Ruminations: The Centennial of Workers’ Compensatioin in Vermont
the court should be bound by common law
or statutory rules of evidence or by technical or formal rules of procedure other than
what was provided in statute.53
Workmen’s compensation changed over
time. Justice Leighton P. Slack acknowledged this in 1934, commenting on the
liberalization of the law in the years since
1915. The law’s formerly tight rules for notice to employers were gradually relaxed,
to the end that the broad purposes of the
act could be fulfilled. If an employer was
aware of an injury, the lack of notice by the
employee would not bar proceedings.54
In 1959, the election provision in the law
was removed by the legislature, making acceptance of benefits no longer a bar to any
other suit for recovery for an injury.55
The Occupational Disease Act was repealed in 1999, its duties subsumed within workers’ compensation.56 Interfering or
discouraging claims for workers’ compensation became unlawful discrimination in
1986.57 In 1995, the Supreme Court recognized a tort for employers doing the same,
concluding it was an exception to the traditional at-will employee rule.58 Self-insurance was authorized as an alternative to
other forms of insurance in 1994.59 The law
changed in 2000 to allow partial or total
permanent disability benefits to be paid in
a lump sum, if found to be in the best interest of the claimant, without the employer’s
consent.60 Before that time, benefits were
only paid out monthly or quarterly. Electronic filing of claims was mandated by a
legislative change in 2002.61 Mediation became mandatory in 2008.62
The present law is found in Chapter 9 of
Title 21, Sections 601-711. Workers’ compensation and occupational disease rules
are available at the Department of Labor’s
web site. Decisions of the Department from
1995 to the present are also found there.63
Workers’ compensation has become a welloiled machine, processing claims, deciding
close questions, performing the job the
legislature intended it to play. There are
law firms whose principal business is handling these cases. Workers’ compensation
has become a specialty practice, and even
within the program there are advocates for
workers and advocates for employers and
insurers.
Cases
The idea of workmen’s compensation
was to create a system designed for efficiency, a machine that ran of itself, and by
that measure the program has been a success. The courts have played a limited role
in its administration, but there are important decisions of the Vermont Supreme
Court that have assisted in the evolution of
the Act.
Industrial accidents are a personal and
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family tragedy. The Department and the
courts, however, must remain indifferent
to emotions. This is a legal system, not a
charity.
The Role of Sympathy
Sympathy clouds the deliberative mind,
as justice bends toward the heart, instead
of the law. In a dissent in 1962, Chief Justice Benjamin H. Hulburd wrote,
Try as I may, I cannot bring myself to
defy the statute in the name of being liberal or humane. Whatever virtue
may arise from being liberal, I feel sure
that it is less than that from being fairminded. I do not believe that I am at
liberty to act in a way contrary to the
express wording of the statute.64
Justice Slack, denying recovery in one appeal, explained, “While this most unfortunate incident cannot fail to incite the sympathy of all who are familiar with its details, the essential facts found by the commissioner do not support his holding that
the accident which caused Bundy’s death
arose out of and in the course of his employment.”65
Justice Louis Peck dissented in Wolfe v.
Yudichak (1989). This was the sad case of
a student firefighter injured when the campus fire engine overturned while racing to a
fire. The majority found him not covered by
workers’ compensation, and therefore entitled to bring a third party suit against the
university. Peck believed that the majority
was not thinking logically.
Sympathy in the face of such devastating tragedy is a natural, human and
humane response. I am sure it is felt
by each member of this Court regardless of whether he joins with the unfortunate majority opinion or writes separately in dissent. Nevertheless, expressed in its simplest elemental form,
the majority opinion is bad law. It reflects, too clearly, particularly in several of the closing paragraphs, that it is
result-oriented and emotion-motivated. As the Chief Justice points out in
his dissent, citing a case in point, “the
remedial purposes of the Act require
a liberal interpretation of its provisions in order to accomplish its intended purposes.” The majority opinion is
hardly consistent with that purpose.
The majority appear to blow about
like a straw in the wind. If sympathy
motivates a liberal construction of the
Act, it will be construed broadly to
bring the subject within the scope of
its benefits. On the other hand, in the
rare case when it is in the subject’s interest to declare him ineligible for benefits, and his situation appeals to the
THE VERMONT BAR JOURNAL • SUMMER 2015
sympathetic emotions, the majority
seems prepared to execute an abrupt
volte face, whirl around like a weather
vane, and adopt an unreasonably strict
construction which holds that, indeed,
the subject was not entitled to workers’ compensation.66
To courts is left the unpleasant duty of
denying coverage or watching as the system seems to fail the injured worker. Justice Wynn Underwood sympathized with a
worker whose exclusive remedy was under
the workers’ compensation act, whose employer had refused to purchase insurance
and who was judgment proof. The answer