Ruminations: The Centennial of Workers’ Compensatioin in Vermont
dicial action in the guise of interpretation
achieve a particular result simply because
it feels that the thrust of a statute is unjust
or unfair.” 98
The legislature responded to Derosia
in 1993 by changing the law to allow tort
claims against insurers providing safety inspections only when they committed gross
negligence or willful misconduct.99 In 2009,
the Supreme Court ruled that in spite of
the exclusivity provision of the Act, when
an employer engages in conduct with the
knowledge that there is a substantial certainty that there will be injury or death, the
worker can sue the company directly. The
company’s immunity disappears.100
Psychological Injury
Workmen’s compensation dealt with
physical injuries, but its acknowledgment
that psychological injuries might also be
compensable only came as the act matured. The widow of a worker who committed suicide, after being injured at the Capital Hill Granite Company, tried to claim
compensation, but because she couldn’t
prove a connection, the high court on appeal denied her claim. Justice Powers focused on causation in his 1926 decision.
[W]hen the insanity resulting from an
accident ends in a suicide which is the
result of an uncontrollable impulse or
in a delirium of frenzy, and without
conscious volition to produce death
having knowledge of the physical consequences of the suicidal act, there is a
direct and unbroken causal connection
between the accident and the death,
and compensation therefor is to be
awarded. But when the suicide is the
result of a voluntary, willful choice, with
knowledge of the purpose and physi-
cal effect of the act, a new and independent agency intervenes, breaks
the chain of causation, and compensation is to be denied. In compensation
cases, the rule is the same as in negligence cases ...101
not limit the injury to physical impact. The
company cited a 1919 case that concluded
no recovery could be had for mental suffering without physical injury in ordinary negligence, but Amestoy was unimpressed by
the defense. Because
Leon Myott was a “jumper,” meaning
his nervous condition caused him to jump
and shout whenever touched. Other employees enjoyed watching as they tormented him, and his employer was aware of the
abuse. Another worker, who was not authorized to be at the plant during the day
shift, touched Myott while the worker was
operating a machine, he turned, twisted
his leg and broke a bone. Justice Sturtevant upheld the award.
Section 70 was added to the Vermont
Constitution in response to concerns
that the employer liability bills being
considered at the time were susceptible to constitutional attack, it is thus
clear that the purpose of §70 was to insulate pending workers’ compensation
laws from constitutional attack, not to
prevent workers from obtaining benefits based on psychological injuries.104
To construe this statute to exclude
an injury caused by the willful act of a
third person directed against an employee in the circumstances of this
case when it was within the reasonable
contemplation of the employer that
the act would be committed and that
such probability created an additional
hazard incident to claimant’s employment would be to give the statute an
unreasonable construction.102
The Supreme Court embraced the compensability of psychological injury in 1996.
In Bedini v. Frost, the high court approved
the denial of benefits to a worker whose
job-related stress was not “of a significantly greater dimension than the daily stresses encountered by all employees.”103 In
2003, Chief Justice Jeffrey Amestoy upheld
a claim by a firefighter whose work stress
caused him injuries. “Bodily hurt,” the
words used to describe what is compensable under the Vermont Constitution, did
Young and old workers inside the Smith, Whitcomb and
Cook Foundry, North Barre, VT, undated. Notice sand
casting moulding boxes for molten iron in foreground.
Photograph courtesy of Aldrich Public Library, Barre, VT
18
A Century of Compensation
Justice Robert Larrow, writing the majority opinion in Sunday v. Stratton Corp.
(1978), sounded relieved that the old and
complex rules in the law before workmen’s
compensation was adopted were no longer needed.
Many of our cases contain language
that is difficult to reconcile, in discussing the fine distinctions between assumption of risk and contributory negligence. Early cases, of course, deal
with the master-servant relationship, in
which field development was curtailed
by the adoption of laws relating to
workmen’s compensation and abolishing the defense. And fine distinctions
between assumption of risk and contributory negligence was not important when either was an absolute bar
to recovery.105
Winston Flint celebrated the success of
the workmen’s compensation law. “It is safe
“Proof that Eye Protection Pays” - These four men from the
Rock of Ages quarry each wear safety googles with a lens
shattered in the course of work between May and September
1944. The caption reads: “This photo proves that safety
goggles give protection” and “Wear your goggles - it pays.”
Photograph courtesy of Aldrich Public Library, Barre, VT
THE VERMONT BAR JOURNAL • SUMMER 2015
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