Causation
Workers’ compensation jurisdiction also
turns on causation—what was the cause
of the accident or injury, and what is the
role of other medical conditions on compensation? An accident revives or accelerates a dormant disease. The disease would
in time have disabled him without an injury.
There is still recovery: the accident caused
the injury.88 Paul Marsigli slipped on some
ice one morning in 1959 while working at
the Granite City Auto Sales Co., injuring
his right hip. He died sixteen weeks later
of cancer. Because the fall exacerbated the
pre-existing disease, there was liability.89
But when a worker contracted pulmonary
tuberculosis at a hospital while being treated for an injury, “an unlooked-for mishap
or an untoward event which is not expected or designed,” there was no recovery.90
Justice Walter Cleary’s dissent in Rothfarb v. Camp Awanee, Inc. (1950) urged
abandonment of the rule that the employment must be the proximate cause of the
injury. “A causal connection between the
injury and the employment is sufficient,
a connection substantially contributory
though it need not be the sole or proximate cause. The strict tort reasoning of the
doctrine of proximate cause is out of place
under Workmen’s Compensation Acts.”
Cleary urged the exercise of care “lest long
judicial habit in tort cases allow judicial
thought in compensation cases to be too
much influenced by a discarded or modified factor of decision.”91
The test of many high court decisions
is how much liberal construction will satisfy the humane purpose of the Act. That
test changed over time, in favor of the liberal perspective. Rothgarb was overruled
in 1993 in Shaw v. Dutton Berry Farm, and
Cleary’s dissent became the majority opinion. Justice Morse noted that in the forty years since Rothgarb was decided, the
Court had taken a “less myopic view of
what falls within worker’s compensation
coverage.” “Ordinarily,” he wrote,
if an injury occurs during the ‘course of
employment,’ it also ‘arises out of it,’
unless the circumstances are so attenuated from the condition of employment that the cause of the injury cannot reasonably be related to the employment. Even if the worker’s activity
leading to the injury is not work per se,
the causal connection is not necessarily broken. As there are no hard and
fast rules to determine when an injury
‘aris[es] out of employment,’ the outcome of each case is determined only
after taking all the facts and circumstances into account.92
In 1980, a worker whose pulmonary disease and myocardial infarction were aggravated by exposure to heavy varnish and
paint fumes in a poorly-ventilated workplace was approved for compensation,
even though what was deemed an “accident” occurred over a period of four to
six weeks.93 Just ten years earlier, the high
court had denied compensation to a worker who contracted pulmonary tuberculous
over a nine-month period from contact
with tuberculosis patients at the Rutland
Hospital.94
Third Persons
The Workmen’s Compensation Act did
not prohibit employers who have accepted the law and paid compensation to injured employees to sue third parties for
their negligence in causing the accident.
Justice Slack in 1921 explained that “the
cause of action is kept alive for the benefit
Road construction crew at work, intersection of South Main,
Hill and Ayers Streets, Barre, VT, circa 1910.
Photograph courtesy of Aldrich Public Library, Barre, VT
www.vtbar.org
of the employer who is subrogated to the
rights of the injured employee to recover
against” the person liable for the injury.95
The 1966 decision of Herbert v. Layman
recognized the right of an employee to sue
a fellow employee while collecting Workmen’s Compensation, even when the fellow was a supervisory employee. Pointing to a 1959 amendment to the Act, the
Court explained that while the law formerly required an injured employee to choose
whether to accept workmen’s compensation or proceed at law to recover damages,
the Act now allowed the worker, his employer, or his employer’s insurer to proceed
against a third party, other than the employer, even while receiving compensation.
The employer or insurer was “subrogated
to the rights of the injured employee” to
recover the compensation paid to the injured employee. 96
The Workmen’s Compensation Act immunized employers from liability suits for
accidents with one important exception.
When the employer has an obligation to
perform safety inspections for the workplace, the worker may sue in tort, if the injury is the result of a negligent inspection.
Where no duty arises, this exception does
not hold.97 Chief Justice Allen dissented in
Derosia v. Duro Metal Products Co. (1986).
The majority found that the phrase “some
person other than the employer” in the
Act could apply to insurers, not just third
parties, where the insurer provides benefits and services, including safety inspections, rather than just pay for them. Allen
wrote, “However desirable the conceptual-functional analysis adopted by the majority may be, it is intended to apply only
to those states whose statutory language
does not expressly identify the carrier with
the employer.” Citing Larson, he stressed
that “our statutes clearly identify the carrier with employer. This Court cannot by ju-
Ruminations: The Centennial of Workers’ Compensatioin in Vermont
their program awarding compensation for
carpal tunnel syndrome.
Granite polishing before suction and other safety equipment,
Barre, VT, circa 1900. O.J. Dodge Collection.
Photograph courtesy of Aldrich Public Library, Barre, VT
THE VERMONT BAR JOURNAL • SUMMER 2015
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