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