Laumann v. Department of Public Safety, No. 03-105.

• Docket Nº: No. 03-105.
• Citation: 857 A.2d 309
• Case Date: June 25, 2004
• Court: United States State Supreme Court of Vermont

857 A.2d 309

Kenneth LAUMANN
v.
DEPARTMENT OF PUBLIC SAFETY.
Robert Wheeler
v.
Ethan Allen, Inc

No. 03-105.

Supreme Court of Vermont.

June 25, 2004.

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

857 A.2d 310

& 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.

SKOGLUND, J.

¶ 1. 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.¹ 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

857 A.2d 311

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.² 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...