Mileage Reimbursement Reduced to $.56 a Mile

The Department of Labor has announced that effective January 1, 2014 the Workers’ Compensation mileage reimbursement rate will be $.56 per mile. According to the Department's email the mileage reimbursement rate as determined by Rule 12.2100 is for "mileage traveled for medical treatment, to attend an employer's independent medical examination, or attend a vocational rehabilitation meeting, beyond the distance normally traveled to the workplace."  This is a slight reduction from the current rate of $.565. 

 

 

Department of Labor Bars PTD Claim Based on Statute of Limitations

The Vermont Department of Labor has granted summary judgment to an employer and denied a permanent total disability claim as being time barred by the statute of limitations. Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013)

In Vermont a permanent total disability claim cannot accrue until "it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant will most likely never be able to return to gainful employment." Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013) (citing  Hoisington v. Ingersoll Electric, Op. No. 52-09WC (December 28, 2009)). In this instance over ten years had passed between the date three doctors opined that the claimant was "100 percent disabled", "essentially unemployable and 100 percent disabled" and "totally disabled" with "no functional work capacity" and the filing of the PTD claim.  Id. The Department concluded that the cumulative effect of those three opinions should have made it reasonably apparent that the worker will most likely never be able to return to gainful employment and "should have triggered her to take action to protect her rights." Id.

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.


 

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. 

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.

Department Reiterates Worsening of Preexsting Condition Compensable

Where a pre-existing condition is worsened by any degree because of a work injury or condition of work, resulting medical treatment is compensable.  Goodwin v. AmeriGas Propone, Op. No. 21-13WC (September 10, 2013). When considering a progressively degenerative disease, where "the disease, if left to itself, and apart from any  injury, would, in time, have inevitably caused a complete disability," the causation test becomes whether, due to a work injury or the work environment, "the disability came upon the claimant earlier than otherwise would have occurred." Stannard v. Stannard, 2003 VT 52 ¶11 (May 29, 2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989) (internal quotations and citations omitted).

 

The Department of Labor decision can be found here:

http://www.labor.vt.gov/portals/0/WC/GoodwinDecision.pdf

 

 

Department Rules No Wage Replacement When No Wages are Earned Prior to TTD Period

If an injured worker has not earned any wages at all during the weeks preceding a period of total disability, then unless the failure to earn wages was the result of an injury-related consequence rather than a personal choice, in most cases no benefits will be due. Duffy v. Sisler Builders, Op. No. 20-13WC (August 28, 2013), (citing See, e.g., Bacon v. Gerald E. Morrissey, Inc., Opinion No. 32-11WC (October 12, 2011); Giacobbe v. Verizon, Opinion No. 72-05WC (December 30, 2005); Knoff v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005); see also, Plante v. State of Vermont Agency of Transportation, Opinion No. 19-13WC (August 22, 2013) (applying same analysis to compensation rate computation for successive period of disability); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010) (same)). There are exceptions as noted in Machia v. Comet Confectionary, Op. No, 32-07WC (December 4, 2007).

 

The Duffy decision can be found at the Department of Labor Website:

 

http://www.labor.vt.gov/portals/0/WC/DuffyDecision.pdf