Employer’s Contribution to Health Insurance Premium Is Not Included In Calculation of Average Weekly Wage

Today the Vermont Supreme Court ruled in a 3-2 decision that employer-paid health insurance premiums are not wages as defined by the Vermont Workers’ Compensation Act.  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 (3–2)

The injured worker argued the Department of Labor's long held interpretation that the employer’s contributions to health insurance premiums are not to be included in the calculation of average weekly wage was incorrect as a matter of law.  Today's decision upheld the Commissioner's interpretation of the statute as expressed in this case and cited favorably the earlier DOL decision,  Pelissier v. Hannaford Bros., No. 26-11WC (Sept. 9, 2011).  Justice Skoglund, writing for the majority noted that, “The costs [of health insurance premiums] are not tied to the employee’s labors and instead are based on factors unconnected to the employee.  The existence of the insurance and the calculation of the employer’s contribution to it does not equate to a measurement of the benefit to the employee.”  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 ¶ 14.  In Vermont the employers’ contributions to health insurance “do not reflect the employee’s labors or compensation as defined through wages.” The amounts paid by the employer for health insurance premiums are not included in the calculation of average weekly wage.

CRPS Impairment Allowed Despite The Diagnosis' Failure to Meet AMA Guides Criteria

 

The Vermont Supreme Court has ruled by a 3-2 majority that the Commissioner of Labor may determine a permanent impairment rating for Complex Regional Pain Syndrome (CRPS) under the AMA guides even though claimant was not diagnosed with CRPS under the criteria listed in the AMA Guides. The Court's decision rejected the rulings by the superior court and the Commissioner. Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (June 21, 2013).  The statute provides: “Any determination of the existence and degree of permanent partial impairment shall be made only in accordance with the whole person determination as set out in the fifth edition of the [AMA Guides].” 21 V.S.A. §648(b). The Claimant's expert in this case diagnosed the injured worker as suffering from CRPS but did not use the AMA Guides criteria as the basis for the diagnosis.  The Vermont Supreme Court has held that the statute requires that the Guides be used for the determination of percentage of impairment, not the diagnosis of a condition.