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Morin v. Essex Optical1/28/2005
hat it intended that the two types of compensation be treated differently. See In re Munson Earth Moving Corp., 169 Vt. 455, 465, 737 A.2d 906, 913 (1999) ("Where the Legislature includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly.").
13. Even if we agreed with the Commissioner's theory of statutory construction, however, we would not apply it in this case. The Commissioner's conclusion that the Department had a long-standing policy of capping both temporary and permanent total disability compensation amounts depends upon three earlier decisions. See Roethke v. Jake's Original Bar & Grill, Op. No. 51-99WC (Jan. 19, 2000); Runnals v. Can Do Special Events, Op. No. 56-96WC (Oct. 5, 1996); Fischer v. Karme Choling, Op. No. 28-93WC (Jan. 4, 1994). Only one of these decisions precedes the Legislature's 1994 amendment, see Fischer, and it is a temporary total disability case that did not involve a payment cap. Because Fischer involved temporary benefits, it could not have demonstrated to the Legislature a long-standing policy to impose a cap on permanent total disability compensation. Of the remaining decisions only one, Roethke, involves the imposition of a cap on the amount of compensation. It is, however, a temporary total disability case, in which the Commissioner relied primarily on the 1994 amendment to § 642. The decision does discuss § 601(19) in the context of a case where the claimant's average weekly wage at the time of the injury was below the minimum weekly compensation amount and the claimant seeks the benefit of annual increases in the minimum weekly compensation amount. The holding in Roethke that the compensation amount could not exceed the claimant's average weekly wage, even if that amount were below the minimum weekly compensation amount was purportedly also applied to permanent total disability compensation, even though such compensation was not before the Commissioner. Roethke's statements concerning permanent disability benefits were dicta and cannot be taken as a holding that there has been a long-standing policy to cap permanent total disability compensation at average weekly wages at the time of injury. The first clear articulation of such a policy was Patch, decided only in 2003.
14. Although it is not determinative, we find the distinction between temporary and permanent disability compensation to be rational and consistent with the statutory construction rule that the workers' compensation statutory scheme is to be liberally construed so as to provide workers with benefits, unless the Legislature specifically designates to the contrary. Surdam, 156 Vt. at 590, 595 A.2d at 266. As defendant argues, capping the cost of living adjustment for temporarily disabled workers provides an incentive for the worker to regain functionality and return to work as soon as possible. Once the Department finds a worker to be permanently and totally disabled, however, there is no expectation that the worker will return to work and no incentive for that purpose is appropriate. See Wroten v. Lamphere, 147 Vt. 606, 609-10, 523 A.2d 1236, 1238 (1987) (explaining purpose of permanent disability benefits).
Reversed. The Certified Question is answered in the affirmative.
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