NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2017 VT 86

                                          No. 2016-332

Kimberly Haller                                                Supreme Court

                                                               On Appeal from
   v.                                                          Commissioner of Labor


Champlain College                                              February Term, 2017


Anne M. Noonan, Commissioner

William B. Skiff, Burlington, for Plaintiff-Appellee.

J. Justin Sluka and Alycia M. Sanders of Ellis Boxer & Blake PLLC, Springfield, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   ROBINSON, J.        The question in this workers’ compensation case is whether

employer Champlain College is obligated to include in claimant Kimberly Haller’s average weekly

wage calculation the value of tuition-free college credits she earned in accordance with employer’s

graduate tuition policy. On cross-motions for summary judgment, the Commissioner of the

Department of Labor concluded that the tuition benefits provided by employer and used by

claimant was an “other advantage” that constituted part of claimant’s wages. 21 V.S.A. § 601(13).

We agree and affirm.

        ¶ 2.   The relevant facts here are undisputed. At all times relevant to these proceedings

claimant was an employee of Champlain College for purposes of Vermont’s workers’
compensation laws. On March 10, 2014, claimant suffered a work-related injury, which employer

has accepted. At the time of her injury, claimant was employed as employer’s Recruitment

Director.

       ¶ 3.    Since May 2012, claimant had taken numerous courses at Champlain College

pursuant to its “Tuition Benefits” policy. That policy allows college employees, their spouses, and

eligible dependent children to take undergraduate and graduate courses on a space-available basis,

tuition free. In relevant part, section 4.3.1 of employer’s Tuition Benefits policy provides1:

                Employees of the College may normally take for-credit Graduate
               courses tuition-free on a “space-available” basis. If an individual is
               matriculating in a degree program every effort will be made to
               accommodate that student in the current term and if space prohibits
               then the student will be seated in the following terms for that
               course . . . .

                Books, residency costs, labs, fees and other non-tuition expenses
               are not paid for by the College. IRS regulations determine the
               maximum amount of tuition value, per calendar year, that need not
               be reported as taxable wages. Note: IRS regulations stipulate that
               tuition benefits valued at over $5,250 per calendar year are to be
               reported as taxable wages on the employee’s W-2 form unless the
               amount is excludable as a “working condition fringe.”

                Champlain College pays the employer FICA taxes on taxable
               wages. The employee is responsible for all other taxes. Employee
               taxes are deducted during normal payroll cycles. This benefit is not
               available to retirees.

       ¶ 4.    During the twenty-six weeks prior to her work-related injury, claimant completed

ten and one half credits of classwork at Champlain College. She paid no money for these course

credits. Claimant considered the free tuition policy to be one of the benefits of working for

employer as it allowed her to work toward, and earn, a graduate degree without paying any tuition.


       1
             Employer’s Tuition Benefits policy contains separate provisions governing
undergraduate tuition for employees, undergraduate tuition for employees’ family members,
graduate tuition for family members, tuition assistance for study at other accredited institutions,
and partial tuition reimbursement for studies toward a doctoral degree. Because these other
provisions are not directly implicated in this case, we do not further describe or reproduce them.

                                                 2
This free tuition was a substantial financial benefit to claimant and was one of the reasons she

chose to work for employer.

       ¶ 5.    The issue presented to the Commissioner on cross-motions for summary judgment

was whether the value of these tuition benefits should be included in the calculation of claimant’s

average weekly wage for the purposes of her permanent partial disability benefit. 2 “Wages” are

defined to include “bonuses and the market value of board, lodging, fuel, and other advantages

which can be estimated in money and which the employee receives from the employer as a part of

his or her remuneration.” 21 V.S.A. § 601(13). The specific issue in this case is whether

claimant’s tuition benefits fall within “other advantages which can be estimated in money and

which the employee receives from the employer as part of his or her remuneration.” Id.

       ¶ 6.    In analyzing this question of first impression, the Commissioner first distinguished

this Court’s recent decision that the value of employer-provided health insurance benefits should

not be included in the calculation of wages. See Lydy v. Trustaff, Inc., 2013 VT 44, 194 Vt. 165,

76 A.3d 150.     In determining whether the tuition benefit should be included in the wage

calculation, the Commissioner considered three questions gleaned from prior Department

decisions: First, is the benefit a “significant part” of the compensation? Second, does the employee

derive true value from the offered benefit or is it a benefit that means little to the employee except

as an enhancement to an average weekly wage? And third, is the value of the benefit reasonably

subject to objective valuation?


       2
          Claimant concedes that the value of the benefit should not be included in the average
weekly wage calculation for the purposes of temporary total disability benefits because employer
continued to provide the benefit during her period of temporary total disability benefits. Workers’
Compensation       Rules      8.1130,      Code       of    Vt.     Rules       24     010    003,
http://www.lexisnexis.com/hottopics/codeofvtrules. See, e.g., Donovan v. AMN Health Care, No.
12-11WC       (May     26,     2011),     http://labor.vermont.gov/wordpress/wpcontent/uploads//
DonovanMSJ.pdf [https://perma.cc/4A6H-SRP5] (recognizing that value of a benefit may be
included in average weekly wage calculation for purposes of permanent partial disability benefits
but excluded from calculation for purposes of temporary total disability benefits if claimant
continues to receive benefit during period of temporary total disability).
                                                  3
          ¶ 7.   Noting the remedial nature of the workers’ compensation laws, the Commissioner

answered the above questions in the affirmative. The free tuition was a substantial benefit to

claimant and was one of the reasons she worked at Champlain College. She derived true value

from the program; she had taken advantage of it from 2012 until 2014 and was using it to acquire

a master’s degree. And, finally, the benefit was subject to simple valuation.3 The Commissioner

explained that including the value of the free tuition in claimant’s wage calculation would not

upset the “delicate balance” struck between employees and employers in the workers’

compensation setting and concluded that the free tuition benefit claimant received qualified as an

“other advantage” that can be easily estimated and that was paid to her as remuneration for her

work.

          ¶ 8.   Employer appealed, and the Commissioner certified for our review the question of

whether employer was obligated to include in claimant’s average weekly wage calculation the

value of tuition-free college credits earned by claimant in accordance with its employee tuition

policy.

          ¶ 9.   On appeal, employer argues first and foremost that this Court’s recent ruling that

employer-provided health insurance benefits are not “other advantages” included within the

definition of wages dictates the outcome of this case. See Lydy, 2013 VT 44. Employer further

argues that the benefit in question did not amount to “remuneration,” 21 V.S.A. § 601(13), that the

Commissioner’s determination that the tuition benefit was capable of simple valuation was based

on a mistake of fact, and that the Commissioner’s decision will upset the “delicate balancing”

between an injured worker’s right to compensation and an employer’s right to limited and

determinate liability. Lydy, 2013 VT 44, ¶ 19.



          In reaching this conclusion the Commissioner referred to a section of employer’s tuition
          3

benefit program providing for tuition assistance at other accredited institutions besides Champlain
College. Although that provision does not directly apply in this case, for the reasons set forth
below, the Commissioner’s reasoning applies as fully to the section at issue in this case.
                                                 4
       ¶ 10.   In construing a statute, “[o]ur paramount goal . . . is to give effect to the

Legislature’s intent.” State v. Deyo, 2006 VT 120, ¶ 14, 181 Vt. 89, 915 A.2d 249. In interpreting

the workers’ compensation statute, “we will defer to the Commissioner’s construction of the

Workers’ Compensation Act, absent a compelling indication of error.” Lydy, 2013 VT 44, ¶ 4

(quotation omitted). Our deference is not unlimited, however, and “we will not affirm an

interpretation that is unjust or unreasonable.” Clodgo v. Rentavision, Inc., 166 Vt. 548, 550, 701

A.2d 1044, 1045 (1997). Moreover, in reviewing the Commissioner’s determination, we must be

mindful that our workers’ compensation laws are “remedial in nature and must be liberally

construed to provide injured employees with benefits unless the law is clear to the contrary.” St.

Paul Fire & Marine Ins. Co. v. Surdam, 156 Vt. 585, 590, 595 A.2d 264, 266 (1991).

       ¶ 11.   We conclude there was no compelling indication of error in the Commissioner’s

determination for several reasons. First, this case is different from Lydy in several notable and

significant ways. While our analysis in Lydy may shed some light on the applicable standards,

Lydy is in no way controlling in this case. Second, the Commissioner’s analysis gives effect to

the language of the workers’ compensation statute and is consistent with that law’s purposes.

Third, the Commissioner’s decision is consistent with the Department’s own caselaw on the

subject.

       ¶ 12.   This Court’s decision in Lydy does not control the outcome of this case. In Lydy,

the Court, in a 3-2 decision, concluded that employer-provided health insurance benefits were not

an “other advantage” received as part of the employee’s remuneration. 2013 VT 44, ¶ 19. Several

considerations that do not apply here weighed heavily in the Court’s analysis in that case.

       ¶ 13.   In Lydy, the Commissioner ruled that the health insurance benefit was not an “other

advantage” for the purposes of the wage calculation. Id. ¶ 1. The deference we afford to the

Commissioner’s construction of the workers’ compensation laws, absent a compelling indication

of error, supported exclusion of health insurance benefits from the definition of wages in Lydy,

                                                5
but supports inclusion of the free tuition benefit in this case.          Id. ¶ 4.   Moreover, the

Commissioner’s determination that health insurance was not an “other advantage” was consistent

with twenty years of established, and unappealed, departmental case law. Id. ¶ 18; see also

Pelissier v. Hannaford Bros., No. 26-11WC (Sept. 11, 2009), http://labor.vermont.gov/

wordpress/wp-content/uploads//PelissierDecision.pdf [https://perma.cc/Q4RW-BQEL] (citing a

series of decisions dating back to 1990 in which the Commissioner rejected argument that value

of health insurance should be included in wage calculation). A decision to the contrary would

have upset long-settled expectations and actuarial calculations with potentially a substantial impact

on the workers’ compensation system. Lydy, 2013 VT 44, ¶ 18.

       ¶ 14.   Plus, the prevalence of health insurance as an employment benefit across sectors

and through most of the labor market lent particular support to the notion that if the Legislature

had intended to include this widely provided benefit as part of wages, it would not have relied on

the catch-all “other advantages,” but would have expressly included health insurance in the

definition of wages. See id. ¶ 11 (explaining that “because the Legislature has not amended the

definition [of wages] to include employer-paid health insurance after it developed into a customary

benefit, it is prudent to conclude that such a benefit was not intended to be part of an employee’s

average weekly wage”).

       ¶ 15.   Finally, the Court’s analysis in Lydy relied in part on a U.S. Supreme Court

decision that an employer’s contributions to a union trust fund that supported life insurance, health

insurance, retirement benefits, and career training for employees, were not wages under the

Longshore and Harbor Workers’ Compensation Act—a statute with a similar, but not identical,

definition of wages to Vermont’s workers’ compensation statute. See id. ¶¶ 13-16 (discussing

Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 461 U.S. 624 (1983)).

In Lydy, this Court explained that one reason the Supreme Court concluded that employer’s

payments into the union trust fund did not constitute a “similar advantage” under the federal

                                                 6
workers’ compensation law was that was that there was no way to value the benefit actually

received by the employee deriving from the employer’s contributions to that trust fund. Lydy,

2013 VT 44, ¶ 13 (citing Morrison-Knudsen, 461 U.S. at 631). This Court analogized the health

insurance benefit to the employer’s contribution to the union trust fund in Morrison-Knudsen, and

concluded that the value of the health insurance coverage actually received by the employee was

likewise speculative. Id. ¶ 14.

       ¶ 16.   The same cannot be said for the value of free tuition benefits. The undisputed

record reflects that claimant herself received the free tuition benefit, and that the value to the

employee of the benefit is readily ascertainable. Employer’s policies specifically note that

employer is responsible for tracking the benefit to the employee and reporting the imputed income

on the employee’s W-2 to the extent that it exceeds $5250 per calendar year.4 Wholly independent

of any workers’ compensation claim, the record reflects that there is an established methodology

for determining not the employer’s costs—which were all that was known in Morrison-Knudsen—

but the benefit to the employees. Moreover, the courses available to claimant are offered to

Champlain College students more broadly at a set price. The “market value” of the courses, and

the associated credits, is readily discernible in this case. For all of these reasons, our holding in

Lydy does not compel a particular outcome in this case, and we must evaluate the Commissioner’s

determination in this case on its own merits.

       ¶ 17.   The Commissioner’s analysis is consistent with the plain language of the statute.

See In re Porter, 2012 VT 97, ¶ 10, 192 Vt. 601, 70 A.3d 915 (“We first look to the plain language

of the statute. If the meaning is clear, we enforce the statute according to its terms without resort

to statutory construction.” (citation omitted)). The Legislature’s inclusion of broad language


       4
          Employer is correct that in concluding that the free tuition benefits were readily subject
to valuation the Commissioner looked to a section of employer’s tuition-benefit policy that does
not apply in this case. However, as noted above, the text of the section that does apply in this case
also reinforces that the tuition benefit can be readily valued.
                                                   7
including “other advantages” an employee receives from the employer suggests a legislative

recognition that the non-monetary benefits that may be part of “wages” take a variety of forms,

and are not limited to board, lodging and fuel. See Trombley v. Bellows Falls, 160 Vt. 101, 104,

624 A.2d 857, 860 (1993) (“[W]e presume that language is inserted in a statute advisedly. Thus,

we do not construe the statute in a way that renders a significant part of it pure surplusage.”

(citation omitted) (quotation omitted)). We have previously recognized that “wages” as defined

in the workers’ compensation statute include “benefits other than cash.” Quinn v. Pate, 124 Vt.

121, 124, 197 A.2d 795, 797 (1964) (equating “wages” and “earnings,” and noting that earnings

can consist of “material objects or benefits other than cash”); see also 2 A. Larson & L. Larson,

Larson’s Workers’ Compensation Law § 93.01(2)(a) (2012) (“In computing actual earnings as the

beginning point of wage-basis calculations, there should be included not only wages and salary

but any thing of value received as consideration for the work, as, for example, tips, bonuses,

commissions and room and board, constituting real economic gain to the employee.” (emphasis

added)). The benefit at issue here—free tuition, leading to college or graduate level credits and

perhaps a degree—is clearly an “advantage” of considerable economic value and, as noted above,

its value can be estimated in money.

       ¶ 18.   Moreover, claimant received the benefit as “remuneration.” “To remunerate is to

‘pay (a person) for goods provided, services rendered, or losses incurred’; remuneration is a

‘payment.’ ” Lydy, 2013 VT 44, ¶ 12 (quoting The American Heritage Dictionary 1101 (New

College ed. 1979)). In contrast to the benefit at issue in Morrison-Knudsen, on which this Court

relied in Lydy, the benefit at issue here was provided directly to claimant, and it benefited her

directly and quantifiably. It was part of her compensation paid in consideration of her work for

employer.

       ¶ 19.   The Commissioner’s determination is also consistent with the purpose of the

workers’ compensation laws, which provide benefits to injured workers, including benefits

                                               8
designed to protect against an injured worker’s loss of earning capacity, while shielding employers

from tort law damages, including non-economic damages.           See id. ¶¶ 24-28 (Robinson, J.,

dissenting). The record is undisputed that free tuition was a substantial economic benefit to

claimant and was one of the reasons she chose to work for employer. A worker who makes $20

per hour and receives free college tuition and a worker who makes $20 per hour and has to pay for

college tuition out of pocket have very different earnings and are situated differently from an

economic perspective. To the extent that the workers’ compensation laws are designed to mitigate

the economic losses sustained by injured workers, consideration of the value of the free tuition

benefit in the wage calculation makes sense. Far from upsetting the workers’ compensation laws’

“delicate balance” between the interests of employers and employees, the Commissioner’s

approach serves the purpose of mitigating the injured worker’s economic loss while protecting the

employer against liability for indeterminate, non-economic losses.

       ¶ 20.     The Commissioner’s conclusion is also consistent with the Department’s own

approach to other non-monetary employment benefits. In Lyons v. American Flatbread, the

Commissioner considered whether the value of massages provided by the employer as an

employee       benefit   were   included   in   wages.     No.   36-03WC     (Aug.    22,   2003),

http://labor.vermont.gov/wordpress/wp-content/uploads//S-18824LyonsAll.pdf [https://perma.cc/

7W3D-ESCS]. The Commissioner acknowledged its prior decision that health insurance is not an

“other benefit” included within the definition of “wages,” but concluded that the massages were.

Id. at 9. In contrast to the health insurance benefit, the Commissioner reasoned, the massages

“were actually received, had actual monetary value, and the employee actually benefited from that

value.” Id. Similarly, in Gaboric v. Stratton Mountain, the Commissioner considered whether the

value of a free ski pass provided to an employee should be considered in the wage calculation. No.

12-04WC (April 26, 2004), http://labor.vermont.gov/wordpress/wp-content/uploads//S-08346-T-

18904Gaboric.pdf [https://perma.cc/2VMW-6J24].           The Commissioner distinguished health

                                                  9
insurance benefits, stating that the ski pass was a major reason why the employee (or the claimant)

worked at the ski area, was a significant part of his compensation, and was an “advantage” that

could be readily valued. Id. at 15. In both Lyons and Gaboric, the Commissioner emphasized the

unique features of and caselaw concerning health insurance benefits that support the conclusion

that health insurance benefits are not “other advantages” within the definition of wages. But in

both cases, the Commissioner held that where the non-health-insurance benefits at issue had actual

monetary value and were actually received by the employee, they fell within the broad “other

advantages” language.

       ¶ 21.   In advocating that this substantial and quantifiable component of compensation

should not be included in the calculation of wages, the dissents offer new legal tests that effectively

write the “other advantages” language out of the statute. They both suggest that benefits are only

“other advantages” if expressly negotiated for in lieu of wages, and one argues that the benefits

may only be considered part of compensation if they are “critical to protecting the employee’s

basic health and survival.” Post, ¶ 32. Both arguments are flawed.

       ¶ 22.   The argument that the employment benefit in this case is not part of wages because

it is not offered in lieu of wages, and therefore employees receive the same pay whether or not

they avail themselves of the benefit, rests on flawed legal and empirical assumptions.

       ¶ 23.   The legal problem is that the language, purpose, and history of the workers’

compensation statute do not support the asserted rule. Nothing in the statute purports to require

evidence of an express wage-benefit trade-off before including the “other advantage.” In fact, the

benefits expressly listed alongside “other advantages”—“board, lodging, [and] fuel”—may be

provided by employers without an express wage trade-off. 21 V.S.A § 601(13). Even if a worker’s

acceptance of board and lodging has no impact on that worker’s paycheck, the statute includes

those benefits as part of “wages.” Nothing in the statute suggests that the benefits are only part of

wages if they result in reduced take-home pay. Insofar as “other advantages” should be understood

                                                  10
in light of the expressly listed benefits, the canons of statutory construction do not support the

dissents’ proposals of a special limitation applicable only to “other advantages.”

       ¶ 24.   Nor does the purpose of the workers’ compensation law support creating such a

rule. One of the purposes of the workers’ compensation law is to protect injured workers against

short-term wage loss, and long-term lost earning capacity. See Bishop v. Town of Barre, 140 Vt.

564, 572, 442 A.2d 50, 53 (1982) (“The claimant correctly assigns protection against wage loss as

one of the Act’s purposes.”). Even in the case of permanent disability benefits, which are awarded

on the basis of schedules rather than individual future wage loss, we have explained that the

touchstone is lost earning capacity and that the permanent disability benefit seeks to address that

through conclusively proved schedules rather than relying on specific proof of an individual’s

actual wage-loss experience Id. at 572-73, 442 A.2d at 53-54 (quoting 2 A. Larson, Workmen’s

Compensation Law § 58.11, at 10-173 to 10-174 (1981)). To promote this goal, the Commissioner

in this case asked whether the employment benefit is significant, provides true value to the worker,

and is determinable. These are the right questions because they get at what the workers’

compensation statute is trying to accomplish: restoring earnings or earning capacity. A worker

who earns $500 per week, and a worker who earns $500 per week and takes advantage of free

tuition to take courses and earn college credits, do not stand in the same shoes with respect to the

earnings they derive from their work any more than a worker who earns $500 per week and a

worker who earns $1000 per week. In both cases, the goal of the workers’ compensation statute

is advanced by reflecting the differences in the respective workers’ effective earnings. Not doing

so would result in a greater uncompensated loss for the worker for whom free tuition was a

significant portion of compensation than for the similarly situated worker whose take-home pay is

the same but who does not receive the additional significant and determinable value from the

employer.



                                                11
       ¶ 25.   And finally, the application of Vermont’s workers’ compensation statute for

decades does not support the dissents’ broad exclusion of employer-provided benefits from the

scope of “other advantages.” See, e.g., Lyons, No. 36-03WC, slip op. at 9 (employer-provided

massages are “other advantage” within definition of wages); Gaboric v. Stratton Mountain, No.

12-04WC, slip op. at 15 (free ski pass provided to employee is “other advantage.”).

       ¶ 26.   The empirical problem with the dissents’ argument is that it rests on an assumption

that people, like claimant here, agree to accept a job and a level of pay for employers like

Champlain College without regard to the availability of free tuition. The benefit is a perk that they

may happen to stumble into, but is not part of a cash-wage/benefit tradeoff that informs the

decision to accept employment on those terms. The dissents cite no empirical evidence to support

this claim, and it flies in the face of common sense. One of the reasons the Commissioner’s focus

on the significance of the benefit, and whether claimant has actually derived true value from the

benefit, makes sense is that an affirmative answer to both of these questions strongly supports an

inference that the benefit—in this case, tuition—is part of the employee’s cash-wage/benefit

tradeoff calculus. And, it stands to reason that where an employer is able to offer a benefit such

as free tuition that is valuable to many workers and prospective workers, the employer is better

positioned to maintain at- or below-market cash wages. Our opinion does not rest on this

assumption—it is no more supported than the contrary assumption made by the dissent. But it

does highlight the problems with a legal rule that rests on an evaluation of the extent to which the

availability of the benefit and wages are related.

       ¶ 27.   Likewise, the suggestion that “other advantages” should include only those benefits

that are “critical to protecting the employee’s basic health and survival” is inconsistent with the

nature and purpose of those laws. The workers’ compensation law reflects a trade-off between

management and labor: injured workers forfeit their common-law right to sue employers for

negligence and the tort damages associated with those claims, but are entitled to a remedy for work

                                                 12
injuries independent of fault; for their part, employers are shielded from liability for tort damages

and instead face a limited and determinate liability. See 21 V.S.A. § 622 (explaining rights and

remedies granted by provision of chapter are exclusive to “all other rights and remedies of the

employee”); In re Chatham Woods Holdings, LLC, 2008 VT 70, ¶ 9, 184 Vt. 163, 955 A.2d 1183.

The result of this trade-off is an insurance system, not a social welfare program. Although it may

reinforce part of the social safety net, it is not itself a safety-net program. Individuals with high

pre-injury earnings may be entitled to very substantial benefits—far greater than could be justified

as necessary to their basic health and survival. The current maximum weekly benefit for an injured

worker out of work on temporary total disability benefits is $1,281— translating to annualized

earnings of over $65,000—tax free. See Vt. Dep’t of Labor, Minimum & Maximum Comp. Rates:

Annual      Change,     http://labor.vermont.gov/wordpress/wp-content/uploads/historicalrates.pdf

[https://perma.cc/6GWQ-BETB]; see also 21 V.S.A. § 601(18) (defining “maximum weekly

compensation” to be 150% of the state average wage). The notion that “other advantages” should

be limited to benefits essential to subsistence is out of synch with the broader workers’

compensation scheme.

         ¶ 28.   Given the above considerations, we conclude that the Commissioner’s

determination was not unreasonable and is entitled to our deference.

         Affirmed.

                                                FOR THE COURT:



                                                Associate Justice


         ¶ 29.   SKOGLUND, J., dissenting. I believe that the majority opinion is inconsistent

with the purpose of the workers’ compensation law and dissent. I agree with my brother Eaton’s

dissent in this matter, which argues a fringe benefit of free college tuition cannot be considered


                                                 13
remuneration pursuant to the Workers’ Compensation Act, but write separately to argue that

consideration of such fringe benefits in determining wages violates the premise and construction

of the Workers’ Compensation Act.

       ¶ 30.   The purpose of the Act is to compensate for the loss of earning power as a result of

a work injury, irrespective of the question of negligence; not to compensate for the loss of fringe

benefits. Tuition-free course credits may be one advantage to working at Champlain College, but

they are not provided in lieu of wages and, more significantly, they are not necessities of life that

the injured worker would need during a period of disability. Unlike the in-kind components of a

worker’s lost earning capacity such as board, housing, and fuel, tuition-free course credits don’t

assist an injured worker who cannot earn their wages and should not be viewed as a form of wages

to determine income replacement benefits for purposes of the Act.

       ¶ 31.   Workers’ compensation laws were designed to provide income, as well as medical

and other benefits such as the vocational rehabilitation specified in some statutes, to workers

injured during performance of their duties. See, e.g., 21 V.S.A. § 641. Though developments have

confused that basic goal, with some states calculating payments by including fringe benefits that

were not identified or considered when the law was passed, the majority of jurisdictions judicially

or legislatively exclude fringe benefits. See, e.g., 33 U.S.C. § 902(13) (“The term wages does not

include fringe benefits, including (but not limited to) employer payments for or contributions to

. . . training . . . .”). For example, while Vermont has decided that employer contributions to health

insurance plans are not intended to be part of an employee’s average weekly wage, Lydy v.

Trustaff, Inc., 2013 VT 44, ¶ 19, 194 Vt. 165, 76 A.3d 150, Washington state interpreted its statute

to include health insurance benefits in the calculation of wages. See Cockle v. Dep’t of Labor &

Indus., 16 P.3d 583, 594 (Wash. 2001).

       ¶ 32.   In most cases, such disparities can be viewed as differences in statutory

authorizations or requirements of contractual employment. In this case, the governing statute does

                                                 14
not authorize inclusion and there is no contract of employment that mandates inclusion. I suggest

the appropriate discussion should focus on whether the benefit is provided in lieu of salary and is

critical to protecting the employee’s basic health and survival, a position that would honor the

intent of workers’ compensation laws.

        ¶ 33.   In Morrison-Knudsen Construction Co. v. Director, Office of Workers’

Compensation Programs, the U.S. Supreme Court held that employer contributions to union trust

funds for health and welfare, pensions, and training were not “wages” for purposes of computing

compensation benefits. 461 U.S. 624, 637 (1983). The question presented to the Court required

the Court to interpret the term “wages” in the Longshore and Harbor Workers’ Compensation Act

(LHWCA), which was enacted in 1927 in response to decisions of the Court limiting the authority

of the states to apply their workers’ compensation laws to injured maritime workers. Id. at 626;

33 U.S.C. § 902(13) (defining wages). It was patterned after existing state workers’ compensation

laws. Morrison-Knudsen Constr. Co., 461 U.S. at 640 (Marshall, J., dissenting). The definition

of “wages” incorporated in the LHWCA “was lifted almost verbatim from the New York statute.”

Id.

        ¶ 34.   When Congress used New York’s statutory language, the recognized aim of the

New York workers’ compensation scheme was to compensate for “the loss of earning power

incurred in the common enterprise, irrespective of the question of negligence.” N.Y. Central R.R.

v. White, 243 U.S. 188, 204, 193 (1917) (“Compensation under the act is not regulated by the

measure of damages applied in negligence suits, but, in addition to providing surgical, or other like

treatment, it is based solely on loss of earning power . . . . ”). Thus, the LHWCA, like the New

York law, focused on an employee’s loss of earning capacity as a result of an occupational injury.

Id. at 204.

        ¶ 35.   At the time of Morrison-Knudsen, § 902(13) of the LHWCA defined “wages” for

the purpose of computing compensation benefits as meaning “the money rate at which the service

                                                 15
rendered is recompensed under the contract of hiring in force at the time of the injury, including

the reasonable value of board, rent, housing, lodging or similar advantage received from the

employer.” 461 U.S. at 629. Looking at the plain language of the statute, the U.S. Supreme Court

in Morrison-Knudsen first held that the value of the trust funds was not easily converted into a

cash equivalent and that the value could not be measured by an employee’s expectation interest

for that interest is at best speculative. 461 U.S. at 630-31.

       ¶ 36.   Then the Supreme Court looked to the legislative history of the LHWCA and

concluded that history provided “abundant indication that Congress did not intend to include

employer contributions to benefit plans within the concept of ‘wages’ [in the LHWCA].” Id. at

632. The Court noted that “employer-funded fringe benefits were virtually unknown” in 1927

when the LHWCA was enacted and opined that, notwithstanding amendments and a “substantial

revision in 1972, there was no evidence in the legislative history indicating that Congress seriously

considered the possibility that fringe benefits should be taken into account in determining

compensation under the [LHWCA].” Id.

       ¶ 37.   The U. S. Supreme Court recognized that “the [LHWCA] was not a simple remedial

statute intended for the benefit of the workers.” Id. at 636. “Rather, [the LHWCA] was designed

to strike a balance between the concerns of the workers . . . and their employers.” Id. “Employers

relinquished their defenses to tort actions in exchange for limited and predictable liability [while]

[e]mployees accept[ed] the limited recovery because they receive prompt relief without the

expense, uncertainty, and delay that tort actions entail.” Id. The Court held that “reinterpretation

of the term ‘wages’ would significantly alter the balance achieved by Congress [in the Act].” Id.

In addition, acknowledging that employers calculate their compensation costs on the basis of their

cash payroll, the Supreme Court held that the shift in the relative value of take-home pay versus

fringe benefits dramatically altered the cost factors upon which employers and their insurers [rely]



                                                 16
in ordering their affairs. Id. “If these reasonable expectations are to be altered, that is a task for

Congress.” Id.

        ¶ 38.    The respondent in Morrison-Knudsen argued that the incentive to trade salary for

benefits should not be diluted by failing to consider the value of the benefits in determining

“wages.” Id. at 635. The trade-off described in Morrison-Knudsen is not present in this case—

there was no trade-off of free tuition in exchange for less salary. The Supreme Court’s rejection

of the argument, however, supports the position of this dissent.            The Court wrote, “[A]

comprehensive statute such as this Act is not to be judicially expanded because of recent trends.”

Id. at 635 (quotation omitted).

        ¶ 39.    In Lydy, the Commissioner concluded that employer-provided health insurance

premiums were not part of an employee’s wages and therefore were not part of the claimant’s

average weekly wage computation. 2013 VT 44, ¶ 3. In rejecting the inclusion of these benefits

in the average weekly wage, the Commissioner held that this would “dramatically impact the

delicate balance that the workers’ compensation act seeks to maintain between employers and

employees.” Id. (quotation omitted). Finally, she concluded that the interpretation “was not

appropriate for alteration by administrative fiat and that any such change was better left for the

Legislature.” Id. Exactly.

        ¶ 40.    In Lydy, this Court noted that health insurance, as it exists today, did not develop

until the late 1920s and held that, because the Legislature did not amend the definition of “wages”

“to include employer-paid health insurance after it developed into a customary benefit, it is prudent

to conclude that such a benefit was not intended to be part of an employee’s average weekly wage.”

Id. ¶ 11. We further held that the claimant’s argument conflated employers’ costs with employees’

remuneration and noted that the U.S. Supreme Court rejected this approach in Morrison-Knudsen.

Id. ¶ 13.



                                                  17
       ¶ 41.   In 2013, we found the Supreme Court’s rationale in Morrison-Knudsen persuasive.

I do not know why it is rejected in this case. The majority states that this Court’s decision in Lydy

found that the value of the health insurance coverage actually received by the employee was

speculative as was the benefit to the employee from the employer’s contributions to the trust fund

in Morrison-Knudsen. Ante, ¶ 15. This is not accurate. In Lydy we held “the employer’s

contribution for health insurance, though determinable, does not accurately reflect the employee’s

labors or compensation as defined through wages.” Id. ¶ 14 (emphasis added). The same is true

of free tuition—it does not reflect, in any way, the employee’s labors or compensation as defined

through wages.

       ¶ 42.   As we noted in Lydy, because our workers’ compensation statute differs from those

in other states, looking to other jurisdictions for authority is useless. However, the rationales used

in other states can be illuminating.

       ¶ 43.   Massachusetts law specifically states “such fringe benefits as health insurance

plans, pensions, child care, or education and training programs provided by the employers shall

not be included in employee earnings for the purpose of calculating average weekly wages.” Mass.

Gen. Laws ch. 152, § 1(1). Massachusetts courts have reasoned that some fringe benefits are to

be included in the calculation as they “bear a close analogy to wages paid by the employer.” In re

Borofsky, 582 N.E.2d 538, 539 (Mass. 1991) (quotation omitted). Sales commissions, tip income,

and room and board have been included in the calculation. In re Powers, 176 N.E. 621, 622 (Mass.

1931). And, in James Roberts, Central Heating & Cooling, American Mutual Insurance, the Court

held that a company car was provided to employee “in lieu of an additional wage of $2 per hour,”

and should be included in the wage calculation. 9 Mass. Workers’ Comp. Rep. 431, 432 (1995).

Thus, the general rule in Massachusetts is that if a fringe benefit is considered an explicit, express,

or direct wage substitute, it may be included in the calculation of wages.



                                                  18
       ¶ 44.   Here the opportunity to collect free tuition credits does not bear a close analogy to

wages. Claimant did nothing to earn the opportunity for free tuition credits. The value of same is

not similar to sales commissions or the use of a company car provided in lieu of additional wages.

If the workers’ compensation law is to be expanded so dramatically, are we to include free parking

spaces or access to an in-house exercise facility in the calculation of wages?

       ¶ 45.   Apparently, because the benefit at issue here—free tuition—“is clearly an

‘advantage’ of considerable economic value” and “can be estimated in money,” the majority would

add that value of the credits to her salary to determine the employee’s wage. Ante, ¶ 17. However,

any such reinterpretation of the term “wages” would significantly alter the balance achieved by

the Legislature in promulgating the Act. The resulting shift will alter the cost factors upon which

employers and their insurers rely. I agree with the approach of the U.S. Supreme Court expressed

in Morrison-Knudsen, that “[i]f these reasonable expectations are to be altered, that is a task for

[the Legislature].” Id. at 636.

       ¶ 46.    The purpose of the workers’ compensation law is to provide a remedy for

employees that is “both expeditious and independent of proof of fault” as well as a remedy for

employers that is limited and determinate. Kittell v. Vt. Weatherboard, Inc., 138 Vt. 439, 441, 417

A.2d 795, 792 (1980). We cannot overlook the fact that the rights of employers as well as the

rights of employees are safeguarded by the Act’s provisions. See also Quinn v. Pate 124 Vt. 121,

124 (1964).

       ¶ 47.   The ramifications of the majority’s decision will extend beyond this case with a

likely increase in cost to employers for workers’ compensation coverage and to employers who

self-insure. Including in the calculation of weekly wage any fringe benefits that are not paid in

lieu of wages or are not an explicit substitute for wages will create a morass that will overwhelm

employers and the workers’ compensation system.



                                                19
       ¶ 48.   The phrase “board, lodging, fuel and other advantages which can be estimated in

money and which the employee receives from the employer as a part of his or her remuneration”

should be read to mean readily identifiable and reasonably calculable in-kind components of a

worker’s lost-earning capacity at the time of injury that are critical to protecting workers’ basic

health and survival. 21 V.S.A. § 601(13). The Legislature provided that these categories should

count as “wages” because they are necessities of life, without which the injured worker cannot

survive a period of even temporary disability. Contributions to retirement, life insurance, golf

green fees, or free tuition are not necessities of life without which an injured worker cannot survive.

       ¶ 49.   I dissent.

       ¶ 50.   I am authorized to state that Justice Eaton joins this dissent.


                                                 Associate Justice


       ¶ 51.   EATON, J., dissenting. The tuition benefit at issue in this case is not provided to

claimant as part of her remuneration and should not be included in the calculation of claimant’s

average weekly wage. The majority’s decision conflicts with the plain language of the Workers’

Compensation Act and with controlling case law, and represents a vast judicial expansion of the

definition of wages. For these reasons, I dissent.

       ¶ 52.   An injured worker’s disability benefit is based on the worker’s average weekly

wages. 21 V.S.A. § 650. Wages are defined by the Act to include “bonuses and the market value

of board, lodging, fuel, and other advantages which can be estimated in money and which the

employee receives from the employer as a part of his or her remuneration.” 21 V.S.A. § 601(13).

At issue is whether the value of tuition-free course credits received by claimant are “other

advantages” offered as a part of claimant’s remuneration.

       ¶ 53.   This question is plainly controlled by our recent decision in Lydy v. Trustaff, Inc.,

in which we held that employer-provided health insurance benefits were not “other advantages”

                                                  20
received as part of the claimant’s remuneration and should not be included in calculating the

average weekly wage. 2013 VT 44, ¶ 19, 194 Vt. 165, 76 A.3d 150. We reasoned in Lydy that

expanding the definition of “other advantages” to include employer health insurance “ignores the

remainder of the statutory phrase, which limits ‘other advantages’ to those ‘which the employee

receives from the employer as a part of his or her remuneration.’ ” Id. ¶ 12. “To remunerate is ‘to

pay (a person) for goods provided, services rendered, or losses incurred’; remuneration is a

‘payment.’ ” Id. (quoting The American Heritage Dictionary 1101 (New College ed. 1979)). The

definition of wages in 21 V.S.A. § 601(13) “implies a payment actually received by an employee—

it more closely refers to the actual earnings of the worker.” Id. By contrast, “[a]n employee is not

paid for her work with health insurance; rather, health insurance is a fringe benefit of

employment.” Id.

       ¶ 54.   The same reasoning applies to the tuition benefit at issue here. Claimant was not

paid for her work with free classes. The tuition benefit was provided independently of claimant’s

take-home pay. There is no evidence that she received more money in her paycheck if she did not

take a class, or that her overall salary was lower than it would have been due to the availability of

the benefit. She continued to use the free tuition benefit through the fall of 2014, months after she

stopped work due to her injury. The tuition benefit was not tied to claimant’s job performance,

title, or hours worked. It was a voluntary perk available to her and to any other employee. In fact,

spouses and dependents of employees were also eligible for this tuition benefit, even if they were

not employees themselves. The free classes provided to claimant were not part of her taxable

income.5 These factors indicate that the tuition benefit provided to claimant did not compensate

her for services provided and thus was not a part of her remuneration.



       5
           The Internal Revenue Code excludes up to $5250 in employer-provided education
assistance from the gross income of an employee. 26 U.S.C. § 127(a)(2); see also 32 V.S.A. § 5823
(using federal adjusted gross income as basis for Vermont income tax). Claimant took classes
                                              21
       ¶ 55.   The Appellate Division of the New York Supreme Court reached a similar

conclusion in Blackwelder v. Faith Heritage School, 811 N.Y.S.2d 225 (App. Div. 2006). In

Blackwelder, an injured maintenance and custodial worker who had received free tuition for his

three children from his employer sought to include the value of that tuition in the calculation of

his average weekly wage. Id. at 225. The court affirmed the decision of New York’s workers’

compensation board that the tuition remission was not part of the worker’s wages, relying on the

following facts: the worker was paid at an hourly rate for a forty-hour week at a rate similar to his

predecessor; his pay was unaffected by whether his children attended the school; the tuition

remission was applied retroactively to the beginning of the school year in which the worker began

his employment and continued after he could no longer work due to his injury; the employer

considered the tuition benefit to be a fringe benefit similar to health benefits; and the tuition

remission was not a taxable benefit according to the Internal Revenue Service. Id. For these

reasons, the court concluded that the tuition remission was an additional benefit not given as

remuneration for services provided by claimant, and therefore not “wages” within the meaning of

New York’s workers’ compensation law. Id. at 226. The facts of this case are similar and lead to

the same conclusion: “other advantages” does not include the tuition benefit provided to claimant

by employer.

       ¶ 56.   Furthermore, “when construing an enactment with a series of defining terms, we

will apply the rule of ejusdem generis, and the latter general terms will be construed to include

only those things similar in character to those specifically defined.” Vt. Baptist Convention v.

Burlington Zoning Bd., 159 Vt. 28, 30, 613 A.2d 710, 711 (1992) (quotation omitted). Thus, we

must read “other advantages” in light of the character of board, lodging, and fuel, the defined terms

that immediately precede the phrase. See id. Tuition benefits are nothing like these core, nonfringe



worth a total of $1797 in 2012, $4273 in 2013, and $4515 in 2014; therefore, these amounts were
not taxable income to her.
                                               22
items. There is no evidence that the tuition benefit was essential to allow claimant to do her job.

Indeed, the graduate tuition benefit offered here permitted an employee to take classes that were

completely unrelated to his or her work for employer—as claimant did in this case.

       ¶ 57.   The conclusion that claimant’s wages did not include the tuition benefit is also

supported by the history of the Act, which was enacted in 1915 as part of a nationwide movement

to provide remedies for injured industrial workers. In Lydy, we noted that most of these laws

“compensated employees for the core, nonfringe benefits of housing, food, and fuel.” 2013 VT

44, ¶ 8.   Since the Act’s passage, the statutory definition of wages has remained virtually

unchanged, with the exception of adding the term “bonuses.” Id. ¶ 10. Because the health

insurance system was in not in place in 1915 and employer-provided health insurance was not a

customary benefit at that time, we concluded that such a benefit was not intended to be included

in the definition of wages under the Act. Id. ¶ 11.

       ¶ 58.   Like employer-provided health insurance, tuition-free course credits are outside the

scope of what the Legislature would have considered to be “wages” in 1915. Tuition benefits are

the type of noncore, fringe benefits—like employer-paid life insurance or discounted gym

memberships—that became common later in the twentieth century as employers sought to attract

workers. See id. ¶ 11; Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs,

461 U.S. 624, 632 (1983) (stating that “employer-funded fringe benefits were virtually unknown”

when similar federal workers’ compensation act was passed in 1927). While these types of fringe

benefits are perhaps not as pervasive as employer-provided health insurance, see ante, ¶ 14, they

have become increasingly common over the past century. There are any number of things

employers may do to attract workers, from serving better food in their cafeteria to providing

discounts at health clubs. But access to those fringe benefits does not mean they are remuneration

for the work done by the employee. They aren’t. In this case, claimant would have received

exactly the same pay for the work she did for employer whether she took any courses or not.

                                                23
Despite the prevalence of fringe benefits, the Legislature has not amended the language of the Act

to include such additional benefits in the definition of wages, even though it made other

amendments to 21 V.S.A. § 601 after our decision in Lydy. See 2013, No. 96 (Adj. Sess.), § 136.

This strongly indicates that the value of such benefits were not intended to be factored into

determining a worker’s average weekly wage. See Dubaniewicz v. Houman, 2006 VT 99, ¶ 13,

180 Vt. 367, 910 A.2d 897 (finding that lack of legislative response to judicial interpretation of

statute “at least suggests legislative acquiescence” to Court’s interpretation).

       ¶ 59.   The majority claims that Lydy is not controlling because we affirmed the

Commissioner’s decision in that case, and following Lydy here would require us to reverse the

decision below. Ante, ¶ 13. While it is true that we typically defer to the Commissioner’s

interpretation of the Act, “we will not affirm an unjust interpretation.” Morin v. Essex Optical/The

Hartford, 2005 VT 15, ¶ 4, 178 Vt. 29, 868 A.2d 729 (citing Clodgo v. Rentavision, Inc., 166 Vt.

548, 550, 701 A.2d 1044, 1045 (1997)). In the past, we have not hesitated to reverse workers’

compensation decisions that incorrectly interpreted the law. See, e.g., Cyr v. McDermott’s, Inc.,

2010 VT 19, ¶ 14, 187 Vt. 392, 996 A.2d 709; Morin, 2005 VT 15, ¶ 4; Clodgo, 166 Vt. at 551,

701 A.2d at 1046. Lydy controlled this matter and the Commissioner should have followed it,

particularly since unlike in Lydy, the question presented by claimant was a matter of first

impression for the Commissioner. See Lydy, 2013 VT 44, ¶ 3 n.2 (noting twenty-year-old line of

decisions in which Commissioner had consistently denied requests to incorporate employer-paid

health insurance premiums into wage calculation). In this case there was no previous line of

administrative decisions finding that a tuition benefit counted as “other advantages.” A decision

to the contrary would not upset the settled expectations of employees, employers, and insurers, as

it would have in Lydy.

       ¶ 60.   The majority also attempts to distinguish Lydy on the ground that the benefit at

issue in this case is “readily ascertainable.” Ante, ¶ 16. While the dollar value of the courses

                                                 24
actually taken by an employee may be capable of subsequent estimation in a given case, the

problem with this approach is that it is unfair to injured workers who are unable to take advantage

of the tuition benefit. Consider an employee who is equally situated with claimant in terms of pay

and position, but who has family obligations that prevent her from taking graduate level courses

from employer. Under the majority’s reasoning, if that person is injured, she will receive less in

compensation than claimant merely because claimant was able to take the free classes.

       ¶ 61.   Average weekly wages should be based upon the wages received for the work done,

not factors that depend on vicissitudes outside of the workplace that allow one worker to utilize

fringe benefits while another cannot. The majority’s position ignores the fact that the tuition

benefit, like health insurance, is offered to every employee regardless of whether the employee

takes advantage of it. Each employee can choose to take no courses, some noncredit courses, or a

full degree program. Likewise, an employee’s spouse or child may use the benefit. The employer

offers the courses either way. Just as with health insurance, an employee’s interest in the free

classes is at best speculative. See Lydy, 2013 VT 44, ¶ 14. There may be employees who are

prevented from taking courses due to their life circumstances, such as a lack of child care during

times when the courses are offered. It is unfair to them that they should receive less in average

weekly wage should they become injured than the person whose life circumstances allow them to

take the courses.

       ¶ 62.   Furthermore, the statute requires that “other advantages” be capable of being

estimated in money in part so that employers and their workers’ compensation insurers have a way

to anticipate potential liabilities. See 21 V.S.A. § 601(13). The unpredictability of the tuition

benefit’s value to any particular employee makes it difficult to estimate for workers’ compensation

insurance purposes. Treating the benefit as part of wages therefore could vastly alter employer’s

exposure under the Act.



                                                25
       ¶ 63.   As we noted in Lydy, the workers’ compensation law “serves the dual purposes of

providing an expeditious remedy for injured employees independent of proof of fault, and of

offering employers a liability which is limited and determinate.” Lydy, 2013 VT 44, ¶ 19. The

majority’s decision opens the door to claims for compensation for fringe benefits of all kinds and

upsets the “delicate balancing” achieved by the Act. Id. We rightly declined to upset that balance

by expanding the definition of “other advantages” to include employer-provided health benefits in

Lydy. Instead, we held that such a decision was better left to the Legislature, where the various

affected constituencies could debate the matter. Id. For the same reason, I would decline to expand

the definition of an average weekly wage to include the tuition benefits at issue here.

       ¶ 64.   I am authorized to state that Justice Skoglund joins this dissent.




                                                Associate Justice




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