On December 1, 2015, Ms. Perrault had an automobile accident. At the time, she was driving a CCTA rider to an appointment. Ms. Perrault sustained significant injuries in the accident, including a broken neck at the third and fourth vertebrae, a fractured spine, and broken ribs. She subsequently sought workers' compensation benefits.

The CCTA filed a motion for summary judgment with the Vermont Department of Labor regarding Ms. Perrault's status as an “employee” for purposes of a workers' compensation award. The commissioner determined that Ms. Perrault could not be considered an employee of the CCTA and, therefore, was ineligible for workers' compensation benefits. The commissioner's decision turned on the conclusion that the per mile payment she received from the CCTA constituted reimbursement, which the commissioner concluded did not fall within the statutory definition of wages and that, without wages, she was a gratuitous volunteer rather than an employee.

Ms. Perrault appealed this decision, and the commissioner certified the following question to the Vermont Supreme Court:

As a matter of law, was [Ms. Perrault] an employee of [the CCTA], as defined in 21 V.S.A. § 601(14), at the time of her December 1, 2015 injury? 

Ms. Perrault argued that her relationship with the CCTA had all the indicia of an employment relationship, including satisfaction of the wage requirement, and that the commissioner had erred by granting the CCTA summary judgment because the record included disputed material facts regarding whether she was a CCTA employee.

The Vermont Supreme Court's Decision

The Vermont Supreme Court affirmed, holding that because Ms. Perrault had not received wages, she could not be considered a statutory employee for purposes of receiving workers' compensation.

In its decision, the court explained that a statutory employment relationship, as distinguished from the relationship between an entity and a gratuitous volunteer, turned “on the receipt of wages.”

Therefore, the court ruled, Ms. Perrault had “entered into the employment of” the CCTA only if she had received something that met the definition of wages.

The court observed that, as with other terms relevant to workers' compensation, wages were defined by Vermont statute as including “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; but does not include any sum paid by the employer to his or her employee to cover any special expenses entailed on the employee by the nature of his or her employment.” 21 V.S.A. §601(13).

That definition, the court continued, was “synonymous with 'earnings'” and meant “a gain given an employee by his or her employer that is quantifiable and part of the employee's compensation.”

The court acknowledged that Ms. Perrault had received regular monetary payments from the CCTA, conceding that it could suggest that she received wages according to the conventional definition of that term. The CCTA's regular payments to Ms. Perrault, however, were based on the number of miles she drove and calculated according to federally established mileage rates, which the federal government set according to the expected depreciation amount associated with each mile driven.

Because the CCTA's payments to Ms. Perrault were calculated based on these rates of depreciation, those payments constituted reimbursement for long-term depreciation in the value of her car due to the miles she drove as a participant in the CCTA's volunteer driver program, rather than wages. The court concluded that, as reimbursement, the CCTA's mileage payments were not something that could be interpreted as a “gain” and, accordingly, fell “outside the category of wages.”

The case is Perrault v. Chittenden County Transportation Authority, No. 17-112 (Vermont May 25, 2018). Attorneys involved include: Christopher McVeigh of McVeigh Skiff, LLP, Burlington, for Plaintiff-Appellant. Jennifer K. Moore and Christina Rainville of Ellis Boxer & Blake PLLC, Springfield, for Defendant-Appellee.