After you experience a Vermont work injury, the workers’ compensation process can vary significantly depending on the nature of your injury and the insurance company’s response (i.e. whether it agrees your injury happened at work). If your work injury is not simply accepted and paid for by the insurance company from start to finish, you will likely encounter some or all of the following steps — and various Department of Labor Forms — during the process of pursuing your claim:
1. Reporting your injury to the Vermont Department of Labor. As discussed in a recent blog post, the first steps after you’ve been injured at work are to tell your employer you’ve been injured and to seek medical treatment. Once you have told your employer about your injury, it is your employer’s responsibility to inform its insurance carrier within 72 hours (unless the injury required only first aid treatment). For injuries that only required first aid, your employer must file a Form 1 First Report of Injury with the Department of Labor. If your injury required more than just first aid, employer’s insurance company must file a Form 1 with the Department of Labor. Either way, you should request a copy of the Form 1 that they file. If for some reason they don’t notify the Department of Labor by filing a Form 1, an employee can report the injury by filing a Form 5 Employee’s Notice of Injury and Claim for Compensation with the Department of Labor.
2. Accepting or denying your claim. After your employer receives notice of your Vermont work injury, its insurance company has 21 days to either accept the injury or deny it by filing a Form 2 Denial of Workers’ Compensation Benefits with the Department of Labor. If the insurance company does not file a Form 2 within the 21 day time period, the Department of Labor is supposed to treat your injury as though it is an accepted claim. If a Form 2 denial is filed, the insurance company must provide you with a copy. When you receive a Form 2 denying your workers’ compensation claim for any reason, it’s probably a good idea to contact me for a free consultation.
The insurance company may deny your workers’ compensation claim for a variety of reasons, though the most common is that they think your injury was not caused by your work. Whether accepted or denied, the insurance company will also send you a Form 7 Medical Authorization and a Form 10 Certificate of Dependency and Concurrent Employment. You should promptly return both forms to the insurance company, because failing to sign and return the Medical Authorization can serve as a basis for the insurance company to deny your claim. However, it is best not to grant a broad release of your medical records — allow the insurance company to request only those records which are relevant to your actual work injury.
3. Payment of Benefits. If your work injury causes you to miss work, and the insurance company has accepted your claim or been ordered by the Department of Labor to pay, you should begin receiving weekly temporary disability benefits based on your average weekly wage. An in-depth discussion of temporary disability benefits is available in a previous blog post. If you are receiving medical treatment for your work injury, your medical benefits should be paid as well, as discussed here.
3. The informal conference. Whether your workers’ compensation claim has been accepted or denied, disputes frequently arise between an injured employee and the insurance company. If the insurance company denies your claim (or part of it) by filing a Form 2, you have a right to appeal that denial. Similarly, the insurance company may accept your claim, but then later file a Form 2 denying payment of certain benefits — like medical treatment prescribed or performed by your doctor — or it may file a Form 27 Employer’s Notice of Intention to Discontinue Payments seeking to stop paying indemnity or medical benefits altogether.
You have a right to object to those denials and discontinuances, but it is best to have a workers’ compensation attorney help you with it. When you do, a Vermont Department of Labor workers’ compensation specialist will normally schedule an “informal” telephone conference, and may also request additional information from you and the insurance company. The specialist will then conduct a conference call, at which time both parties are allowed to discuss the facts and medical evidence supporting their positions. That’s why it’s important to have an attorney participate in the informal conference on your behalf. If the specialist agrees with your arguments, it will issue an “Interim Order” directing the insurance carrier to do something specific — like paying you indemnity benefits or approving certain medical treatment.
4. The Pretrial Conference. If you or the insurance company disagree with the Department of Labor’s “informal” decision, you have can appeal it by requesting a “formal hearing.” As opposed to informal conferences, formal hearings are similar to a courtroom proceeding. The insurance company will always have an attorney handling the formal hearing, and the Department of Labor highly recommends you hire an attorney too. Prior to the formal hearing, a hearing officer will conduct a pretrial conference, where the attorneys discuss how much time they need to prepare for the hearing. The insurance carrier’s attorney may want to schedule an IME and depose you, your witnesses, and your medical providers (if they haven’t already). If I am your attorney, I may also want to depose the insurance company’s medical expert(s) and any other witnesses they plan on calling.
5. Mediation. Prior to the formal hearing, the parties will likely be ordered to attend mediation with a neutral third-party mediator. The parties are given the opportunity to agree upon a mediator of their choosing, and usually select an attorney with vast experience in Vermont workers’ compensation law. The mediator will then attempt to facilitate a resolution of the disputed issue, often by pointing out any glaring weakness in either (or both) parties’ case.
6. The Formal Hearing. If mediation does’t result in a resolution, a Formal Hearing is conducted at the Vermont Department of Labor’s office in Montpelier. Although it occurs in a conference room instead of in a courtroom, many courtroom formalities are required. The parties must each call witnesses, who are sworn to testify under oath and are questioned (and cross-examined) by each attorney. You will have to testify, and it’s a good idea to have your doctor(s) testify too. The parties must introduce evidence to the hearing officer using the Vermont Rules of Evidence. This formal hearing process can take anywhere from a few hours to multiple days, depending on the number of witnesses and complexity of the issues. Once each party has presented its witnesses and evidence, the hearing concludes and the parties must submit proposed Findings of Fact and Conclusions of Law within 30 days. After reviewing those submissions, the hearing officer will issue a written decision.
7. Appealing the Formal Hearing decision. Sometimes the Vermont Department of Labor’s formal hearing decision is disagreeable enough that one of the parties wants to appeal it even further. When the disagreement centers on an issue of fact, the claim may be appealed to the Vermont Superior Court for a jury trial. If the disagreement centers only on an issue of law, it may be appealed directly to the Vermont Supreme Court.
If you were injured at work and have had some or all of your claim denied, please don’t hesitate to give me a call for a free consultation. As noted above, it can be very helpful to have an attorney representing you at an informal conference, and it is very important to have an attorney at the formal hearing. Without an attorney, your legitimate workers’ compensation claim could fail simply because you don’t have experience examining witnesses and presenting evidence.