Vermont Bar Journal, Vol. 40, No. 2 Summer 2015, Vol 41, No. 2 | Page 16

Ruminations: The Centennial of Workers’ Compensatioin in Vermont ries related to work. When an injury arises is a fundamental first question. Was it during the period of employment, at a place where a worker might reasonably be, and while he is reasonably fulfilling the duties of his employment or when the place is a natural and necessary incident or consequence of the job? Joseph Brown was killed trying to rein in a team of horses, at the noon hour. The company claimed this was on his time. The burden is the employer’s to show that the injury was not an accident arising out of or in the course of such employment. On appeal, the worker was awarded compensation, because he was performing a duty owed to the master, necessary to be performed to allow him to do his work. Justice Willard Miles explained, in 1920, The duty may cover the servant’s trip across the premises to and from his working place, and the circumstances may be such that a servant may step aside to get a drink of water, may go into a building to get warm, may withdraw to answer a call of nature, may stop to talk with a fellow workman, may go to a convenient place to eat or wash or get fresh air, to hang up his coat, or even to rest, without forfeiting his right as an employé.80 The Workmen’s Compensation Act, wrote Miles, is framed on broad principles for the protection of the workman. Relief under it is not based on the neglect of the employer or affected by acts of negligence on the part of the employé. It rests on the economic and humanitarian principle of compensation to the employé, at the expense of the business, or to his representatives for earning capacity destroyed by an accident in the course of, or connected with, his work.81 Clyde Bundy was drowned in the 1927 flood. He was employed by the Vermont Highway Department, working a steam shovel to keep the main road through Bolton open. When he stopped for the day, on account of darkness, he went to Hayes’ boarding house, which was later swept away in the night, and Bundy was drowned. His widow was denied compensation. There was, according to Justice Slack’s opinion, no proximate cause linking the death to his employment.82 He explained, The essential connecting link of direct causal connection between the injury and the employment must be established before the act becomes operative. The injury must be the result of the employment, and flow from it as 16 THE VERMONT BAR JOURNAL • SUMMER 2015 the inducing proximate cause. The rational mind must be able to trace the resultant injury to a proximate cause set in motion by the employment, and not by any other agency, or there can be no recovery. To be compensable, the injury must arise out of the employment and be received in the course of the employment. When one or the other of these criteria is not satisfied, the family gets no compensation. In 1980, an accident driving home from a picnic hosted by an employer was covered.83 A casual employee is not covered by workmen’s compensation. Justice Slack in 1929 defined the term “casual” as “something that comes without regularity and is occasional and incidental ¼ its meaning may be more clearly understood by referring to its antonyms, which are ‘regular,’ ‘systematic,’ ‘periodic,’ and ‘certain.’” A car salesman, who worked regularly as a stonecutter and sold cars only after hours and on Sundays and holidays, was injured demonstrating a car. The car company complained he was not an employee under the act. Slack agreed. The “right of the [employer] to control the work, to direct the means and methods by which it shall be done” and the right to cancel the contract at any time were factors in favor of coverage, but because work was done at the employee’s own convenience, and that of those to whom he showed the cars, his work was casual, and no compensation was available to him.84 The concept of “arising out of the employment” was expanded in 1961. Compensable injuries, wrote Justice Milford K. Smith, should “include acts normally outside the employment performed for the benefit of third persons but the effect of which is to foster public good will toward the master.”85 The idea evolved as the nature of work changed. In 1926, the Court had decided that a teamster, injured while cleaning his horse before work, was no employee.86 This ruling was criticized in a 1963 decision. When a teacher slipped on ice leaving the site of a sewing class that she taught during the day, but had stayed late to clean up for the next day, the Supreme Court found liability. As her duties were continuous and her compensation was calculated by the year, the school had to pay.87 Over the years, workers’ compensation has evolved as the nature of work has changed. At the beginning industrial accidents were the principal source of claims, but as the decades passed claims were paid for injuries that took years to manifest themselves, such as the lung diseases of stoneworkers, and the range of workplaces covered by the Act expanded to include offices as well as plants and pits. The drafte