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.

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

Preathorization of Medical Treatment

At the recent Vermont Workers' Compensation Adjusters' Continuing Education Conference a number of participants had questions regarding pre-authorization under Vermont law.  The statute sets forth time lines and other obligations that are placed on a carrier/employer that receives a written pre-authorization request and supporting documentation.

 

The statute requires that a pre-authorization request must be submitted to the insurer with supporting medical documentation. Within 14 days of receipt of the request the carrier/employer shall either (1) authorize the treatment; (2) deny the treatment with appropriate documentation; or (3) notify the health care provider, the injured worker, and the department that the insurer has scheduled an examination of the employee or ordered a medical record review.  In that event the carrier/employer must notify the department, health care provider and the injured worker within 45 days of the request for pre-authorization of the decision to pre-authorize or not.  21 VSA §640b.

 

The statute is located here:

 

http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=21&Chapter=009&Section=00640b

 

The Director of Workers' Compensation has issued guidance regarding the pre-authorization statute.  Those memorandum are located here:

http://www.labor.vermont.gov/Portals/0/WC/preauthmemo.pdf

http://www.labor.vermont.gov/Portals/0/WC/preauthclarify.pdf

A form providers may choose to use for a pre-authorization request is located at: 

 

http://www.labor.vermont.gov/Portals/0/WC/preauthform.pdf. 

Employer Ordered to Pay for Cervical Myelopathy

The worker, a short haul freight driver, hit his head while in the employ of the defendant when moving out from underneath a trailer.  He was dazed and suffered a cut to his head but completed his route that day.  He continued to work his regular shifts, “without incident” until he began experiencing symptoms in his lower extremities a number of days later.  Then while at the bank preparing for vacation, he described upper extremity symptoms.  His arms felt heavy and weak.  His hands were numb and unresponsive.  On his vacation, the claimant traveled via motorcycle to South Dakota.  While in South Dakota, his symptoms worsened, his balance was off, he could not walk well and he was unable to return on his motorcycle.  A neurosurgeon at Fletcher Allen Health Care diagnosed him with a disc herniation that was pressing on the spinal cord rather than a nerve root (cervical spondylotic myelopathy) and performed a disc excision and fusion.  He opined the claimant suffered a disc herniation when he hit his head on the underside of the trailer and over the subsequent three weeks he developed the progressive cervical myelopathy.  The employer denied the surgery utilizing a medical opinion that the disc herniation was the result of a natural degenerative process in the claimant’s cervical spine.  The employer’s expert relied on the radiographs of the claimant’s cervical spine taken on the date of the injury which showed an advanced degenerative process, in support of his position.  He also opined that the motorcycle trip was a more likely cause of an aggravation of the pre-existing condition due to the relationship between the trip and the worsening of symptoms. Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

The Department of Labor concluded that the treating doctor’s opinion was more credible than the employer’s expert, relying heavily on the “clarity, thoroughness and objective support underlying the opinion.” See Geiger v. Hawk Mountain Inn, Op. No. 37-03 (2003) (citing the five-part test for assessing physician credibility: (1) the nature of the treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all the pertinent medical records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the expert’s qualifications). The claimant’s doctor adequately explained how the progression of symptoms, though intermittent, explained the worsening of the myelopathy subsequent to the injury.  The defendant’s expert did not adequately address how the motorcycle trip was the cause of the injury when the symptoms began prior to the trip and could not explain what specific elements of the trip were responsible for the causal relationship.  Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

Legislative Session Concludes With No Agreement on Labor Omnibus Bill

As the Vermont legislative session came to a close a conference committee of the House and Senate failed to reach consensus on a labor omnibus bill.  The session ended with no action being taken.  The House and Senate each passed separate versions of a labor bill which included a change to the time allotted for notice to the injured worker for the discontinuance claims. Currently, when an employer or its carrier seeks to terminate benefits, it files a discontinuance (Form 27) and pursuant to 21 VSA 643(b), “The liability for the payments shall continue for seven days after the notice is received by the commissioner and the employee.”  The Senate version of the bill would have extended that to 14 days and added an additional seven-day extension to be granted upon approval of the Department of Labor Commissioner.  Additionally it mandated study committees on independent medical examinations and on lien recovery.  The Senate version of the bill is located at:

http://www.leg.state.vt.us/docs/2014/bills/Senate/S-129.pdf

The Vermont House’s version of the bill, included language that in the event of discontinuance a claimant may object to it and seek an additional seven day extension for benefits to continue. The extension needed to be specific as to a reason for the extension and the number of days of extension requested.  The bill also required that IME reports be sent to the employee at the same time it is sent to the employer. The House version of the bill is located at:

http://www.leg.state.vt.us/docs/2014/bills/House/S-129.pdf

 A number of groups, including the Vermont Chamber of Commerce cited the potential for increased cost to the entire workers' compensation system.  No agreement was reached before the session concluded but the bill will have further action next session.