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
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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