Peabody v. Home Insurance Company

Peabody v. Home Insurance Company (99-057); 170 Vt. 635; 751 A.2d 783

[Filed 06-Apr-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-057

                              MARCH TERM, 2000

Judith Peabody	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Department of Labor & Industry
                                       }	
Home Insurance Company and 	       }
Comprehensive Rehabilitation           }
Associates	                       }	DOCKET NO. G-06060                     
 	

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


       This is a worker's compensation case in which claimant appeals from a
  decision of the  Commissioner of the Department of Labor and Industry
  denying her vocational rehabilitation  services, specifically reimbursement
  for the cost of obtaining her master's degree.  We address  three issues:
  (1) whether this Court has jurisdiction to determine if the notice of
  appeal was timely  where the Commissioner refused to certify this issue for
  appeal, (2) whether the thirty-day period  for filing a notice of appeal
  ran from the date the Commissioner signed the decision or the date  the
  decision was mailed to claimant, and (3) whether, to be entitled to
  vocational rehabilitation  services, claimant must show that she is unable
  to do any work, or any suitable work, for which  she has previous training
  or experience.  We hold that (1) we have jurisdiction to determine  whether
  the notice of appeal was timely, (2) the notice of appeal was timely, and
  (3) claimant must  show that she is unable to do any suitable work to be
  entitled to vocational rehabilitative services.  Accordingly, we remand to
  the Commissioner for further proceedings.

       Claimant was employed as a senior rehabilitation specialist at
  Comprehensive Rehabilitation  Associates for approximately ten years.  In
  1991, claimant had a work-related accident causing  back injury.  Her job
  required driving long distances, which caused further back injury, and the 
  back injury caused claimant depression.  She left her position in July 1993
  due to permanent  physical and psychological work-related injuries. 
  Claimant believed that she would need a  master's degree in counseling to
  obtain employment that would approximate her pre-injury annual  wage of
  $37,500.  

       Claimant first sought vocational rehabilitation services from
  vocational counselor Richard  Phillips.  Phillips originally agreed with
  claimant that it would be necessary for her to obtain a  master's degree in
  counseling, but after speaking with a Department employee, Phillips changed 
  his position.  Phillips found that claimant made an effort to find
  employment, but would not  consider positions that did not approximate her
  pre-injury wage.  He noted that she could,  however, have found employment
  in the counseling field with the State of Vermont or in the  private sector
  if wage had not been a factor.

 

       Claimant enrolled in a master's program at Johnson State College,
  obtained her master's  degree and pursued her claim for tuition
  reimbursement of $13,755.10.  At the worker's  compensation hearing,
  claimant's vocational rehabilitation expert, Myron Smith, found that 
  claimant had been qualified for numerous jobs in the Vermont social
  services sector but none of  the jobs, including the four jobs identified
  by Phillips, offered a reasonably comparable wage to  her pre-injury
  salary.  Based on the Department's worker's compensation regulations of
  April 1,  1995, Smith concluded that academic benefits were the most
  effective solution for claimant to  attain "suitable" employment.  

       The Commissioner denied claimant's request for vocational
  rehabilitation services.  He  concluded that claimant had failed to meet
  her initial burden under 21 V.S.A. § 641(b), (FN1)  which provides:

     When as a result of an injury covered by this chapter, an employee is 
     unable to perform work for which he has previous training or 
     experience, he shall be entitled to such vocational rehabilitation 
     services, including retraining and job placement, as may be reasonably 
     necessary to restore him to suitable employment.

  The Commissioner concluded that claimant had failed to prove that she was
  unable to perform  work for which she has previous training or experience. 
  He held that claimant's refusal to  consider jobs that did not approximate
  her pre-injury wage was a personal choice that did not  entitle her to
  rehabilitation benefits.  Because claimant did not meet the necessary
  threshold  showing, the Commissioner did not reach the second issue of
  whether a master's degree was  reasonably necessary to restore her to
  suitable employment.

       Claimant appealed from the Commissioner's decision, requesting that
  the Commissioner  certify the following question: Whether claimant's
  vocational benefits were prematurely  terminated and, if so, whether the
  attainment of a master's degree was necessary to find  employment? 
  Defendants proposed for certification: (1) Whether this Court has
  jurisdiction over  this appeal, and (2) Did the Commissioner commit
  reversible error in denying claimant's claim  for vocational rehabilitation
  benefits when the Commissioner determined that claimant was able  to
  perform work for which she had previous training or experience?  The
  Commissioner certified  claimant's question, and defendants appeal the
  Commissioner's refusal to certify their proposed  questions.

       Initially, we address whether this Court may consider defendants'
  first proposed question  for certification -- whether this Court has
  jurisdiction over this appeal -- when the Commissioner  declined to certify
  the question.  The authority for appealing to this Court from a worker's 
  compensation decision of the Commissioner is in 21 V.S.A. § 672, which
  provides in part: "The 

 

  jurisdiction of such court shall be limited to a review of questions of law
  certified to it by the  commissioner."  "It is axiomatic that a court
  cannot undertake to decide any issues of law, other  than its own
  jurisdiction, without having been given the necessary authority to deal
  with the  particular controversy."  Fisher v. Town of Marlboro, 132 Vt.
  533, 534, 323 A.2d 577, 578  (1974).  Because the issue is our jurisdiction
  over this appeal, we conclude that the Court has the  authority to decide
  it despite the plain language of the statute.

       Thus, the second issue is whether claimant's notice of appeal was
  timely.  V.R.A.P. 13(a)  provides that "[e]xcept as otherwise provided by
  this rule, the provisions of these rules shall  govern direct appeals to
  the Supreme Court from . . . administrative boards and agencies, so far  as
  applicable."  V.R.A.P. 4 provides that the notice of appeal to this Court
  "shall be filed with  the clerk of the superior or district court within 30
  days of the date of the entry of the judgment  or order appealed from." 
  (Emphasis added.)  The parties dispute the meaning of "entry of the 
  judgment."  Defendants claim that the thirty-day appeals period began on
  December 23, 1998, the  day the Commissioner signed the decision.  Claimant
  contends that the thirty days began on  December 29, 1998, the day that the
  order was mailed.  The notice of appeal was filed on January  27, 1999, and
  thus, is untimely if the appeals period runs from the signing of the
  decision.

       Defendants rely on the Vermont Rules of Appellate Procedure for their
  contention that the  judgment was entered the day the Commissioner signed
  the decision.  V.R.A.P. 4 states,  however, that "[a] judgment or order is
  entered within the meaning of this rule when it is entered  in the civil or
  criminal docket."  V.R.C.P. 58 provides that the judge approves and signs
  the  judgment, "and the clerk shall thereupon enter it."  Further, V.R.C.P.
  58 "makes clear that entry  of judgment (including, of course, any order or
  decree) is the act of the clerk in noting the  judgment on the civil docket
  rather than the act of the court in rendering judgment."  Reporter's 
  Notes, V.R.C.P. 58.  We, therefore, reject defendants' contention that the
  date the Commissioner  signed the decision is the date the judgment was
  entered.  This argument conflicts directly with  V.R.A.P. 4 and V.R.C.P.
  58, which make clear that entry of judgment is not the act of the  decision
  maker in rendering judgment. (FN2)

       Claimant relies on the Worker's Compensation Act.  It provides that
  "the commissioner  shall make an award supported by findings of fact and
  the applicable law and shall send a copy  of the award to the parties."  21
  V.S.A. § 664 (emphasis added).  Appeals from the  Commissioner's decision
  may be made to the superior court or this Court.  Section 670 provides 
  that either party may appeal to the superior court "[w]ithin thirty days
  after copies of an award  have been sent."  21 V.S.A. § 670 (emphasis
  added).  Section 672 provides: "[i]f an appeal is not  taken under the
  provisions of section 670 of this title within the time limited therefor,
  either party 

 

  may transfer such cause to the supreme court."  21 V.S.A. § 672.

       Thus, the thirty-day time period in which to file a notice of appeal
  to the superior court  begins when the decision is mailed.  Unlike § 670, §
  672 does not expressly state that the mailing  of the Commissioner's
  decision begins the running of the time for appeal to this Court.  In view 
  of the language of § 672 -- indicating that the time for filing in superior
  court must expire before  the cause may go to this Court -- we cannot,
  however, hold that the deadline for the notice of  appeal to this Court was
  prior to the deadline for the notice of appeal in superior court.  See In 
  re Milton Arrowhead Mountain., ___ Vt. ___, ___, 726 A.2d 54, 55 (1999)
  ("statutes regulating  appeal rights are remedial in nature and must be
  liberally construed in favor of persons exercising  those rights"). 
  Rather, reading sections 664, 670 and 672 together, we conclude that the 
  Legislature intended the time for appeal to either this Court or the
  superior court to begin running  when the Commissioner's decision is
  mailed.  See id. (our ultimate goal in construing statute is  to give
  effect to intent of Legislature).  Accordingly, claimant's notice of appeal
  was timely. 
 
       Finally, we reject defendants' contention that 21 V.S.A. § 678(b)
  compels a different result. Section 678(b) states, in part: "Interest [on
  attorney's fees] shall be computed from the date of the  award of the
  commissioner."  (Emphasis added.)  Defendants contend that (1) "the date of
  the  award of the commissioner" means the date the Commissioner signed the
  decision, and (2) that  the thirty-day appeal period in V.R.A.P. 4 must
  therefore run from the date the Commissioner  signed the decision to be
  consistent with the computation of interest in § 678(b).  We disagree for 
  two reasons.  First, defendants cite no authority for their claim that "the
  date of the award of the  commissioner" means the date the Commissioner
  signed the decision.  On its face, the language  could equally be construed
  to mean the date the decision is mailed.  More importantly, however,  the
  two acts have different purposes.  Thus, it is not unreasonable that the
  date on which the  appeal period begins to run is different from the date
  on which the interest begins to accrue. 

       On the merits, the crux of the parties' dispute concerns claimant's
  initial burden under 21  V.S.A. § 641 to show that "as a result of an
  injury covered by this chapter, [she] is unable to  perform work for which
  [she] has previous training or experience."  Claimant contends that the 
  statute must be construed to require her to show that she is unable to
  perform "suitable" work,  rather than any work for which she has ever had
  any training or experience.  She maintains that  the Commissioner erred by
  ruling that if claimant had the ability to perform some work,  regardless
  of the wages, then claimant was not entitled to vocational rehabilitation
  services.  

       The worker's compensation rules provide: "Vocational rehabilitation
  shall be provided by  an employer when, as a result of a compensable injury
  or occupational disease, an injured worker  is unable to return to suitable
  employment using his/her previous training or experience."   Department of
  Labor and Industry, The Vermont Worker's Compensation and Occupational 
  Disease Rules, Rule 27, 3 Code of Vermont Rules 24010003-29 (1999)
  (emphasis added). (FN3) 

 

  Further, the rules state: 

     "Suitable employment is defined as employment that is both:
          (1) Reasonably comparable to the claimant's pre-injury job after 
     consideration of wages, potential for advancement, . . . ; and
          (2) Reasonably attainable given current regional labor market 
     conditions in light of the claimant's age, temperament, education, . . . 

  Worker's Compensation Rules, Rule 26(e) (emphasis added).  The rules
  plainly state that claimant  is entitled to vocational rehabilitation
  services if she was unable to return to suitable work, and  claimant's
  pre-injury wage and temperament were both relevant factors in determining
  whether  the work she was able to do was suitable.  See In re Peel Gallery,
  149 Vt. 348, 351, 543 A.2d 695, 697 (1988) (regulation plain on face is not
  open to different interpretations).

       "It is axiomatic that an administrative agency must follow its own
  substantive regulations  in deciding contested cases."  Bishop v. Town of
  Barre, 140 Vt. 564, 578, 442 A.2d 50, 56  (1982).  Thus, we have required
  the Commissioner to follow the worker's compensation rules.  See id.  Here,
  the Commissioner concluded that claimant was not entitled to rehabilitative 
  services without determining the threshold issue of whether claimant was
  able to return to suitable  employment.  Indeed, the Commissioner ruled
  that claimant's position that she had to be able to  obtain a job that
  would approximate her pre-injury wage was a personal choice, rather than
  the  legal standard entitling her to rehabilitative services.  He
  explicitly excluded considerations of pre-injury wage and temperament
  (personal choice) in his decision.  We conclude that the  Commissioner's
  decision was clearly erroneous.  See id. at 577, 442 A.2d  at 56 (although
  we  generally give deference to decisions of administrative agency, we will
  not uphold the  Commissioner's interpretation of worker's compensation
  regulation that is clearly erroneous).

       The certified question is: Whether claimant's vocational benefits were
  prematurely  terminated and, if so, whether attainment of a master's degree
  was necessary to find employment?  We answer the first part of the question
  in the affirmative; claimant was denied benefits without  a determination
  of whether she was able to return to suitable work.  We do not reach the
  second  part of the certified question because the Commissioner has not yet
  had the opportunity to rule on  this issue.  Our decision answers both
  questions defendant requested certified because they were  necessary to
  determine the certified question; thus, we need not address defendants'
  appeal of the  Commissioner's refusal to certify their proposed questions.

 

       The first part of the certified question is answered in the
  affirmative; we do not reach the  second part of the certified question. 
  The case is remanded for further proceedings consistent  with this
  decision.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  This statute was amended in 1997 and the relevant language is now
  in subsection (a).  See 1997, No. 140 (Adj Sess.), § 3.

FN2.  Neither party argues that the time for appeal began to run on the
  date the decision  was entered on the docket because the record in this
  case contains no docket entries, and the  Department informs us that it
  does not maintain docket entries.  Nor is the Commissioner's  decision
  date-stamped, as was the notice of appeal.  


FN 3.  Rule 27 was amended in 1989, 1994, 1996.  All three versions,
  however, required  vocational rehabilitation to be provided when the
  injured worker was unable to return to  suitable  work.  The current Rule
  27 is the 1996 version, which was also in effect at the time  of the
  Commissioner's decision.