David Marrier
v.
Music Services of Vermont, Inc.
Opinion No. 09-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
May 9, 2020
State
File No. HH-58666
Christopher McVeigh, Esq., for Claimant
William J. Blake, Esq., for Defendant
Beth
A. DeBernardi, Administrative Law Judge
RULING
ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
Michael A. Harrington, Interim Commissioner.
ISSUE
PRESENTED:
Were
the payments made to Claimant for his health insurance within
the 26 weeks prior to his work injury properly excluded from
the calculation of his average weekly wage and compensation
rate as a matter of law?
EXHIBITS:
Defendant’s
Statement of Undisputed Material Facts filed January 9, 2020
Defendant’s
Exhibit A: Wage Statement (Form 25) dated March 2, 2016
Defendant’s
Exhibit B: Agreement for Temporary Compensation (Form 32)
approved by the Department on April 14, 2016
Defendant’s
Exhibit C: Claimant’s deposition transcript of
September 9, 2019
Defendant’s
Exhibit D: Douglas Lothrop’s deposition transcript of
September 9, 2019
Claimant’s
Statement of Undisputed Material Facts and Response to
Defendant’s Statement of Undisputed Material Facts
filed March 18, 2020
Claimant’s
Exhibit 1: Claimant’s deposition transcript of
September 9, 2019
Claimant’s
Exhibit 2: Douglas Lothrop’s deposition transcript of
September 9, 2019
FINDINGS
OF FACT:
Considering
the evidence in the light most favorable to Claimant as the
non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I find the following facts:
1. On
January 11, 2016, Claimant sustained an injury while working
in the course and scope of his employment for Defendant.
Defendant accepted the injury as compensable and began paying
workers’ compensation benefits accordingly. See
Defendant’s Statement of Undisputed Material Facts
(“Defendant’s
Statement”), ¶ 1.
2. In
March 2016, the parties executed an Agreement for Temporary
Compensation (Form 32). The Agreement specified
Claimant’s average weekly wage as $845.00 and his
compensation rate as $563.62. The Department approved the
Agreement on April 14, 2016. Defendant’s
Statement, ¶ 8; Defendant’s Exhibit
B.
3.
Claimant now alleges permanent and total disability as a
result of his injury. This claim is currently scheduled for a
formal hearing. Defendant’s Statement, ¶
2.
Claimant’s
Wage Statement and Average Weekly Wage Calculation
4. The
parties dispute the amount of Claimant’s average weekly
wage for purposes of calculating his compensation rate.
Defendant’s Statement, ¶ 3. Claimant
contends that the payments Defendant made directly to him to
reimburse him for health insurance should be included in the
average weekly wage calculation. Defendant maintains that
these payments were properly excluded because Vermont law
excludes employer-paid health insurance premiums from the
average weekly wage calculation. See Defendant’s
Statement, ¶ 4.
5. On
October 1, 2018, Claimant filed a Notice and Application for
Hearing (Form 6) on the issue of his correct average weekly
wage. This issue was transferred to the formal hearing docket
and consolidated with the claim for permanent total
disability benefits. Defendant’s Statement,
¶ 9.
6.
Defendant is owned by Douglas Lothrop. In March 2016, Mr.
Lothrop completed a Wage Statement (Form 25) for the wages
Claimant earned in the 26 weeks prior to his injury.
Defendant’s Statement, ¶ 5;
Defendant’s Exhibit A.
7. The
Wage Statement shows earnings in the “Gross
Wages” column of $845.00 per week for 26 weeks. The
“Extras” column shows six monthly payments in the
amount of $883.00 each; Mr. Lothrop’s handwritten
notation at the top of that column describes these payments
as “Health Insurance.” Defendant’s
Statement, ¶ 6; Defendant’s Exhibit
A; Defendant’s Exhibit D, at 8-9.
8. The
calculation of Claimant’s average weekly wage excluded
the $883.00 payments for “Health Insurance.”
Claimant’s average weekly wage was calculated as
$845.00, and his compensation rate was calculated as
$563.62.1 Defendant’s Statement,
¶ 7; Defendant’s Exhibits A and B.
Defendant’s
Payments to Claimant for Health Insurance
9. Some
of Defendant’s employees had health insurance provided
through other sources. For employees who did not have health
insurance from another source, Defendant provided money for
their insurance. Defendant’s Exhibit D, at
10-11.
10.
Claimant did not have health insurance from another source,
so he and his wife selected an insurance plan from Vermont
Health Connect. Claimant told Defendant the premium amount
for their chosen policy, and Defendant agreed to pay it.
See...
