On
Appeal from Commissioner of Labor Anne M. Noonan,
Commissioner
Kevin
E. Brown and Michele B. Patton of Langrock Sperry & Wool,
LLP, Middlebury, for Plaintiff-Appellant.
Jason
R. Ferreira and Robert G. Reagan of McCormick, Fitzpatrick,
Kasper & Burchard, P.C., Burlington, for
Defendant-Appellee.
Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
DOOLEY, J.
¶
1. Claimant Catherine Lyons appeals a summary judgment
decision by the Department of Labor Commissioner (the
Commissioner) finding that she did not qualify for
workers' compensation benefits for an injury sustained
while student teaching at a school in the defendant
supervisory union. Because we hold that claimant falls within
the statutory definition of an employee for purposes of
workers' compensation, we reverse and remand for further
proceedings in accord with this opinion.
¶
2. The relevant facts are undisputed. Claimant has a
master's degree in early childhood education and taught
for six years in New Hampshire. In 2013, she decided to
pursue an elementary education teaching license in Vermont.
Vermont Agency of Education (AOE) regulations require three
basic components for licensure as a teacher: first, the
applicant must hold a bachelor's degree in either the
liberal arts and sciences or in the area that they will
teach; second, they must provide proof of student teaching;
and third, the applicant must demonstrate competency in ten
specified areas.[1] Vermont Agency of Education, Licensing of
Educators and the Preparation of Educational Professionals
§§ 5231, 5233, 5235, Code of Vt. Rules 22 000 010,
http://www.lexisnexis.com/hottopics/michie/.
Licensing regulations at the time plaintiff sought licensure
required the applicant to complete twelve weeks of student
teaching, defined as "supervised, concentrated field
experience . . . including an internship, or other
concentrated field experience however named, in which the
candidate shall gradually assume the full professional roles
and responsibilities of an educator." Id.
§ 5233.1[2]; id. § 5150. To satisfy
competency and student teaching requirements, claimant
enrolled in a two-semester program at the Upper Valley
Educators Institute (UVEI) that prepares enrollees for
licensure through classroom placement and seminar-based
competency instruction.
¶
3. UVEI's teacher program handbook refers to its trainees
as interns; an intern is "a professional with prior
experience who is developing his or her talents to become a
teacher." Each intern is placed in two different
classrooms during the UVEI program, one during the
program's fall semester and a second during the spring
semester. The intern works with a different mentor-teacher in
each classroom, who invites the intern "into the
classroom to learn-and begin to practice-the craft of
teaching." Interns are placed in the classroom four days
each week; on the fifth day, they are required to attend
seminars at the UVEI campus. These seminars address the
competency requirement for licensure. Total tuition for the
program is $15, 000; enrollees also pay a $250 fee for UVEI
to help them locate placement classrooms.
¶
4. As an agency-approved educator preparation program, UVEI
must comply with AOE regulations governing the way license
applicants are placed in student teaching positions.
Specifically, student teachers must be placed with a licensed
educator who has been trained by the educator preparation
program in the methods and strategies taught in the program.
Student teaching expectations and the placement process must
be included in a handbook, and a written agreement with the
placement school must be executed that lists each party's
responsibilities. Id. § 5924.3. Pursuant to
these regulations, UVEI distributed a Teacher Internship
Program Handbook that outlined intern and mentor-teacher
responsibilities, and had all placement
participants-including the intern, mentor-teacher, placement
site representative, and a UVEI-assigned faculty coach-sign a
placement contract.
¶
5. Upon enrolling in UVEI's teacher internship program,
claimant contacted a kindergarten teacher for whom she had
previously substitute taught at one of Chittenden Central
Supervisory Union's (CCSU) schools. Claimant and the
kindergarten teacher agreed that claimant could complete her
first student teaching semester in the teacher's
classroom if claimant met the application requirements
imposed by CCSU.
¶
6. In a procedure that mimics most job searches, CCSU
requires trainee teachers, such as claimant, to submit an
application for student teaching on a standard
form.[3] Applicants must list their education and
experience, answer a series of questions concerning past
criminal activity, and write a one-page essay describing
their reasons for wanting to teach and commitment to or
experience working with children and young people. This
application is submitted directly to the principal of the
school where a trainee teacher seeks placement and the school
then interviews those applicants it is interested in placing.
According to the CCSU student teacher application process,
"the purpose of the [interview] is to ensure the
placement will result in a good match between [the
applicant], the school, and the cooperating teacher, which is
necessary to increase [the applicant's] chances for
success." Supervisory union human resources personnel
are not involved in the interview or placement process;
instead the selection of student teacher applicants is left
to the school principal and classroom teacher.
¶
7. We find it important to note that claimant's position
is named and described in different ways in the record. The
Commissioner found that defendant considered claimant to be a
preservice teacher, a term that includes interns, student
teachers, and post-baccalaureates. The policy on which the
Commissioner relied refers to claimant's position as a
student teacher and her activities as student teaching.
Claimant submitted an application for student teaching
pursuant to a Student Teacher Application Process. At one
point, the application states: "If hired prior to the
completion of the background check process, continued
employment would be contingent upon satisfactory background
check results."
¶
8. As we noted above, the UVEI Teacher Program Handbook
defines claimant as an intern. It goes on to say that
"[a]n intern has more responsibility, more independence,
and more self-direction than most students." The
handbook in a number of places describes the intern as
working. As an example, the handbook states interns
"work with small groups of students, instruct classes,
handle crises, and otherwise function as real teachers."
¶
9. After passing through CCSU's application and screening
process, claimant, her mentor-teacher, the placement school
principal, and claimant's UVEI faculty coach signed a
placement contract agreeing to the terms outlined in
UVEI's program handbook. The handbook lists the
responsibilities of both the UVEI intern and the
mentor-teacher; specifically, it requires the intern to work
the same hours as their mentor-teacher, to attend staff and
planning meetings, as well as in-service days and school
activities. Each intern's classroom responsibilities are
meant to increase over time, culminating in a one-to-two-week
period of solo teaching in the classroom. While interning at
her placement school, claimant had a CCSU identification
badge and email address, access to confidential student
files, and keys to both the school and her
mentor-teacher's classroom. However, in agreement with
the guidelines in UVEI's program handbook, claimant was
not permitted to write any reports or documents that would
become part of a student's official record.
¶
10. Claimant injured her back, hip, and leg in a workplace
slip and fall accident not long after she began her teaching
internship. She filed a workers' compensation claim,
which the defendant's insurer contested. Claimant
appealed the denial of her claim to the Department of Labor,
and the parties filed cross motions for summary judgment on
the sole question of whether claimant qualified as an
employee under the relevant statutory definition. Neither
party disputed that CCSU falls within the statutory
definition of an employer for purposes of workers'
compensation nor that claimant's injury, if she could be
considered an employee, occurred accidentally during the
normal course of her employment.
¶
11. The Commissioner issued a written decision granting
defendant summary judgment and dismissing claimant's
claim for workers' compensation benefits. The
Commissioner's decision turned on the undisputed fact
that claimant did not receive monetary wages for her work at
the defendant supervisory union. The Commissioner found that,
though the tripartite agreement between claimant, defendant,
and UVEI bore many of the hallmarks of an employment
contract, "absent actual or expected payment of some
form of remuneration by employer to employee, an employment
relationship does not exist, and workers' compensation
coverage does not attach." According to the
Commissioner, limiting workers' compensation benefits to
paid employees implements the statute's underlying
"assumption that a worker is gainfully employed at the
time of his or her injury" as well as the practical
difficulty of monetizing compensation for a worker who is not
receiving financial payment. This appeal followed.
¶
12. We review summary judgment decisions "de novo,
applying the same standard as the trial court."
DeBartolo v. Underwriters at Lloyd's of London,
2007 VT 31, ¶ 8, 181 Vt. 609, 925 A.2d 1018 (mem.).
Summary judgment is appropriate "if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
V.R.C.P. 56(a). This appeal concerns a question of law; we
review the Commissioner's conclusions regarding questions
of law de novo. Smedberg v. Detlef's Custodial Serv.,
Inc., 2007 VT 99, ¶ 23, 182 Vt. 349, 940 A.2d 674.
¶
13. We owe the Commissioner's interpretation of the
workers' compensation program deference because the
Legislature has tasked the Commissioner with administration
of the program. Letourneau v. A.N. Deringer/Wausau Ins.
Co., 2008 VT 106, ¶ 8, 184 Vt. 422, 966 A.2d 133;
see also Town of Killington v. Dep't of Taxes,
2003 VT 88, ¶ 5, 176 Vt. 70, 838 A.2d 91 ("Absent a
clear and convincing showing to the contrary, decisions made
within the expertise of agencies are presumed correct, valid
and reasonable." (quotation and alterations omitted)).
We will not set aside the Commissioner's interpretation
or application of the statute "absent a compelling
indication of error." Brown v. W.T. Martin Plumbing
& Heating, Inc., 2013 VT 38, ¶ 18, 194 Vt. 12,
72 A.3d 346. Our task is to ensure that a statute's
enacting purpose is given effect, and we do so by
"examin[ing] and consider[ing] fairly, not just isolated
sentences or phrases, but the whole and every part of the
statute, . . . together with other statutes standing in pari
materia with it, as parts of a unified statutory
system." Id. ¶ 20 (quotation omitted).
¶
14. The workers' compensation program has rightly been
called a "grand bargain." See P. Gillies,
Ruminations: The Centennial of Workers' Compensation
in Vermont, 41 Vt. Bar. J. 10 (Summer, 2015). In
exchange for no-fault liability, employers guarantee workers
accidentally injured during the normal course of employment
insurer-provided wage replacement and medical and other
benefits. See 21 V.S.A. §§ 618(a)(1), 622. The
statute defines a "worker" or "employee"
as "an individual who has entered into the employment
of, or works under contract of service or apprenticeship
with, an employer." Id. § 601(14). As the
Commissioner noted, we have never considered whether a
preprofessional trainee in a working environment qualifies as
a worker or employee under the workers' compensation
program. We have, however, held that "the Workmen's
Compensation Act, having benevolent objectives, is remedial
in nature and must be given a liberal construction; no
injured employee should be excluded unless the law clearly
intends such an exclusion or termination of benefits."
Montgomery v. Brinver Corp., 142 Vt. 461, 463, 457
A.2d 644, 646 (1983).
¶
15. The basic entitlement to workers' compensation is
contained in 21 V.S.A. § 618(a)(1): "If a worker
receives a personal injury by accident arising out of and in
the course of employment by an employer subject to this
chapter, the employer or the insurance carrier shall pay
compensation in the amounts and to the person hereinafter
specified." The Commissioner's decision in this case
relies upon two other statutes. The first is 21 V.S.A. §
601(14), which defines worker or employee, and is set out in
the foregoing paragraph.[4] The second is 21 V.S.A. § 601(13),
which defines wages: " 'Wages' includes 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 . . . ."
¶
16. The Commissioner's decision is based on the rationale
that a distinction must be drawn between an employee, who can
receive workers' compensation, and a gratuitous worker,
who cannot. In addressing this distinction, the Commissioner
explored the difference between "remuneration" and
"wages, " the key words in § 601(13). It is
clear from that section of the statute that
"remuneration" is the broader term, with wages
being only part of remuneration, such that "anything of
value can [conceivably] qualify" as remuneration. The
Commissioner concluded that "the opportunity to fulfill
[a] state-mandated licensure requirement" is
remuneration, [5] but is not wages because "the value
of a student teaching internship cannot be estimated 'in
money' " as required by § 601(13). The
Commissioner then concluded that without wages, a claimant
cannot be eligible for either indemnity or vocational
rehabilitation benefits under the statutory scheme. The
Commissioner also indicated concern that a decision that
claimant was entitled to workers' compensation would cut
off the right of a volunteer to bring a tort action where an
injury was based on negligence for which the employer was
responsible.
¶
17. Claimant challenges all steps in the Commissioner's
analysis. She argues that she was an employee, worked under a
contract of service and as an apprentice, and that wages are
not required for any of these prongs of the statutory
definition. She further argues that if wages are required,
the completion of her student teaching responsibilities to
achieve licensure is a sufficient benefit to be wages and the
value of that completion can be estimated in money as
required by 21 V.S.A. § 601(13).
¶
18. We share the Commissioner's concern that we must
minimize the risk of upsetting the balance set by the
Legislature between creating a remedy for an injured worker
without proof of fault and continuing fault-based liability
where appropriate. Thus, we decide this case narrowly and do
not reach many of claimant's arguments.[6] There is no
dispute that, apart from the issue of wages, there is present
here a contract for service, as required in § 601(14) to
find claimant was an employee or worker. The parties entered
into a formal contract, and its terms specified that claimant
would provide specific services, and that specific services
would be provided to her. Whatever title is used to describe
claimant's position, the relationship between the parties
was governed by a service contract.
¶
19. We also agree that claimant received remuneration. We
recently defined remuneration for purposes of § 601(13)
as payment for services. Lydy v. Trustaff, Inc./Wausau
Ins. Co., 2013 VT 44, ¶ 12, 194 Vt. 165, 76 A.3d
150. As the Commissioner decided, this payment could be made
in a form other than money. Here, CCSU provided claimant with
teaching experience and mentoring necessary for her to become
a licensed teacher. We conclude, as the Commissioner did,
that this payment qualified as remuneration.
¶
20. Finally, we agree with the Commissioner that claimant
must prove that she received wages.[7] The system of workers'
compensation provides for the partial replacement of wages as
indemnity for injuries from a qualifying accident. Without
receipt of wages, there can be no indemnity. We held as much
in Wolfe v. Yudichak, a case involving the
eligibility for workers' compensation of a university
student who worked without compensation for a university
volunteer fire department and was seriously injured when a
fire engine in which he was riding overturned on the way to a
fire. 153 Vt. at 241-42, 571 A.2d at 596. In Wolfe,
the university argued that it could not be sued for
negligence by the student because he was eligible for
workers' compensation. We held that the student was not
eligible for workers' compensation for multiple reasons,
including that because he received no wages, he could not
receive indemnity benefits. We accept that Wolfe
controls here, and as the Commissioner held, claimant could
not receive any indemnity benefits if she received no
wages.[8] With this understanding of the areas of
agreement with the decision of the Commissioner, we address
the issue before us-whether claimant has received
"wages" as defined in 21 V.S.A. § 601(13).
This issue depends upon whether the student teaching
opportunity was (1) an "other advantage, " and (2)
if so, its value could be "estimated in money."
¶
21. Our understanding of both of these questions is greatly
aided by the recent decision in Haller v. Champlain
College, 2017 VT 86, __ Vt.__, __ A.3d __. Although
Haller dealt with the amount of wages earned by a
worker, and as a result the amount of compensation the worker
would receive based on the amount of wages, the decision
construed § 601(13) and applied facts with significant
similarities to those before us in this case. In
Haller, the College employer offered staff and
dependents of staff the opportunity to take courses at the
College without paying tuition, and the worker took advantage
of this policy by taking a number of courses without paying
tuition. When the worker was injured and became eligible for
workers' compensation, she claimed that her wages for the
period on which the amount of her benefits would be
calculated should include the value of these courses. Her
argument was that the courses were an "other
advantage" and their value could be estimated in money,
meeting the requirements of § 601(13). We agreed with
both parts of her argument. With respect to the "other
advantage" claim we held that the plain meaning of the
term included the tuition-free college courses.
Haller, 2017 VT 86, ¶ 17. We noted that the
statute does not limit advantages to "board, lodging and
fuel" and there is no requirement that an
"advantage" be provided in money. We held that the
free-tuition courses were "clearly an
'advantage' of considerable economic value."
Id.
¶
22. We see no distinction between this case and
Haller on the question of whether claimant received
an advantage in the form of the student teacher position that
was meeting the requirement for a teacher's license. The
student teaching was of value to CCSU and of considerable
economic value to claimant as a means of meeting the
licensing requirement. See id. (" '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.' " (quoting 2 A. Larson,
Larson's Workers' Compensation Law § 93.01(2)(a)
(2012) (alteration omitted))). Further, we do not read the
Commissioner's decision as inconsistent with this
conclusion.
¶
23. This brings us to the second question, whether the value
can be "estimated in money." In this summary
judgment decision, the Commissioner concluded that the value
of the advantage claimant received could not be estimated in
money, although she found that if claimant were "able to
complete her student teaching activities and thereby
fulfilled her licensure requirement, she would have reaped a
tangible benefit." The analysis supporting the
Commissioner's conclusion, to the extent it can be found
in the decision, is found in the Commissioner's
identification of the "test" to determine the
question: "The test is whether both parties intended the
benefit as 'wages.' "[9] Addressing the test, the
Commissioner summarized that CCSU's human resources
director in her deposition stated that the district never
intended to create an employment relationship with any
student teacher, including claimant. On the other hand, the
Commissioner summarized that the relevant evidence offered by
claimant was that coemployees were incredulous to learn that
CCSU had denied claimant's workers' compensation
claim because claimant was not an employee. Rejecting
claimant's evidence, the Commissioner held that claimant
had not raised a material issue of fact to show the test was
met and granted summary judgment for CCSU.
¶
24. Although we accept that whether the value of
claimant's student teacher course can be estimated in
money is a question of fact in some circumstances, we cannot
accept that the test of that fact is whether the parties
intended an employment relationship.[10] We are applying a
specific and detailed statutory scheme that contains specific
definitions of "employment, " "wages, "
"worker, " and "employee." See 21 V.S.A.
§§ 601(4), (13), (14). Nowhere in these statutes
has the Legislature stated that the intent of the parties
controls whether there is an employment relationship, whether
there are wages, or whether the value of an advantage can be
estimated in money. It is not contained in Haller,
our most recent decision defining the elements of wages. Our
responsibility is to apply the statutory language, not to
create and employ a new element not contained in that
language. Under our standard of review, we find compelling
indication of error in the Commissioner's decision.
¶
25. Our rejection of the Commissioner's rationale does
not, however, determine our mandate. As we stated above, we
agree that the Commissioner was faced with a question whether
the value of claimant's advantage could be estimated in
money. Both parties argued why the value could be or could
not be estimated in money, but neither provided any factual
support for the argument. Apparently, both believed that the
question was one of law and no evidence was necessary. We can
resolve the question here only if we can conclude as a matter
of law that the value of claimant's advantage could or
could not be estimated in money.
¶
26. There are a number of important points that bear on this
issue. The first comes from Haller. That decision
restated that the value of an advantage must be the value to
the claimant rather than the cost to the employer. It found
that the value in that case could be measured by the cost to
a student of each of the courses that the claimant received
without paying any tuition. See Haller, 2017 VT 86,
¶ 16 ("The 'market value' of the courses,
and the associated credits, is readily discernible in this
case.").
¶
27. The second point involves the unique circumstances of
this case. Here, claimant is arguing that she received an
advantage, but the facts show that she paid for the ability
to receive that advantage, not to CCSU but instead to another
organization, UVEI, with which she contracted to meet the
requirements of teacher licensure. The statute defines wages
as advantages "which the employee receives from the
employer as part of his or her remuneration." 21
V.S.A. § 601(13) (emphasis added). For purposes of our
analysis, CCSU is claimant's employer, and it is
providing the advantage of the student teacher position. It
is this advantage we must value, without regard to
claimant's payment to another to facilitate the
advantage.
¶
28. Third, the statute requires only that the value be
"estimated." This is consistent with 21 V.S.A.
§ 650(a), which provides alternative methods of
determining "average weekly wages" on which
compensation amounts are calculated where the worker has been
employed for only a short time or because of the terms of
employment "it is impractical to compute the rate of
remuneration." Thus, the estimate in money of the value
of wages demonstrates that wages exist and are capable of
rough measurement, but the actual compensation level may have
a different basis.
¶
29. In this case, the value of the twelve weeks of student
teaching must be analyzed to determine the value to claimant
rather than the cost to the school district. Claimant had
completed her formal education and was qualified as a
teacher, although she was not licensed to teach the content
and at the grade level where she found that employment
opportunities were available. Her twelve weeks as a student
teacher would enable her to obtain the license she needed to
teach at a grade level at which jobs were available. We are
cognizant that courts in other jurisdictions have decided
workers' compensation eligibility cases based on similar
factual circumstances. In looking to other jurisdictions, we
recognize that there are significant differences in how
jurisdictions define employment and eligibility for
workers' compensation. For example, the requirement that
advantages be capable of value estimated in money to
determine wages appears in the statutes of only a few states,
although the concept may be present in a different form. See,
e.g., Idaho Stat. § 72-102(33). We have often turned to
Professor Larson in his often-cited treatise on workers'
compensation law to summarize the law around the country. On
the question before us, he summarizes the law as follows:
The element of payment, to satisfy the requirement of a
contract of hire, need not be in money, but may be in
anything of value. Board, room, and training, such as might
be furnished a student nurse or hospital intern or laboratory
assistant trainee, or a graduate student, or student teacher
are treated as the equivalent of wages.
5 A. Larson, Larson's Workers Compensation Law §
65.03(1) (2016). In addition, we are particularly persuaded
by the following decisions, which are on point and support
our decision: Betts v. Ann Arbor Public Schools, 271
N.W.2d 498, 500-01 (Mich. 1978) (holding student teacher
received remuneration, "[i]n return, plaintiff was paid
in the form of training, college credits towards graduation,
and the meeting of the prerequisites for a state provisional
certificate"); Walls v. North Mississippi
Medical Center, 568 So.2d 712, 718 (Miss. 1990) (holding
student nurse received remuneration and stating, "Walls,
as an apprentice, rendered services to the hospital with the
primary purpose of learning the 'business' of the
hospital necessary to acquire her license as an LPN").
¶
30. What separates this case from others where a claimant may
have lost an educational opportunity as a result of an
accident is the direct tie between the internship and a state
license to teach. In this case of a person who has the
required educational background and is an experienced
teacher, the tie is so direct that the value of the
internship can be estimated as the value of the license. Some
courts have held that a professional license is an asset,
capable of valuation by determining the earning capacity that
is created by the license reduced to present value, primarily
for distributing marital assets on divorce. See Brough v.
Brough, 727 N.Y.S.2d 555, 557-58 ...