City of Burlington v. Davis

Annotate this Case

CITY_OF_BURLINGTON_V_DAVIS.92-190; 160 Vt. 183; 624 A.2d 872

[Filed 26-Mar-1993]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 92-190

City of Burlington Supreme Court

On Appeal from
v. Chittenden Superior Court

Donald D. Davis December Term, 1992

Matthew I. Katz, J.

Lawrence Miller, Sarah M.Powell, and Andrew Morse of Miller & Faignant,
P.C., Rutland, for plaintiff-appellee

Keith J. Kasper of McNamara, Fitzpatrick, McCormick & Mertz, P.C.,
Burlington, for defendant-appellant

PRESENT: Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.) and Martin,
Supr. J., Specially Assigned

MORSE, J. Claimant, a former police officer for the City of
Burlington, appeals from a superior court ruling that he did not suffer a
compensable injury pursuant to Vermont Worker's Compensation Act. The sole
issue is whether the court's finding on causation is clearly erroneous. We
affirm.
In the early 1980's, claimant suffered several seizures as a mani-
festation of a brain tumor. One of these seizures occurred on September 19,
1984, after claimant testified at an executive session of the Burlington
Police Commission about a series of charges made against him. Thereafter he
was unable to continue in his employment. Hearing was held on his claim in
1988, where the Commissioner of Labor and Industry ruled in claimant's
favor. In 1989, claimant died as a result of the brain tumor.
The City appealed to the superior court for de novo review. The court,
relying on the testimony of claimant's physician, found that claimant
suffered no ongoing injury as a result of the 1984 seizure and that
claimant "probably would be in a similar condition" even if he had not
experienced work-related stress. Claimant's expert testified that the
seizures did not affect the underlying brain tumor. According to the court,
although "the work-related incident led to a new treatment regime, with
higher dosages, in turn barring return to work, this was not caused by the
work-related incident. That incident must be characterized as evanescent.
It is the brain tumor which required the new dosages, not the particular
seizure or any after-effects of the seizure." Because the court decided the
case as the trier of fact, findings shall not be set aside unless clearly
erroneous. V.R.C.P. 52. The court's conclusions, which addressed mixed
questions of law and fact, will be upheld if supported by the findings.
Cameron v. Double A. Services, Inc., 156 Vt. 577, 581, 595 A.2d 259, 261-62
(1991).
If claimant's condition was aggravated or accelerated by the stressful
work situation, he would have been entitled to benefits. Jackson v. True
Temper Corp., 151 Vt. 592, 595, 563 A.2d 621, 623 (1989). The proper
inquiry is whether "'the disability came upon the claimant earlier than
otherwise would have occurred.'" Id. at 596, 563 A.2d at 623, (quoting
Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 415, 199 A. 564,
566 (1938)).
In Jackson, the jury found causation sufficient where the employee's
underlying condition, alcoholism, worsened after the employee was injured by
a rip saw at work. Id. at 597, 563 A.2d at 624. Thereafter, he developed
seizures as a result of the resurgence of his drinking and was unable to
retain his employment.
Here, however, the evidence was that claimant suffered seizures as
early as 1980 as a result of a brain tumor, and again suffered a stress-
related seizure in 1984, after which he was unable to work. Contrary to
Jackson, the fact finder here found no acceleration of a preexisting
condition entitling claimant to benefits. His seizure at work did not
cause him to have the seizures that followed. The symptoms did not cause
more symptoms; the abnormal physical condition caused the symptoms.
Contrary to the dissent's view, the only "coincidence" was that the seizure
that marked the beginning of the debilitating treatment regime occurred at
work instead of somewhere else.
The evidence amply supported the court's view that claimant would have
been just as disabled had he not gone to work that day. Claimant's expert
testified that it was "a reasonable assumption" that without the stressful
situation at work in 1984, claimant would still have had seizures, and that
"reasoned judgment" would put claimant "in a similar condition" regardless
of whether or not the stressful situation had occurred. Moreover, although
stress might hasten the occurrence of seizures, "the progression of the
underlying condition" made it reasonable that more seizures would occur. In
other words, the incident when the seizure occurred merely "led to," in the
sense of "was followed by," the disability. The court made clear that it
was the brain tumor that caused the disability, "not the particular seizure
or any after-effects of the seizure."
Having found, based on the evidence before it, that the required nexus
was lacking, the court concluded that claimant was not entitled to benefits
under the Workers' Compensation statute. The dissent's quarrel is that the
standard of review does not permit the result it would prefer. The
superior court's findings, not being clearly erroneous, must stand
regardless of how we might have viewed the evidence. Hurwitz v. Camp Derry,
Inc., 134 Vt. 306, 307, 360 A.2d 53, 55 (1976).
Affirmed.

FOR THE COURT:

______________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 92-190

City of Burlington Supreme Court

On Appeal from
v. Chittenden Superior Court

Donald D. Davis December Term, 1992

Matthew I. Katz, J.

Lawrence Miller, Sarah M.Powell, and Andrew Morse of Miller & Faignant,
P.C., Rutland, for plaintiff-appellee

Keith J. Kasper of McNamara, Fitzpatrick, McCormick & Mertz, P.C.,
Burlington, for defendant-appellant

PRESENT: Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.) and Martin,
Supr. J., Specially Assigned

DOOLEY, J., dissenting. In order to affirm, the majority endorses a
mistaken view of our law and combines it with a misstatement of the facts
found by the trial court. I cannot accept either, and therefore dissent.
To avoid the confusing characterizations that pervade this case, it is
critical at the outset to state what is undisputed. It is undisputed that
claimant's seizures were caused by the brain tumor in combination with
other factors, such as the stress claimant was under. Without the brain
tumor there would have been no seizures. It is also undisputed that the
charges leveled against claimant at the Burlington Police Commission meeting
and the events of that meeting caused a seizure, but did not accelerate the
growth of the brain tumor. Put another way, the tumor caused the seizures;
the seizures did not cause the tumor or its characteristics.
These undisputed facts do not, however, prevent the claim for worker's
compensation. "Our law is clear that the aggravation or acceleration of a
preexisting condition by an employment accident is compensible under the
workers' compensation law." Jackson v. True Temper Corp., 151 Vt. 592, 595,
563 A.2d 621, 623 (1989) (emphasis in original); accord Gillespie v. Vermont
Hosiery & Machinery Co., 109 Vt. 409, 415, 199 A. 564, 566 (1938)("where a
dormant disease is revived or accelerated by an accidental injury causing
disability or death, full compensation is allowable"). Thus, when an
underlying condition unrelated to work eventually would have resulted in
disability even absent an intervening work-related injury, the disability is
compensible where the work-related incident caused the disability to surface
sooner than it otherwise would have. See Jackson, 151 Vt. at 596, 563 A.2d
at 624.
The real issue in this case is whether the "condition" for purposes of
the Jackson rule is the seizure disorder or the brain tumor. Without facing
this question, the majority appears to assume that it is the tumor and holds
that because the growth of claimant's tumor, and presumably the date of his
death, was unaffected by the police commission meeting, there can be no
compensation. Our precedents demonstrate, however, that the acceleration
rule must be looked at in relation to the overall condition of the body,
particularly as it relates to plaintiff's ability to work and function.
See, e.g., Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35, 421 A.2d 1291, 1294 (1980). Thus, in Jackson, although there was an underlying
disease of encephalopathy, we focused on the resulting "seizure disorder"
and the effect of the accident on the frequency of seizures. Jackson, 151
Vt. at 595, 96, 563 A.,2d at 623. When the Jackson approach is used in this
case, we must judge the effect of the stress of the commission meeting on
claimant's seizure condition. As discussed below, that condition was
accelerated; claimant should be entitled to compensation.
The nature of the difference in approach can be more clearly seen if we
add one hypothetical fact to this case. Assume that the medical expert
testified that absent the commission meeting, claimant would not have had
another seizure until 1988 and would have died on exactly the same date in
1989. The majority would deny compensation because the tumor grew at the
same rate, whether or not the commission meeting occurred, and the date of
death was not changed. I would grant compensation because claimant lost
three years of employment earnings. The purpose of worker's compensation is
to make up for loss of earnings because of an employment-related incident.
Indeed, the acceleration rule is virtually eliminated if we accept the
majority's view.
The majority's legal error is compounded by a factual error. The
majority reads the trial court as finding that the commission meeting had no
effect on claimant's disabling condition. Put another way, the majority is
saying that claimant would not have been able to work on or after September
20, 1984, whether or not the commission meeting had been held. This is an
incredible coincidence; the police commission meeting, and the seizure it
induced, happened the day before claimant's seizures would have prevented
him from working in any event.
There is no support in the testimony for this coincidence theory and
the trial court did not find such a coincidence. The language the majority
quotes is the trial court's acceptance of the legal theory that, for
claimant to receive compensation, the tumor had to be affected. In fact,
the trial court found that the seizure led to both the treatment for the
seizure condition and claimant's inability to return to work. In this
context, "led to" can mean only that the seizure caused claimant's loss of
employment. If this language is the basis of the majority opinion, the easy
answer is to order a remand for clarification of the trial court finding.
This approach is preferable to endorsing an incredible factual scenario to
deny compensation.
When we cut through all confusing verbiage, we find a claimant who
suffered a work-related "accident" and never worked another day in the
approximately four remaining years of his life. If the accident had never
occurred, claimant would have continued to work for weeks, months or even
years before his disease made this impossible. Up until this case, these
facts would have entitled a worker to compensation to make up for the lost
income. The retrenchment this case represents is unjustified and
unnecessary. I dissent.
I am authorized to state that Justice Johnson joins in this dissent.

_______________________________
Associate Justice

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