by Paul S. Gillies, Esq.
RUMINATIONS
The Centennial of Workers’ Compensation in Vermont
Vermont’s workers’ compensation law
was enacted in 1915, and took effect on
July 1, 1915.1 This is its hundredth anniversary. A round number like that warrants
acknowledgement and celebration. Thousands of workers and their families have
benefitted from this social welfare program. Employers have had to pay premiums, but have been spared disagreements
and lawsuits when a worker is injured, and
the uncertainties of jury awards. The judiciary has been spared the multitude of suits
that would otherwise have been filed had
the law not been enacted. The relationship between employer and employee has
changed dramatically. The insurance industry has grown with the program, and the
state had its first experience with a complex system of administrative law with
workers’ compensation, a program that has
grown and matured over the last century.2
Enactment of the law has also dramatically reduced the incidence of industrial accidents.3
This progressive, humane idea arrived
with the wave of progressive reforms of
Vermont law in the early twentieth century—the direct primary, factory inspection,
child labor laws. The program’s purpose, as
Justice Percival Shangraw explained, “is to
provide, not only for the employees a remedy which is both expeditious and independent of proof of fault, but also for employers, a liability which is limited and determinate. It places on business the burden
of caring for injured employees, or when
killed, their dependents to the extent provided for in the act.”4 It is a law with benevolent objectives.5
The adoption of the Act in 1915 eliminated three common law principles as they
applied to the master-servant relationship:
the fellow workman rule, the doctrine of
implied risk, and contributory negligence.6
This was not the end of lawsuits over employer’s negligence, or even the negligence of fellow employees, but the exceptions are rare. The workers’ compensation program has all but prevailed in occupying the field of employment injuries. By
any measure, this experiment in social engineering has been a success. 7
10
Other employment-related protections
for workers came after the Act was passed.
Inspection of factories had begun in 1912,
the same year the Board of Health was
authorized to establish standards for the
heating and ventilating of mills, factories,
stone sheds, and other buildings where five
or more persons were employed.8 Inspection of all workplaces became the duty of
the State Board of Health in 1947.9 Unemployment compensation was adopted in
Vermont in 1936.10 The Occupational Safety Act was passed in Congress in 1970 and
adopted by the State of Vermont in 1972.11
There are about 140 decisions of the Vermont Supreme Court applying and interpreting the Act, contributing benchmarks
and axioms clarifying the meaning and application of the statute. There have been
thousands of decisions by hearing officers
and administrators of the program that
have resolved conflicts between employer
and employee without appeal. Rules were
adopted to satisfy the law’s purpose of “efficient administration.”12
As a body of Vermont decisions was created, the Supreme Court began to develop a common law of workmen’s compensation. The Court, at first unwilling to consider decisions from other states as precedents, began to reach beyond the borders
of its own jurisprudence to provide direction in questionable cases, and with the arrival of Arthur Larson’s treatise on workers’
compensation in 1954 there was finally an
authority to cite for close questions.13
The language of the law also changed.
The now curious spelling of “employé” was
finally abandoned in 1920 by the Supreme
Court.14 In 1925, Justice William H. Taylor
found worker Fred Roller not disqualified
from compensation when he could work at
a cigar store for $7 a week, rather than the
job he had at the time of the accident, because the store job was a “matter of grace
through friendship,” not really a job.15 Then
came the special vocabulary of the program—“end result,” “temporary total disability” (TTD), and “permanent total disability” (PTD). What used to be workmen’s
compensation because workers’ compensation with the gender-neutral changes in
THE VERMONT BAR JOURNAL • SUMMER 2015
1981.
The basic principles never changed. The
burden is always on the worker to show
the injury was caused by an accident and
that it arose out of and in the course of the
employment.16 Employers who have purchased insurance are liable for lost wages to their employees, and to spouses and
heirs when injury involves the death of the
worker. Most claims are settled by the filing
of forms. If challenged, there is a hearing,
and appeals follow to the courts.
Justice William Hill explained that “[s]
implifying the elements of recovery is the
Act’s mechanism for achieving efficiency.
To be entitled to benefits, a claimant need
only establish that he suffered “a personal
injury by accident arising out of and in the
course of his employment by an employer
subject to (the Act),” citing 21 V.S.A. § 618.
The employee need not show that
the employer was negligent, or that
he actually suffered a wage loss. Because resolution of these issues on a
case by case basis would impede the
process, thereby delaying ]