What does "within 21 days" mean? Filing a Timely Denial

Rule 3.2200 of the Vermont Workers’ Compensation and Occupational Disease Rules states that “[t]he employer or insurance carrier shall have 21 days (measured from the date on which the employer received notice or knowledge of a claimed work-related injury) within which to determine whether any compensation is due. If it determines that no compensation is due, within 21 days after receiving notice or knowledge of the injury, it shall file a Denial of Workers’ Compensation Benefits (Form 2) with the Commissioner and the injured worker.”  Rule 3.2200 (emphasis added). 

A question has been raised at the Department of Labor regarding the phrase “within 21 days” and whether that means that the Form 2 denial must be received by the Department of Labor within the 21 day period or whether the Form 2 denial must be postmarked by the 21^st day.  With the tight time frames that apply to employers and carriers, it is very important to understand the Department of Labor’s understanding of the Rules to which employers and carriers will be held accountable.  We have been advised by the Department of Labor that the Department considers Rule 3.2200 to mean that the Form 2 denial is timely if it is received by the Department of Labor on or before the 21^st day.   A Form 2 denial, therefore, is not timely if it is postmarked on the 21^st day.  For many employers and carriers, this may mean a significant shift in how denials are handled.

When asked whether filing the Form 2 denial itself via email on the 21^st day is sufficient to meet the Department’s standards, the response was that it should be sufficient to email the Form 2 denial to the Specialist assigned to the file, even if there are additional medical records and documentation that have to be sent via regular mail due to size (Rule 3.3000 states that attachments greater than 20 pages in length must be sent either via disc or hard copy by regular mail). 

If you are sending out a Form 2 denial either shortly before or on the 21^st day after notice or knowledge of the claim, it is advisable to send the Form 2 denial and up to 20 pages of supporting documentation via email to the Specialist handling the file.  If you have larger attachments that must be sent by regular mail, let the Specialist know that there are additional documents coming by regular mail.  It is unclear at this point whether this will be sufficient to meet the “within 21 days” standard, but it is necessary to cover your bases to make sure that the denial is timely. 

Please see below the current assignment of files at the Department of Labor:

The new schedule for assigned claims is as follows and shall remain in effect until further notice.  Any State File Numbers ending in -0 or -9 (e.g.: HH-67250 or HH-67259) will be assigned to staff based on the next number immediately preceding the -0 or -9 (e.g.:  HH-67250 or HH-67259 would go to Julie Mercier as a -5 claim).

Assigned Specialist II            Assigned Specialist I                    

-1        Anne Coutermarsh                                             Shirley Houghton

-2        Anne Coutermarsh                                             Shirley Houghton

-6        Anne Coutermarsh                                             Wendell Sargent

-3        Mary Sarazin                                                          Muriel Landis

-4        Mary Sarazin                                                          Muriel Landis

-5        Julie Mercier                                                         Muriel Landis

-7        Julie Charonko                                                      Wendell Sargent

-8        Julie Charonko                                                      Wendell Sargent

Last chance to register for the fall Adjusters' Conference!!!

The dates for the conference to be held at the Hilton Hotel, Burlington, Vermont are October 22^ndand 23^rd.  The seminars begin at 12:30pm Thursday the 22 and conclude at noon on the 23^rd.  Please note the times of the conference and make certain that travel arrangements do not conflict with the start and end times.  Attendees must be present for the whole conference. 

Additionally, this is the last conference of the biennium.  If people have not been in 2014 or 2015 they need to register and attend. 

The link for the conference registration is:

http://www.cvent.com/d/2rq5yf/4W

Any questions regarding registration should be directed to:

Delaney Meeting & Event Management

One Mill St. #315

Burlington, VT 05401

Phone (802) 865-5202

Fax (802) 865-8066

UPDATED SCHEDULE: More webinars added for Highlights of the New Workers' Compensation Rules

Highlights of the New Vermont Workers' Compensation Rules occurs several times and two additional time slots were added. Please register for the date and time that works best for you:

https://attendee.gotowebinar.com/rt/3243295787674604545

This two hour webinar will review some of the recent changes to the Vermont Workers' Compensation Rules that went into effect August 1, 2015. The seminar is presented by Ryan Smith & Carbine, Ltd.

After registering, you will receive a confirmation email containing information about joining the webinar.

Brought to you by GoToWebinar®
Webinars Made Easy®

Highlights of the New Vermont Workers' Compensation Rules Webinars

We have set up five different webinars on the new workers' compensation rules starting next week.

Highlights of the New Vermont Workers' Compensation Rules webinars will occur several times. Please register for the date and time that works best for you:

https://attendee.gotowebinar.com/rt/8526696549103107330

This two hour webinar will review some of the recent changes to the Vermont Workers' Compensation Rules that went into effect August 1, 2015. The seminar is presented by Ryan Smith & Carbine, Ltd.

After registering, you will receive a confirmation email containing information about joining the webinar.

Brought to you by GoToWebinar®
Webinars Made Easy®

Vermont Workers' Compensation Adjusters Continuing Education Conference Registration Opens

Registration is now open for the Vermont Workers’ Compensation Adjusters Continuing Education Conference to be held this fall. 

The dates for the conference to be held at the Hilton Hotel, Burlington, Vermont are October 22^nd and 23^rd.  The seminars begin at 12:30pm Thursday the 22 and conclude at noon on the 23^rd.  Please note the times of the conference and make certain that travel arrangements do not conflict with the start and end times.  Attendees must be present for the whole conference. 

Additionally, this is the last conference of the biennium.  If people have not been in 2014 or 2015 they need to register and attend. 

The link for the conference registration is:

http://www.cvent.com/d/2rq5yf/4W

Any questions regarding registration should be directed to:

Delaney Meeting & Event Management

One Mill St. #315

Burlington, VT 05401

Phone (802) 865-5202

Fax (802) 865-8066

Forms For July 1 COLA Adjustment Available

The Vermont Department of Labor has posted the form for Notice in Change of Compensation Rate for fiscal year 2016 on its website.  Compensation shall be adjusted on July 1, 2016 for any worker who has received wage replacement benefits for 26 weeks as of that date.

The statute requires that with regards to the computation of the average weekly wage, “[c]ompensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state 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).

An exception to the COLA increase exists.  If a worker is not receiving disability benefits on July 1, the worker is not entitled to a cost of living adjustment for that year when such benefits subsequently are reinstated.  Birchmore v. The McKernon Grp., Op. No. 40-11WC (2011); Bollhardt, Op. No. 51-04WC (2004); V.S. v. Kennametal, Op. No. 19-07WC (2007).

The 2016 Form is located on line at:

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

Legislative Session Ends With No New Workers' Compensation Laws

The 2015 session of the Vermont General Assembly concluded on Saturday May 16 with no news to report with regard to the workers' compensation statute.  For the first time in a number of years, no legislation was enacted which materially affects the handling of workers' compensation claims in the State of Vermont.

When the legislature returns to the statehouse in January, 2016 it is expected that a number of bills may be discussed.  For instance it is anticipated that the House Committee on Commerce and Economic Development will revisit the issues of independent contractors and statutory employers.

Workers' Compensation Division Announces Hiring of Specialist

The Vermont Department of Labor has announced  that Julie Mercier  has joined the Division of Workers' Compensation staff as a Workers’ Compensation Specialist II. 

The recent announcement noted that she has an Associates of Science as a Paralegal and a Bachelor of Science in Legal Studies, both from Woodbury College.  Her work experience includes jobs as a paralegal with Zalinger Cameron & Lambek, PC, and as a Docket Clerk for the Criminal and Family Court of Washington County, Vermont.  

Vermont Senate Bill 23 Amended By Committee

The Senate Finance Committee took testimony on S. 23 which requires specific disclosures when reaching workers' compensation settlements where all, or some benefits are resolved on a full and final basis.  

The legislation included specific language that the document should include "the approximate amount of compensation the employer would be required to pay the employee if the parties did not enter into the agreement”.  

After testimony was given the bill was amended by striking all language in Section 1.b after the word "injury". The section now reads "describe the employee's injury, including any rating assigned to the injury."  

Here is the current version of the bill as amended:

(1) The employer provides the employee with a written disclosure explaining the consequences of the agreement with respect to the employee’s rights to future benefits by stating- 

      (a) the amount the claim has resolved for, 

      (b) a description of the employee’s injury, including any rating assigned to that injury and the approximate amount of compensation the employer would be required to pay the employee if the       parties did not enter into the agreement,

      (c) all benefits that will terminate as a result of the agreement and 

      (d) any rights to benefits that will be relinquished by the agreement; and

(2)  The employee signs the disclosure statement acknowledging that the employee is informed of and understands the terms of the agreement and its consequences.

Vermont Senate Bill 23 Requires Disclosures for Final Agreement

A bill has been introduced into the Vermont Senate requiring that if an employer and injured worker enter into an agreement that constitutes a full and final settlement of all or a part of the employee’s claim, the Commissioner shall not approve the agreement unless:

(1) The employer provides the employee with a written disclosure explaining the consequences of the agreement with respect to the employee’s rights to future benefits by stating- 

      (a) the amount the claim has resolved for, 

      (b) a description of the employee’s injury, including any rating assigned to that injury and the             approximate amount of compensation the employer would be required to pay the employee if the       parties did not enter into the agreement,

      (c) all benefits that will terminate as a result of the agreement and 

      (d) any rights to benefits that will be relinquished by the agreement; and

(2)  The employee signs the disclosure statement acknowledging that the employee is informed of and understands the terms of the agreement and its consequences.

The online link to S. 23 is located here:

 http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/S-0023/S-0023%20As%20Introduced.pdf

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

Registration is now open for the Spring 2015 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 spring 2015 conference is Thursday May 28th & Friday May 29th.   The conference will begin at 12:30 pm on Thursday and run until 5 pm.  On Friday the conference begins at 8:30 am and ends at noon.

The link for conference registration is:

http://www.cvent.com/d/yrqm6x/4W

The link for the host hotel, the Hilton Burlington is:

 http://www.hilton.com/en/hi/groups/personalized/B/BTTVTHF-VTD-20150527/index.jhtml?WT.mc_id=POG

Highlights of VDOL Cases 2014

The Vermont Department of Labor published 16 decisions to the database in 2014.  The decisions involve a number of topics ranging from jurisdiction and arising out of and in the course of employment, to what benefits are owed, to the often litigated, disputes between medical professionals. This summary highlights parts of some of those rulings.

Jurisdiction

The Department kept jurisdiction of a case where the alleged employee was hired to work on a Vermont job site by a company that was based in another state, noting, “The evidence establishing that the claimant was injured in Vermont, while engaged in work activities on behalf of a covered employer,” gives the Department jurisdiction.  Flores-Diaz v. Joel Letourneau Drywall, LLC., Op. No. 10-14WC (July 25, 2014).  The Department focused on the public policy of affording protection to workers who are injured when hired to work on Vermont job sites.  Supra.

Arising Out Of And In The Course of Employment

A Claimant’s injury arose out of and in the course of employment when she was injured at home after tripping while trying to catch her dog, because she went home to retrieve work materials.  Lopez v. The Howard Center, Op. No. 12-14WC (August 7, 2014).  The Department concluded that the trip to retrieve the materials was a special errand establishing a work related component to the trip home and further finding that attempting to catch her dog that had escaped was not a sufficient deviation to deny benefits.  Supra.  The Commissioner found that while the deviation contributed to the injury, the deviation was “temporally brief, geographically short and reasonable under the circumstances.” Supra.

Average Weekly Wage Calculation

When calculating average weekly wage, a Claimant is not entitled to include only wages earned from one portion of his job. Pawley v. Booska Movers, Op. No. 02-14WC (February 19, 2014)  (Claimant’s argument that only his wages while working in his  “primary position” as a long-haul driver, not the hourly wages attributable to his local delivery work, should be included in computing his average wage was denied).  The Department concluded that, “Wages are wages, no matter how earned.” Supra.  With regard to temporary partial benefits, they are not capped at a weekly rate like temporary total benefits.  However, to be compensable, reduced earnings must result from an injury-related disability and not from a personal choice.  Supra.

Mileage Reimbursement

The insurer is not responsible for reimbursing mileage for treatment with an unlicensed provider.  Myrick v. Ormond Bushey & Sons, Op. No. 07-14WC (April 24, 2014).

Wage Reimbursement For Medical Treatment

A Defendant’s workers’ compensation insurance carrier is not obligated to reimburse Claimant for wages withheld by his current employer when a claimant attends a medical appointment for a work related injury.  Hathaway v. ST Griswold, Op. No. 04-14 (March 14, 2014); 21 V.S.A. §640(c). The obligation for reimbursing a Claimant's claim for wages in this circumstance lies, if at all, against his current employer.  Supra.

Attorney's Fees

Two Departmental decisions focused on what must be proved for a Claimant to collect attorney’s fees after an award of benefits at the informal level.  A portion of the requested attorney’s fees were awarded when after receiving new information upon which to determine whether the grounds for denial still exist: the Defendant delayed in investigating the matter; the claimant obtained an attorney who filed documentation to support the claim; and the claim was ultimately ordered at the informal level and accepted without prejudice. Hoyt v. Chittenden South Supervisory Union, Op. No. 9-14WC (May 15, 2014). However, no attorney’s fees were awarded following an interim order when the insurance carrier did not unreasonably deny the claim, or otherwise engaged in misconduct, neglect or undue delay.  Ploof v. Franklin County Sherriff’s Department, Op. No. 13-14WC (August 7, 2014).

Vocational Benefits

The vocational rules do not require that a Claimant be returned to a specific job or preferable job, just a suitable one.  Hathaway v. ST Griswold, Op. No. 04-14 (March 14, 2014). The Commissioner noted, “The goal of vocational rehabilitation is to restore earning skills, not necessarily to procure a particular job.”  A Claimant’s “successful return to suitable employment for at least 60 days is itself sufficient proof of employability as to justify terminating vocational rehabilitation services.” Supra.

Estoppel

The doctrine of equitable estoppel may be raised by a party when that party, in good faith, changed his or her position in reliance upon earlier representations.  Bohannon v. Town of Stowe, Op. No. 03-14WC (February 26, 2014) (Claimant allegedly reported a work injury to the employer and will be afforded an opportunity at trial to out forth his belief he had taken all of the steps necessary to assert his rights under the workers’ compensation statute based on the employer’s actions).

Competing Medical Opinions/Credibility of Experts

A number of cases involved the Commissioner deciding which of two competing medical opinions was more persuasive. See, Meau v. The Howard Center, Inc., Op. No. 1-14WC (January 24, 2014); Phillips v. Orange North Supervisory Union, Op. No. 5-14 (March 21, 2014); Brodeur v. Energizer Battery Manufacturing Inc., Op. No. 06-14WC (April 2, 2014); Dobson v. Ethan Allen Interiors, Inc., Op. No. 11-14WC (July 25, 2014).  The Department has continued to utilize a five part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience.  Meau v. The Howard Center, Inc., Op. No. 1-14WC (January 24, 2014) (citing Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003)).  

Vermont Department of Labor Seeking Workers' Compensation Specialist

Vermont Department of Labor has posted that the position of Workers' Compensation Specialist.

According to their release the Department is looking for a self-motivated individual with insurance adjusting and/or paralegal and informal dispute resolution skills who would like a full-time position with Vermont’s Workers’ Compensation Program, Department of Labor, in Montpelier.  As a Specialist II, this individual will engage in the informal disposition of a variety of contested workers’ compensation claims.  Applicants must have excellent written and oral communication skills, be able to read and apply statutes and regulations, and efficiently manage a heavy caseload comprised of multiple and often complex medical claims.  Prior legal, medical, or insurance-related work experience is preferred.  For more information, please contact Kristina Bielenberg at kristina.bielenberg@state.vt.us.  Reference Job ID #616335.  Location: Montpelier. Status: Full-Time. Application Deadline: January 19, 2015. The State of Vermont offers an excellent total compensation package. To apply, use the online job application at www.careers.vermont.gov or contact the Vermont Department of Human Resources Division, Recruitment Services at (855) 828‐6700(voice) or 800‐253‐0191 (TTY/Relay Service). The State of Vermont is an Equal Opportunity Employer.