Lydy v. Trustaff, Inc., No. 12–081.

Docket NºNo. 12–081.
Citation2013 VT 44, 76 A.3d 150
Case DateJuly 30, 2013
CourtUnited States State Supreme Court of Vermont

76 A.3d 150
2013 VT 44

Deborah LYDY
v.
TRUSTAFF, INC./Wausau Insurance Company.

No. 12–081.

Supreme Court of Vermont.

June 28, 2013.
Motion for Reargument Denied July 30, 2013.


[76 A.3d 151]


Christopher McVeigh of McVeigh ?
Skiff, Burlington, for Plaintiff–Appellant.

Jeffrey T. Dickson and Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, for Defendant–Appellee.


Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

SKOGLUND, J.

¶ 1. The issue in this case is whether employer-paid health insurance premiums must be included when calculating an injured employee's average weekly wage under the Vermont Workers' Compensation Act.1 The Commissioner of the Department of Labor (DOL) concluded that such premiums are not “wages” as defined under the Act and therefore should not be included. We affirm.

¶ 2. The underlying facts of this case are undisputed. Claimant is a licensed practical nurse who was employed by defendant, Trustaff, Inc., as a traveling nurse and was temporarily stationed in a Rutland, Vermont nursing home. While on duty, a patient attacked claimant, causing her to suffer, among other things, an acute cervical sprain. Defendant accepted responsibility for the physical injuries sustained by claimant, finding them compensable under workers' compensation. Three days after the injury, claimant returned to work but was restricted to desk duty. Unfortunately, defendant had no available desk jobs. Claimant left defendant's employ shortly thereafter and moved to Arizona, where she obtained employment at a long-term care facility. Claimant worked in various capacities at the facility until November 2009 when her treating physician recommended that she stop working on account of her cervical injury. At that point, defendant began paying claimant temporary total disability benefits under Vermont Workers' Compensation Act. See 21 V.S.A. § 650. When calculating claimant's average weekly wage pursuant to § 650, defendant did not include the employer-paid health insurance premiums paid by claimant's new employer.

¶ 3. Based on previous administrative interpretations of the statute,2 the Commissioner concluded that employer-provided health insurance premiums are not part of an employee's wages and therefore are not part of the claimant's average weekly wage computation. She rejected the inclusion of these benefits in the average weekly wage, citing a prior DOL decision that held this would “dramatically impact the delicate balance that the workers' compensation act seeks to maintain between employers and employees.” See

[76 A.3d 152]

Pelissier v. Hannaford Bros., No. 26–11 WC, ¶ 14 (Sep. 9, 2011) (internal citations omitted). Based on the Pelissier decision, the Commissioner also concluded that the interpretation was not appropriate for alteration by administrative fiat and that any such change was better left for the Legislature. This appeal followed.

¶ 4. While we review questions of law de novo, “the Commissioner has been entrusted by the Legislature with the administration of the workers' compensation program,” and we accord “substantial deference to her initial interpretation and application” of the workers' compensation statutes. Letourneau v. A.N. Deringer/Wausau Ins. Co., 2008 VT 106, ¶ 8, 184 Vt. 422, 966 A.2d 133. Therefore, while we require the proper interpretation of the law, “we will defer to the Commissioner's construction of the Workers' Compensation Act, absent a compelling indication of error.” Morin v. Essex Optical/The Hartford, 2005 VT 15, ¶ 4, 178 Vt. 29, 868 A.2d 729 (quotation omitted).

¶ 5. Our examination of the Commissioner's interpretation of the statute begins with the plain language of the Act. An injured worker's weekly compensation is based on the claimant's average weekly wage. 21 V.S.A. § 650. Wages, as defined in the Act, include “bonuses and the market value of board, lodging, fuel and other advantages which can be estimated in money and which the employee receives from the employer as a part of his or her remuneration.” Id. § 601(13). The question here is whether the Legislature intended the phrase “other advantages” to include employer-paid health insurance premiums.

¶ 6. When construing statutes, our primary goal is to give effect to the Legislature's intent. Gallipo v. City of Rutland, 173 Vt. 223, 235, 789 A.2d 942, 952 (2001). If the meaning of a statute is plain on its face, it must be enforced accordingly; if, however, the statute is ambiguous and capable of more than one reasonable interpretation, the legislative intent “should be gathered from a consideration of the whole and every part of the statute, the subject matter, the effects and consequences, and the reason and spirit of the law.” Langrock v. Dep't of Taxes, 139 Vt. 108, 110, 423 A.2d 838, 839 (1980) (quotation omitted).

¶ 7. The definition of “wages” does not mention employer-paid health insurance premiums. While one can presumably determine the market value of board or lodging or fuel, the phrase “other advantages which can be estimated in money” is ambiguous and capable of more than one reasonable interpretation. Thus, the plain and ordinary meaning of the phrase does not resolve the question presented. In fact, the phrase “other advantages” could cover countless other costs paid by the employer, including payments to third parties for the benefit of the employee, such as employer-paid life insurance premiums, pension packages or 401(k) contributions, employer-based social security contributions, and other fringe benefits. Because the phrase “other advantages” yields more than one reasonable interpretation, we attempt to discern the Legislature's intent by other means and look to legislative history. See In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999) (stating that when “the language is unclear and ambiguous, legislative history may be used to determine the intent of the Legislature”).

¶ 8. As part of a nationwide movement to provide adequate remedies for the growing number of injured industrial workers, states began enacting workers' compensation laws “to dispense with the concept of negligence” by providing compensation,

[76 A.3d 153]

by means of medical coverage or income replacement benefits, “to any employee who is injured on the job and to limit employers' exposure to lawsuits for negligence in the workplace.” 1 A. Larson & L. Larson, Larson's Workers' Compensation Law, §§ 2.07–2.08 (2012); see also 2007, No. 208 (Adj.Sess.), § 1(a)(1). Though there was little uniformity among the various acts in the early 1900s, most laws compensated employees for the core, nonfringe benefits of housing, food, and fuel.

¶ 9. Vermont followed suit. Vermont's Workers' Compensation Act emerged in 1915 when Vermont's economy depended on a large labor workforce and it was common for employers to provide lodging for those who toiled in the granite quarries, marble fields, and textile mills, among other industries. “Poor conditions for workers ... attracted the concern of several civic-minded groups,” including the Vermont Federation of Women's Clubs, who began rallying against the “many evil conditions prevalent in the state.” See M. Sherman, et al., Freedom and Unity: A History of Vermont 368 (2004). As part of the worker-protection momentum, the Legislature enacted the workers' compensation law, which provided payments to widows and children of men killed in industrial accidents and payment of medical and hospital costs to employees injured on the job. Id.

¶ 10. The definition of wages for determining a temporarily disabled employee's average weekly wage has remained unaltered since the Act's inception in 1915 with the exception of adding the term “bonuses.” See 1915, No. 164, § 58(h). Health insurance, as it exists today, did not develop until the late 1920s, when a group of school teachers began to make small monthly payments to a hospital for future medical care. See S. Cancelosi, Revisiting Employer Prescription Drug Plans for Medicare–Eligible Retirees in the Medicare Part D Era, 6 Houston J. Health L. & Pol'y 85, 87 (2005). Before that time, individuals paid medical expenses out of pocket, placing both the scheme of health insurance and its future connection to the workplace well beyond the scope of even the most forward-thinking Legislature to consider when defining “wages” in 1915.

¶ 11. Even though there were some industries, such as lumber and railroad, that provided accident coverage to their workers early on, employer-paid health insurance did not become commonplace until World War II when labor was in high demand and employers were looking for ways to attract workers without going over the federally imposed wage cap. Id. For purposes of the wage cap, health insurance was not defined as a wage. Id. at 88. Because the health-insurance system was not in place when the Legislature defined wages in 1915, and because the Legislature has not amended the definition to include employer-paid health insurance after it developed into a customary benefit, it is prudent to conclude that such a benefit was not intended to be part of an employee's average weekly wage.

¶ 12. In fact, the expanded interpretation urged by claimant ignores the remainder of the statutory phrase, which limits “other advantages” to those “which the employee receives from the employer as a part of his or her remuneration.” To remunerate is to “pay (a person) for goods provided, services rendered, or losses incurred”; remuneration is a “payment.” The American Heritage Dictionary 1101 (New College ed.1979). An employee is not paid for her work with health insurance; rather, health insurance is a fringe benefit of employment. The definition of wages implies a payment actually received by an employee—it more closely refers to

[76 A.3d 154]

the actual earnings of the worker. See 21 V.S.A. § 650(a) (“Average weekly wages shall be computed in such manner as is best calculated to give the average...

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15 practice notes
  • Lyons v. Chittenden Cent. Supervisory Union, No. 16–036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 16, 2018
    ...remuneration. We recently defined remuneration for purposes of § 601(13) as payment for services. Lydy v. Trustaff, Inc./WausauIns. Co., 2013 VT 44, ¶ 12, 194 Vt. 165, 76 A.3d 150. As the Commissioner decided, this payment could be made in a form other than money. Here, CCSU provided claima......
  • Lyons v. Chittenden Cent. Supervisory Union, No. 2016-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 16, 2018
    ...remuneration. We recently defined remuneration for purposes of § 601(13) as payment for services. Lydy v. Trustaff, Inc./Wausau Ins. Co., 2013 VT 44, ¶ 12, 194 Vt. 165, 76 A.3d 150. As the Commissioner decided, this payment could be made in a form other than money. Here, CCSU provided claim......
  • Haller v. Champlain Coll., No. 16–332
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 29, 2017
    ...the value of employer-provided health insurance benefits should not be included in the calculation of wages. See Lydy v. Trustaff, Inc., 2013 VT 44, 194 Vt. 165, 76 A.3d 150. In determining whether the tuition benefit should be included in the wage calculation, the Commissioner considered t......
  • Stopford v. Milton Town Sch. Dist., No. 17-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 16, 2018
    ...language is explicit and unambiguous. Where the Legislature has spoken clearly, we do not interfere. Lydy v. Trustaff, Inc., 2013 VT 44, ¶ 53, 194 Vt. 165, 76 A.3d 150 (Robinson, J., dissenting) ("[W]here the Legislature has spoken clearly, our obligation is to give effect to its intent—whe......
  • Request a trial to view additional results
15 cases
  • Lyons v. Chittenden Cent. Supervisory Union, No. 16–036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 16, 2018
    ...remuneration. We recently defined remuneration for purposes of § 601(13) as payment for services. Lydy v. Trustaff, Inc./WausauIns. Co., 2013 VT 44, ¶ 12, 194 Vt. 165, 76 A.3d 150. As the Commissioner decided, this payment could be made in a form other than money. Here, CCSU provided claima......
  • Lyons v. Chittenden Cent. Supervisory Union, No. 2016-036
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 16, 2018
    ...remuneration. We recently defined remuneration for purposes of § 601(13) as payment for services. Lydy v. Trustaff, Inc./Wausau Ins. Co., 2013 VT 44, ¶ 12, 194 Vt. 165, 76 A.3d 150. As the Commissioner decided, this payment could be made in a form other than money. Here, CCSU provided claim......
  • Haller v. Champlain Coll., No. 16–332
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 29, 2017
    ...the value of employer-provided health insurance benefits should not be included in the calculation of wages. See Lydy v. Trustaff, Inc., 2013 VT 44, 194 Vt. 165, 76 A.3d 150. In determining whether the tuition benefit should be included in the wage calculation, the Commissioner considered t......
  • Stopford v. Milton Town Sch. Dist., No. 17-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 16, 2018
    ...language is explicit and unambiguous. Where the Legislature has spoken clearly, we do not interfere. Lydy v. Trustaff, Inc., 2013 VT 44, ¶ 53, 194 Vt. 165, 76 A.3d 150 (Robinson, J., dissenting) ("[W]here the Legislature has spoken clearly, our obligation is to give effect to its intent—whe......
  • Request a trial to view additional results

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