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1 S.101
2 Introduced by Senators Ram Hinsdale and Clarkson
3 Referred to Committee on
4 Date:
5 Subject: Labor; workers’ compensation; unemployment insurance; temporary
6 partial disability benefits; cost of living adjustment; appeals;
7 Workers’ Compensation Administration Fund; rate of contribution;
8 discontinuance of benefits; eligibility
9 Statement of purpose of bill as introduced: This bill proposes to permit an
10 injured worker to request preauthorization of benefits in addition to medical
11 treatment, specify when an employer may require an employee who has been
12 medically cleared to return to work to engage in a work search, to amend the
13 formula for determining the amount of compensation that is due to an
14 employee with a temporary partial disability, to clarify the requirements for
15 providing dependency benefits and cost of living adjustments to compensation
16 paid to an employee with a temporary partial disability, and to permit the
17 Commissioner to award the necessary costs of a proceeding to a claimant if the
18 claimant prevails. This bill also proposes to set the annual rate of contribution
19 for the Workers’ Compensation Administration Fund, to establish a default rate
20 of contribution in the event that the General Assembly does not set the rate of
21 contribution for a fiscal year, and to make permanent a provision permitting a VT LEG #366707 v.6
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1 worker to file an appeal of a proposed discontinuance of workers’
2 compensation benefits and to obtain a 14-day extension to the time for filing an
3 appeal. In addition, this bill proposes to establish additional instances in which
4 an employee who voluntarily separates from employment may be eligible for
5 unemployment insurance benefits.
6 An act relating to miscellaneous workers’ compensation amendments
7 It is hereby enacted by the General Assembly of the State of Vermont:
8 * * * Workers’ Compensation * * *
9 Sec. 1. 21 V.S.A. § 640b is amended to read:
10 § 640b. REQUEST FOR PREAUTHORIZATION TO DETERMINE IF
11 PROPOSED TREATMENT IS BENEFITS ARE NECESSARY
12 (a) As used in this section, “benefits” means medical treatment and
13 surgical, medical, and nursing services and supplies, including prescription
14 drugs and durable medical equipment.
15 (b) Within 14 days of after receiving a written request for preauthorization
16 for a proposed medical treatment benefits and medical evidence supporting the
17 requested treatment benefits, a workers’ compensation insurer shall do one of
18 the following, in writing:
19 (1) authorize Authorize the treatment benefits and notify the health care
20 provider, the injured worker, and the Department; or.
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1 (2)(A) deny Deny the treatment benefits because the entire claim is
2 disputed and the Commissioner has not issued an interim order to pay benefits;
3 or. The insurer shall notify the health care provider, the injured worker, and
4 the Department of the decision to deny benefits.
5 (B)(3) deny Deny the treatment benefits if, based on a preponderance
6 of credible medical evidence specifically addressing the proposed treatment
7 benefits, it is the benefits are unreasonable or, unnecessary, or unrelated to the
8 work injury. The insurer shall notify the health care provider, the injured
9 worker, and the Department of the decision to deny treatment; or benefits.
10 (3)(4) notify Notify the health care provider, the injured worker, and
11 the Department that the insurer has scheduled an examination of the employee
12 pursuant to section 655 of this title or ordered a medical record review
13 pursuant to section 655 655a of this title. Based on the examination or review,
14 the insurer shall authorize or deny the treatment benefits and notify the
15 Department and the injured worker of the decision within 45 days of after a
16 request for preauthorization. The Commissioner may, in his or her the
17 Commissioner’s sole discretion, grant a 10-day extension to the insurer to
18 authorize or deny treatment benefits, and such an extension shall not be subject
19 to appeal.
20 (b)(c) If the insurer fails to authorize or deny the treatment benefits
21 pursuant to subsection (a) of this section within 14 days of after receiving a VT LEG #366707 v.6
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1 request, the claimant or health care provider may request that the Department
2 issue an order authorizing treatment benefits. After receipt of the request, the
3 Department shall issue an interim order within five days after notice to the
4 insurer, and five days in which to respond, absent evidence that the entire
5 claim is disputed. Upon request of a party, the Commissioner shall notify the
6 parties that the treatment has benefits have been authorized by operation of
7 law.
8 (c)(d) If the insurer denies the preauthorization of the treatment benefits
9 pursuant to subdivision (a)(2) or, (3), or (4) of this section, the Commissioner
10 may, on his or her the Commissioner’s own initiative or upon a request by the
11 claimant, issue an order authorizing the treatment benefits if he or she the
12 Commissioner finds that the evidence shows that the treatment is benefits are
13 reasonable, necessary, and related to the work injury.
14 Sec. 2. 21 V.S.A. § 643d is added to read:
15 § 643d. WORK SEARCH; REQUIREMENTS; EXCEPTIONS
16 (a) An employer may require an employee who is receiving temporary
17 disability benefits pursuant to section 646 of this chapter to engage in a good
18 faith search for suitable work if:
19 (1) the injured employee is medically released to return to work, either
20 with or without limitations;
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1 (2) the employer has provided the injured employee with written
2 notification that the employee is medically released to return to work and the
3 notification describes any applicable limitations; and
4 (3) the employer cannot offer the injured employee work that the
5 employee is medically released to do.
6 (b) An injured employee shall not be required to engage in a good faith
7 search for suitable work if the employee:
8 (1) is already employed; or
9 (2) has been referred for or is scheduled to undergo one or more surgical
10 procedures.
11 (c) An employer shall not require an injured employee to contact more than
12 three employers per week as part of a good faith work search performed
13 pursuant to this section.
14 Sec. 3. 21 V.S.A. § 646 is amended to read:
15 § 646. TEMPORARY PARTIAL DISABILITY BENEFITS
16 (a)(1) Where the disability for work resulting from an injury is partial,
17 during the disability and beginning on the eighth day thereof of the period of
18 disability, the employer shall pay the injured employee a weekly compensation
19 equal to:
20 (A) the difference between the wage the injured employee earns
21 during the period of disability and the amount the injured employee would be
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1 eligible to receive pursuant to section 642 of this chapter, including any
2 applicable cost of living adjustment or dependency benefits that would be due;
3 or
4 (B) for an injured employee who would be eligible to receive the
5 maximum weekly compensation pursuant to section 642 of this chapter, two-
6 thirds of the difference between his or her the injured employee’s average
7 weekly wage before the injury and the average weekly wage which he or she is
8 able to earn thereafter amount the employee earns during the period of
9 disability.
10 (2) Compensation paid pursuant to this subsection shall be adjusted
11 following the receipt of 26 weeks of benefits and annually on each subsequent
12 July 1, so that the compensation continues to bear the same percentage
13 relationship to the average weekly wage in the State as it did at the time of
14 injury.
15 (b)(1) In addition to the amount paid pursuant to subsection (a) of this
16 section, the employer shall pay the injured employee during the disability
17 $20.00 per week for each dependent child under 21 years of age, provided that
18 no other injured worker is receiving the same benefits on behalf of the
19 dependent child or children.
20 (2) The amount allowed for dependent children shall be adjusted weekly
21 to reflect the number of dependent children during each week of payment.
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1 (c)(1)(A) For an injured employee who continues to work for the employer
2 from whom the employee is claiming workers’ compensation, payment of
3 compensation pursuant to this section shall be mailed or deposited into the
4 injured employee’s bank account within not more than seven days after the
5 injured employee’s wages are paid.
6 (B) The employer shall be responsible for providing the injured
7 employee’s wage information to the insurance carrier.
8 (2) For an injured employee who is working for a different employer
9 from the employer from whom the employee is claiming workers’
10 compensation, payment of compensation pursuant to this section shall be
11 mailed or deposited into the injured employee’s bank account within not more
12 than three days after the injured employee submits the wage information to the
13 insurance carrier.
14 Sec. 4. 21 V.S.A. § 642 is amended to read:
15 § 642. TEMPORARY TOTAL DISABILITY BENEFITS
16 (a)(1) Where the injury causes total disability for work, during such the
17 disability, but not including the first three days, with the day of the accident to
18 be counted as the first day, unless the employee received full wages for that
19 day, the employer shall pay the injured employee a weekly compensation equal
20 to two-thirds of the employee’s average weekly wages, but.
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1 (2) The weekly compensation shall be in an amount that is not more
2 than the maximum nor less than the minimum weekly compensation.
3 (3) Compensation paid pursuant to this subsection shall be adjusted on
4 the first July 1 following the receipt of 26 weeks of benefits and annually on
5 each subsequent July 1, so that the compensation continues to bear the same
6 percentage relationship to the average weekly wage in the State as it did at the
7 time of injury.
8 (b)(1) In addition, the injured employee, during the disability period shall
9 receive $10.00 a to the amount paid pursuant to subsection (a) of this section,
10 the employer shall pay the injured employee during the disability $20.00 per
11 week for each dependent child who is unmarried and under the age of 21 years
12 of age, provided that no other injured worker is receiving the same benefits on
13 behalf of the dependent child or children. However, in no event shall an
14 (2) The amount allowed for the dependent children shall be adjusted
15 weekly to reflect the number of dependent children during each week of
16 payment.
17 (c) Notwithstanding any provision of subsection (a) or (b) of this section to
18 the contrary:
19 (1) An employee’s total weekly wage replacement benefits, including
20 any payments for a dependent child, shall not exceed 90 percent of the
21 employee’s average weekly wage prior to applying any applicable cost of
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1 living adjustment. The amount allowed for dependent children shall be
2 increased or decreased weekly to reflect the number of dependent children
3 extant during the week of payment.
4 (2) If the total disability continues after the third day for a period of
5 seven consecutive calendar days or more, compensation shall be paid for the
6 whole period of the total disability.
7 Sec. 5. 21 V.S.A. § 650 is amended to read:
8 § 650. PAYMENT; AVERAGE WAGE; COMPUTATION
9 ***
10 (d)(1) Compensation computed pursuant to this section shall be adjusted
11 annually on July 1, so that such the compensation continues to bear the same
12 percentage relationship to the average weekly wage in the State as computed
13 under this chapter as it did at the time of injury.
14 (2) Temporary total or temporary partial compensation shall first be
15 adjusted on the first July 1 following the receipt of 26 weeks of benefits.
16 (3) Permanent total and permanent partial compensation shall be
17 adjusted for each July 1 following the date of injury regardless of whether
18 indemnity benefits were paid on each intervening July 1.
19 (e)(1) If weekly compensation benefits or weekly accrued benefits are not
20 paid within 21 days after becoming due and payable pursuant to an order of the
21 Commissioner, or in cases in which the overdue benefit is not in dispute, 10 25
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1 percent of the overdue amount shall be added and paid to the employee, in
2 addition to any amounts due pursuant to subsection (f) of this section and
3 interest and any other penalties.
4 (2) In the case of an initial claim, benefits are due and payable upon
5 entering into an agreement pursuant to subsection 662(a) of this title, upon
6 issuance of an order of the Commissioner pursuant to subsection 662(b) of this
7 title, or if the employer has not denied the claim within 21 days after the claim
8 is filed.
9 (3) Benefits are in dispute if the claimant has been provided actual
10 written notice of the dispute within 21 days of after the benefit being due and
11 payable and the evidence reasonably supports the denial.
12 (4) Interest shall accrue and be paid on benefits that are found to be
13 compensable during the period of nonpayment.
14 (5) The Commissioner shall promptly review requests for payment
15 under this section and, consistent with subsection 678(d) of this title, shall
16 allow for the recovery of reasonable attorney’s fees associated with an
17 employee’s successful request for payment under this subsection.
18 (f)(1)(A) When benefits have been awarded or are not in dispute as
19 provided in subsection (e) of this section, the employer shall establish a
20 weekday on which payment shall be mailed or deposited and notify the VT LEG #366707 v.6
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1 claimant and the Department of that day. The employer shall ensure that each
2 weekly payment is mailed or deposited on or before the day established.
3 (B) Payment shall be made by direct deposit to a claimant who elects
4 that payment method. The employer shall notify the claimant of his or her the
5 claimant’s right to payment by direct deposit.
6 (2) If the benefit payment is not mailed or deposited on the day
7 established, the employer shall pay to the claimant a late fee equal to the
8 greater of $10.00 or:
9 (A) five percent of the benefit amount, whichever is greater, for each
10 weekly the first payment that is made after the established day;
11 (B) 10 percent of the benefit amount for the second payment that is
12 made after the established day;
13 (C) 15 percent of the benefit amount for the third payment that is
14 made after the established day; and
15 (D) 20 percent of the benefit amount for the fourth and any
16 subsequent payments that are made after the established day.
17 (3) As used in this subsection, “paid” means the payment is mailed to
18 the claimant’s mailing address or, in the case of direct deposit, transferred into
19 the designated account. In the event of a dispute, proof of payment shall be
20 established by a