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.
Showing posts with label Legislation. Show all posts
Showing posts with label Legislation. Show all posts
Tuesday, May 19, 2015
Tuesday, February 17, 2015
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.
Tuesday, February 10, 2015
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:
Monday, May 12, 2014
Legislative Changes Include Changes in Third Party Recovery, Recoverable Costs, Investigation of Fraud, Access to Workplace Safety Records and Promulgation of Rules
The
economic development bill that was recently passed by the Vermont Legislature
contains a number of provisions that will change certain aspects of workers’
compensation claims administration. A summary of those changes is located at: http://vtcompbulletin.blogspot.com/2014/05/new-laws-place-limits-on-ime-increase.html.
However,
there are other changes as well. They include: Reimbursement to the
employer/carrier from the claimant’s third party recovery; Recoverable costs at
hearing or trial; Investigation of Fraud; Employee access to workplace safety
records; and The Commissioner must adopt rules for prescription of opiods and
for promoting cost effective, early, return to work programs. Assuming the Governor signs the legislation, these changes will be effective July 1, 2014.
Reimbursement
from Third Party Recovery:
The
legislature has changed the way an employer and workers’ compensation insurance
carrier is reimbursed for benefits paid under the Workers’ Compensation
Act. If, after deducting expenses of
recovery, the recovery is less than the full value of the claim, the
reimbursement to the employer shall be limited to that portion of the recovery
allocated for damages covered by the Act.
If the Court has not allocated the recovery or the parties have not
agreed to an allocation, then either party may request that the Commissioner
make an administrative decision as to the allocation. When a request is made,
mediation shall be ordered and, if unsuccessful, the Commissioner may make a
determination or order arbitration on the matter. See 21 VSA §624(e).
Recoverable
Costs:
The
legislature has now included deposition fees, subpoena fees and expert witness
fees as recoverable costs for prevailing claimants. See 21 VSA §678(a).
Investigation of
Fraud:
The
statute contains a provision requiring that any claim of fraud first be
investigated by the employer, or carrier and shall then be submitted in a
written report to the Department. Once
received by the Department the worker shall have 30 days to respond in person
or in writing. The Department shall
issue a determination on the allegation to which any party may appeal. See 21 VSA §663b(a). An employee found to have committed fraud in order to receive
workers’ compensation shall be ordered to repay the compensation fraudulently
received in addition to any other penalties.
See 21 VSA §663b(b). The Department has been mandated to study and
report by January 2015 on the best practices to detect and deter workers’
compensation fraud.
Employee and
Commissioner Access to Workplace Safety Records:
It has been mandated that an employer shall post a notice advising employees of where they may review the employer’s record of workplace safety in accordance with rules to be adopted by the Commissioner. These records shall be reviewable by the employees and the Commissioner but shall not otherwise be publicly available. See 21 VSA §691a.
Rules for
Prescribing Opiods:
The
Legislature, intending to protect employees from the dangers of prescription
drug abuse, and the Commissioner, in consultation with other state departments,
agencies and boards, has been charged with adopting rules consistent with best
practices for prescribing opiods to employees who have suffered work related
injuries. The rules will include patient screening, drug screening and claims
adjudication. See 21 VSA §640c(a)(b).
Rules for Cost
Effective, Early, Return to Work Programs:
In
an attempt to return an injured employee to work as soon as possible within any
limitations, the Commissioner shall adopt rules promoting the implementation
and development of cost effective, early, return to work programs. See 21
VSA §641.
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.
Monday, March 31, 2014
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
Tuesday, March 4, 2014
DOL Rules Temporary Partial Benefits are Not Capped By Maximum Weekly Compensation
The Department of Labor has found that temporary partial disability benefits are not subject to the maximum weekly cap set forth in 21 V.S.A. §642. Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014).
In the decision the Department noted the language differences in the statute. While the temporary total disability section of the statute includes specific language limiting temporary total benefits to "not more than the maximum nor less than the minimum weekly compensation," the temporary partial disability section of the statute has no such corresponding language. See, 21 V.S.A. §642; 21 V.S.A. §646. The decision notes, "Where the Legislature includes particular language in one section of a statute, but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly." Pawley, supra., citing In re Munson Earth Moving Corp., 169 VT 455, 465 (1999); see also, Archer v. Department of Employment Security, 133 VT 279, 281 (1975).
The plain language requires a finding that temporary total benefits are capped while temporary partial benefits are not. Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014).
In the decision the Department noted the language differences in the statute. While the temporary total disability section of the statute includes specific language limiting temporary total benefits to "not more than the maximum nor less than the minimum weekly compensation," the temporary partial disability section of the statute has no such corresponding language. See, 21 V.S.A. §642; 21 V.S.A. §646. The decision notes, "Where the Legislature includes particular language in one section of a statute, but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly." Pawley, supra., citing In re Munson Earth Moving Corp., 169 VT 455, 465 (1999); see also, Archer v. Department of Employment Security, 133 VT 279, 281 (1975).
The plain language requires a finding that temporary total benefits are capped while temporary partial benefits are not. Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014).
Thursday, January 23, 2014
Senate Hears Testimony on Independent Contractor Legislation
The Vermont Senate Committee on Economic Development, Housing and General Affairs recently heard testimony on S. 220, a jobs bill that includes a new definition of independent contractor.
Passage of the legislation would mean independent contractors are not subject to workers’ compensation if it can be proved that they meet a number of criteria.
On Wednesday morning Department of Labor Commissioner Annie Noonan responded to a question from a legislator and testified in favor of the legislation. In 2012, the Commissioner supported a similar proposal after working with representatives of labor and businesses around the state. Any formal testimony on the bill will be heard by the Senate Finance Committee which has jurisdiction over workers' compensation.
The text of the bill is located here: http://www.leg.state.vt.us/docs/2014/bills/Intro/S-220.pdf
Friday, January 3, 2014
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
Wednesday, October 30, 2013
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:
The Director of Workers' Compensation has issued guidance regarding the pre-authorization
statute. Those memorandum are located here:
A form providers may choose to use for a pre-authorization request
is located at:
Thursday, October 17, 2013
Medical Marijuana Not Required to Be Paid By Workers’ Compensation Carriers
The Vermont legislature recently passed a medical marijuana
statute and some providers have prescribed marijuana as part of an injured
worker’s treatment plan. However, it
should be noted that the statute itself states, in part, that the law shall not
be construed to require that coverage or reimbursement for the use of marijuana
for symptom relief be provided by an employer or for purposes of workers'
compensation, an employer as defined in 21 V.S.A. § 601(3). 18 V.S.A. § 4474C(b)(3)(4).
Additionally, marijuana remains a controlled substance under the Controlled
Substances Act. 21 U.S.C. § 811 and § 812.
Monday, June 17, 2013
Burden of Proof for Firefighters, Rescue and Ambulance Workers
Effective July 1, 2013 firefighters, rescue and ambulance workers who suffer an infectious disease or lung disease will be presumed to have acquired the disease from their employment. Entitled "An act relating
to workers’ compensation for firefighters and rescue or ambulance workers" the bill creates a presumption that a firefighter or rescue or ambulance worker with
lung disease or an infectious disease has acquired the disease as a result of
his or her employment. The presumption does not apply if a vaccine was refused by worker who later contacts the infectious disease. Also, the presumption
of compensability shall not apply to a worker who has used tobacco product
within 10 years of the date of diagnosis.
The Bill that passed out of the Vermont Legislature may be found here:
http://www.leg.state.vt.us/docs/2014/bills/Passed/S-085.pdf
The Bill that passed out of the Vermont Legislature may be found here:
http://www.leg.state.vt.us/docs/2014/bills/Passed/S-085.pdf
Tuesday, May 28, 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:
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:
Thursday, May 16, 2013
Workers’ Compensation Benefits May be Paid by Direct Deposit or Prepaid Benefit Card Account
Effective July 1, 2013 if a claimant consents in writing,
the carrier may pay the employee’s weekly temporary benefits by means of direct
deposit or with an electronic prepaid benefit card account. The statute states that prepaid benefit
card accounts shall not be used to pay permanent impairment benefits or lump sum
benefits. The
issuer of the card shall comply with consumer protection laws that apply to
payroll account cards.
The full text of the Act is located here: http://www.leg.state.vt.us/docs/2014/Acts/ACT006.pdf
Wednesday, May 15, 2013
Agency of Administration Submits Report on Integration of Workers’ Compensation With Health Care Reforms
The
Agency of Administration Health Care Reform has submitted a report to the
Vermont legislature on the Integration or Alignment of Vermont Workers’
Compensation System with Green Mountain Care.
The report recommended that “Vermont should pursue greater administrative alignment of the workers’ compensation system with cost-reduction measures posed under the Vermont’s health care reform efforts and the Affordable Care Act. The research on the amount of potential savings through integration is conflicting, so integration should be considered only after a thorough analysis that is Vermont specific. Furthermore, integration would require Vermont to develop a monopolistic publicly funded workers’ compensation system, which it is not well-positioned to do at this time. Consideration of alignment is more appropriate after the new system is in place. In the meantime, administrative reform will preserve workers’ rights and the current workers’ compensation insurance market while potentially increasing savings for employers.”
The text of the full report is here: http://hcr.vermont.gov/sites/hcr/files/2013/Act%2048%20Integration%20of%20Workers%27%20Compensation%201%2015%202013%20FINAL.pdf
The report recommended that “Vermont should pursue greater administrative alignment of the workers’ compensation system with cost-reduction measures posed under the Vermont’s health care reform efforts and the Affordable Care Act. The research on the amount of potential savings through integration is conflicting, so integration should be considered only after a thorough analysis that is Vermont specific. Furthermore, integration would require Vermont to develop a monopolistic publicly funded workers’ compensation system, which it is not well-positioned to do at this time. Consideration of alignment is more appropriate after the new system is in place. In the meantime, administrative reform will preserve workers’ rights and the current workers’ compensation insurance market while potentially increasing savings for employers.”
The text of the full report is here: http://hcr.vermont.gov/sites/hcr/files/2013/Act%2048%20Integration%20of%20Workers%27%20Compensation%201%2015%202013%20FINAL.pdf
Monday, May 13, 2013
Vermont Insurers Must Determine Existence of Medicaid Liens Starting July 1, 2013
Effective July 1, 2013, insurers shall take reasonable
steps to discover whether the Department of Vermont Health Access has paid
medical bills associated with workers’ compensation claims. 33 V.S.A. §1910 (b)(2).
The legislation provides that the State of Vermont Human Service Agency has a
lien against the insurer for monies paid for medical expenses on behalf of a
person who has an injury, illness or disease and the person initiates a claim
against an insurer for that injury, illness or disease. Additionally the
legislation provides that “Payment to the recipient instead of the agency does
not discharge the insurer from payment of the agency’s claim.” 33 V.S.A. §1910
(b)(2). The statute is: http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=33&Chapter=019&Section=01910
The outreach document prepared by the Department of
Vermont Health Access is located here: http://dvha.vermont.gov/budget-legislative/insurer-procedure-medicaid-liens.pdf
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