Department of Labor Launches New Website

The Vermont Department of Labor, Workers' Compensation Division has a new website.  It is located at:

http://labor.vermont.gov/workers-compensation/

On the new website it is important to note:

Forms are located on the lower left of the website in the blue area marked "TOOLS".

Adjusters' Continuing Education Dates Scheduled for 2014

The dates have been announced for the Vermont Department of Labor’s Workers’ Compensation Adjusters’ Continuing Education Conference.  The conference will be held at the Hilton Hotel, Burlington, Vermont.  

The dates are:

The spring conference is Thursday May 29 & Friday May 30^th. 

The fall conference is Wednesday October 29^th and Thursday October 30^th. The seminars begin at 12:30pm on the first day and finish at 5pm and runs from 8:30am until noon on the second day.  Adjusters should note the fall conference is a Wednesday and Thursday conference, which differs from the past. 
More information will be announced as the schedule is prepared.

Senate Hears Testimony on Independent Contractor Legislation

The Vermont Senate Committee on Economic Development, Housing and General Affairs recently heard testimony on S. 220, a jobs bill that includes a new definition of independent contractor.

Passage of the legislation would mean independent contractors are not subject to workers’ compensation if it can be proved that they meet a number of criteria.

 

On Wednesday morning Department of Labor Commissioner Annie Noonan responded to a question from a legislator and testified in favor of the legislation.  In 2012, the Commissioner supported a similar proposal after working with representatives of labor and businesses around the state.  Any formal testimony on the bill will be heard by the Senate Finance Committee which has jurisdiction over workers' compensation.

 

The text of the bill is located here: http://www.leg.state.vt.us/docs/2014/bills/Intro/S-220.pdf

Proposed Workers' Compensation Legislation 2014

When the Vermont Legislature heads back into session the week of January 6 there will be at least three new bills that could affect workers' compensation practice, procedure and premiums paid by employers.  They are:

Senate Bill 0220

Provided that independent contractors are not subject to workers’ compensation if it can be proved that they meet a number of criteria similar to those set forth in House Bill 0170.  The proposal also created a classification of sole contractor.  The text of the bill is located here: http://www.leg.state.vt.us/docs/2014/bills/Intro/S-220.pdf

Senate Bill 0233

Places a restriction on the ability of an employer to obtain an independent medical examination to within a 50 mile radius of the employee’s residence.  The text of the bill is located here:  http://www.leg.state.vt.us/docs/2014/bills/Intro/S-233.pdf

Senate Bill 0266

Adds the value of employer paid health insurance premiums to the computation of “wages” received by a worker.  The text of the bill is located here:  http://www.leg.state.vt.us/docs/2014/bills/Intro/S-266.pdf