Morin v. Essex Optical/The Hartford
Annotate this Case
Morin v. Essex Optical (2003-502); 178 Vt. 29; 868 A.2d 729
2005 VT 15
[Filed 28-Jan-2005]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2005 VT 15
No. 2003-502
Theresa Morin Supreme Court
On Appeal from
v. Commissioner of
Labor and Industry
Essex Optical/The Hartford November Term, 2004
Michael S. Bertrand, Commissioner
Christopher McVeigh, Burlington, for Plaintiff-Appellant.
John W. Valente of Ryan Smith & Carbine, Ltd., Rutland, for
Defendant-Appellee.
PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. Claimant Theresa Morin appeals a decision of the
Commissioner of Labor and Industry, holding that she is not entitled to
receive a cost of living adjustment to her workers' compensation permanent
total disability benefits. The Commissioner found that cost of living
increases to permanent total disability benefits under 21 V.S.A. § 650(d)
were not available if the resulting benefit amount would be greater than
claimant's average weekly wage at the time of her injury, and, on this
basis, denied claimant's cost of living increase. We reverse.
¶ 2. Claimant was injured in 1990 when she fell and injured her
lower back while employed by defendant, Essex Optical. The low back injury
led to additional health problems including psychological depression and a
stomach ulcer caused by the medications that claimant used to relieve her
back pain. Claimant sought permanent total disability benefits, and in
November 2001, the Commissioner awarded them. The employer appealed to the
superior court, which affirmed in March 2003.
¶ 3. At the time of injury, claimant's average weekly wage was $475,
and her resulting weekly workers' compensation benefit was $317. During
the period between her injury and the Commissioner's compensation decision,
she received a cost of living adjustment to her temporary benefits every
July 1 as mandated by 21 V.S.A. § 650(d). As a result, she was receiving
weekly compensation of $469 from July 1, 2001 through June 30, 2002. In
July 2002, the annual cost of living adjustment would have increased her
benefit to $489, an amount in excess of her $475 average weekly wage at the
time of her injury. Defendant's insurance carrier refused to increase
claimant's benefit. Claimant submitted the question to the Commissioner in
a motion for summary judgment, arguing that she was entitled to continued
yearly increases under 21 V.S.A. § 650(d) irrespective of whether her
benefit amount exceeded her average weekly wage at the time of her injury.
The Commissioner denied the motion, and claimant appealed. On appeal, the
Commissioner submitted the following certified question: "Did the
Department of Labor and Industry err in its interpretation of 21 V.S.A. §
650(d) in concluding that a permanent total disability claimant's weekly
compensation rate could not exceed her average weekly wage?" We answer
this question in the affirmative.
¶ 4. This appeal involves a question of law, and "[i]f the
Commissioner's conclusions are supported by the findings and reflect the
correct interpretation of the law, we will affirm the Commissioner's
decision." Butler v. Huttig Bldg. Prods., 2003 VT 48, ¶ 9, 175 Vt. 323,
830 A.2d 44. Further, we will defer to the Commissioner's construction of
the Workers' Compensation Act, "absent a compelling indication of error."
Wood v. Fletcher Allen Health Care, 169 Vt. 419, 422, 739 A.2d 1201, 1204
(1999). Even under our deferential standard, we conclude that the
Commissioner's decision in this case is not supported by the findings and
reflects an unjust and unreasonable interpretation of the law. See Clodgo
v. Rentavision, Inc., 166 Vt. 548, 550, 701 A.2d 1044, 1045 (1997) (noting
that we will not affirm an unjust interpretation).
¶ 5. The Commissioner's decision in this case was brief, essentially
reiterating the holding of Patch v. H.P. Cummings Constr., Op. No. 49-02WC
(Jan. 2, 2003), which examined the question in more detail and held that 21
V.S.A. § 601(19) caps compensation for permanent disability benefits at
average weekly wage at the time of claimant's injury. In reaching this
conclusion, the Commissioner rejected the argument that the statute, §
601(19), explicitly caps only temporary disability benefits and, therefore,
does not support a cap on permanent disability benefits. When examining
the statute, which was amended in 1993 to establish the cap on temporary
disability benefits, the Commissioner reasoned: "the Legislature did not
change this Department's well-established statutory and regulatory
interpretation of the Act to limit all benefits-temporary and permanent-to
the average weekly wage." Patch, slip op. at 14. The Commissioner
concluded: "To apply [Cost of Living Adjustments (COLAs)] in this case
involving a low-wage earner would be to depart from this Department's
precedent, which the Legislature has chosen not to change, and which would
be contrary to the legislative will to change now." Id. The decision
cited three earlier decisions, discussed infra, that were apparently the
basis for the Commissioner's conclusion that the COLA limitation was well
established with respect to both temporary and permanent total disability
compensation.
¶ 6. On appeal, claimant argues that the Commissioner's decision
is inconsistent with 21 V.S.A. § 650(d), is unsupported by § 601(19), and
is not based upon a consistent policy of capping permanent total disability
benefits at the claimant's average weekly wage at the time of injury prior
to Patch. Defendant responds that the plain language of § 601(19) commands
the Commissioner's decision and otherwise relies upon the Commissioner's
analysis in Patch. We agree with claimant that the statute does not
authorize the capping of permanent disability benefits.
¶ 7. In interpreting a statute our overall goal is to give effect to
the Legislature's intent. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7,
175 Vt. 61, 819 A.2d 727. We do so by looking to the legislation's plain
meaning, and we will not read terms into the statute unless necessary to
make the statute effective. Huntington v. McCarty, 174 Vt. 69, 73, 807 A.2d 950, 954 (2002). Further, because the Workers' Compensation Act is
remedial in nature, we construe it liberally to allow benefits, "unless the
law is clear to the contrary." St. Paul Fire & Marine Ins. Co. v. Surdam,
156 Vt. 585, 590, 595 A.2d 264, 266 (1991).
¶ 8. Claimant relies upon 21 V.S.A. § 650(d), which provides:
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.
It is undisputed that claimant's workers' compensation amount is governed
by § 650(d) and, absent a cap imposed by another section, requires an
annual adjustment in that amount. Claimant received that adjustment in
each year before the year in dispute.
¶ 9. Defendant relies upon 21 V.S.A. § 601(19), arguing that
"under the plain meaning of [that section] the claimant's workers'
compensation benefit is capped at the full amount of her average weekly
wage." Section 601(19) states:
"Minimum weekly compensation" shall mean a sum of money equal to
50 percent of the average compensation, rounded to the next higher
dollar. However, solely for the purposes of determining permanent
total or partial disability compensation where the employee's
average weekly wage computed under section 650 of this title is
lower than the minimum weekly compensation, the employee's weekly
compensation shall be the full amount of the employee's average
weekly wages. For the purpose of determining temporary total or
temporary partial disability compensation where the employee's
average weekly wage computed under section 650 of this title is
lower than the minimum weekly compensation, the employee's weekly
compensation shall be the employee's weekly net income.
Defendant's plain meaning argument is apparently based on the second
sentence of the section. That sentence applies, however, only "where the
employee's average weekly wage computed under section 650 of this title is
lower than the minimum weekly compensation." At the time of injury,
claimant's average weekly wage was $475 per week and, as conceded by
defendant's counsel at oral argument, was above the minimum weekly
compensation then in effect. (FN1) Indeed, even if this statute were
construed to apply beyond initial calculation of the compensation rate,
claimant's average weekly wage of $475 continues to be higher than the
current minimum of $305. (FN2) Workers' Compensation Rule 16.1000, 3 Code
of Vermont Rules 24 010 003-17 to -18 (2004), available at
http://www.state.vt.us/labind/wcomp/Rule16.rates.htm (last modified Nov.
18, 2004) [hereinafter Workers' Compensation Rule]. Therefore, we find
that the plain language of § 601(19) does not support the Commissioner's
decision and, in fact, bears no relevance to the resolution of the
submitted certified question. In addition, no other section explicitly
supports a cap on permanent disability compensation amounts. Section
645(a) provides that the amount of compensation for permanent total
disability is 66 2/3% of the employee's average weekly wage "computed as
provided in section 650." Section 650 contains no cap, and, as set forth
above, requires the annual adjustment.
¶ 10. We are left then with the Patch decision, where the
Commissioner held that the Department always capped permanent disability
compensation at a claimant's average weekly wage at the time of the injury
and the legislative intent was to continue that policy. This determination
was largely based on the Commissioner's interpretation of the effect of a
1994 amendment to the workers' compensation statute. In 1994, the
Legislature amended § 642 with respect to compensation rates for temporary
disability compensation. As amended, the statute grants "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, provided
that the weekly compensation shall not be greater than the injured
employee's weekly net income." 21 V.S.A. § 642, as amended by 1993, No.
225 (Adj. Sess.), § 6. The workers' compensation rules reiterate that "in
no event may a claimant's compensation rate for temporary total disability
exceed his or her weekly wage or his or her weekly net income." Workers'
Compensation Rule 16.2000, at 24 010 003-18 (2004). No such rule exists
for permanent total disability compensation, and the statute does not
explicitly apply to such compensation.
¶ 11. Nevertheless, Patch concluded that the amount of claimant's
permanent disability compensation could not exceed her average weekly wage.
Although the statutory bar to receiving benefits above one's weekly net
income applies only to temporary permanent benefits, Patch cited to a
long-standing departmental policy against awarding both temporary and
permanent benefits above weekly wages. In Patch, the Commissioner reasoned
that the Legislature must have been aware of this policy, and failed to
change it with respect to permanent total disability compensation.
¶ 12. We cannot endorse the Commissioner's method of determining
legislative intent. If the Legislature intended to retain a policy of
applying caps to both temporary and permanent disability compensation, it
would have amended both the statute governing permanent total disability
compensation and that governing temporary compensation, or it would have
amended neither arguably leaving the issue to the Commissioner's policy.
By amending one statute, and not the other, it demonstrated that it
intended that the two types of compensation be treated differently. See In
re Munson Earth Moving Corp., 169 Vt. 455, 465, 737 A.2d 906, 913 (1999)
("Where the Legislature includes particular language in one section of a
statute but omits it in another section of the same act, it is generally
presumed that the Legislature did so advisedly.").
¶ 13. Even if we agreed with the Commissioner's theory of statutory
construction, however, we would not apply it in this case. The
Commissioner's conclusion that the Department had a long-standing policy of
capping both temporary and permanent total disability compensation amounts
depends upon three earlier decisions. See Roethke v. Jake's Original Bar &
Grill, Op. No. 51-99WC (Jan. 19, 2000); Runnals v. Can Do Special Events,
Op. No. 56-96WC (Oct. 5, 1996); Fischer v. Karme Choling, Op. No. 28-93WC
(Jan. 4, 1994). Only one of these decisions precedes the Legislature's
1994 amendment, see Fischer, and it is a temporary total disability case
that did not involve a payment cap. Because Fischer involved temporary
benefits, it could not have demonstrated to the Legislature a long-standing
policy to impose a cap on permanent total disability compensation. Of the
remaining decisions only one, Roethke, involves the imposition of a cap on
the amount of compensation. It is, however, a temporary total disability
case, in which the Commissioner relied primarily on the 1994 amendment to §
642. The decision does discuss § 601(19) in the context of a case where
the claimant's average weekly wage at the time of the injury was below the
minimum weekly compensation amount and the claimant seeks the benefit of
annual increases in the minimum weekly compensation amount. The holding in
Roethke that the compensation amount could not exceed the claimant's
average weekly wage, even if that amount were below the minimum weekly
compensation amount was purportedly also applied to permanent total
disability compensation, even though such compensation was not before the
Commissioner. Roethke's statements concerning permanent disability
benefits were dicta and cannot be taken as a holding that there has been a
long-standing policy to cap permanent total disability compensation at
average weekly wages at the time of injury. The first clear articulation
of such a policy was Patch, decided only in 2003.
¶ 14. Although it is not determinative, we find the distinction
between temporary and permanent disability compensation to be rational and
consistent with the statutory construction rule that the workers'
compensation statutory scheme is to be liberally construed so as to provide
workers with benefits, unless the Legislature specifically designates to
the contrary. Surdam, 156 Vt. at 590, 595 A.2d at 266. As defendant
argues, capping the cost of living adjustment for temporarily disabled
workers provides an incentive for the worker to regain functionality and
return to work as soon as possible. Once the Department finds a worker to
be permanently and totally disabled, however, there is no expectation that
the worker will return to work and no incentive for that purpose is
appropriate. See Wroten v. Lamphere, 147 Vt. 606, 609-10, 523 A.2d 1236,
1238 (1987) (explaining purpose of permanent disability benefits).
Reversed. The Certified Question is answered in the affirmative.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. The minimum and maximum weekly compensation rates are set in Workers'
Compensation Rule 16 and are adjusted every July 1 for a cost of living
increase in accordance with 21 V.S.A. § 650(d). From July 1, 1990 to July
1, 1991, the minimum weekly compensation was $187, an amount below
claimant's average weekly wage of $475. Workers' Compensation Rule
16.1000, 3 Code of Vermont Rules 24 010 003-17 to -18 (2004).
FN2. At oral argument, counsel for defendant acknowledged that claimant's
average weekly wage has never been lower than the minimum weekly
compensation rate.
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