§ 650. Payment; average wage; computation
(a)(1) Average weekly wages shall be computed in such manner as is best calculated to give
the average weekly earnings of the worker during the 26 weeks preceding an injury.
(2) If, because of the shortness of the time during which the worker has been in the employment,
or the casual nature of the employment, or the terms of the employment, it is impracticable
to compute the rate of remuneration, average weekly wages of the injured worker may
be based on the average weekly earnings during the 26 weeks previous to the injury
earned by a person in the same grade employed at the same or similar work by the employer
of the injured worker, or if there is no comparable employee, by a person in the same
grade employed in the same class of employment and in the same district.
(3) If during the period of 26 weeks an injured employee has been absent from employment
on account of sickness or suspension of work by the employer, then only the time during
which the employee was able to work shall be used to determine the employee’s average
weekly wage.
(4) If the injured employee is employed in the concurrent service of more than one insured
employer or self-insurer, the total earnings from the several insured employers and
self-insurers shall be combined in determining the employee’s average weekly wages,
but insurance liability shall be exclusively upon the employer in whose employ the
injury occurred.
(5) The average weekly wage of a volunteer firefighter, volunteer rescue or ambulance
worker, volunteer reserve police officer, or volunteer as set forth in 3 V.S.A. § 1101(b)(4) who is injured in the discharge of duties as a firefighter, rescue or ambulance worker,
police officer, or State agency volunteer shall be the employee’s average weekly wage
in the employee’s regular employment or vocation, but the provisions of section 642 of this title relative to maximum weekly compensation and weekly net income rates shall apply.
(6) For the purpose of calculating permanent total or permanent partial disability compensation,
the provisions relating to the maximum and minimum weekly compensation rate shall
apply.
(7) If a worker at the time of the injury is regularly employed at a higher wage rate
or in a higher grade of work than formerly during the 26 weeks preceding the injury
and with larger regular wages, only the larger wages shall be taken into consideration
in computing the worker’s average weekly wages.
(b) In determining the compensation to be paid to any member of the National Guard or
the Vermont State Guard, if that member is not regularly employed by some other person,
it shall be assumed that the member is receiving income from a business or from other
employment equivalent to wages in an amount one and one-half times the maximum compensation
rate for total disability. If the wages received for the performance of duties as
a member of the National Guard or Vermont State Guard exceed the wages received from
a regular employer, that member shall be entitled to a rate of compensation based
on wages received as a member of the National Guard or Vermont State Guard.
(c) When temporary disability, either total or partial, does not occur in a continuous
period but occurs in separate intervals each resulting from the original injury, compensation
shall be adjusted for each recurrence of disability to reflect any increases in wages
or benefits prevailing at that time. For the purpose of computation, the adjustments
shall be based upon the compensation received by a person in the same grade employed
in the same class of employment and in the same district.
(d)(1) Compensation computed pursuant to this section shall be adjusted annually on July
1, so that the compensation continues to bear the same percentage relationship to
the average weekly wage in the State as it did at the time of injury.
(2) Temporary total or temporary partial compensation shall first be adjusted on the first
July 1 following the receipt of 26 weeks of benefits.
(3) Permanent total and permanent partial compensation shall be adjusted for each July
1 following the date of injury regardless of whether indemnity benefits were paid
on each intervening July 1.
(e)(1) If weekly compensation benefits or weekly accrued benefits are not paid within 21
days after becoming due and payable pursuant to an order of the Commissioner, or in
cases in which the overdue benefit is not in dispute, 10 percent of the overdue amount
shall be added and paid to the employee, in addition to any amounts due pursuant to
subsection (f) of this section and interest and any other penalties.
(2) In the case of an initial claim, benefits are due and payable upon entering into an
agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the Commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 days after the claim is filed.
(3) Benefits are in dispute if the claimant has been provided actual written notice of
the dispute within 21 days after the benefit being due and payable and the evidence
reasonably supports the denial.
(4) Interest shall accrue and be paid on benefits that are found to be compensable during
the period of nonpayment.
(5) The Commissioner shall promptly review requests for payment under this section and,
consistent with subsection 678(d) of this title, shall allow for the recovery of reasonable attorney’s fees associated with an employee’s
successful request for payment under this subsection.
(f)(1)(A) When benefits have been awarded or are not in dispute as provided in subsection (e)
of this section, the employer shall establish a weekday on which payment shall be
mailed or deposited and notify the claimant and the Department of that day. The employer
shall ensure that each weekly payment is mailed or deposited on or before the day
established.
(B) Payment shall be made by direct deposit to a claimant who elects that payment method.
The employer shall notify the claimant of the claimant’s right to payment by direct
deposit.
(2) If the benefit payment is not mailed or deposited on the day established, the employer
shall pay to the claimant a late fee equal to the greater of $10.00 or:
(A) five percent of the benefit amount for the first payment that is made after the established
day;
(B) 10 percent of the benefit amount for the second payment that is made after the established
day; and
(C) 15 percent of the benefit amount for the third and any subsequent payments that are
made after the established day.
(3) As used in this subsection, “paid” means the payment is mailed to the claimant’s mailing
address or, in the case of direct deposit, transferred into the designated account.
In the event of a dispute, proof of payment shall be established by affidavit. (Amended 1959, No. 29, § 2, eff. March 11, 1959; 1965, No. 173; 1969, No. 261 (Adj. Sess.), § 4, eff. April 7, 1970; 1973, No. 30, §§ 1, 2; 1981, No. 165 (Adj. Sess.), § 1; 1983, No. 121 (Adj. Sess.), § 2, eff. March 28, 1984; 1993, No. 225 (Adj. Sess.), § 8; 2003, No. 132 (Adj. Sess.), § 5, eff. May 26, 2004; 2005, No. 209 (Adj. Sess.), § 33; 2005, No. 212 (Adj. Sess.), § 5, eff. May 29, 2006; 2007, No. 208 (Adj. Sess.), § 12; 2009, No. 142 (Adj. Sess.), § 15; 2019, No. 85 (Adj. Sess.), § 18, eff. Jan. 1, 2021; 2023, No. 76, § 36, eff. July 1, 2023; 2023, No. 85 (Adj. Sess.), § 133, eff. July 1, 2024; 2025, No. 40, § 25, eff. July 1, 2025.)