Wednesday, December 9, 2015

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 21st 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 21st day.   A Form 2 denial, therefore, is not timely if it is postmarked on the 21st 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 21st 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 21st 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