Understanding Workers’ Compensation, Part II: Vermont’s Workers’ Compensation Statutes, Rules, and Legal Precedents

By Nelson S. Haas, M.D., July 2011
 
Introduction - The Vermont statutes covering workers’ compensation are Title 21, Chapter 91.  Implementation of the statutes is specified by the Vermont Department of Labor in Workers’ Compensation Rules one to 46.2  The workers’ compensation statutes include 110 sections: §601 to §711.  The workers’ compensation rules are subdivided by a four-digit number after the rule number.  For example, Rule 2, “Definitions,” has an alphabetical list of definitions numbered 2.1100 to subdivided 2.1400.  Vermont Supreme Court decisions define further and modify the statures and rules. 
 
Aspects of the workers’ compensation laws that are important to physicians include determining causation, appropriate care, work capacity, medical end point, permanent impairment.  Knowing workers’ compensation claimants’ rights to payment for missed time, medical care, and related expenses is helpful in allaying fear about expenses.  Knowing the employers’ rights is helpful, too.  This article will include sections about:

  • The purpose of workers’ compensation;
  • When an injury or illness is occupational;
  • A claimant’s rights to payment for missed time, medical care and related expenses, and maintenance of seniority;
  • Employer’s rights to have claimants assessed;
  • Work capacity;
  • Medical end point;
  • Permanent impairment;
  • Handling of disputes; and
  • Recording of evaluations. 

References to statutes and rules have further elaboration to specific passages specified by {enclosure in curved brackets}. 
 
Purpose of the Workers’ Compensation System - “The purpose of the workers’ compensation law is to provide… a remedy which is both expeditious and independent of proof of fault… [and to provide] liability which is limited…. to the extent provided for in the [workers’ compensation] act [statutes].”2 {1.0000}  The statutes specify that employers who are responsible for their employees’ occupational injuries and illnesses will pay for treatment of occupational injuries and illness, expenses related to covered treatment, replacement wages, and awards for impairment.  There is no provision for awards for pain and suffering under the workers’ compensation system. 
 
Occupational Injury and Illness
 
Definition - An occupational injury or illness is any harmful work-related change in the body, whether occurring instantaneously or gradually,2 {2.1240} “arising out of and in the course of employment.”  For an injury or illness to occur in the course of employment, it must occur  under circumstances from which the employer derives substantial benefit, or from activity that is part of the employee’s regular duties or undertaken at the request of the employer.3  Activities that are part of an employment benefit to attract labor or improve employee health or morale are not considered the course of employement.1 {§618(a)(2)}  To meet the test of whether an illness arises out of employment, it must be caused by “conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment.1 {§601(23)}, 2 {§618(a)(1)} 
 
Employers are also responsible for the “aggravation” or acceleration of an existing condition2 {2.1110} arising out of and in the course of employment.  However, if employment merely provokes symptoms but does not worsen the underlying condition, treatment is not the responsibility of the employer.  If a “recurrence” or return of symptoms of an existing, non-work-related condition following a temporary remission of symptoms from that condition occurs during employment, treatment is not the responsibility of the employer. 
 
Reporting - When an employee becomes aware of a work-related injury, illness, or recurrence or aggravation of an existing problem, they must notify their employer2 {3.0540} and must file a claim for compensation within six months, but this notification requirement may be extended to up to six years.1 {§656}  The appropriate paperwork, an “Employer First Report of Injury,” Vermont Department of Labor, Form 1 should be filed by the employer even if the employer disputes the facts surrounding the injury and/or its relationship to the claimant’s employment.2 {3.050}  If the employer does not file a First Report of Injury, the claimant may file a Notice of Injury and Claim for Compensation, Form 52.{3.0600}   
     
Burden of Proof - In workers’ compensation cases, the claimant bears the burden of proof, and must establish “all facts essential to their claim.”Proximate cause may be proven “with facts that any layperson of average intelligence would know.”5  However, if the mechanism of injury or etiology of disease is “obscure and abtruse,” and of which “a layman can have no well founded knowledge and can do no more than… speculat[e],” then “there is no proper foundation for a finding… without expert... testimony.”6  In order to meet the burden of proof, the claimant may require his or her medical provider to explain how the particular illness was caused by employment.
 
In the case of causation, expertise is defined by the Vermont Supreme Court using the precedents set for malpractice law.  Passages regarding criteria for legal expertise will be appended to his article in the future.

Injury of illness caused by an employee’s willful intention to injure himself or herself or injure another; by or during intoxication; or by an employee’s failure to use a safety appliance is not covered under the workers’ compensation system.  The burden of proof is upon the employer when these cases are said to occur.§649 
 
Access to Information - Relevant medical records, including those relating to prior injuries and pre-existing conditions,should be released to the employer against whom a workers’ compensation claim is made  after provision of a completed Workers’ Compensation Medical Authorization, Form 7.2 {3.0800}  Disclosure of medical records pertinent to workers’ compensation claims are permitted in the Health Insurance Portability and Accountability Act as long as they conform to Vermont’s laws.7 
 
If disputes arise from a workers’ compensation claim, there are formal and informal procedures for resolution, including to the courts.1 {§671, §672, §673}, 2 {6.0000, 7.0000} 
 
Claimant’s Rights to Payment for Medical Care and Related Expenses, Missed Time, and Seniority - An employer is required to furnish to an injured employee who is covered under workers’ compensation the following:

  • Reasonable surgical, medical and nursing services and supplies, including prescription drugs and durable medical equipment1 {§640(b)}
  • Assistive devices and modification to vehicles and residences that are reasonably necessary to an injured worker who has or is expected to suffer a permanent disability1 {§640(a)};
  • Reasonable hospital services and supplies, including surgical, medical, and nursing services1 {§640(a)}; and,
  • Reasonable expenses related to travel for evaluation and treatment, including transportation expenses, meals, lodging.2 {12.2000}

In general, services will be paid according to a fee schedule.1 {§640(d)}  An employer shall not withhold any 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.1 {§640}
 
Care is medically necessary when it is supported by accepted medical or scientific evidence and consistent with “accepted practice… recognized by health care professionals in the same specialties”; and must help restore or maintain health, prevent deterioration, palliate, or prevent the reasonably likely onset of a health problem or detect an incipient problem.1 {§601 (27)} 
 
Where a workplace injury or illness causes total disability, the injured employee is paid two-thirds the employee's average weekly wages.  The replacement wages start after the first three days of total disability, but if the total disability continues for a period of 10 consecutive calendar days or more, compensation is paid for the whole period of the total disability, including the first three days.1 {§642}  The is an allowance for dependent children.  In the case that an injured employee is placed in a job that earns less than their regular wage, the employer must pay “two-thirds of the difference between average weekly wage before and during the period of disability…. during the disability and beginning on the eighth day thereof.”1 {§646}   
 
A claimant has some rights to maintain their employment position, and seniority; and unused annual, personal, and sick leave, and compensatory time.1 {§643b}  In order to be eligible for reinstatement, a claimant must recover within three years of being disabled from work.  Employers are not required to hold the claimants employment position open or open an employment position for the claimant, and reinstatement would be to the first available position. 
 
Employers’ Rights to Have Claimants Assessed by Medical Providers of their Choice - The claimant’s employer may designate the initial health care provider who evaluates and treats the claimant.  Thereafter, the claimant may select another health care provider upon giving the employer written notice using a “Notice of Intent to Change Health Care Provider,” Form 8.1 {§640(b)}, 2 {12.1100}  If the employee selects a new health care provider, the employer has the right to require other medical examinations.1 {§640(c)}, 2 {12.1200, 12.1400}   
 
Work Capacity - A claimant with work capacity must work.2 {18.1300, 18.14000}  Payment of replacement wages maybe withheld and the security of the claimant’s job is in jeopardy if the claimant refuses to work or search for suitable work if they have a partial disability.2 {18.1310} 
 
Medical End Point - A workers’ compensation claim ends when a claimant recovers completely or “has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment,” even if they do not recover completely.  This point is known by multiple names, including “end medical result” and “medical end result”2 {2.1200} After an end medical result is reached, disability payments are no longer paid,2 {18.1100}and determination as to whether the claimant has any permanent impairment is made. 
 
Permanent Impairment - When a permanent partial impairment occurs, its existence and degree will be made only in accordance with the whole person determinations in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA Guides).  The impairment is paid as the “percent of the whole person” specified in the AMA Guides at a rate of two-thirds of the claimant’s average weekly wage; determined by multiplying the employee's percentage of impairment of the whole person, two-thirds of average weekly wages, and a number of weeks determined by the Department of Labor.1 {§648},  9  The  number of weeks used in determination of impairment is 550 and 405 in spine and non-spine impairment. 
 
Disputes - If disputes about causation, appropriateness of care, work capacity, replacement wages, end medical result, or permanent impairment arise, they may be mediated by the opinion of an independent medical examiner (IME).  An IME is specified in the Vermont Statues as someone who is appointed by “the commissioner” after selection from a “pool of independent medical examiners” and mutual acceptance of the IME by claimant and employer.1 {§667}, 2 {14.1500, 14.2000, 14.9200} 
 
The statues further state: “All health care providers in the pool shall receive training about the nature and purpose of workers’ compensation and shall follow the guidelines developed by rule by the commissioner, and, if necessary, training in the use of the American Medical Association Guides to the Evaluation of Permanent Impairment.1 {§667}, 2 {14.1500, 14.2000} 
 
The IME should not have examined or treated the claimant “with respect to the injury for which benefits are being paid.”2 {14.2000}  The IME should “clearly define and discuss the issues in [a] report that are identified in the… request letter, and “must include”:

  • A record review with a “detailed chronology”;
  • Mechanism of injury or exposure;
  • Diagnostic studies and results;
  • Treatments and outcomes.
  • A claimant’s history of the course of the injury or treatment;
  • The present status of the illness or injury (reported separately from the record review);
  • The work status of the claimant; and
  • Sufficient detail of both positive and negative findings to support examination conclusions.2 {19.9200}
  • “The examiner should be familiar with and follow additional Workers’ Compensation and Occupational Disease Rules when conducting the examination and completing the report.”2 {14.9400}

 
The pool of IMEs was never established, and the role or nature of the IME was never redefined. 
 
Recording of Evaluations - A claimant who is asked to submit to an examination by their employer or ordered to submit to an examination by the commissioner may make a video or audio recording of that examination or have a licensed health care provider designated and paid by the employee present at the examination.  The employer may make an audio recording of the examination.1 {§655} 
 
Summary and Conclusion - Vermont’s workers’ compensation statutes, rules, and supreme court decisions provide the medium in which physicians and clinicians evaluate and treat their patients who make workers’ compensation claims.  The statutes, rules, and supreme court decisions provide not only for reasonable medical care, but additionally, provide for other losses a workers’ compensation claimant may face.  The employer has rights under the workers’ compensations system, too.  Knowing the framework of the system can help the physician advise their patients and avoid conflict. 
 
References 

  1. Vermont Statutes: Title 21: Labor; Chapter 9: Employer's liability and workers' compensation.  http://www.leg.state.vt.us/statutes/fullchapter.cfm?Title=21&Chapter=009.  Accessed July 15, 2011. 
  2. Workers’ Compensation Rules.  Vermont Department of Labor.  http://labor.vermont.gov/Portals/0/WC/rules1-46newwithoutannotate.pdf.  Accessed July 15, 2011. 
  3. Black’s Law Dictionary, 9th edition.  Garner BA, editor.  West Publishing Company.  Egan, MN.  2009. 
  4. DH Goodwin v. Fairbanks Morse and Company, 279.  Reports of the cases argued and determined in the Supreme Court of the State of Vermont.  1962. 
  5. Burtonv. Holden and Martin Lumber Company, 112.  Ibid Reference 4.  1941. 
  6. Lapan v. Berno’s Inc.,131-78.  Ibid Reference 4.  1979. 
  7. Insurance Portability and Accountability Act of 1996.  45CFR160 and 162.  See: §160.102 applicability; §160.103(a) definitions:  protected health information (2)(iii); and uses and disclosures for which an authorization or opportunity to agree or object is not required §164.512(l). 
  8. Protected health information: exclusion for employment records.  Federal Register 67(157):53191-53193.  2002. 
  9. Communications between NS Haas and the JS Monahan, Director, Vermont Workers' Compensation and Safety Division. 

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