SCOVT affirms summary judgment that 21 V.S.A. § 640(c) did not require prior employer to reimburse claimant for lost wages, holding claimant had no standing to assert constitutional rights of new employer.

Mahmutovic v. Washington County Mental Health Services, Inc., 2023 VT 37

COHEN, J. Claimant Semir Mahmutovic appeals a decision of the Commissioner of the Vermont Department of Labor concluding that claimant’s prior employer was not obligated to reimburse claimant for lost wages under 21 V.S.A. § 640(c), and that the statute was not unconstitutional as applied to claimant. We determine that claimant has conceded that the Commissioner properly interpreted § 640(c), and further conclude that claimant does not have standing to challenge the constitutionality of § 640(c). Therefore, we affirm the Commissioner’s decision granting summary judgment to prior employer.

 

Claimant submitted a reimbursement request to prior employer for $152.72 of lost wages. Prior employer denied payment on the ground that 21 V.S.A. § 640(c), which governs workers' compensation payments for medical benefits, shifts the financial burden of covering wages to current employer.

Claimant argued below that requiring a subsequent employer to cover lost wages is unconstitutional. Prior employer argued that claimant did not have standing to bring the constitutional claim.

This Court has adopted a three-part test for standing originally articulated for federal courts: (1) injury in fact; (2) causation; and (3) redressability.  Ferry v. City of Montpelier, 2023 VT 4, ¶ 12, In other words, standing requires a litigant to demonstrate they "have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law." Parker v. Town of Milton, 169 Vt. 74, 77 (1998).

The Commissioner concluded that claimant has standing because he suffered an injury in fact when he requested lost wages and prior employer declined to pay them.

We disagree.  Even assuming that claimant's $152.72 in lost wages due under § 640(c) is an injury in fact, claimant has not demonstrated that this injury is "fairly traceable to [prior employer]'s allegedly unlawful conduct." Id. at 78, 726 A.2d at 480. Claimant has essentially accepted that the Commissioner's interpretation of the statute does not obligate prior employer to compensate him for lost wages. Therefore, his injury—his alleged loss of the property interest created by § 640(c)—is not a result of prior employer's actions. We therefore conclude that claimant does not have standing to bring this as-applied constitutional challenge.

In his briefing, claimant additionally asks us to consider his standing as a third-party beneficiary to pursue a constitutional challenge on behalf of current employer. However, "[l]ike the federal courts, we generally do not allow third-party standing." Baird v. City of Burlington, 2016 VT 6, ¶ 15, 201 Vt. 112, 136 A.3d 223 (finding no exception to general rule against third-party standing because litigants failed to show those potentially harmed in future would likely not be able to assert their own constitutional claims). Claimant provides no basis to allow him to present this constitutional claim on behalf of current employer, and we therefore conclude that he does not have third-party standing in this matter.

Affirmed.

How cited

Tuition benefits provided by employer are an “other advantage” that constitute part of claimant’s wages for purposes of workers compensation award.

Haller v. Champlain College, 2017 VT 86 [filed 9/29/2017]

ROBINSON, J. The question in this workers’ compensation case is whether employer Champlain College is obligated to include in claimant Kimberly Haller’s average weekly wage calculation the value of tuition-free college credits she earned in accordance with employer’s graduate tuition policy. On cross-motions for summary judgment, the Commissioner of the Department of Labor concluded that the tuition benefits provided by employer and used by claimant was an “other advantage” that constituted part of claimant’s wages. 21 V.S.A. § 601(13). We agree and affirm.

EATON, J., dissenting. The tuition benefit at issue in this case is not provided to claimant as part of her remuneration and should not be included in the calculation of claimant’s average weekly wage. The majority’s decision conflicts with the plain language of the Workers’ Compensation Act and with controlling case law, and represents a vast judicial expansion of the definition of wages. For these reasons, I dissent. I am authorized to state that Justice Skoglund joins this dissent

Workers compensation payments must be offset by other payments made by the employer, to avoid double recovery.

Conant v. Entergy Corporation, 2016 VT 74 (filed July 8, 2016)

EATON, J. Employer challenges the denial of its request for a credit against future workers' compensation benefits owed to claimant. Employer asserts that, given the payments it made to claimant under the terms of a collective bargaining agreement (CBA), as well as the retroactive temporary total disability (TTD) payments it was ordered to make, claimant has received more money as wage replacement than she was owed. We agree. We therefore reverse the Commissioner of the Department of Labor's decision on this point, and remand for a determination of the amount to be offset from claimant's future workers' compensation benefits

The CBA makes plain the parties' intent that payments for occupational injuries are offset by workers' compensation payments. Because AIG denied claimant's request for workers' compensation benefits, employer began paying claimant salary continuance and short-term disability benefits pursuant to the nonoccupational disability provision in the CBA. A Department of Labor workers' compensation specialist issued an interim order directing employer/AIG to pay claimant TTD benefits retroactive to the date on which claimant began losing time from work as a consequence of her injury As a result, claimant received more in combined compensation and CBA wage replacement benefits than she would have received had the injury been deemed either occupational or non-occupational from the outset.

The Commissioner allowed employer/AIG to offset future TTD benefits that it paid for weeks during which claimant also received payment from employer for her accrued continuance of full salary days. The Commissioner was unwilling, however, to extend the offset to include the retroactive short-term disability benefits that employer paid. The Commissioner stated, "these issues are best resolved in the context of the agreement's grievance and dispute resolution system, not in the context of a workers' compensation proceeding."

The Commissioner's decision regarding the short-term disability benefits is erroneous. Employer does not need to resort to the grievance process to resolve this question. The "overpayment" here resulted solely from the Commissioner's order. See Yustin v. Department of Public Safety,. 2011 VT 20, ¶ 5.( employer could offset the sick wages that it paid to a claimant during a period of temporary total disability against workers' compensation benefits that it was ordered to pay for the same period.)

Our decision in Yustin rested on the "clear and strong policy against the double recovery of benefits" underlying the Act. Id. ¶ 7. We made clear in Yustin that an employer complies with the Act when a claimant "receive[s] full and direct payment of wage replacement from the employer during the disability period." 2011 VT 20, ¶ 10. That requirement was satisfied here, and neither the Act nor the CBA provides any grounds for obligating employer to pay more. The Commissioner's decision must be reversed to allow employer the offset to which it is entitled.

ROBINSON, J., dissenting. In deciding that policy concerns support the credit sought by employer in this case, the majority disregards the terms and structure of the workers' compensation statute, extends the authority of the Commissioner of the Department of Labor to matters well outside of the purview of the workers' compensation laws, disrupts existing contractual agreements and the ability of employers and disability insurers to enter into contracts for nonoccupational disability coverage, and creates unintended complexities in the calculation of workers' compensation benefits.

Absent statutory authority for applying an offset, the Commissioner has no authority to offset statutory workers' compensation benefits to account for transactions between employer and employee that took place outside of the workers' compensation proceedings. The majority's holding that not only authorizes, but apparently requires, the Commissioner to do so as a matter of law is inconsistent with our ordinary deference to the Commissioner on such matters, expands the Commissioner's responsibilities beyond her statutory authority and expertise, undermines the private contracts, introduces unnecessary complexity into the calculation of workers' compensation benefits, and expands this Court's prior decision on the subject far beyond its rationale and holding. I would affirm. I am authorized to state that Justice Dooley joins this dissent.

Attorney’s fees. Who prevailed? "Buckhannon" test rejected; “catalyst” theory applied.

 Bonanno v. Verizon Business Network Systems 2014 VT 24 (28-Feb-2014)

REIBER, C.J. Plaintiff appeals from the superior court’s grant of summary judgment against him and in favor of his employer on claims stemming from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff contends that the trial court abused its discretion by awarding inadequate attorneys’ fees. Employer cross-appeals and argues that the trial court abused in its discretion by awarding any attorneys’ fees. We affirm the trial court in all respects.

Here, the relevant statutory provision is 21 V.S.A. § 675(a). The key question faced by the trial court was whether plaintiff “prevail[ed]” on his claim for purposes of the statute. The court found that plaintiff did prevail on his claim that defendants had improperly failed to pay plaintiff’s medical bill because defendants “ultimately agreed to pay the medical bill while the litigation was pending.”

Defendants argue that plaintiff did not obtain judicial relief from the court and thus was not entitled to any fees or costs. Defendants argue that this Court should adopt the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that eligibility for attorneys’ fees requires a “material alteration of the legal relationship of the parties” effectuated by court action, such as an enforceable judgment on the merits. Id. at 604-05 (quotation omitted). The U.S. Supreme Court rejected the “catalyst theory,” holding that a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Defendants argue that plaintiff did not bring about an alteration of the legal relationship between the parties sufficient to prevail under Buckhannon,

Here, defendants’ decision to pay plaintiff’s medical bill was not brought about by judicial order or other action bearing “judicial imprimatur.” Id. Plaintiff cannot prevail under the Supreme Court’s reasoning in Buckhannon; thus, we are squarely faced with the decision of whether to apply Buckhannon in our interpretation of § 675(a).

In Merriam v. AIG Claims Services, Inc., 2008 VT 8, ¶¶ 16, 22, 183 Vt. 568, 945 A.2d 882 (mem.), we expressly declined the opportunity to overrule our prior case law endorsing the catalyst theory. We take this opportunity to extend our holding in Merriam and explicitly preserve the catalyst theory as a possible route to attorneys’ fees under § 675(a).

To prevail for purposes of the catalyst theory, a party must demonstrate: (1) that the filing of the lawsuit was a “necessary and important factor in achieving” the other party’s change in conduct, and (2) a “colorable or reasonable likelihood of success on the merits.” Here, we agree with the trial court that defendants paid plaintiff’s medical bill as a direct result of plaintiff’s lawsuit to enforce the terms of the settlement agreement pursuant to 21 V.S.A. § 675(a). There is little doubt that plaintiff’s lawsuit was the catalyst for defendants’ action. As to the second factor,plaintiff’s claim was not “frivolous, unreasonable, or groundless” as a matter of law.

Plaintiff contends that the trial court’s grant of $1000 in attorneys’ fees and $250 in costs for prevailing on the medical bill issue was unreasonable, given the “time and effort” that counsel expended on the litigation. Trial courts have ample discretion in determining the amount of attorneys’ fees to award, and we will not disturb the court’s decision unless it has abused this discretion. Here, the trial court reduced the award from plaintiff’s requested $17,932.50 to $1000 in fees and $250 in costs. The court noted that the unpaid medical bill was a peripheral issue compared to the rest of the litigation, and that plaintiff did not provide the discovery supporting payment until compelled by the court. we hold that the peripheral nature of the medical bill issue and plaintiff’s unnecessary delay in providing discovery provide ample reason to affirm the court’s decision.


Affirmed.

 How cited

Workers Comp: SCOVT reverses DOL re PPD for CPRS; allows AMA Guide impairment rating without AMA diagnosis!

Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (21-Jun-2013)(Robinson, J.)
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty.  The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides.  We reverse.

Workers compensation death benefit. No set-off for life insurance.

 Estate of Dunn v. Windham Northeast Supervisory Union, 2012 VT 91 (Reiber, C.J )

This case asks us to determine whether a workers’ compensation insurer is entitled to reimbursement of death benefits it has paid when a claimant’s beneficiary also receives proceeds from a life-insurance policy.  We hold that under 21 V.S.A. § 624(e) a workers’ compensation carrier cannot seek reimbursement from life-insurance payments because such proceeds are not “damages,” as contemplated by the statute, paid because of a third party’s tortious actions.  We therefore affirm the Commissioner of Labor’s grant of summary judgment to the estate of claimant.

Employers liability. Video surveillance is not retaliation.

 Hall v. State, 2012 VT 43 (Skoglund, J.)

Plaintiff, a longtime employee of the State of Vermont Agency of Transportation (AOT), sued his employer alleging discrimination on the basis of having filed a workers’ compensation claim.  The jury found that the State had retaliated against him as alleged.  On appeal, the State argues that evidence of a video surveillance connected with a second workers’ compensation claim was insufficient as a matter of law to support his retaliation claim and the resulting damages award. We agree with the State and vacate the award.

To make out a prima facie case of retaliation for filing a worker’s compensation claim, a plaintiff must show, among other things, that “he suffered adverse employment decisions, and . . . there was a causal connection between the protected/ activity and the adverse employment decision[s].”  Murray v. St. Michael’s Coll., 164 Vt. 205, 210, 667 A.2d 294, 299 (1995).  Video surveillance can be expected in response to a claim, and indeed the State has the right and responsibility to use such techniques to prevent /fraudulent claims.  If any video surveillance in connection with a workers’ compensation claim could form the sole basis for a retaliation claim, it could well have the effect of pressuring the State into abandoning or unnecessarily restricting one of its legitimate tools for rooting out fraud in the filing of workers’ compensation claims.  In the trial  court’s view, “[t]he jury could reasonably have concluded that the only reason AOT conducted surveillance of Hall was in retaliation for his filing a worker’s compensation claim, since that was obviously the reason the video was taken.”  This is not enough.  


The videotaping of Hall in connection with his second workers’ compensation claim, cannot, in and of itself, support Hall’s retaliation claim. We do not necessarily disagree with Hall’s contention that video surveillance can be submitted as evidence of a larger pattern of retaliation. But in this case, there was no larger pattern, and video surveillance itself  is not an adverse employment decision.

Workers’ compensation. Appeal on “question of law” whether the evidence supports the finding. “Five part” test discussed.

Houle v. Ethan Allen, Inc. , 2011 VT 62 (mem.)

Employer appeals from the Commissioner of the Department of Labor’s decision that claimant Robin Houle’s right shoulder condition was compensable under the Workers’ Compensation Act. Employer raises numerous arguments. We affirm.

According to Dr. Chen, the combination of claimant’s repetitive work for employer and her need to compensate for the pain and weakness in her left shoulder most likely resulted in a “cumulative dose injury” to her right shoulder. Dr. Wieneke, an orthopedic surgeon, and Dr. Johansson, an osteopath, disagreed with Dr. Chen’s analysis.

In view of the competing expert medical opinions, the Commission relied on a traditional five-part test to evaluate their persuasiveness. This test considers: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness, and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. The Commissioner found this to be a close case, but she was ultimately persuaded by claimant’s credible testimony and by Dr. Chen’s status as claimant’s treating orthopedic surgeon.

Employer first challenges the Commissioner’s use of the five-part test to evaluate competing medical opinions, both as applied in this case and in general. According to employer, the use of this test improperly shifts the burden of proof from claimant to employer, unfairly places employers at a disadvantage, and erroneously employs a “winner take all” approach to evaluating a claimant’s expert testimony. Claimant did not raise any of these arguments below, however, and thereby waived them. See Cehic, 2006 VT 12, ¶ 14 (similarly refusing to consider issue not raised before Commissioner). We reject employer’s unsupported assertion that it had no obligation to challenge the use of the test below. One primary purpose of our rules on preservation is to give the factfinder “the opportunity to consider the matter in the first instance.” Id.

No such opportunity was provided to the Commissioner here. To the contrary, employer urged the Commissioner to conclude that its experts were more persuasive under the five-part test. Given this, we decline to address employer’s challenge to the test for the first time on appeal.

We also reject employer’s assertion that the Commissioner erred by not explicitly making findings on all of the factors in the five-part test cited above. There appears to be no legal requirement that the Commissioner make findings on all five factors.

Because employer appealed directly to this Court, our jurisdiction is limited to a review of questions of law certified to this Court by the Commissioner. 21 V.S.A. § 672. The question certified here was “[d]id the Commissioner err in concluding that claimant’s right shoulder condition was compensable.” Our review of the facts is highly limited and “confined to the issue of law relating to the sufficiency of the evidence to support the factual findings.” Peabody v. Jones & Lamson Mach. Co., 122 Vt. 431, 433, 176 A.2d 759, 761 (1961). We evaluate any “factual” challenges advanced by employer under this deferential standard. Essentially, employer challenges the Commissioner’s assessment of the weight of the evidence. As we stated in Cehic, “it is not our role to weigh the evidence in the record.” 2006 VT 12, ¶ 12; see also Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533, 687 A.2d 465, 468 (1996) (“[T]he weight of the evidence is not reviewable by this Court on appeal.”). If employer believed that the weight of the evidence preponderated in its favor, it could have sought a new trial on the facts in the superior court. It declined to do so. Because the Commissioner was well within her discretion in finding Dr. Chen’s testimony credible while discounting Dr. Latham’s testimony, we affirm.

Workers compensation exclusivity. Tort liability by label. Holding company owned by employer is not “statutory employer” of worker who died from exposure to hazardous condition on premises, because company is sued in its “capacity as landowner.”

 

Arnold v. Palmer, 2011 VT 8 (mem.) (Morse, J. (Ret.), Specially Assigned, joined by Justice Burgess joins, dissents)

This is a wrongful death and survival action brought by the estate and survivors of a funeral director who died from cancer after exposure to formaldehyde in defendants’ building. The funeral director collected workers’ compensation benefits for this injury from the funeral business.  Defendant Hanley was president and owned 95% of the shares of the funeral business, and was also  the sole member of the defendant limited liability corporation, which owned the building leased to the funeral business.     The trial court granted summary judgment for the defendant landowners, holding that plaintiffs’ exclusive remedy was the workers’ compensation award because landowners were “statutory employers” under 21 V.S.A. § 601(3) and thus immune from suit.  Because we find that landowners are not “statutory employers,” we reverse the trial court’s judgment and reinstate plaintiffs’ action.

A “statutory employer” is one who, although not the direct employer, is nevertheless the “virtual proprietor or operator of the business there carried on.”  Whether defendant landlords were the “virtual proprietors” of the funeral home business is tested by the goal of the statute “to prevent indirect employers from avoiding workers’ compensation liability by hiring out work that they would have otherwise done themselves.”  Thus the critical inquiry in turn becomes, not whether the defendant is a “statutory employer” or whether it is a “virtual proprietor” but instead, whether the type of work being carried out “is the type of work that could have been carried out by the indirect employer’s employees as part of the regular course of the business.”  Vella, 2003 VT 108, ¶ 7

Raymond Palmer and several family members owned a funeral home business, and the property where it operated, for over sixty years.  In 1992, Raymond and his wife Gertrude transferred ownership of the property to two trusts—the Raymond Palmer Trust and the Gertrude Palmer Trust—which leased the property back to the business.  In January 2002, Raymond’s daughter, defendant Pamela Hanley, acquired the business and property and continued the same lease arrangement.  Later that year, Hanley conveyed the property to a separate single member limited liability corporation of which Hanley is the sole member, which maintained the same lease agreement.  

Nothing in the record demonstrates that defendant trusts and limited liability corporations, “in their capacity as property owners,” were ever engaged in the funeral home business.  The fact that the landlord entities and the funeral home business had overlapping personnel is not dispositive.   Nor need we decide under the Vella test whether the funeral director was carrying out regular work of the defendants.  Instead we simply announce our result by saying that that defendants were sued solely “in their capacities as owners and lessor” of the property and “only in their capacities as owners and operators of a wholly separate commercial leasing business.” 

Because defendants, “in their capacities as landowners” were in no way engaged in the funeral home business, we find they are not “in their capacities as landowners” the virtual proprietors of the funeral business and thus not statutory employers.

Justice Morse, dissenting, would hold that Defendants here were decedent’s employer in all but name, and as such should be immune from suit. The goal of the statute has nothing to do with prevention of  hiring out work.  The goal is to prevent double recovery against the employer. By looking solely to the legal form of ownership the majority ignores the substance of authority and control. In fact the owners of the funeral home business and the owners of the funeral home property are “virtually” the same. Defendants are not “distinct, separately owned” entities with “no ties” to the funeral-home employer, but are indistinguishable from, and intertwined with, the funeral home in every respect save for their legal forms. The statutory word “virtual” requires us to ignore mere matters of labels and forms, in order to prevent double recovery.

Vella is distinguishable because there the “defendant [was] not in the busing business” but instead was “a commercial landlord and a distinct, separately owned corporation that leases space to Premier, but otherwise has no ties to Premier and no supervisory control or authority over Premier or its employees.”  Id. ¶ 8.  Unlike Vella, moreover, where the defendant landlord operated a commercial-leasing business entirely independent of its bus-company tenant, nothing in the record here suggests that defendants operated anything.

Defendants are simply legal shells established by the funeral-home employer to collect rent and provide certain tax advantages.  The same trustees and principals that formed and comprise defendants also run the funeral-home business and exercise complete control and authority over its operations.  They are identical in all but form and thus fully meet the definition of virtual employer.

The legal effect of the Court’s holding is to eliminate the fact-based test for determining virtual-employer status set forth in Vella and to substitute instead a shortcut to tort liability by label.  

Workers Compensation; evidence. Superior court has jurisdiction of appeal of summary judgment ruling even though it involves a question of law. Majority holds epidemiological causation evidence inadmissible under Daubert.

Estate of George v. Vermont League of Cities and Towns (2008-374)(14-Jan-2010) 2010 VT 1 (Skoglund, J.) (Dooley, J., concurring.) (Reiber, C.J., joined by Johnson, J., dissenting)
Claimant appeals from the superior court’s order granting summary judgment to insurer in this workers’ compensation case. He argues that the court: (1) exceeded its jurisdiction under 21 V.S.A. § 671 by granting summary judgment to insurer; and (2) abused its discretion by excluding the expert testimony that he offered. We affirm the trial court’s decision.

Commissioner certified to the superior court the following question for determination: was claimant’s NHL causally related to his work as a firefighter? Insurer moved for summary judgment arguing that the opinions of claimant’s experts should be excluded under Vermont Rule of Evidence 702 as irrelevant and scientifically unreliable, and that without any admissible evidence of causation, claimant was not entitled to workers’ compensation benefits. Claimant responded that the standard for the admissibility of expert testimony under Rule 702, delineated in Daubert does did not apply to workers’ compensation claims in superior court; that insurer had waived its right to challenge the admissibility of the evidence by failing to raise this argument before the Commissioner; and that the court lacked jurisdiction to grant a motion for summary judgment.

The fact that insurer was granted judgment as a matter of law in this case does not transform the certified question into one of pure law that must be decided only by this Court. The rules of evidence and procedure are applicable in workers’ compensation cases heard by the superior court. The court’s review of the Commissioner’s decision “involves a retrial de novo.” That means that insurer is not limited to the arguments raised below, and preservation—or lack thereof—is not at issue. The trial court was obligated to apply the rules of evidence and to determine if the expert testimony proffered by claimant was relevant and admissible. The Commissioner has no expertise in such matters, and no deference to the Commissioner’s approach is required.

Without evidence of specific causation, summary judgment was properly granted to insurer. Our law requires claimant to show, not merely that firefighting increased the likelihood of injury, but that it more likely than not caused his disease.  Claimant failed to establish good grounds for such a conclusion here. Claimant relied on epidemiological studies, studies that focus on general causation rather than specific causation.

The court did not abuse its discretion in finding that Dr. Guidotti’s opinion was not based on sufficient facts or data, and that Dr. Guidotti had not applied scientific principles and methods reliably to the facts of this case. Dr. Guidotti opined that, “within reasonable medical certainty and given the weight of evidence,” claimant’s NHL “arose from his work as a firefighter and was caused by exposures in the course of his occupation as a firefighter.” Dr. Guidotti acknowledged that the demonstration of “more likely than not” in the epidemiological literature corresponded to a relative risk, or an odds ratio, of 2.0, although he argued that this standard should not be followed here. Where six of eight epidemiological studies did not show a statistically significant risk, it was reasonable for the trial court to conclude that Dr. Guidotti’s expert opinion that claimant’s NHL was more likely than not caused by firefighting lacked a solid and reliable foundation. The trial court did not abuse its discretion in considering a relative risk greater than 2.0 as a reasonable and helpful benchmark under the circumstances presented here.

Justice Dooley writes separately to criticize the Court’s “unworkable and inconsistent distinctions” made in an attempt to resolve appellate jurisdiction in workers’ compensation cases.  The Commissioner’s ruling was the functional equivalent of granting judgment as a matter of law to insurer, and, just like the decision of the superior court, is one of law, not fact. Under Stoll, 2009 VT 61, ¶¶ 7-8, this case was appealed to the wrong court, and the appeal should be dismissed. The majority’s rationale for distinguishing Stoll puts “more mud in muddy water”. Justice Dooley says we should allow all cases like this to go to the superior court and not require that they go exclusively to this Court. Stoll v. Burlington Elec. Dep’t, 2009 VT 61, ¶ 11, ___ Vt. ___, 977 A.2d 1282 (Dooley, J., dissenting).

Chief Justice Reiber, joined by Justice Johnson concludes it was abuse of discretion to “exclude expert testimony that met the standards articulated in Daubert and adopted by this Court.” Regardless of whether the conclusions of claimant’s experts are ultimately persuasive—an issue that is not before us today—“[t]he trial court should have allowed the adversarial process to draw out any deficiencies in the expert testimony, rather than usurping the jury’s function.” Id.

Workers Compensation. Commissioner erred in failing to address whether there was a valid claim for workers’ compensation and in barring the claim under § 649 because claimant was intoxicated at the time his injury.

Cyr v. McDermott's, Inc. (2008-290) (05-Mar-2010) 2010 VT 19 (Skoglund, J.) (Reiber, C.J., dissenting joined by Justice Burgess.)
The workers’ compensation structure in Vermont is meant to provide employees with reliable compensation for work-related injuries while limiting employer liability to legitimate harm arising out of, and in the course of, employment. Claimant Henri Cyr worked for McDermott’s, Inc., a hauling company that transports milk in bulk from farms to creameries. He was employed as a part-time mechanic’s helper, keeping the maintenance garage clean and occasionally servicing trucks. After accidentally drinking a caustic agent used to clean the milk trucks, he suffered severe internal chemical burns. He filed a claim for workers’ compensation under Title 21, chapter 9 of the Vermont Statutes. The Commissioner of Labor granted summary judgment to employer, finding claimant was intoxicated at the time his injury occurred and, thus, compensation was not allowed under 21 V.S.A. § 649. On appeal, claimant contends the Commissioner misapplied § 649. We conclude that the Commissioner erred in failing to address the threshold question of whether there was a valid claim for workers’ compensation and in barring the claim under § 649. We reverse the Commissioner’s grant of summary judgment and remand for further proceedings.

Workers Compensation: Commissioner has discretion not to “apportion” impairment between work injury and other conditions; is not bound by AMA Guide.

Kapusta v. Dept. of Health/Risk Management (2008-383) (24-Jul-2009) 2009 VT 81 (Dooley, J.)

Employer appeals from an opinion of the Commissioner of the Department of Labor declining to apportion the responsibility for a permanent partial impairment between claimant's non-work-related condition and her work-related injury. Employer contends that Vermont law requires apportionment in this case. Alternatively, employer asserts that if the Commissioner was not required to apportion, but had the discretion to do so, she abused that discretion by declining to apportion in this case. Claimant argues that the law prohibits apportionment and the Commissioner has no discretion to allow it. We affirm the Commissioner's conclusion that the relevant statutes neither require nor forbid apportionment in this case; rather, the statutes leave this issue to her discretion. We further affirm her decision because it was not an abuse of that discretion to decline to apportion the impairment in this case.

Employer argues that § 648(b) requires apportionment because the section incorporates the AMA Guides and the AMA Guides require apportionment. However, § 648(b) provides only that the AMA Guides are to be used to determine "the existence and degree of permanent partial impairment." Apportionment is an issue of workers' compensation policy rather than medical judgment. The purpose of the AMA Guide is to assist medical professionals, not to set workers' compensation policy. AMA Guides' language is permissive and descriptive, rather than prescriptive, and does not require apportionment. Further the Legislature specifically addressed apportionment in limited circumstances in 21 V.S.A. § 648(d), and would not have needed to require apportionment in this one specific circumstance if apportionment is required in all circumstances under § 648(b). We thus affirm the Commissioner's decision that § 648(b) does not require apportionment in any case.

We reject claimant’s argument that the Commissioner had no discretion to apportion. In Marsigli's Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 192 A.2d 799 (1964), we considered a case in which a claimant was impaired by cancer and a work injury accelerated the progress of the disease and the disability. The employer argued that the compensation and medical benefits should be apportioned between the disease and the work injury, with the employer responsible only for those caused by the latter. We held: "[o]ur statute makes no exceptional provision for apportionment of the compensation or medical benefits between the injury and pre-existing disease. Without such a provision, there is no requirement that the commissioner . . . determine the relative contribution of the accident and the prior disease to the final result." Id. at 104, 192 A.2d at 806; see also Stamper v. Univ. Apartments, Inc., 147 Vt. 552, 554, 522 A.2d 227, 228 (1986) (upholding Commissioner's refusal to apportion current permanent impairment percentage between current work injury and prior injury). The Commissioner examined 21 V.S.A. § 648 and our case precedents and concluded that the statute, as currently worded, did not take away her discretion to apportion in cases involving preexisting uncompensated impairments. We find no clear indication of error and defer to the Commissioner's interpretation of the relevant statutes.

Here the Commissioner's decision does not constitute an abuse of discretion, because the Commissioner determined that claimant was fully functional and pain-free at the time of the work-related injury. The Commissioner was not bound by AMA Guides, which assigned a 15% impairment to claimant based on her hip replacement, but instead could reach her own determination of the extent to which the hip replacement interfered with the ability of claimant to do her job and the extent of that ability after the work-related injury.

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.

Workers Comp. Act bars action against supervisor exercising managerial prerogative.

Garger v. Desroches, 2009 VT 37 (mem.)

Plaintiff Michael Garger appeals from the superior court’s order dismissing his complaint against his former co-employee and supervisor. Plaintiff filed an action for damages, alleging that defendant negligently ordered him to surmount a steep incline while driving an all-terrain vehicle, which resulted in an accident that caused him severe injury. The court dismissed the complaint as barred by the Workers’ Compensation Act . On appeal, plaintiff argues that his cause of action is not barred because it is not against his employer. We affirm.

For someone to be “other than the employer” and not per se immune from suit, the person must not be acting as the employer—that is, he must not be performing a nondelegable duty of the employer and must not be exercising “managerial prerogatives.” We conclude that defendant can be acting as the employer even though he is not an owner or officer of the employer corporation. The order was given as a managerial duty in that, as plaintiff alleges, defendant was acting as his supervisor at the time.

A failure to ensure that the equipment is appropriate for the job is part of an employer’s nondelegable duty to provide a safe workplace. Any negligence was in failing to assure that the equipment and the operator were safe and appropriate for the task of driving up the steep slope. Whether the alleged negligence is characterized as arising from an affirmative act or from an omission, the fact remains that defendant may not be sued because any breach was of the duty to provide a safe work environment. Thus, defendant’s act is not excepted from § 624(a)’s exclusivity clause.

The exclusivity provision bars any claim against an employer short of intentional injury. Since defendant was exercising a nondelegable duty of the employer and was thus acting as the employer, defendant must have either had a specific intent to injure or have known with substantial certainty that injury would result, for the exclusivity provision not to bar plaintiff’s claim. Plaintiff has not alleged such facts.