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H.571

Introduced by   Representative Otterman of Topsham

Referred to Committee on

Date:

Subject:  Labor; workers’ compensation; evidence; limitation on benefits; psychological injuries; preexisting injuries; arbitration decision

Statement of purpose:  This bill proposes to make changes to the workers’ compensation law regarding the compensability of psychological injuries; clarify what constitutes reasonable evidence supporting an action; limit what may be included in computing wages; limit compensation when Social Security becomes available; define compensability and pro-rata payment for preexisting injuries; make an arbitrator’s decision appealable; and limit payments to certain dependent children.

AN ACT RELATING TO LOWERING WORKERS’ COMPENSATION PREMIUMS

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

Sec. 1.  21 V.S.A. § 601(13) and (24) are amended to read:

(13)  “Wages” includes bonuses and the market value of board, lodging, fuel, and other advantages which can be estimated in money and which the employee receives from the employer as a part of his the employee’s remuneration; but does not include any sum paid by the employer to his or her employee to cover any special expenses entailed on the employee by the nature of his or her employment or any benefit conferred upon the spouse or dependents of the employee.

(24)  “Evidence that reasonably supports an action” means, for the purposes of section 643a and subsections 650(e) and 662(a) of this title, relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.  The report of a licensed physician signed under pains and penalties of perjury shall be deemed reasonable evidence to support an action unless the commissioner finds evidence of fraud, accident, or material mistake.

Sec. 2.  21 V.S.A. § 618(a)(3) is added to read:

(3)  If the injury suffered by a worker is a physical injury that results in whole or in part in a psychological condition, that psychological condition is not deemed to have arisen out of and in the course of employment unless the physical injury is a substantial contributing factor to the psychological injury.

Sec. 3.  21 V.S.A. § 634 is amended to read:

§ 634.  DEPENDENTS; CONSTRUCTION

The following persons, and they only, Only the following individuals shall be deemed dependents and entitled to compensation under the provisions of sections 632 and 633 of this title:

(1)  A child, if under eighteen 18 years of age, or incapable of self‑support and unmarried, whether or not ever actually dependent upon the deceased; or a child while regularly enrolled in an approved educational or vocational training institution and under the age of 25, who was at the time of the employee’s injury or death partially or wholly dependent on the employee, regardless of age; or a child of any age who was mentally or physically disabled at the time of the employee’s death and partially or wholly dependent upon him the employee;

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Sec. 4.  21 V.S.A. § 643a is amended to read:

§ 643a.  DISCONTINUANCE OF BENEFITS

Unless an injured worker has successfully returned to work, an employer shall notify both the commissioner and the employee prior to terminating benefits under either section 642 or section 646 of this title.  The notice of intention to discontinue payments shall be filed on forms prescribed by the commissioner and shall include the date of the proposed discontinuance and the reasons for it.  The liability for the payments shall continue for 7 seven days after the notice is received by the commissioner and the employee.  Those payments shall be made without prejudice to the employer and may be deducted from any amounts due pursuant to section 648 of this title if the commissioner determines that the discontinuance is warranted or if otherwise ordered by the commissioner.  Every notice shall be reviewed by the commissioner to determine the sufficiency of the basis for the proposed discontinuance.  If, upon review, the commissioner finds that the evidence does not reasonably support the proposed discontinuance, the commissioner may order that payments continue until a hearing is held and a decision is rendered.  The evidence shall include a report from a licensed health care professional that shall be deemed reasonable evidence to support the discontinuance, provided the commissioner finds no evidence of fraud, accident, or material mistake.  Any party aggrieved by the ruling of the commissioner under this section has a right to a hearing to be held within 30 days of the hearing request.

Sec. 5.  21 V.S.A. § 645 is amended to read:

§ 645.  AMOUNT PAYABLE

(a)  In case of an injury enumerated in section 644 of this title, the employer shall pay to the injured employee sixty-six 66 and two-thirds percent of the employee’s average weekly wages, computed as provided in section 650 of this title and subject to the maximum and minimum weekly compensation rates, for the duration of the employee’s permanent total disability, but in until the employee is eligible for retirement benefits under the Social Security Act, as amended.  In no event shall the employee receive benefits for less than three hundred and thirty 330 weeks.  Benefits under this section shall continue beyond three hundred and thirty 330 weeks if the injury results in the loss of actual earnings or earning capacity after the injured employee is as far restored as the permanent character of the injuries will permit and results in the employee having no reasonable prospect of finding regular employment.

(b)  The amount of compensation payable under this section shall not include the payment of compensation under sections 640, 642, and 646.  However, the payment of compensation under this section shall not occur until after the termination of compensation under sections section 642 or 646, or both.

(c)  For purposes of calculating compensation pursuant to this section, the annual cost of living adjustment provided by section 650 of this title shall not apply once the worker has attained a weekly benefit equal to the worker’s average weekly wage during the 12 weeks prior to injury.

Sec. 6.  21 V.S.A. § 648(d) is amended to read:

(d)  An impairment rating determined pursuant to this section shall be reduced by any previously determined permanent impairment for which compensation has been paid, but if the combination of the prior impairment rating and the rating determined pursuant to this section would result in the employee being considered permanently totally disabled, the prior rating shall not negate a finding of permanent total disability.

Sec. 7.  21 V.S.A. § 649 is amended to read:

§ 649.  INJURIES NOT COVERED; BURDEN OF PROOF

Compensation shall not be allowed for an injury caused by an employee’s wilful willful intention to injure himself or herself or another or, by or during his intoxication or, by an employee’s failure to use a safety appliance provided for his the employee’s use, or by an employee’s failure to comply with the employer’s documented safety policy.  The burden of proof shall be upon the employer has the burden of proof if he the employer claims the benefit of the provisions of this section.

Sec. 8.  21 V.S.A. § 650(a) is amended to read:

(a)  Average weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve 12 weeks preceding an injury; but where, by reason of the shortness of the time during which the worker has been in the employment, or the casual nature of the employment, or the terms of the employment, it is impracticable to compute the rate of remuneration, average weekly wages of the injured worker may be based on the average weekly earnings during the twelve 12 weeks previous to the injury earned by a person in the same grade employed at the same or similar work by the employer of the injured worker, or if there is no comparable employee, by a person in the same grade employed in the same class of employment and in the same district.  If during the period of twelve 12 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.  If the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, the total earnings from the several insured employers and self-insurers shall be combined in determining the employee’s average weekly wages, but insurance liability shall be exclusively upon the employer in whose employ the injury occurred.  The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance worker, or volunteer reserve police officer, injured in the discharge of duties as a firefighter, rescue or ambulance worker, or police officer, shall be the employee’s average weekly wage in the employee’s regular employment or vocation but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates, shall apply.  For the purpose of calculating permanent total or permanent partial disability compensation, the provisions relating to the maximum and minimum weekly compensation rate shall apply, and in no event shall an employee receive a weekly benefit greater than the employee’s average weekly wage.  In any event, if a worker at the time of the injury is regularly employed in a higher grade of work than formerly during the twelve 12 weeks preceding the injury and with larger regular wages, only the larger wages shall be taken into consideration in computing the worker’s average weekly wages.

Sec. 9.  21 V.S.A. § 651 is amended to read:

§ 651.  —VOLUNTARY PAYMENTS

Payments made by an employer or his insurer to an injured worker during the period of his disability, or to his the worker’s dependents, which, by the provisions of this chapter, were not due and payable when made, may, subject to the approval of the commissioner, be deducted from the amount to be paid as compensation.  The employer may designate and pay benefits on a voluntary basis without prejudice to the employer’s right to later deny the claim.

Sec. 10.  21 V.S.A. § 662 is amended to read:

§ 662.  AGREEMENTS; REQUIRED PAYMENTS IN ABSENCE OF

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(b)  In the absence of an agreement pursuant to subsection (a) of this section, the employer or insurance carrier shall notify the commissioner and the employee in writing that the claim is denied and the reasons therefor.  Upon the employee’s application for a hearing under section 663 of this title, the commissioner may review the evidence upon which denial is based and if the evidence does not reasonably support the denial, the commissioner may order that payments be made until a hearing is held and a decision is rendered.  The report of a licensed physician signed under the pains and penalties of perjury submitted as evidence in support of a denial shall be deemed reasonable evidence to support that denial unless the commissioner finds evidence of fraud, accident, or material mistake.  Payments pursuant to this subsection shall not be deemed an admission of liability by the employer nor shall such payments preclude subsequent agreement under subsection (a) of this section or prejudice the rights of either party to hearing or appeal under this chapter.

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(e)  In any dispute between employers and insurers arising under subsection (c) or (d) of this section, after payment to the claimant, the commissioner may order that the dispute be resolved through arbitration rather than the formal hearing process under sections 663 and 664 of this title.  Qualifications for arbitrators and standards for the arbitration process shall be established by the commissioner by rule.  If arbitration is ordered, the process shall proceed as follows:

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(2)  The arbitrator shall:

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(B)  Issue a written decision which shall be final in the absence of fraud shall be conclusive between the parties, except as provided in section 668 of this title, unless an appeal is taken from that decision pursuant to section 670 or 672 of this title.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us