NEW MILEAGE RATE ANNOUNCED FOR JANUARY 1, 2024

 The Department of Labor announced today, January 9, 2024, that, as of January 1, 2024, the mileage reimbursement rate for injured workers required to travel for medical treatment is $0.67 per mile.  The previous rate, in effect from January 1, 2023 through December 31, 2023 was $0.655 per mile.  The January 1, 2024 rate is the highest mileage reimbursement rate set by the Department of Labor in at least a decade.  The mileage and meals reimbursement rate can be found at Microsoft Word - MileageAndMealRates (vermont.gov).

The meal reimbursement rate continues to be at the applicable rate established by the General Services Administration for that location.  The only reimbursement rates from the GSA website that apply in workers' compensation claims are those for continental breakfast/breakfast, lunch, and dinner.  The rates for incidentals and first/last day of travel are not applicable to Vermont workers' compensation claims.

The GSA website can be found at: Per Diem Rates | GSA

JULY 1, 2023 CHANGES TO TPD CALCULATION, DEPENDENT BENEFIT INCREASE AND EXPANSION, AND EXPANSION OF PREAUTHORIZATION

On June 22, Dirk Anderson, Esq., Director of Workers’ Compensation and Safety for the Vermont Department of Labor, issued a memo regarding the recent legislative changes made to Vermont Workers' Compensation law that were passed by the Vermont General Assembly on June 20 over the Governor’s veto. These changes will go into effect on July 1, 2023. 

 The original memo that was sent out on June 22 had errors and was reissued by the Department on June 28, 2023. 

 Up until July 1^st, the method for calculating temporary partial disability (TPD) is:

 The difference between the Claimant’s pre-injury average weekly wage (AWW) and the Claimant’s current weekly wage – gross wages, not net (CWW) while disabled multiplied by 0.667. Mathematically, that is expressed like this:

 

(AWW – CWW) * 0.667

 

The new legislation keeps this method for calculating TPD but also adds a new way. The new way is:

 

The Claimant’s weekly temporary total disability rate (TTD) minus the Claimant’s current weekly wage (again, gross wages). That looks like this:

 

TTD – CWW

 

The new legislation requires that an adjuster perform BOTH calculations – both the old and the new – and then choose the larger TPD payment.

 

For example:

 

Example: Claimant has an AWW of $600. His TTD rate is therefore $540 (in this case, the Claimant’s TTD rate would be his AWW * 0.9). The Claimant has been released for light duty and now earns $300/week. Here are the two ways one must calculate the Claimant’s potential TPD:

 

Old method:

 

(AWW – CWW) * 0.667

 

So:      

($600 - $300) * 0.667 = $200.10

 

Because $600 - $300 = $300 and $300 * 0.667 is $200.10, the Claimant’s TPD payment under the old method would be $200.10

 

New method:

 

TTD – CWW

 

So:

$540 - $300 = $240

 

In this case, because the Claimant’s TPD under the new method is higher than his TPD under the old method, the Claimant’s TPD payments would be $240/week.

 

Remember that we must now calculate using both methods and choose the higher outcome, because the General Assembly wants to encourage people to return to work rather than remain on TTD.

The rest of the memo from the Director accurately discusses the increase in a Claimant’s dependent benefit, from $10 to $20 per week, and the expansion of the dependent benefit to injured workers receiving TPD. It also discusses the expansion of the pre-authorization process to include services, supplies, and medical equipment and new limitations on work search requirements. All of these changes go into effect on July 1, 2023.

 

One final note: there were previously errors in the Form 28 on the Vermont Department of Labor’s website because the form did not reflect these legislative changes. These appear to have been corrected. Please follow this link for a current Form 28, and please be aware that the increase in TTD this year is 6%, or 0.060, which is the second-highest increase in Vermont state history (after the 2021 increase of 9.8%).  Microsoft Word - Form28FY24 (vermont.gov)

 

If you have any questions regarding the new legislative requirements and calculations, we encourage you to contact us.

New Mileage Rate and Revisions to Forms 32 and P1

 On Friday, January 6^th, the Vermont Department of Labor announced several changes of note. First, the annual mileage reimbursement rate increase, which took effect on 1/1/23. The new rate is $0.655/mile, an increase of $.03/mile and the highest in Vermont’s history, though a smaller increase than last year. The historical rates and meal reimbursement information can be found on the DOL’s website at:  Mileage and Meal Reimbursement - 1-6-2023 | Department of Labor (vermont.gov)

Next, the Department of Labor announced new versions of two forms commonly used in Workers’ Compensation cases. The first in the Form 32, used for agreements for temporary compensation. Notably, the following language has been added to the bottom of the new Form 32: “By signing this agreement the employee is stating that he or she is not working, and that he or she is obligated to report promptly any work, earnings, wages or benefits to the insurance carrier/employer and the department.”

The other form updated by the Department of Labor is the Form P1, a form often used (but not required) when an employee is requesting pre-authorization of medical treatment. The new form requires for the first time that the employee attach verification of how the Form P1 was transmitted to the insurer. Further, in the event that the insurer exercises its rights under Vermont Workers' Compensation Rule 7 and obtains a medical records review, it must now specify the doctor who will conduct the records review on the  updated Form P1.

Workers' Compensation COVID-19 Bill Signed by Governor (S.342)

The Governor signed S.342 into law on July 13, 2020.  S.342 was introduced in the Vermont Senate in April 2020 to address the COVID-19 pandemic and its impact on the workers’ compensation system.  The full text of the bill as signed into law is here:  https://legislature.vermont.gov/Documents/2020/Docs/BILLS/S-0342/S-0342%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf

The Act gives the Commissioner of the Department of Labor the ability to issue guidance and adopt procedures to extend deadlines or temporarily amend or waive specific provisions of 21 V.S.A. Chapter 9 and the rules adopted pursuant to that chapter during the declared state of emergency.  Governor Phil Scott declared a state of emergency in Vermont on March 13, 2020, and the declaration has been extended through August 15, 2020.  The Act provides that any guidance or temporary procedures that are adopted by the Commissioner are effective during the state of emergency and then continue for 45 days after the termination of the state of emergency.  It is important to note that the Commissioner does not have to engage in the usual rulemaking process to adopt the guidance or temporary procedures. 

The Act creates a presumption of compensability for “front-line” workers who die or are disabled resulting from COVID-19 if the worker has a positive laboratory test for COVID-19 or a diagnosis of COVID-19 from a licensed healthcare provider between March 1, 2020 and January 15, 2021.  A “front-line” worker is an individual with an elevated risk of COVID-19 exposure (a job that requires the worker to have regular physical contact with known sources of COVID-19 or regular physical or close contact with patients, inmates in a correctional facility, residents of a residential care or long-term care facility, or members of the public in the course of his/her employment) employed as: a firefighter; law enforcement officer; emergency medical personnel (volunteer or paid); a worker in a health care facility; institution or office where healthcare services are performed by healthcare professionals; a correctional officer; a worker in a long-term care or residential care facility; a childcare provider providing childcare to children of front-line workers; a home healthcare worker or personal care attendant; a worker in a morgue, funeral establishment, or crematory facility; and a worker performing services that the Commissioner determines place the worker at a similarly elevated risk of being exposed to or contracting COVID-19 as the other listed occupations.  “Close contact” is defined as contact within six feet.

The Act also creates a presumption of compensability for death or disability resulting from COVID-19 for employees who are not front-line workers who have a positive laboratory test for COVID-19 or a diagnosis of COVID-19 from a licensed healthcare provider between April 1, 2020 and January 15, 2021.  The presumption only applies if the worker within 14 days prior to the date he/she is tested: had documented occupational exposure in the course of employment to an individual with COVID-19; or performed services at a residence or facility with one or more residents or employees who were either present at the time the services were performed and either had COVID-19 at the time or tested positive for COVID-19 within 14 days after the services were performed. 

Importantly, the presumption of compensability for non-front-line workers does not apply if it is shown by a preponderance of the evidence that the disease was caused by non-employment-connected risk factors or non-employment connected exposure.  Additionally, the presumption of compensability for non-front-line workers does not apply if the employer can show by a preponderance of the evidence that: the disease was caused by non-employment-connected risk factors or non-employment-connected exposure; or at the time the employee was potentially exposed to COVID-19 the employee’s place of employment was in compliance with the relevant COVID-19 related guidance for businesses and workplaces issued by the U.S. CDC and the Vermont Department of Health and any similar guidance issued by local municipalities (between April 1, 2020 and April 20, 2020) and the Restart Vermont Worksafe Guidance issued by the Agency of Commerce and Community Development and any similar guidance issued by local municipalities (between April 20, 2020 and January 15, 2021).

The Act takes effect on passage and is retroactive to March 1, 2020.  The Act contemplates that sections 1 and 2 (pertaining to guidance and procedures adopted during the state of emergency and to the presumptions of compensability) are repealed on January 15, 2021, unless there is subsequent legislation to the contrary. 

COVID-19 related legislation is untested at this point in Vermont.  There may be litigation in the future surrounding the presumption of compensability for non-front-line workers and the Commissioner’s determination of an employee as being in the “elevated risk” category. 

SENATE BILL S.342 PASSES SENATE, SENT TO HOUSE

S.342, entitled "An act relating to temporary workers' compensation amendments related to COVID-19", passed the Vermont Senate on Monday, April 27, 2020.  The bill was introduced by the Committee on Economic Development, Housing and General Affairs.  

The bill allows the Commissioner to have authority to issue guidance and adopt procedures to extend deadlines or temporarily amend or waive specific requirements of 21 V.S.A. Chapter 9 (the Workers' Compensation Act) and the rules adopted pursuant to that chapter.  The emergency guidance/procedures are effective while Vermont's declared state of emergency lasts and will transition back to the pre-existing rules within 45 days from the end of the state of emergency.  

Most importantly, the bill provides that in the case of a front-line worker, disability or death resulting from COVID-19 shall be presumed to be compensable under the Workers' Compensation Act, provided that the front-line worker receives a positive lab test or diagnosis by a licensed healthcare provider for COVID-19 between March 1, 2020 and January 15, 2021.  

A "front-line worker" is defined as a: firefighter; law enforcement officer; ambulance service, EMT personnel, first responder, or volunteer; worker in a health care facility or institution or office where health care services are provided by licensed healthcare professionals; correctional officer; worker in a long-term care facility or residential care facility; childcare provider required to provide childcare to the children of other front-line workers; employee of a pharmacy or grocery store; home health care worker or personal care attendant; and "a worker performing services that the Commissioner determines place the worker at a similarly elevated risk of being exposed or contracting COVID-19 as the other occupations listed in this subsection (a)."

There is also a presumption of compensability for disability or death resulting from COVID-19 for a non-front-line worker if the worker has a positive laboratory test or diagnosis by a licensed health care provider for COVID-19 between March 1, 2020 and January 15, 2021 AND either: had documented occupational exposure in the course of employment to an individual with COVID-19; or performed services at a residence or facility with residents or employees who were present at the time that the services were performed and either had COVID-19 at that time or were diagnosed with COVID-19 within a reasonable period of time after the services were performed.

The presumption for both front-line workers and non-front-line workers does not apply if it is shown by a preponderance of the evidence that the disease was caused by non-employment-connected risk factors or non-employment-connected exposure.  Further, the presumption of compensability does not apply if the employer offers a COVID-19 vaccine that is refused by a worker who is subsequently diagnosed with COVID-19.

S.342 was sent to the Vermont House on Monday, April 27, 2020.  We will be following this story and will update here when we receive further information.

A link to the Vermont Legislature's page for S.342 follows:  

https://legislature.vermont.gov/bill/status/2020/S.342

NEW MILEAGE RATE AND DATES SET FOR SPRING 2020 CONFERENCE - MAY 19 AND 20, 2020

Effective January 1, 2020 the Workers’ Compensation mileage reimbursement rate decreased from $.58 to $.575 per mile.  The mileage reimbursement rate as determined by Rule 4.1310 is for mileage traveled for medical treatment, to attend an employer’s independent medical examination or attend a vocational rehabilitation meeting.  The rate is the rate that is in effect for classified state employees. 

This rate became effective January 1, 2020.

We will link to the Meal and Mileage Reimbursement Rates once the document is updated on the Department of Labor's Website.

The Spring conference will be May 19^th and 20^th, 2020 at the Hilton Burlington – this is a Tuesday and Wednesday.  We do not currently have registration information available, but we will update once it is available.

The hotel reservation information is below:

Central Reservations Office at 1-800-HILTONS (445-8667), and mention your group, VT DOL WC Adjusters, to get the special discounted rate.

Visit your personalized group web page at

http://www.hilton.com/en/hi/groups/personalized/B/BTTVTHF-VTDOL-20200518/index.jhtml Group Name:	VT DOL WC Adjusters
Group Code:	VT DOL

COLA RATE FOR 2020 ESTABLISHED - NEW MAXIMUM AND MINIMUM RATES

MEMORANDUM

TO:                         All Workers’ Compensation Insurance Carriers, Adjusters and Self-Insureds

FROM:                  J. Stephen Monahan, Director

                                Workers’ Compensation and Safety Division

DATE:                    June 7, 2019

SUBJECT:             Annual Adjustment of Workers’ Compensation Benefits

 

The new Form 28(FY20) and the Form 28A(FY20), which you should use to update claimant’s rates as of July 1, 2019, are now available.  You can download both forms from our web site at:  http://labor.vermont.gov/forms/#comp.  Please make copies as needed.

The new maximum for those injuries arising after June 30, 1986 is $1,353.00.  The new maximum for injuries prior to that date is $902.00.  The minimum in all cases is $451.00.

Please be aware of the requirement to forward a copy of the Form 28 to the injured worker or dependent.

The multiplier for FY 2020 is 1.032.