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Dudley v. Burns & Roe Construction Group11/28/2001
s if it said: "the employer shall pay the injured employee a weekly compensation equal to 80% of the employee's after-tax average weekly wage, but not more than the maximum benefit under section 211 at the time the benefit is established."
The plain language of section 212 refutes the employer's position. Pursuant to that section, an employee is entitled to 80% of his after-tax weekly wage, limited only by the benefit cap established by section 211. As that benefit cap fluctuates, so will the employee's benefit, unless and until the benefit reaches the 80% mark. In other words, the Legislature has established two caps on a high wage-earning employee's receipt of benefits: the 80% benchmark and the floating maximum benefit cap, whichever is lower.
If the Legislature had intended to provide for a one-time per employee determination of the benefit cap in section 211, it could have said so. Because neither section 211 nor section 212 contains any such limiting language, we conclude that when the employee is entitled to the statutory maximum benefit, he is also entitled to the benefit of adjustments in the cap made pursuant to section 211.
The entry is: Judgment affirmed.
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