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NO. 41. AN ACT RELATING TO WORKERS' COMPENSATION MEDICAL BENEFITS.

(H.103)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 21 V.S.A. § 640(d) is amended to read:

(d) The liability of the employer to pay for medical, surgical, hospital and nursing services and supplies provided to the injured employee under this section shall not exceed the maximum fee for a particular service as provided by a schedule of fees and rates prepared by the commissioner. The commissioner shall authorize reimbursement at a rate higher than the scheduled rate if the employee demonstrates to the commissioner's satisfaction that reasonable and necessary treatment is not available at the scheduled rate. An employer shall establish direct billing and payment procedures and notification procedures as necessary for coverage of medically-necessary prescription medications for chronic conditions of injured employees, in accordance with rules adopted by the commissioner.

Sec. 2. 21 V.S.A. § 601(7) and (11)(B) are amended to read:

(7) "Injury" and "personal injury" includes occupational diseases, death resulting from injury within two years and includes injury to and cost of acquiring and replacement of prosthetic devices, hearing aids and eye glasses.

(11)(B) "Line of duty", as applied to *[fire fighters]* firefighters, rescue and ambulance workers, *[shall mean]* means:

(i) Service in *[his]* the worker's town or district, in answer to a call of *[his]* the department, including *[but not limited to]* going to and returning from a fire or emergency or participating in a fire or emergency drill, parade, test or trial of any fire-fighting or emergency equipment,

(ii) Similar service in another town or district to which *[his]* the department has been called for fire-fighting or emergency purposes, *[and]*

(iii) Service under orders of any department officer in any other emergency to which *[his]* the department is called in the town or district where *[his]* the department is established,

(iv) Activities authorized by the department for the purpose of raising funds for the department.

Sec. 3. 21 V.S.A. § 601(14)(G) and (23) are added to read:

(14) "Worker" and "employee" means a person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer, but shall not include:

* * *

(G) An individual who performs services as a real estate broker or real estate salesperson, provided:

(i) the individual is licensed to broker or sell real estate pursuant to 26 V.S.A. chapter 41;

(ii) all the individual's compensation from performing real estate broker or sales services is based on commissions from sales production or results and is not based on time worked or an hourly wage;

(iii) the services are performed pursuant to a written agreement or contract between the individual and the real estate sales or broker business or another person with whom the individual is affiliated or associated and the written agreement or contract explicitly states that the individual is not considered to be an employee under this chapter and is not eligible for coverage under this chapter; and

(iv) the individual is not treated as an employee for the purposes of federal income and employment taxation with regard to the real estate broker or sales services performed.

(23) "Occupational disease" means a disease that results from causes and 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 and arises out of and in the course of the employment.

Sec. 4. 21 V.S.A. § 624(e) is amended to read:

(e) In an action to enforce the liability of a third party, the injured employee may recover any amount which the employee or the employee's personal representative would be entitled to recover in a civil action. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers' compensation insurance carrier for any amounts paid or payable under this chapter to date of recovery, and the balance shall forthwith be paid to the employee or the employee's dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits. Reimbursement required under this subsection, except to prevent double recovery, shall not reduce the employee's recovery of any benefit or payment provided by a plan or policy that was privately purchased by the injured employee, including uninsured-under insured motorist coverage, or any other first party insurance payments or benefits.

Sec. 5. 21 V.S.A. § 656 is amended to read:

§ 656. --NOTICE OF INJURY AND CLAIM FOR COMPENSATION

(a) A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the injury occurred, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury; or, in case of death, within six months after death,*[ whether or not a claim has been made by the employee for compensation]* unless the claimant had made a claim for compensation prior to death.

(b) The date of injury, or in the case of occupational disease, the date of injurious exposure shall be the point in time when the injury or disease, and its relationship to the employment is reasonably discoverable and apparent. If that date occurs after the employee has ceased all employment, the employee shall be entitled to reasonable and necessary medical treatment necessitated by the injury and permanent partial or permanent total disability compensation based on the employee's average weekly wage at the time of the last

work-related exposure.

(c) The notice and claim may be given or made by any person claiming to be entitled to compensation or by someone in the employee's behalf. If*[ ]*payments of compensation have been made voluntarily, the making of a claim within this period shall not be required. If the claim is denied after voluntary payments were made, the claimant shall commence proceedings under this chapter within six months from the date of denial.

Sec. 6. 21 V.S.A. § 660 is amended to read:

§ 660. SUFFICIENCY OF NOTICE OF INJURY

(a) A notice given under the provisions of *[sections 656 and 657 of]* this *[title]* chapter shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to the injury as a result of the inaccuracy. Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer, the employer's agent or representative, had knowledge of the accident or that the employer has not been prejudiced by the delay or want of notice. Proceedings to initiate a claim for benefits pursuant to this chapter may not be commenced after six years from the date of injury.

(b) Notwithstanding subsection (a) of this section, a claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.

Sec. 7. 21 V.S.A. § 662(d) is added to read:

(d) Where more than one employer or insurer may be liable for an employee's occupational disease, the employer in whose service the employee was last injuriously exposed to the hazard that caused the disease, and the insurance carrier, if any, on the risk when the employee was last exposed, shall be liable if it can be proven that the service for the last employer causally contributed to the disease.

Sec. 8. REPEAL; FUND MONEYS; CONSTRUCTION

(a) The following are repealed:

(1) Chapter 11 of Title 21 (§§ 1001-1022), relating to compensation for occupational diseases.

(2) 21 V.S.A. §§ 683, relating to the second injury fund, 684, relating to a report, 685, relating to suspension of payment, and 686, relating to hearings.

(b) Any moneys remaining in the second injury fund shall be deposited in the general fund.

(c) All diseases previously classified as occupational diseases under chapter 11 of Title 21, Compensation for Occupational Diseases, shall be treated as occupational diseases under chapter 9 of Title 21, Employer's Liability and Workers' Compensation.

Approved: May 25, 1999