Worker’s Compensation appeal: wrong forum in time; right forum too late.

Worker’s Comp. appeal to superior court defeated because Commissioner certified only questions of law. Mistake of forum not grounds for late appeal. Stoll v. Burlington Electric, 2009 VT 61 (Skoglund, J.) (Dooley, J., dissenting.)

Employee appeals the superior court’s dismissal of his workers’ compensation appeal for lack of jurisdiction. We affirm.

Employee further asks that we grant his motion for leave to file an untimely direct appeal from the Commissioner’s decision. We deny this motion.

The Commissioner certified two questions to the superior court: 1. Whether the Superior Court has jurisdiction to hear this appeal from the Department of Labor’s decision granting Summary Judgment, where no facts were disputed by the parties for the purpose of the summary judgment motions; and 2. Whether the Occupational Disease Act’s five year statute of repose bars Claimant’s claim for alleged work-related asbestosis disease.

The superior court’s order granting summary judgment for the insurance companies on jurisdictional grounds was appropriate because both certified questions presented pure questions of law. Section 671 does not authorize the certification of questions of law to the superior court but only questions of fact or mixed questions of fact and law.

Moreover, we decline to exercise our discretion under 21 V.S.A. § 673 to allow employee to file a direct appeal of the Commissioner’s order with this Court.

Dooley, J. dissents from the majority’s refusal to allow a direct appeal, and in its failure to recognize that a possible question of fact permits appeal to superior court on all issues, including preliminary legal issues. In Justice Dooley’s view the statute creates alternative appeal routes. If the losing party is satisfied with the fact-findings, review is by the Supreme Court on the record made before the Commissioner and under a limited standard of review. If the party is not satisfied with the Commissioner’s fact finding, the party may appeal to the superior court for “trial by jury” and review of questions of “fact . . . and fact and law.” 21 V.S.A. § 671. A claimant can raise pure legal issues in a superior court appeal as long as the claimant has also raised factual issues.

Here the employee committed to an appeal to the superior court believing that the appeal was controlled by facts—that is, the cause and nature of his disability. However, ignoring the employee’s specification of the issues, the Commissioner certified pure questions of law only. In these circumstances, Justice Dooley says the Court has discretion to take this appeal by virtue of 21 V.S.A. § 673, and should allow the late appeal to the Supreme Court so that employee is not denied access to a court because of a mistake in choice of forum.