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BILL AS INTRODUCED 2007-2008

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S.41

Introduced by Senator Mullin of Rutland District

Referred to Committee on

Date:

Subject:  Labor; agriculture; workers’ compensation

Statement of purpose:  This bill proposes to provide financial relief from workers’ compensation premiums for farmers by reforming workers’ compensation in Vermont by:

(1)  Shortening the statute of limitations from three to two years.

(2)  Eliminating the cost of living increase in wage replacement benefits.

(3)  Limiting the compensability of mental injuries to those that are substantially caused by an underlying physical injury. 

(4)  Requiring that temporary total disability benefits terminate for a mental injury when an end result has been reached for the underlying physical injury.

(5)  Limiting wage replacement benefits to 80 percent of the employee’s average weekly wage at the time of injury.

(6)  Awarding permanent total disability benefits based only on physical impairment without consideration of any other factor such as the injured employee’s age, experience, training, education, and mental capacity.

(7)  Extending the time for determining the compensability of a worker’s compensation claim from 21 to 60 days.

(8)  Terminating workers’ permanent total compensation wage replacement benefits when an injured worker reaches the age of 62 or becomes eligible for government‑sponsored retirement benefits, whichever occurs first.

(9)  Limiting eligibility for vocational rehabilitation to 52 weeks.

(10)  Setting a fee schedule for reimbursement for vocational rehabilitation services rendered by vocational rehabilitation providers.

(11)  Making immigrant employees who are illegal or who have left the United States ineligible to receive vocational rehabilitation benefits.

(12)  Limiting payments to dependent children.

(13)  Pro‑rating preexisting or aggravating injuries when computing permanent partial compensation.  

AN ACT RELATING TO WORKERS’ COMPENSATION FOR AGRICULTURAL EMPLOYEES

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

Sec. 1.  21 V.S.A. § 618(a)(4) is added to read:

(4)  Compensation for an aggravation of a preexisting disease or injury shall be paid only for the proportion of the disability or death that is reasonably attributed to the aggravating injury upon which the claim is based.


Sec. 2.  21 V.S.A. § 641 is amended to read:

§ 641.  VOCATIONAL REHABILITATION

(a)  When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment.  Vocational rehabilitation services shall be provided as follows:

(1)  The employer shall designate a vocational rehabilitation provider from a list provided by the commissioner to initially provide services. Thereafter, the employee may select another vocational rehabilitation provider from a list provided by the commissioner upon giving the employer written notice of the employee’s reasons for dissatisfaction with the designated provider and the name and address of the provider selected by the employee.  Vocational rehabilitation providers shall be paid for rehabilitation services provided pursuant to a fee schedule determined by the commissioner by rule.

* * *

(3)  The commissioner shall adopt rules to assure that a worker who requests services or who has received more than 90 days of continuous temporary total disability benefits is timely and cost‑effectively screened for benefits under this section.  The rules shall:

(F)  Set rates for reimbursement for vocational rehabilitation services provided by rehabilitation counselors pursuant to this section.

(G)  Clarify that vocational rehabilitation benefits shall not be awarded:

(i)  For more than 52 weeks, unless permitted by the commissioner.

(ii)  To illegal immigrant employees or immigrant employees who are living outside the United States.

* * *

(5)  The commissioner may set by rule a fee schedule for payment to vocational rehabilitation providers and reasonable reimbursement rates for vocational rehabilitation benefits and services, provided access to vocational rehabilitation services is not diminished, and reasonable choices and access to benefits and services are maintained.  The fee schedule and reimbursement rates shall require the individual vocational rehabilitation counselor who provides services to review, initial, and certify the accuracy of the billing.

* * *

Sec. 3.  21 V.S.A. § 642 is amended to read:

§ 642.  TEMPORARY TOTAL DISABILITY BENEFITS

(a)  Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to two‑thirds of the employee’s average weekly wages, but not more than the maximum nor less than the minimum weekly compensation 80 percent of the employee’s average weekly wage.  In addition, the injured employee, during the disability period shall receive $10.00 a week for each dependent child who is unmarried and under the age of 21 years, provided that no other injured worker is receiving the same benefits on behalf of the dependent child or children.  However, in no event shall an employee’s total weekly wage replacement benefits, including any payments for a dependent child, exceed 90 80 percent of the employee’s average weekly wage prior to applying any applicable cost of living adjustment.  The amount allowed for dependent children shall be increased or decreased weekly to reflect the number of dependent children extant during the week of payment.  If the total disability continues after the third day for a period of seven consecutive calendar days or more, compensation shall be paid for the whole period of the total disability.

(b)  A mental injury is not compensable unless it is shown that the mental injury was substantially caused by a compensable physical injury.  An injured employee who has suffered a compensable mental injury shall not be eligible for temporary total disability benefits after the employee has reached an end result in regard to the underlying compensable physical injury.

Sec. 4.  21 V.S.A. § 644 is amended to read:

§ 644.  PERMANENT TOTAL DISABILITY

(a)  In case of the following injuries, the disability caused thereby shall be deemed total and permanent:

* * *

(b)  The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.

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 no event shall the employee receive benefits for less than three hundred and thirty 330 weeks, and in no event shall the benefits including increases provided pursuant to section 650 of this title be more than the employee’s average weekly wage at the time of the compensable injury.  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, provided that the employee shall no longer be eligible for benefits under this section when the employee reaches the age of 62 or otherwise becomes eligible for government sponsored retirement benefits, whichever occurs first

(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.

Sec. 6.  21 V.S.A. § 650(d) and (e) are amended to read:

(d)  Compensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury. 

(e)  If weekly compensation benefits or weekly accrued benefits are not paid within 21 60 days after becoming due and payable pursuant to an order of the commissioner, or in cases in which the overdue benefit is not in dispute, ten percent of the overdue amount shall be added and paid to the employee, in addition to interest and any other penalties.  In the case of an initial claim, benefits are due and payable upon entering into an agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 60 days after the claim is filed.  Benefits are in dispute if the claimant has been provided actual written notice of the dispute within 21 60 days of the benefit being due and payable and the evidence reasonably supports the denial.  Interest shall accrue and be paid on benefits that are found to be compensable during the period of nonpayment.  The commissioner shall promptly review requests for payment under this section and, consistent with the criteria in department rule 10.13, shall allow for the recovery of reasonable attorney fees associated with an employee’s successful request for payment under this subsection.

Sec. 7.  21 V.S.A. § 660(a) is amended to read:

(a)  A notice given under the provisions of this 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 a work‑related injury pursuant to this chapter may not be commenced after three two years from the date of injury.  This section shall not be construed to limit subsequent claims for benefits stemming from a timely filed work‑related injury claim.

Sec. 8.  DEPARTMENT OF LABOR; SAFETY PROGRAMS FOR

             AGRICULTURAL EMPLOYERS; PROMOTION

The commissioner of the department of labor shall:

(1)  No later than July 1, 2007 implement safety programs specifically designed to reduce injuries and thus workers’ compensation premiums for agricultural employers.   Existing safety programs may be utilized, provided that the realities of agricultural employment are specifically addressed.

(2)  Actively promote and market the agricultural safety programs to farmers and other agricultural employers around the state.

(3)   Report to the general assembly no later than January 15, 2008 details of the specific agricultural safety programs, the efforts made to promote and market them, the response to the programs, and the impact on frequency and type of injuries and on workers’ compensation premium rates for agricultural employers.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us