Vermont Bar Journal, Vol. 40, No. 2 Summer 2015, Vol 41, No. 2 | Page 17

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 17