Laumann v. Dept. of Public Safety

Laumann v. Dept. of Public Safety (2003-105); 177 Vt. 52; 857 A.2d 3

2004 VT 60

[Filed 25-Jun-2004]

  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.
       

                                 2004 VT 60

                                No. 2003-105


  Kenneth Laumann	                         Supreme Court

                                                 On Appeal from
       v.	                                 Commissioner of Department 
                                                 of Labor and Industry
  	
  Department of Public Safety	                 March Term, 2004


  Robert Wheeler

          v.

  Ethan Allen, Inc.


  R. Tasha Wallis, Commissioner

  Thomas A. Zonay of Ford & Zonay, P.C., Woodstock, for Plaintiff-Appellant
    Laumann.

  Bernard D. Lambek, Robert Halpert and Patricia K. Turley of Zalinger
    Cameron & Lambek, P.C., Montpelier, for Plaintiff-Appellant Wheeler.

  Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Burchard, P.C.,
    Burlington, for  Defendant-Appellee Department of Public Safety.

  William J. Blake and Wesley M. Lawrence, Law Clerk, of Kiel Ellis & Boxer,
    Springfield, for Defendant-Appellee Ethan Allen, Inc.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

        
       ¶  1.  SKOGLUND, J.  Appellants Kenneth Laumann and Robert Wheeler
  (Claimants) appeal a decision of the Commissioner of the Department of
  Labor and Industry (Department) granting summary judgment in favor of
  Claimants' employers, Vermont Department of Public Safety and Ethan Allen. 
  Claimants contend that the Commissioner violated statutory requirements of
  the Workers' Compensation Act when she ruled that the date claimants
  returned to work was the operative date from which to calculate cost of
  living increases for permanent partial disability (PPD) benefits.  Because
  the Commissioner's interpretation is consistent with the plain language of
  the relevant statutes and regulations, we affirm.

       ¶  2.  The facts of this case are not in dispute.  Kenneth Laumann
  injured his back while working as a Vermont State Trooper.  He reported for
  duty the following day and thus lost no time from work as a result of his
  injury.  He reached medical end result after more than three and a half
  years from the date of the incident. (FN1)  Laumann still suffered a
  permanent impairment, however, and was therefore entitled to PPD benefits. 
  Upon reaching medical end result, Laumann and the Vermont Department of
  Public Safety entered into an agreement awarding him PPD benefits for a
  period of 52.25 weeks based on a 9.5% impairment rating.
    
       ¶  3.  Robert Wheeler injured his hand operating a wood chipper while
  working for Ethan Allen.  Eight months passed before Wheeler was able to
  return to work.  He reached medical end result for his injury about a year
  and two months after the date of the accident, but still suffered a
  permanent impairment.  At that point, he entered into an agreement with
  Ethan Allen awarding him PPD benefits for a period of 52.65 weeks based on
  a 13% impairment rating.  
   
       ¶  4.  In these two agreements, the date Claimants returned to work
  was used as the operative date for calculating cost of living increases for
  PPD benefits.  Under this so-called "old methodology," once a claimant
  reaches medical end result and receives an impairment rating, PPD benefits
  are determined by taking two-thirds of the claimant's average weekly wage
  at the time of the injury, then making weekly payments until the total
  number of weeks are satisfied.  If those payments extend beyond July 1, an
  annual cost of living adjustment was made.

       ¶  5.  After the parties signed the agreement, but before Claimants
  were paid, the Department developed a new way to calculate annual cost of
  living increases for PPD benefits.  Under this "new methodology," once a
  claimant reaches medical end result and receives an impairment rating, the
  compensation rate for PPD benefits is determined after adding annual
  adjustments to the average weekly wage from the date of injury to the date
  of medical end result.  The change in methodology would have had the
  greatest impact on Laumann because, with three and a half years between the
  date of injury and medical end result, he would have received $5000.00 more
  in PPD benefits.  The impact would have been far less on Wheeler because
  only a year and two months passed between the date of injury and medical
  end result.  

       ¶  6.  Citing the change to the "new methodology," the Department
  declined to approve the parties' PPD benefit agreements because they
  employed the "old methodology."  The employers then sought a hearing before
  the Department and requested consolidation of their cases. (FN2)  On
  January 5, 2003, the Commissioner issued a decision granting the employers'
  summary judgment motion.  The Commissioner based her ruling on the fact
  that the "old methodology" represented the most consistent reading of the
  statutory language and applicable regulations.  Claimants appealed.         
   
       ¶  7.  This Court's review is limited to questions of law that the
  Commissioner has certified, see 21 V.S.A. § 672, and is tempered by the
  considerable deference we must accord her ruling.  "The Commissioner's
  decision is presumed valid, to be overturned only if there is a clear
  showing to the contrary."  Wood v. Fletcher Allen Health Care, 169 Vt. 419,
  422, 739 A.2d 1201, 1204 (1999).  "Absent compelling indication of an
  error, interpretation of a statute by an administrative body responsible
  for its execution will be sustained on appeal," unless it is unjust or
  unreasonable.  Bedini v. Frost, 165 Vt. 167, 169, 678 A.2d 893, 894 (1996). 
  To make this determination we "look to the whole statute, its effects and
  consequences, and the reason and spirit of the law to determine whether the
  Commissioner's interpretation conflicts with the Legislature's intent." 
  Clodgo v. Rentavision, Inc., 166 Vt. 548, 550, 701 A.2d 1044, 1045 (1997).  

       ¶  8.  The Commissioner certified the following question for our
  consideration: what is the proper method of calculating cost of living
  increases on permanency benefits for claimants who have lost no time from
  work, or who returned to work before reaching medical end result for their
  work-related accidents?  In answering this question, the Commissioner held
  that, "[b]ecause the 'old methodology' is consistent with the Act and the
  Rules, it must control the calculation of permanency benefits."  She based
  her decision on the fact that "neither the Act nor the Rules refer to a
  medical end result date in the context of calculation of compensation
  benefits" and, as such, she would not read that language into the statute. 
  The Commissioner also noted that the Legislature "could have chosen the
  medical end result date, but [] did not."  Instead, it chose the date of
  termination of temporary disability, i.e., the date the employee returns to
  work, as the point at which PPD benefits are payable.
   
       ¶  9.  Claimants argue that the Commissioner's interpretation of the
  statutes is unjust, unreasonable, and inconsistent because PPD benefits
  cannot be paid out until an injured party reaches medical end result and an
  impairment rating can be determined.  Claimants insist that any annual cost
  of living adjustments should be calculated from the date of medical end
  result going forward, thus giving them the benefit of any increases from
  the date of injury to medical end result.  The employers counter that the
  Legislature intended to initiate weekly PPD benefit payments upon the
  termination of temporary total disability benefits, and not the medical end
  result date.  To read it any other way, the employers argue, would result
  in a windfall to the Claimants in this case - who lost no time from work or
  who returned to work before medical end result - because between the time
  they returned to work and medical end result, they were working and
  receiving their wages along with any annual adjustments from their
  employers to which they were entitled.

       ¶  10.  To resolve this dispute, we must review the Commissioner's
  interpretation of the Workers' Compensation Act.  "Our goal in interpreting
  statutes is to effect the intent of the Legislature, which we attempt to
  discern first by looking to the language of the statute."  Russell v.
  Armitage, 166 Vt. 392, 403, 697 A.2d 630, 637 (1997).  When the meaning of
  a statute is plain on its face, we need not resort to construction and must
  enforce it according to its stated terms.  See id. 

       ¶  11.  Payment of PPD benefits is governed by 21 V.S.A. § 648 which
  states: 

         Where the injury results in a partial impairment which is
    permanent and which does not result in permanent total disability,
    compensation shall be paid during the period of total disability,
    as provided in sections 642 and 643 of this title, and at the
    termination of total disability, the employer shall pay to the
    injured employee 66 2/3 percent of the average weekly wage,
    computed as provided in section 650 of this title, . . . for a
    period determined by multiplying the employee's percentage of
    impairment of the whole person by 330 weeks.  The percentage of
    impairment to the whole person is the percentage of impairment to
    the particular body part, system, or function converted to the
    percentage of impairment to the whole person as provided in
    subsection (b) of this section.

  21 V.S.A. § 648(a).  Section 650 provides the method for calculating
  average weekly wages for purposes of PPD benefits.  Under the statute, a
  claimant's average weekly wage is calculated to approximate his wages at
  the time of injury.  See 21 V.S.A. § 650(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 weeks preceding the injury . . .
  .").  Annual adjustments are computed according to subsection (d) which
  states that "[c]ompensation 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."  Id. §
  650(d).  This calculation method is restated in Department regulations,
  which provide that "[t]he compensation rate for permanent partial or
  permanent total disability compensation shall be 2/3rds of the claimant's
  average weekly wage, taking into account any annual adjustments in
  compensation rate required by 21 V.S.A. § 650(d) from the date of injury." 
  Department of Labor and Industry, Administrative Division, Vermont Workers'
  Compensation and Occupational Disease Rules § 15.1000, 3 Code of Vermont
  Rules 24 010 003-16 (2001). 
   
       ¶  12.  After reviewing the relevant statutes, we find no compelling
  indication of error in the Commissioner's interpretation of the Act.  The
  Legislature made a decision as to when, how, and for how long permanently
  impaired claimants were eligible for PPD benefits and made that intention
  clear in the plain language of § 648 and § 650.  Section 648(a) describes
  when PPD benefits are payable: at the termination of total disability.  The
  same subsection sets forth the general principle of how benefits are
  calculated: two-thirds of the claimant's average weekly wage defined and
  computed according to § 650.  Finally, § 648(a) defines how long a claimant
  is eligible for PPD benefits: a period of weeks determined by multiplying
  the percentage of impairment by 330 weeks.

       ¶  13.  Claimants are correct that this last step, the percentage of
  impairment, cannot be determined until medical end result, see 21 V.S.A. §
  648(a), (b), but that does not change the fact that the percentage of
  impairment and medical end result date have no bearing on the method of
  calculating the amount of the PPD benefit and annual adjustment owed.  The
  only portion of the PPD benefit determination directly affected by the
  medical end result date is how long claimants will be eligible for PPD
  benefits.  When benefits are to be paid and how much each payment and cost
  of living increase should be is clearly laid out in the statutes and
  hinges, not on medical end result, but on the date of termination of total
  disability and the date of injury.  

       ¶  14.  The date of termination of total disability expressly reflects
  the Legislature's choice as to when PPD benefits "compensation shall be
  paid."  See 21 V.S.A. § 648(a).  Similarly, the date of injury is
  referenced in each section relating to the calculation of the amount of the
  benefit due and the cost of living increases applicable in each case.  See
  id. § 650(a), (d); Rule 15.1000.  Furthermore, as the Commissioner pointed
  out, this is logical "because it reflects what was earned when one was
  injured" and evidences the Legislature's intent to connect PPD benefit
  payments to wages and annual adjustments that would have been due while the
  claimant was injured.  Even if an impairment rating cannot be determined
  until medical end result, that date is not relevant to the actual
  calculation of PPD benefits and the associated annual cost of living
  increases.  This interpretation best harmonizes the plain language of the
  statutes and effectuates the Legislature's intent.
   
       ¶  15.  To find otherwise would result in a windfall for claimants
  like these who either lost no time from work or returned to work before
  reaching medical end result.  When a claimant returns to work immediately
  or before medical end result, he receives his salary and any annual
  adjustments earned during this period of time and, therefore, would not be
  deprived of any cost of living increases to which he was entitled.  To add
  an additional cost of living adjustment for this period would give
  Claimants a double benefit  not intended by the Legislature.

       ¶  16.  Finally, in its brief Ethan Allen challenged the
  implementation of the "new methodology" arguing that the Department failed
  to comply with the Vermont Administrative Procedures Act when it changed
  the method by which it calculates PPD benefits and annual cost of living
  increases.  Because we find the "old methodology" consistent with the
  relevant statutes, we need not address this claim.  

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Medical end result "means the point at which a person has reached a
  substantial plateau in the medical recovery process, such that significant
  further improvement is not expected, regardless of treatment."  Workers'
  Compensation Rule 2.1200, 3 Code of Vermont Rules 24 010 003-2 (2002).

FN2.  There were three claimants in the case before the Commissioner,
  Laumann, Wheeler, and Annette Lamarre.  Ms. Lamarre is not party to this
  appeal.