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".