Department Seeks Input on VR Rules

The Vermont Department of Labor has announced that they are in the process of reviewing the vocational rehabilitation rules.  This is the first substantial revision of the rules since 2007.  The Department is accepting suggestions for changes during this informal, pre-filing comment period.   Please submit your written comments (hard copy or email) on or before January 15, 2015 to Phyllis Phillips, Esq. at the address noted below.

Phyllis G. Phillips, Esq.

Workers' Compensation Hearing Officer

Vermont Department of Labor

P.O. Box 488

Montpelier, VT  05601-0488

(802) 828-4043

(802) 828-2195 fax

phyllis.phillips@state.vt.us

Schedule Posted for Conference

The schedule for the Vermont Department of Labor's Workers' Compensation Adjusters' Continuing Education Conference Schedule has now been posted.

As part of the conference, Phyllis Phillips, Esq. from the Vermont Department of Labor, will do a two hour presentation Wednesday afternoon, on the draft Workers' Compensation Rules.  Registration is not limited to adjusters and all attorneys and others interested in Vermont workers' claims are welcome to attend.

Here is a link to the registration page:

http://www.cvent.com/d/q4q5vb/4W



Here is the link to the schedule:

http://labor.vermont.gov/wordpress/wp-content/uploads/WCAdjustersScheduleOctober2014.pdf

Department Issues New Link for Draft Rules

The Vermont Department of Labor has issued a new link for the Draft Workers' Compensation Rules that were posted last week.

The new link is:
http://labor.vermont.gov/wordpress/wp-content/uploads/rules-1-27-final-10-2014.pdf

Draft Workers' Compensation Rules Published For Comment

The Vermont Department of Labor has provided draft revisions to the Workers' Compensation Rules for comment in advance of a formal proposal under the Administrative Rules making process.  The draft is posted for comment on the Department's website.  You can view them by clicking on the following link: http://labor.vermont.gov/wordpress/wp-content/uploads/Rules-1-46-Final-10-2014.pdf.

This is the first major rules revision since 2006 and the Department has noted these reflect legislative changes and both Supreme Court and Department rulings in a number of areas.  Constructive written comments, preferably on or before November 14, 2014, via email to phyllis.phillips@state.vt.us, or via US Mail to Phyllis Phillips, Esq., Vermont Department of Labor, P.O. Box 488, Montpelier, VT  05601-0488.

The Hearing Officer for the Vermont Department of Labor will present an overview of the draft rules at the Vermont Department of Labor's Workers' Compensation Adjusters Continuing Education Conference.  The presentations will occur during the October 29th afternoon sessions.

The registration for the conference is located on line at:

http://www.cvent.com/d/q4q5vb/4W

Vermont Department of Labor Proposes Administrative Penalties Rule

The Department of Labor has promulgated rules for the administration of penalties due to the failure to comply with the Vermont Workers’ Compensation Statute or Rules.  The proposed rules completely replace the prior administrative penalties.  The comment period ends September 26, 2014.  Comments may be sent to J. Stephen Monahan, Vermont Department of Labor, PO Box 488, Montpelier, Vermont 05601-0488.

The proposed rules are located online at: http://labor.vermont.gov/legal-information/proposed-rules/

The Commissioner’s proposal has a number of components:

The Commissioner, after a citation and hearing, may assess an administrative penalty against a person or entity that violates: the workers’ compensation statute, rules adopted by the Commissioner, or an order issued by the Commissioner.

Citations may be served upon employees, employers, attorneys, medical providers, insurers or representatives of insurers when the Commissioner has found that the person or entity refused or neglected to:

Comply with the workers’ compensation act;

Comply with the Department’s rules;

File in a complete and timely fashion any reports that are required by the act, rule, or order; or

Comply with any interim order issued by the Department.

Additionally a citation may issue if a person has willfully made a false statement or representation for the purpose of any benefit or payment for him or herself, or any other person.

The proposed penalties are specifically referenced, including penalty reduction factors.

The proposed penalties include: employers who willfully make a false statement or representation for the purpose of obtaining a lower workers’ compensation premium shall be prevented from working with the State of Vermont for up to three years. An employer who fails to maintain workers’ compensation insurance shall be fined $100 a day for the first seven days of failure to have insurance and $150 a day per day thereafter.  The proposed rules also provide that any employer must ensure that any subcontractor it hires has workers’ compensation insurance and is in compliance with the statute.  In addition to financial penalties, employers who fail to comply with the requirement of obtaining insurance may be cited with a stop-work order. 

An employer that fails to submit a first report of injury within 72 hours of “notice or knowledge of a claimed work related injury causing an absence of one day or more, or necessitating medical attendance,” shall be fined $100.00 for each violation.  Failure to give the employee a copy of the form will result in a $50.00 fine. 

An employer or carrier who fails to submit a required form to the Department shall be fined $100.00 for each violation. Proposed Rule 45.5630 lists a number of additional fines for failure to timely file required reports under the statute.

Non-compliance with an interim order of the Department of Labor shall result in a penalty of $500 per occurrence, plus $100 for every day of non compliance after the date set for compliance.  The total penalty shall not exceed $5,000.00.

A self insured employer or insurance carrier who fails to ensure its agents or subcontractors comply with the statute and rules, or with an order of the Commissioner shall be fined $500.00 for each offense.  In addition the agent or subcontractor shall be assessed a penalty of $50.00 for each offense.

Department of Labor Releases Forms for COLA Adjustments

On June 20, 2014 the Vermont Department of Labor published a memorandum with the new forms for COLA increases.  These rates go into effect July 1.

The new Form 28(FY15) and the Form 28A(FY15), may be downloaded at: http://labor.vermont.gov/wordpress/wp-content/uploads//Form28FY15FillIn.pdf. 

The new maximum for those injuries arising after June 30, 1986 is $1,197.00.  The new maximum for injuries prior to that date is $798.00.  The minimum in all cases is $399.00.

Historical wage rates are available at:

 http://labor.vermont.gov/wordpress/wp-content/uploads//wcRule-16.pdf.

Vermont Department of Labor Announces Cost of Living Adjustment

The Vermont Department of Labor has announced the annual increases for cost of living adjustment as well as the new maximum and minimum rates.  These rates go into effect July 1, 2014.  They are as follows:

The annual cost of living adjustment multiplier is 1.027%.

The maximum rate for injuries occurring before July 1, 1986 is $798.00.

The maximum rate for injuries occurring after June 30, 1986 is $1,197.00.

The minimum rate is $399.00.

The link to historical rates is located at:

http://labor.vermont.gov/wordpress/wp-content/uploads//wcRule-16.pdf

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.

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.

Making Settlement Payments Payable to Claimant's Attorneys

Common practice in Vermont has been that a lump sum payment for benefits is made payable to the claimant and sent to the claimant's attorney with Department approval.  It appears that, due to IOLTA (Interest on Lawyer's Trust Accounts) trust account requirements, attorney's representing injured workers have recently requested that drafts be made payable jointly to the injured worker and the attorney. 

The Vermont Workers' Compensation Rules provide that, "a check for a claimant's workers' compensation benefits may not be made payable either solely or jointly to the claimant's attorney unless approved, in writing, by the commissioner." Vermont Workers' Compensation Rules, Rule 10.5  Carriers may consider incorporating language into the settlement documents that allows the settlement draft to be made payable to the injured worker and the injured worker's attorney.  This can be done in addition to the language allowing for the settlement draft to be sent to the injured worker's attorney.


 

Department of Labor Creates "Health Care Provider Report" Form

The Vermont Department of Labor has created a new form to assist physicians in providing the employer/carrier with information regarding the treatment of an injured worker.  The form is called the “Health Care Provider Report” and is also known as the HCP1. The form is not required to be filed.  The Department describes this as a tool to assist in obtaining relevant medical information regarding workers’ compensation injuries/illnesses. 

The form is a one page document that provides basic information such as: The employee’s name, address, date of birth and phone number; Information regarding the injury itself, such as, the date of the injury, the body part injured, the date of the examination, the diagnosis and whether the injury was work related; A line is provided for documenting test results, interpretation of the results, what medications are prescribed and what the treatment plan is; and there is a section for a brief comment on return to work.

This form is not required.  It does not change the law that requires that any provider seeking reimbursement for services must provide legible, supporting documentation. Vermont Workers’ Compensation Rules, Rule 40.021(C).  That supporting documentation is described as, “documentation for each service provided which is sufficiently detailed to allow for the review of the medical necessity of the service and the appropriateness of the fee charged.” Vermont Workers’ Compensation Rules, Rule 40.021(E).

The link to the new form is:

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