Wood v. Fletcher Allen Health Care

Annotate this Case
Wood v. Fletcher Allen Health Care (98-189); 169 Vt. 419; 739 A.2d 1201

[Filed 30-Jul-1999]


       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. 98-189


Paula Wood	                                 Supreme Court

	                                         On Appeal from
     v.		                                 Department of Labor &
	                                         Industry

Fletcher Allen Health Care	                 March Term, 1999


Steve Janson, Commissioner


       Beth Robinson of Langrock Sperry & Wool, Middlebury, for
  Plaintiff-Appellee.

       Christopher McVeigh of Paul, Frank & Collins, Inc., Burlington, for
  Defendant-Appellant.


PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Zimmerman, D.J., 
         Specially Assigned


       DOOLEY, J.  Defendant, Fletcher Allen Health Care (FAHC), appeals from
  a decision  of the Commissioner of the Department of Labor and Industry
  declining to terminate workers'  compensation benefits to claimant Paula
  Wood.  FAHC contends the commissioner erred by  refusing to discontinue
  claimant's temporary total disability payments when she became pregnant 
  and was, as a result, temporarily unable to have surgery to correct her
  workplace injury.  We  affirm.

       The relevant facts are not disputed.  In November 1995, claimant
  suffered a work-related  injury while employed at FAHC as a nurse and began
  receiving temporary total disability  benefits. 

 

  See 21 V.S.A. § 642 (providing for such benefits "[w]here the injury causes
  total disability for  work").  Nearly two years later, in mid-1997,
  claimant's treating physician recommended that  she have surgery on her
  shoulder to address her work-related symptoms.  However, claimant  was
  pregnant at the time and, as a result, the doctor recommended that the
  operation be delayed  until after the birth.  Claimant accepted this
  recommendation.  She gave birth to her child in  February 1998 and
  underwent the shoulder surgery the following June.

       Meanwhile, FAHC notified claimant and the department on August 14,
  1997 that it  would discontinue her benefits as of August 21, 1997, based
  on what FAHC and its insurer  characterized as the "superseding intervening
  act of getting pregnant."  Pursuant to 21 V.S.A. §  643a, the Commissioner
  reviewed the grounds presented in the notice "to determine the  sufficiency
  of the basis for the proposed discontinuance."  The Commissioner found that
  "the  evidence does not reasonably support the proposed discontinuance" and
  ordered that the  payments continue pending a hearing.  Id.  The
  Commissioner held a hearing and rendered a  decision concluding that
  claimant's benefits should not be terminated as the result of her 
  pregnancy.  FAHC's motion for reconsideration was denied, and this appeal
  followed.

       In his decision, the Commissioner considered three grounds for
  termination advanced by  FAHC: (1) pregnancy was a superseding intervening
  cause of claimant's condition as of the date  the surgery would have
  occurred; (2) pregnancy was a "flare-up"of claimant's condition up until 
  the time she gave birth; and (3) claimant refused recommended medical
  treatment.  The  Commissioner rejected the first argument because the
  pregnancy did not aggravate claimant's  work-related condition and was not
  itself disabling.  For similar reasons, he rejected the second  argument
  that pregnancy caused an aggravation or "flare-up" of the underlying
  condition.  He 

 

  rejected the third argument because claimant acted on the recommendation of
  her physician and  did not unreasonably refuse treatment.  FAHC reiterates
  its arguments to us.

       We begin with FAHC's first argument because it captures the essence of
  the employer's  position.  FAHC argues that claimant's pregnancy is a
  superseding intervening cause of her  disability because, but for the
  pregnancy, claimant would have had the surgery and reached an  end result,
  obviating the need for temporary total disability benefits.  We reject this
  argument for  two main reasons.

       The first reason is the deference we must accord the Commissioner's
  determination.  The  Commissioner's decision is presumed valid, to be
  overturned only if there is a clear showing to  the contrary.  See Close v.
  Superior Excavating Co., 166 Vt. 318, 321, 693 A.2d 729, 730  (1997).  We
  must defer to the Commissioner's construction of the workers' compensation
  statute  absent a compelling indication of error.  See Bedini v. Frost, 165
  Vt. 167, 169, 678 A.2d 893,  894 (1996).

       The statute gives only limited guidance in these circumstances.  For
  example, the statute  specifies that the Commissioner can refuse to allow a
  discontinuance of temporary total disability  benefits if he finds the
  "evidence does not reasonably support the proposed discontinuance,"  21 
  V.S.A. § 643a, but does not itemize the permissible grounds for
  discontinuance.  The only  statutory command appears to be that claimant
  meet the original grounds for an award of  temporary total disability
  benefits.  See id. (discontinuance statute refers to "terminating benefits 
  under either section 642 and 646," the sections specifying the grounds for
  awarding temporary  disability benefits).  In similar circumstances, we
  have held that the Commissioner has discretion  to fashion a reasonable
  policy.  See Close, 166 Vt. at 324, 693 A.2d  at 733; Bedini, 165 Vt. at 
       
 

  170-71, 678 A.2d  at 894.

       The Commissioner has done so here, distinguishing between causes that
  are  independently disabling and those that are not.  The Commissioner
  determined that "viewing  pregnancy as a normal, rather than a pathologic
  process, is the only logical way to evaluate this  case."  Thus, the
  Commissioner concluded that claimant's pregnancy was "not an injury," and 
  that her "work injury, not the pregnancy . . . account[ed] for her
  continuing disability."  We find  this distinction between pregnancy and
  injury to be a reasonable accommodation of the interests  of the employer
  and the employee that is not inconsistent with the statute.
	
       Second, to the extent the statute does establish a policy, the
  Commissioner has acted  consistent with it.  Section 642 authorizes payment
  of temporary total disability benefits where  the workplace injury "causes
  total disability for work, during such disability."  21 V.S.A. § 642.  A
  claimant may contest discontinuance of benefits unless he or she has
  "successfully returned to  work."  Id. § 643a.  The employer has the burden
  to show grounds for termination.  See Merrill  v. University of Vt., 133
  Vt. 101, 105, 329 A.2d 635, 637 (1974).  The statutes must be given a 
  liberal construction; "no injured employee should be excluded unless the
  law clearly intends such  an exclusion or termination of benefits." 
  Montgomery v. Brinver Corp., 142 Vt. 461, 463, 457 A.2d 644, 646 (1983). 

       The employer has not shown that claimant fails to meet the substantive
  standards,  particularly when they are accorded the liberal construction in
  favor of eligibility.  As the  Commissioner found, claimant's workplace
  injury disabled her from work, and her inability to  work continued up
  until the time she had the corrective surgery.

       FAHC argues that the failure to recognize the controlling effect of
  claimant's pregnancy 

 

  turns workers' compensation into a public income maintenance program. 
  Although we believe  FAHC's complaint is an overstatement of the effect of
  the Commissioner's decision, we stress  that temporary total disability
  benefits are different from permanent total disability benefits and  always
  had the features FAHC finds objectionable.  Temporary total disability
  benefits are  awarded during the worker's recuperation period until the
  worker is restored as much as possible  to functionality, as the permanent
  character of the injuries will permit.  See Fleury v.  Kessel/Duff Constr.
  Co., 148 Vt. 415, 417, 533 A.2d 1197, 1198-99 (1987).  The benefits are 
  provided as a partial substitute for wages lost during the recuperation
  period.  See Orvis v.  Hutchins, 123 Vt. 18, 22, 179 A.2d 470, 473 (1962). 
  Temporary benefits are awarded during  periods of incapacity from work
  because the claimant cannot earn wages in the former work, or  similar
  work, or in other work for which the claimant has the mentality and
  attainment.  See   Fleury, 148 Vt. at 418, 533 A.2d  at 1199.  Eligibility
  is not based solely on the physical  impairment, but also on the capacity
  to obtain work.  See Bishop v. Town of Barre, 140 Vt. 564,  571, 442 A.2d 50, 53 (1982).  Thus, the age, experience and education of the worker are 
  relevant in determining continuing eligibility for temporary total
  disability benefits.  See Fleury,  148 Vt. at 418, 533 A.2d  at 1199.

       If temporary total disability payments can be made where a
  recuperating worker cannot  find employment in view of the worker's age,
  education or experience, we see no reason that the  benefit program cannot
  accommodate a worker's pregnancy or similar condition that might delay 
  recuperation.  We do not disqualify a worker on the theory that incapacity
  to work is caused by  the worker's limited education, irrespective of the
  disabling condition, and we should treat  pregnancy similarly.

 

       Rather than responding to the income needs of the worker before it,
  FAHC would create  a hypothetically perfect worker who always makes ideal
  health and life decisions to remain  available for correction, at the
  earliest possible moment, of a disabling condition by any means  medically
  determined.  If the claimant fell short of the ideal model, the gap between
  the present  reality and the ideal model would become the cause of the
  disability and allow for termination of  temporary total disability
  benefits.  With regard to the situation before us, we agree with the  North
  Carolina Court of Appeals that such a policy "would limit the range of
  compensable  damages for all working women of childbearing age in a manner
  inconsistent with established  law."  English v. J.P. Stevens & Co., 391 S.E.2d 499, 502 (N.C. Ct. App. 1990). 

       In applying the statute, we have also looked to decisions from other
  states.  There are  few decisions on point and, as FAHC points out, we must
  be careful in applying them because  the determinative statutes vary from
  state to state.  One case, Orr v. Elastomeric Prods., 474 S.E.2d 448 (S.C.
  Ct. App. 1996) involves facts similar to those before us and a similar 
  definition of disability.  The Orr court found for the claimant reasoning
  that "[t]he fact that  [claimant's] . . . pregnancy indirectly prolonged
  the period during which she was unemployable  does not change the fact that
  her injury, not her pregnancy, rendered her unable to work."  Id. at  449. 
  We agree with this analysis.

       For the above reasons, we reject FAHC's argument that claimant's
  pregnancy was a  superseding, intervening event that broke the causal
  connection between the work-related  accident and claimant's disability. 
  The Commissioner's holding to the contrary was reasonable  and consistent
  with the statutory language.

       As its second ground for discontinuing benefits, FAHC argues that the
  temporary flare 

  

  doctrine should apply.  The Commissioner has applied this doctrine to
  apportion benefits  between employers in cases in which the claimant
  suffers a work-related accident with an  employer and the claimant's
  condition is affected by a later work-related accident with a second 
  employer.  If the injury caused by the second accident is distinct, and the
  worker's condition  returns to the baseline prior to the second accident,
  the injury caused by the second accident is a  temporary flare, and the
  second employer is responsible for paying compensation benefits until  the
  worker's condition returns to the baseline, and not thereafter.  See Pacher
  v. Fairdale Farms,  166 Vt. 626, 629, 699 A.2d 43, 47 (1997) (mem.).  FAHC
  asks that we treat claimant's  pregnancy as a temporary flare and suspend
  her benefits during the time of her pregnancy.

       FAHC invokes the temporary flare theory by analogy, acknowledging that
  prior cases  have involved allocation of benefits between employers
  pursuant to 21 V.S.A. § 662(c).  The  analogy is barely recognizable since
  claimant's pregnancy is not a work-related injury, and  FAHC is arguing for
  temporary suspension of benefits rather than an allocation of benefits 
  between employers.  We find its argument virtually indistinguishable from
  its earlier argument  that pregnancy is a superseding, intervening cause
  and reject it for the reasons stated above.  

       As a third ground for discontinuance, FAHC argues that claimant
  refused medically-indicated corrective surgery and should be denied
  benefits on that basis.  The Commissioner  ruled that the benefits could be
  discontinued only if the refusal of the surgery was unreasonable.   He
  found that, in this case, the delay in the surgery was reasonable because
  it was recommended  by claimant's physician.

       We have noted for purposes of total temporary disability benefits that
  "the lack of  opportunity to work must not be due to the servant's fault." 
  Sivret v. Knight, 118 Vt. 344, 346, 

 

  109 A.2d 495, 497 (1954).  We agree with the Commissioner that claimant's
  decision to delay  the surgery was not unreasonable in light of her
  physician's recommendation.  We do not,  therefore, believe the resulting
  delay in her employability was her "fault."  See Lee v. Koegel  Meats, 502 N.W.2d 711, 715 (Mich. Ct. App. 1993) (although claimant is responsible for 
  pregnancy, claimant does not control timing of pregnancy in relation to her
  physician's decision  to restrict her work availability);
  Macklanburg-Duncan Co. v. Wimmer, 280 P.2d 1001, 1004  (Okl. 1955)
  (decision on advice of doctor to delay treatment because of claimant's
  pregnancy   not grounds for termination of workers' compensation benefits
  because delay was not  unreasonable or arbitrary).

       Although we have considered all of the arguments FAHC initially made
  to the  Commissioner, FAHC made two additional arguments in its motion for
  reconsideration and in its  brief to this Court: (1) claimant should be
  disqualified for the time before and after delivery in  which she could not
  work; and (2) the Commissioner's decision created a special favored status 
  for pregnant claimants in violation of the common benefits clause of
  Chapter I, Article 7 of the  Vermont Constitution.  We agree with claimant
  that the first argument raises grounds outside of  the notice of
  discontinuance and not presented initially to the Commissioner.  We
  therefore do  not consider it.

       We reach the common benefits clause claim, but reject it.  Contrary to
  FAHC's claim,  we do not read the Commissioner's decision as creating a
  special status for pregnant workers.   Instead, the Commissioner applied a
  general policy not to disqualify a worker from temporary  total disability
  benefits because of a condition that delays treatment for a work-related
  disabling  condition, but is not itself disabling.  The "inquiry under
  Article 7 is whether the statute is 

 

  reasonably related to the promotion of a valid public purpose."  MacCallum
  v. Seymour's  Adm'r, 165 Vt. 452, 457, 686 A.2d 935, 937 (1996); see also
  Hodgeman v. Jard Co., 157 Vt.  461, 464-65, 599 A.2d 1371, 1373 (1991)
  (statute awarding attorneys' fees in workers'  compensation cases only to
  prevailing claimants does not offend Article 7 because employers are 
  better able to absorb their fees than claimants).  As we discussed above,
  the distinctions drawn  by the Commissioner are reasonable in light of the
  purposes of temporary total disability  benefits.  

       Because claimant has prevailed in this Court, she has sought an award
  of attorney's fees  here.  See 21 V.S.A. § 678(b) (claimant "if he or she
  prevails" is "entitled to reasonable  attorney's fees as approved by the
  court"); Coleman v. United Parcel Serv., 155 Vt. 646, 647,  582 A.2d 151,
  153 (1990) (mem.).  In the absence of opposition to the amount sought by 
  claimant, her request for an attorney's fee award of $4,563.13 is granted.

       Affirmed; claimant is awarded attorney's fees of $4,563.13.
	


	                               FOR THE COURT:



	                               _______________________________________
	                               Associate Justice
 

 

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