Pacher v. Fairdale Farms

Pacher v. Fairdale Farms (96-434); 166 Vt. 626; 699 A.2d 43

[Filed 2-Jun-1997]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-434

                        MARCH TERM, 1997


Joseph Pacher                   }     APPEALED FROM:
                                }
                                }
     v.                         }     Department of Labor & Industry
                                }
Fairdale Farms & Eveready       }
Battery Company                 }     DOCKET NO. F-3487


       In the above-entitled cause, the Clerk will enter:

       Appellant Fairdale Farms appeals a decision by the Commissioner of the
  Vermont Department of Labor and Industry ordering Fairdale to resume
  payment of workers' compensation benefits once appellee Eveready Battery
  Company's responsibility for a subsequent injury ends.  We affirm.

       In November 1977, claimant Joseph Pacher fell off a roof while working
  for Fairdale, rupturing his spleen and fracturing several vertebrae and two
  left ribs.  Fairdale paid workers' compensation benefits during claimant's
  convalescence and following his employment with Eveready Battery Company in
  1978.  In August 1992, claimant injured his right-side lower back while
  attempting to push a clip into a machine at Eveready.

       In the ensuing dispute between Fairdale and Eveready, Fairdale argued
  that claimant's work at Eveready had begun aggravating the first injury in
  March 1990, and therefore Eveready was liable for all workers' compensation
  payments after that date.  Eveready argued that the 1992 injury was a
  recurrence of the original injury and that Fairdale continued to be liable
  for all workers' compensation payments.  The Commissioner rejected both of
  these arguments,(FN1) finding that claimant's medical problems until the 1992
  injury were recurrences of his original injury, while the 1992 injury was a
  new, distinct injury for which Eveready was responsible. Accordingly, the
  Commissioner ordered Eveready to pay temporary total disability benefits
  until claimant reached "medical end result with regard to the August 11,
  1992 new injury; i.e., until [claimant's] condition return[ed] to his
  pre-August 11, 1992 baseline," with a similar provision for psychological
  counseling, after which Fairdale would resume responsibility.

       Both employers appealed the Commissioner's order to Bennington
  Superior Court pursuant to 21 V.S.A. § 670.  To the first question
  certified by the Commissioner, "Did [claimant's] work at Eveready aggravate
  his preexisting condition or result in a new injury such that it relieved
  Fairdale Farms of responsibility for any workers' compensation liability as
  of March 23, 1990?" the jury answered, "No."  To the second certified
  question, "Was the event [claimant] experienced on August 11, 1992 while
  employed at Eveready a recurrence of the condition caused by his original
  work injury at Fairdale Farms such that Fairdale Farms is liable for any
  workers' compensation owed [claimant] because of that event?" the jury also
  answered,

 

  "No."  Based on these answers, the trial court entered judgment that
  claimant's work at Eveready did not aggravate his preexisting condition or
  result in a new injury that would relieve Fairdale of responsibility as of
  1990 and that the 1992 injury was not a recurrence of the original injury. 
  After the Commissioner concluded that the trial court's judgment was
  consistent with the original findings and conclusions, the original order
  was reissued in April 1996, with the added provision that Eveready and
  Fairdale would be responsible for reasonable and necessary medical expenses
  under the same conditions as temporary disability payments.  This appeal
  followed.

       We will affirm the Commissioner's order if her conclusions are
  rationally derived from the findings and based on a correct interpretation
  of the law.  See In re Southview Assocs., 153 Vt. 171, 178, 569 A.2d 501,
  504 (1989).  Fairdale first asserts that the Commissioner's order requiring
  it to resume workers' compensation liability once claimant recovers from
  the 1992 injury is contrary to the jury's finding that the 1992 injury was
  not a recurrence.  In effect, Fairdale appears to argue that because the
  jury found that the 1992 injury was not a recurrence of the original
  injury, it must have decided that the 1992 accident aggravated claimant's
  prior condition -- and that the Commissioner's order conflicts with such a
  finding.

       In workers' compensation cases involving successive injuries during
  different employments, the first employer remains liable for the full
  extent of benefits if the second injury is solely a "recurrence" of the
  first injury -- i.e., if the second accident did not causally contribute to
  the claimant's disability.  Mendoza v. Omaha Meat Processors, 408 N.W.2d 280, 286 (Neb. 1987); In re Dundon, 739 P.2d 1069, 1070 (Or. Ct. App.
  1987).  If, however, the second incident aggravated, accelerated, or
  combined with a preexisting impairment or injury to produce a disability
  greater than would have resulted from the second injury alone, the second
  incident is an "aggravation," and the second employer becomes solely
  responsible for the entire disability at that point.  Port of Portland v.
  Director, Office of Workers Compensation Programs, 932 F.2d 836, 839-40
  (9th Cir. 1991); In re Dundon, 739 P.2d  at 1070; see Jackson v. True Temper
  Corp., 151 Vt. 592, 595-96, 563 A.2d 621, 623 (1989) (sawmill owner liable
  for seizures brought on by drinking alcohol where sawmill injury aggravated
  or accelerated claimant's preexisting alcoholism); Campbell v. Heinrich
  Savelberg, Inc., 139 Vt. 31, 35-36, 421 A.2d 1291, 1294 (1980) (employer
  liable where exposure to fumes aggravated claimant's preexisting mild to
  moderate bronchitis to cause acute bronchitis and myocardial infarction).

       We begin by noting that there is no support for Fairdale's assertion
  that because the jurors decided that the 1992 accident was not a
  recurrence, they must have found it was an aggravation.  The jury was asked
  only if the 1992 accident was or was not a recurrence, without being
  questioned concerning other options.  A third possibility, and the one that
  coincides with the Commissioner's findings and conclusions, is that the
  jury found the 1992 incident was neither an aggravation nor a recurrence,
  but rather a new injury distinct from claimant's prior injuries.  Where an
  employee suffers unrelated injuries during different employments, the
  employer at the time of each accident becomes responsible for the
  respective workers' compensation benefits.  Gonzales v. Stanke-Brown &
  Assocs., 648 P.2d 1192, 1198 (N.M. Ct. App. 1982); see Kulp v. Sheraton
  Ritz Hotel, 450 N.W.2d 296, 298 (Minn. 1990) (administrative court did not
  exceed authority in attributing right-hand and shoulder injuries to first
  employer and left-hand and wrist injuries to second employer); cf. Port of
  Portland, 932 F.2d  at 841 (liability will not be imposed on employer who
  did not contribute to causation of disability).

       The Commissioner's apportionment of liability between employers
  rationally relates to her findings that claimant's injury to his right
  lower back was a new and distinct injury from the

 

  prior Fairdale injury that resulted in recurring pain to his left lower
  back and left leg.(FN2)  This apportionment, based on the finding of a new,
  distinct injury for which Eveready is liable, in no way conflicts with the
  jury's finding that the 1992 injury was not a recurrence for which Fairdale
  would be liable.

       Fairdale next asserts that the Commissioner erred in ordering it to
  resume liability when claimant reaches medical end result for the 1992
  injury, because claimant will not necessarily have reached his pre-1992
  injury condition.  Fairdale contends that the division for liability
  between employers should have been the point where claimant returns to his
  pre-1992 injury condition.  We construe the Commissioner's order as
  requiring Eveready to pay temporary disability payments until claimant
  reaches medical end result and all reasonable and necessary medical
  expenses until claimant reaches his pre-1992 injury condition, after which
  Fairdale resumes liability.

       Medical end result is "the point at which a person has reached a
  substantial plateau in the medical recovery process, such that significant
  further improvement is not expected, regardless of treatment."  Vt. Labor &
  Indus. Dep't Reg., Vt. Workers' Comp. & Occupational Disease Rules, Rule
  2(h), 3 Code of Vt. Rules 24010003-1 (1995).  Thus, we have held that a
  claimant is entitled to temporary disability compensation until reaching
  medical end result or successfully returning to work.  Coburn v. Frank
  Dodge & Sons, ___ Vt. ___, ___, 687 A.2d 465, 467 (1996).  Nonetheless, a
  claimant may reach medical end result, relieving the employer of temporary
  disability benefits, but still require medical care associated with the
  injury for which the employer retains responsibility.  Id. at ___, 687 A.2d 
  at 468 (fact that some treatment such as physical or drug therapy continues
  to be necessary is not inconsistent with finding of medical end result);
  Wroten v. Lamphere, 147 Vt. 606, 610, 523 A.2d 1236, 1238 (1987) (permanent
  disability established when employee reaches medical end result or maximum
  earning power is restored, despite continuing medical treatment).

       The Commissioner ordered Eveready to pay compensation until claimant
  reaches medical end result "i.e. until his condition returns to his
  pre-August 11, 1992 baseline."  Although the Commissioner's order is not a
  model of clarity, her intention that Eveready shall be responsible only for
  compensation associated with the 1992 injury, after which Fairdale must
  resume liability for the 1977 injury, is evident from the quoted language. 
  Thus, Eveready must pay temporary disability compensation until claimant
  reaches medical end result for the 1992 injury, and will be responsible for
  all reasonable and necessary medical expenses and psychological counseling
  costs until claimant reaches his pre-1992 injury condition or baseline. 
  Any language in the order equating medical end result with claimant's
  pre-1992 injury condition is harmless error. V.R.C.P. 61.

 

       Affirmed.



                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice




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                                  Footnotes


FN1.  The Commissioner denied Fairdale's request for reimbursement of
  workers' compensation benefits paid to claimant after March 1990 and denied
  Eveready's request for reimbursement of workers' compensation benefits paid
  for the 1992 accident.

FN2.  Fairdale nonetheless urges the Court to apply the "last
  injurious exposure" rule, thus making Eveready liable for all benefits
  after 1992.  See In re Dundon, 739 P.2d 1069, 1070 n.1 (Or. Ct. App. 1987)
  (doctrine applies where later accident aggravates or accelerates
  preexisting injury or impairment, leaving most recent employer solely
  liable for workers' compensation benefits).  Fairdale contends this would
  minimize disputes and decrease confusion for both the employers and
  claimant.  This doctrine is appropriate, however, only where separate
  injuries all causally contribute to the total disability so that it becomes
  difficult or impossible to allocate liability among several potentially
  liable employers.  Port of Portland v. Director, Office of Workers
  Compensation Programs, 932 F.2d 836, 840-41 & n.3 (9th Cir. 1991).  Where,
  as here, different accidents produce distinct injuries, the Commissioner
  can fairly define and apportion the liability of each employer, without
  confusion to either employers or employees. See 21 V.S.A. § 662(c)
  (Commissioner will hold hearing and determine which employer is liable
  where payment of benefits is challenged on basis that another employer may
  be liable).