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Morin v. Essex Optical1/28/2005
1. 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 " 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
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