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Morin v. Essex Optical1/28/2005
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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. 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. 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 t
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