Vermont Bar Journal, Vol. 40, No. 2 Summer 2015, Vol 41, No. 2 | Page 10

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 ]