§ 618. Compensation for personal injury

(a)(1) If a worker receives a personal injury by accident arising out of and in the course of employment by an employer subject to this chapter, the employer or the insurance carrier shall pay compensation in the amounts and to the person hereinafter specified. The compensation of a person who is under guardianship shall be paid to the person’s guardian.

(2) If the injury occurred while engaged off the premises of the employer in a recreational activity that is available to the employee as part of the employee’s compensation package or as an inducement to attract employees, it shall not be considered to have occurred in the course of employment unless the Commissioner finds at least one of the following:

(A) The employer derived substantial benefit from the activity, beyond that of attracting labor or improving employee health and morale.

(B) The activity was reasonably part of the employee’s regular duties or undertaken to meet the expectations of the employer.

(C) The activity was undertaken at the request of the employer.

(3) [Repealed.]

(b) A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury. In the civil action the employer has the burden of proving that the injury did not result from the employer’s negligence and that the employer’s negligence was not the proximate cause of the injury. The employer may not plead as a defense any of the following:

(1) The injury was caused by the negligence of a fellow-employee.

(2) The defense provided under 12 V.S.A. § 1036 unless the negligence was willful and with the intent of causing an injury.

(3) The employee assumed any risk in the employment.

(c) A worker shall commence a civil action under subsection (b) of this section within the three-year limitation period as provided in 12 V.S.A. § 512(4).

(d) The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action. The agreement shall be filed with and approved by the Commissioner. If the employer fails to pay any amount due and owing under the workers’ compensation act, the waiver agreement shall be void and the employee may pursue a civil action.

(e) Any employee who prevails in a civil action under subsection (b) of this section shall be entitled to costs, interest from the date of filing the claim, and reasonable attorney’s fees.

(f)(1) If an injured worker voluntarily consents in writing, the worker may be paid compensation benefits by means of direct deposit or an electronic prepaid benefit card account in accord with the requirements of section 342 of this title.

(2) The issuer of the card shall comply with all of the requirements, and provide the holder of the card with all of the consumer protections, that apply to a payroll card account under the rules implementing the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., as may be amended.

(3) An electronic prepaid benefit card account may be used only for weekly payment of temporary benefits and not for the payment of a lump sum award or for permanent benefits.

(4) The Commissioner, in consultation with the Commissioner of Financial Regulation, may adopt rules to implement this section. (Amended 1981, No. 165 (Adj. Sess.), § 1; 1997, No. 19, § 1; 1997, No. 59, § 34a, eff. June 30, 1997; 1999, No. 85 (Adj. Sess.), § 2, eff. April 19, 2000; 2003, No. 132 (Adj. Sess.), § 9, eff. May 26, 2004; 2013, No. 6, § 1.)