Lentini v. Grand Union (June 28, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Lucy Lentini File #: G-24744
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Grand Union Commissioner
Opinion #: 41-96WC
Record closed on June 17, 1996.
APPEARANCES
Scott Skinner, Esq., for the claimant
John W. Valente, Esq., for the defendant
ISSUE
Whether a claimant is entitled to include all of her wages in the calculation of her average weekly wage when her work injury does not disable her from working at all of her jobs.
THE CLAIM
1. Temporary partial disability compensation pursuant to 21 V.S.A. §646.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648.
3. Medical and hospital benefits pursuant to 21 V.S.A. §640.
4. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. Claimant was injured on May 31, 1994, while in the employ of the Grand Union Company.
2. At the time of the injury, claimant had three jobs. She was employed full time at National Life, worked part-time at Grand Union, and also worked part time on weekends at the Barre Elks Lodge.
3. Claimant's average weekly wage before the accident was $965.50. This is based on separate Form 25 Wage Statements prepared by the three employers as follows: National Life $802.20; Grand Union $80.61; Barre Elks Lodge $82.69.
4. After her injury, claimant was unable to continue at the two part time jobs, although she did make an unsuccessful attempt to return to Grand Union on a limited basis in early 1995.
5. Although the parties inadvertently filed a temporary total disability compensation agreement (Form 21), claimant never lost time at her full time job at National Life, and thus, while temporarily partially disabled, was never temporarily totally disabled.
6. The parties have agreed that the claimant reached an end medical result on June 14, 1995, the date that the claimant saw Dr. Porter at Dartmouth Hitchcock.
7. Temporary partial disability benefits shall be paid from June 10, 1994, through June 14, 1995, subject to credits for amounts already paid.
8. The initial rate for temporary partial disability benefits beginning June 10, 1994, is two thirds of $163.30 (average weekly wage minus National Life wage) which is $108.87. On July 1, 1994, the benefit amount would be increased by the 1.006 multiplier to $109.52.
9. Past medical bills related to the work place injury shall be paid by the employer except that chiropractic care shall not be reimbursed beyond November 27, 1995.
10. Pursuant to Dr. Pizzo's disability rating, claimant has a 16.5% impairment of the spine and the parties are agreed that permanent partial benefits shall be based on this percentage which translates to 54.46 weeks of benefits. The fee for Dr. Pizzo's permanency evaluation shall be paid by the employer.
PROCEDURAL NOTE
The parties have submitted this case for decision on the above stipulations and memoranda of law. For purposes of this decision the above stipulations are accepted as true and notice is taken of all forms filed by the parties in this case.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1963).
2. 21 V.S.A. §650(a) states that "[a]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding his injury...." At a later point in that section, the following language appears: "[i]f the injured employee is employed in the concurrent service of more than one insured employer or self-insurer his total earnings from the several insured employers and self-insurers shall be combined in determining his average weekly wages, but insurance liability shall devolve exclusively upon the employer in whose employ the injury occurred."
3. The defendant argues, in spite of the stipulation, that the claimant is bound by the terms of a Form 21 she signed on February 23, 1995. The stipulation states that the parties "inadvertently" filed that form, which certainly suggests that the form was the product of a mutual mistake of fact, and hence revocable. Moreover, it appears that the Department's approval of that form was based on incomplete evidence submitted to the Department about the claimant's wages, as the Department did not have any information about the employment at National Life at the time of its approval. Therefore, the Department's approval of that form is null and void.
4. As a result of this finding, the defendants' resort to two decisions regarding the binding nature of a Form 22, Abbott v. Bombardier, Opinion No. 10-96WC, and Catani v. A.J. Eckert, Inc., Opinion No. 28-95WC, is inapposite. Where the agreement is mistakenly entered into by the parties and approved in error by the Department, neither of those decisions is controlling.
5. The simple answer in this case is that the law, as written, is clear, and the defendant has produced no decision to the contrary on the issue before me. §650 requires the inclusion of all wages in the calculation of the claimant's average weekly wage. The law assumes, in permitting the payment of temporary partial disability benefits, that there are cases where a claimant remains able to perform some of her tasks or employments. 21 V.S.A. §646. It makes no similar accommodation in the calculation of permanency benefits. 21 V.S.A. §648, both before and after the 1993 amendments to the Workers' Compensation Act, ordered the payment of permanency benefits based on 66 % of the average weekly wage as computed based on §650. No parallel provision such as §646 has been made in the awarding of permanency benefits. I must assume that if the Legislature had intended such a parallel, it would have codified it. Absent such a codification, the defendant cannot prevail.
6. The claimant has requested attorney's fees and costs, and has produced evidence in support thereof. The claimant has prevailed, and is not responsible for any delay in this proceeding. In fact, in light of the lack of support for the defendant's position, it is appropriate, on her contingency fee agreement, to award the claimant the maximum of $3,000.00 in attorney's fees. Her costs in the amount of $23.60 are also reasonable.
ORDER
THEREFORE, based on the foregoing findings and conclusions, it is hereby ordered that:
1. Scott Wetzel Services, Inc., or in the event of its default Grand Union, pay medical bills consistent with the parties' stipulation; 2. Scott Wetzel Services, Inc., or in the event of its default Grand Union, pay the claimant permanency based on the claimant's average weekly wage, including her income from all three employers, for a period of 54.45 weeks, less any amount previously advanced; and
3. Scott Wetzel Services, Inc., or in the event of its default Grand Union, pay attorney's fees in the amount of $3,000.00 and costs in the amount of $23.60.
DATED at Montpelier, Vermont this 28th day of June 1996.
______________________________
Mary S. Hooper
Commissioner