Crosby v. City of Burlington
Annotate this Case
Crosby v. City of Burlington (2001-271); 176 Vt. 239; 844 A.2d 722
2003 VT 107
[Filed 21-Nov-2003]
[Motion for Reargument Denied 11-Feb-2004]
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.
2003 VT 107
No. 2001-271
Paul Crosby Supreme Court
On Appeal from
v. Chittenden Superior Court
City of Burlington August Term, 2003(FN1)
David A. Jenkins, J.
Beth Robinson of Langrock Sperry & Wool, LLP, Middlebury, for
Plaintiff-Appellee.
John T. Leddy and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington,
for Defendant-Appellant.
Susan P. Ritter, Montpelier, for Amicus Curiae Vermont League of Cities and
Towns.
Joseph C. Galanes of Biggam, Fox & Skinner, Montpelier, for Amicus Curiae
Vermont Association for Mental Health.
James J. Dunn of Mickenberg, Dunn, Kochman, Lachs & Smith, PLC, Burlington,
and Kurt Rumsfeld, Washington, DC, for Amicus Curiae Professional
Firefighters of Vermont and International Association of Fire Fighters.
PRESENT: Amestoy, C.J., Johnson and Skoglund, JJ., and Allen, C.J. (Ret.)
and Gibson, J.(Ret.), Specially Assigned
¶ 1. AMESTOY, C. J. In this workers' compensation action,
defendant City of Burlington appeals from a judgment based on a jury
verdict, finding that plaintiff Paul Crosby suffered a compensable
psychological injury arising out his employment as a firefighter with the
City. The City raises two principal claims on appeal: (1) that Chapter II,
§ 70 of the Vermont Constitution precludes workers' compensation benefits
for psychological injuries unconnected to physical trauma; and (2) that the
trial court's jury instruction on the standard for determining whether such
injuries resulted from unusual workplace stress requires reversal because
it was inconsistent with the standard adopted by the Commissioner of the
Department of Labor and Industry and the purpose of the workers'
compensation law. We agree with the second contention, and therefore
reverse and remand for further proceedings consistent with the views
expressed herein.
¶ 2. Plaintiff began working for the City as a firefighter in 1975
and was promoted to the position of lieutenant in 1989. In the summer of
1994, he stopped working and sought workers' compensation benefits because
he was experiencing stress at a level greater than he could handle.
Plaintiff identified the stress causing his injury as anxiety resulting
from the collapse of a building during a May 1994 three-alarm fire and his
transfer in June 1994 from a shift he had been working since 1989. He
alleged that his reaction to the foregoing incidents triggered repressed
memories of a gruesome 1991 car fire and caused him to lose confidence in
his superiors and his ability to do his job safely.
¶ 3. Between the summer of 1994 and the spring of 1995, plaintiff
saw a number of physicians, including two psychiatrists, and a succession
of therapists who generally agreed that plaintiff was not fit to return to
duty. Several diagnosed his injury as post-traumatic-stress disorder. The
City formally terminated plaintiff in March 1995, and later denied his
claim for workers' compensation benefits. The matter was brought before
the Commissioner of the Department of Labor and Industry, who found in
favor of the City, ruling that plaintiff was not entitled to benefits
because he had failed to demonstrate that the stressful stimuli causing his
injury were objectively real and unusual.
¶ 4. In so ruling, the Commissioner noted that the diagnoses
provided by plaintiff's medical experts, in contrast to that of the City's
expert, were based on plaintiff's own subjective beliefs concerning the
danger posed by the May 1994 fire, beliefs that were contradicted by other
witnesses. In the Commissioner's view, irrespective of whether plaintiff's
injury was brought on by a sudden stimulus or cumulative stress, plaintiff
was required to demonstrate an objectively sound basis for his injury. The
Commissioner concluded that he had failed to do so. The Commissioner also
concluded that the appropriate control group to consider in determining
whether plaintiff had been subjected to unusual stress was firefighters in
general rather than all workplace employees. The Commissioner determined
that plaintiff was not entitled to workers' compensation benefits because
the evidence demonstrated that the stress he was experiencing stemmed from
normal workplace pressures related to fighting fires, being transferred,
and engaging in conflicts with his superiors.
¶ 5. Plaintiff appealed the decision and sought a de novo jury trial
in the superior court. See 21 V.S.A. § 670. Following a two-day trial,
the court instructed the jury to determine: (1) whether plaintiff had
suffered a psychological injury; (2) if so, whether the injury was caused
by factors arising from his employment; and (3) if so, whether the injury
resulted from stress that was significantly greater than that experienced
by the general population of employees. The jury answered each of the
three questions in the affirmative, and the trial court granted judgment in
favor of plaintiff. This appeal followed.
I.
¶ 6. The City first contends that the Vermont Constitution bars
plaintiff's recovery because it prohibits workers' compensation benefits
for psychological injuries unconnected with physical trauma. We disagree.
¶ 7. In relevant part, Chapter II, § 70 of the Vermont Constitution
provides that the "General Assembly may pass laws compelling compensation
for injuries received by employees in the course of their employment
resulting in death or bodily hurt." The City argues that the plain meaning
of the phrase "bodily hurt," particularly when considered in its historical
context, is that the Legislature may authorize workers' compensation
benefits only for injuries having a physical component. In support of this
position, the City notes that at the time § 70 was added to the Vermont
Constitution in 1913, the Vermont House of Representatives reported that
workers' compensation would be allowed only for "violence to the physical
structure of the body," Journal of the House of the State of Vermont,
Biennial Session, at 1034 (February 20, 1913), and compensation for mental
injuries unconnected to physical trauma was virtually unknown in Vermont
negligence law. See Nichols v. Central Vt. Ry. Co., 94 Vt. 14, 18, 109 A. 905, 907 (1919) (citing contemporary authority for the doctrine that, in
absence of statute, no recovery for mental suffering without attendant
physical injury is available in ordinary actions for negligence).
¶ 8. We find the constitutional argument unpersuasive. The phrase
on which the City relies - "violence to the physical structure of the
body" - is taken from an amendment to a House bill that failed to pass the
Senate. See Journal of the House of the State of Vermont, Biennial
Session, at 1033-34 (Feb. 20, 1913); Journal of the Senate of the State of
Vermont, Biennial Session, at 972-73 (Feb. 21, 1913). Even if we assumed
that the language in question barred awards for psychological injuries, but
cf. Bailey v. Am. Gen. Ins. Co., 279 S.W.2d 315, 318-19 (Tex. 1955) (court
construed phrase "physical structure of the body" to include any harm to
person), the provisions of a defeated statute can hardly be relied upon to
support the interpretation of a completely separate constitutional
amendment.
¶ 9. As for the actual text of § 70, "bodily hurt," we agree with
the City that we must consider the language in historical context, but we
arrive at a different conclusion from that urged by the City. 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. W. Flint, The Progressive Movement in Vermont,
"Labor Obtains a Workmen's Compensation Act," at 86-87 (Am. Council on
Public Affairs, Washington, D.C., 1941). These concerns were fueled by a
1911 decision of the New York Court of Appeals striking down New York's
fledgling workers' compensation law. Id.; see Ives v. South Buffalo Ry.
Co., 94 N.E. 431 (N.Y. 1911). 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.
¶ 10. The City does not argue that the Legislature intended the term
"personal injury" in 21 V.S.A. § 618 to require physical injury or to
exclude psychological injury unconnected to physical trauma. Rather, the
City would have us hold that such claims are prohibited based on a 1913
constitutional amendment that was added to the Vermont Constitution to
assure the survival of the workers' compensation statute, not to restrict
its reach. Absent any more persuasive evidence, we decline to so hold.
II.
¶ 11. The City next contends the trial court erred by instructing
the jurors that they should consider the "general population of employees"
in determining whether plaintiff was subjected to unusual work-related
stress. To understand the claim, a brief review of the legal background is
instructive. Our workers' compensation statute requires employers to
compensate "a worker [who] receives a personal injury by accident arising
out of and in the course of employment." 21 V.S.A. § 618(a)(1). In
analyzing whether an injury qualifies under workers' compensation law as an
accidental personal injury arising out of and in the course of employment,
courts and commentators have divided claims into four general categories:
(1) physical injury caused by physical stimulus; (2) physical injury caused
by mental stimulus; (3) nervous injury caused by physical stimulus; and (4)
nervous injury caused by mental stimulus. See 3 A. Larson, Larson's
Workers' Compensation Law § 56.01, at 3 (2000). This case indisputably
falls within the latter group, often described as "mental-mental" claims.
¶ 12. At least twenty-nine states provide workers' compensation
coverage for mental-mental claims, and fifteen do not. Id. § 56.06[3]-[4],
at 52. Of the states that accept mental-mental claims, some require no
more of a showing than that required of claims for physical injuries,
others require a showing that the psychological injury resulted from a
sudden stimulus, and still others require a showing that the stress was
unusual when compared with one or another control group. Id. §
56.06[2]-[7], at 51-53. Some state legislatures, in the face of court
decisions establishing liberal standards for mental-mental claims, have
amended their workers' compensation laws to limit such claims through a
variety of means, such as requiring a set amount or type of stress, raising
the standard of causation, increasing the burden of proof, imposing
specific diagnostic guidelines, limiting the amount of benefits, or even
excluding benefits altogether. Id. § 56.06[1][a]-[b], at 47-51.
¶ 13. The only case in which this Court has dealt with a
mental-mental claim is Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996).
There the claimant was a medical receptionist who had worked at her job for
less than a year before leaving because of job-related stress. The
Commissioner denied her claim for workers' compensation benefits, finding
that she had not been subjected to unusual working conditions, and we
affirmed that decision. In so holding, we acknowledged that § 618 does not
expressly differentiate between physical and mental injuries, but
nonetheless deferred to the Commissioner's decision to adopt an
unusual-stress standard for mental-mental claims based on "reasonable
policy concerns." 165 Vt. at 169, 678 A.2d at 894. These included the
Commissioner's finding that medical authorities often disagree on "the
precise etiology of most mental disorders," that many sources outside of
the employment setting - including culture, heredity, social environment,
and family relationships - may cause or contribute to psychological
injuries, and that medical opinions relating to the cause of such injuries
are often based on the claimant's subjective viewpoint. Id. An
unusual-stress standard permits "a more objective inquiry" into the cause
of the mental injury, id., protects against fraudulent claims, and
"prevent[s] the conversion of workers' compensation into general health
insurance." Id. at 170, 678 A.2d at 894.
¶ 14. Although the Commissioner in Bedini had expressed the
unusual-stress standard in terms requiring that the applicant experience "a
significantly greater dimension [of stress] than the daily stresses
encountered by all employees," id at 169, 678 A.2d at 894, she did not
delineate with care the control group of "all employees" whose daily
stresses were to be compared with the applicant's, nor did we address the
issue. As Justice Johnson explained in her dissent, however, unusual
workplace stress has been measured in at least three different ways. Id.
at 173, 678 A.2d at 896 (Johnson, J., dissenting). One approach requires
claimants to show that they were subjected to unusual pressures compared to
other employees in the same workplace with similar responsibilities;
another approach measures the pressures experienced by a claimant against
those encountered by all employees doing the same job, sometimes referred
to as the Wyoming approach; and a third approach requires a showing that a
claimant experience pressures of a significantly greater dimension than
those generally encountered by all employees in a working environment,
often referred to as the Wisconsin approach. Id.; see. 2 A. Larson, supra,
§ 44.05[4][d], at 52-56 (in determining whether claimant was subjected to
unusual stress, courts may compare stress encountered by claimant with
similar employees' normal strains, strains of employment life in general,
or strains of everyday nonemployment life). (FN2)
¶ 15. The second approach - measuring the claimant's stress against
that of all other workers performing the same job - is the standard
advocated by the Commissioner in this case, and, while the Department's
decisions have not been a model of consistency, it is the approach the
Commissioner has generally applied to determine whether an applicant's
work-related pressures meet the unusual-stress standard. For example, in
Cross v. Vermont Dep't of Pub. Safety, Op. No. 27-94WC, at 6 (Aug. 1,
1994), decided prior to Bedini, the Commissioner rejected the applicant's
claim for benefits resulting from stress-related mental injuries, noting
that the applicant had "failed to establish that in relation to other
similarly situated employees the burdens upon her were greater than they
were upon them." In Bedini, as noted, the Commissioner's denial of
benefits was based in part on a factual finding that other workers in the
claimant's office were subjected to similar stresses.
¶ 16. The Commissioner's decisions since Bedini have not always
clarified whether the control group of similarly situated employees
includes all workers in similar jobs regardless of employer, or all workers
employed in similar jobs by the same employer, but none appears to have
applied a "working world at large" standard. In Estate of Fatovich v.
Burlington Free Press, Op. No. 19-97WC, at 8 (July 29, 1997), for example,
the Commissioner rejected the applicant's claim for injuries from
work-related stress, observing that the employee's psychological distress
was not caused by "stressful work events which were greater than the stress
experienced by similarly situated employees." Similarly, in Bell v. EHV
Weidman, Op. No. 03-01WC, at 11 (Feb. 5, 2001), the Commissioner - citing
Bedini - observed that an applicant claiming mental injury from workplace
stress must demonstrate "that the stress is of significantly greater
dimension than the daily stresses encountered by similarly situated
employees." Again, in DuBuque v. Grand Union Co., Op. No. 34-02WC, at 11
(Aug. 20, 2002), the Commissioner found that a claimant seeking benefits
for mental injury resulting from work-related stress had failed to prove
that "the stress is of significantly greater dimension than the daily
stresses encountered by similarly situated employees." And in a case
involving a firefighter claiming mental injury from a stressful work
environment, the Commissioner specifically found that the claimant had not
demonstrated work-related stresses "that were of a significantly greater
dimension than the daily stresses encountered by other firefighters."
Gallipo v. City of Rutland, Op. No. 22-00WC, at 7 (July 12, 2000).
¶ 17. Thus, in this - as in most recent decisions - the Commissioner
has applied the unusual-stress standard to require a comparison of
claimant's stress to that of other similarly situated employees performing
the same or similar work. The Commissioner's approach is hardly unique.
Although new to this Court, the question of the proper control group to be
used for purposes of assessing whether an applicant's work-related stress
is unusual has been extensively explored by other courts and commentators.
Justice Johnson cogently summarized the three basic approaches in her
Bedini dissent; one requires a showing that the claimant suffered greater
than normal stress as compared to all workers in general; a second compares
the claimant's stress to other workers in the same workplace with similar
responsibilities; and a third measures the claimant's stress as against
other similarly situated employees, regardless of employer. Bedini, 165
Vt. at 173, 678 A.2d at 896-97 (Johnson, J., dissenting); see generally 2
A. Larson, supra, § 44.05[4][d], at 52-53; Graves v. Utah Power & Light
Co., 713 P.2d 187, 192 (Wyo. 1986) (discussing basic approaches for
applying unusual-stress standard). (FN3)
¶ 18. Although a few courts have adopted the so-called Wisconsin
standard that compares a claimant's stress to the daily strains which all
employees must experience, see, e.g., Townsend v. Me. Bureau of Pub.
Safety, 404 A.2d 1014, 1019 (Me. 1979); School Dist. # 1, Vill. of Brown
Deer v. Dep't of Indus., Labor & Human Relations, 215 N.W.2d 373, 377-78
(Wis. 1974), others have specifically rejected it in favor of the Wyoming
standard that looks to the "day-to-day mental stresses experienced by other
workers employed in the same or similar jobs." Graves, 713 P.2d at 193;
accord Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 858 (Iowa 1995)
(employee must establish that mental injury was caused by workplace stress
of greater magnitude "than the day-to-day mental stresses experienced by
other workers employed in the same or similar jobs"); Williams v. DePaul
Health Ctr., 996 S.W.2d 619, 628 (Mo. Ct. App. 1999) ("[w]e are persuaded
that the proper comparison . . . is to compare Employee's work-related
stress with the stress encountered by employees having similar positions,
regardless of employer"); see also McClain v. Texaco, Inc., 780 S.W.2d 34,
37 (Ark. Ct. App. 1989) (holding that "ultimate test is whether the stress
constitutes an abnormal working condition for that type of employment,"
rather than claimant's co-workers); Southwire Co. v. George, 470 S.E.2d 865, 870-71 (Ga. 1996) (Sears, J., specially concurring) (plurality in
dictum urges adoption of Wyoming over Wisconsin standard for reasons set
forth in Dunlavey, 526 N.W.2d at 857-58); Davis v. Workmen's Comp. Appeal
Bd., 751 A.2d 168, 177 (Pa. 2000) (for work conditions to be considered
abnormal, " 'they must be considered in the context of the specific
employment' ") (quoting Wilson v. Workmen's Comp. Appeal Bd., 669 A.2d 338,
343 (Pa. 1996)).
¶ 19. Sound policy reasons support such an approach. As noted,
Bedini itself was based on a recognition that purely psychological injuries
may result from so many "diverse factors" that "a high degree of
uncertainty exists in the diagnosis of cause." 165 Vt. at 169, 678 A.2d at
894. It is precisely this uncertainty of origin that has persuaded many
courts and commentators to conclude that the optimum control group for
determining unusual stress is that of other similarly situated employees in
the same or similar jobs. In contrast to the broad "all employees"
standard, which the court in Graves aptly noted is "too amorphous to be
practical," 713 P.2d at 193, or the narrow class of workers with the same
employer, which may be too limiting where the business has few employees,
see Dunlavey, 526 N.W.2d at 857, a control group comprised of similarly
situated workers in the same general field provides a relatively precise,
fair, and empirically workable standard.
¶ 20. A control group comprised of the "working world" would offer
little in the way of assuring the validity of claims. It is difficult to
imagine that a claimant or employer under an "all employees" rubric would
not be able to produce some witness from the workplace whose "work-related
stress is either significantly less or significantly greater than the
stress experienced by the claimant." N. Riley, Mental-Mental Claims:
Placing Limitations on Recovery Under Workers' Compensation for Day-to-Day
Frustration, 65 Mo. L. Rev. 1023, 1043 (2000). Such a moveable standard
could defeat the very purpose of the unusual-stress requirement, which is
to ensure compensation for deserving claimants while simultaneously
protecting against "fraudulent claims and prevent[ing] the conversion of
workers' compensation into general health insurance." Bedini, 165 Vt. at
170, 678 A.2d at 894. As the court in Dunlavey explained: "By comparing
the stresses endured by similarly situated employees, the Wyoming standard
provides the employees with compensation for legitimate work related
injuries while at the same time limits the employers' liability to injuries
caused by its industry." 526 N.W.2d at 857.
¶ 21. The similarly-situated standard also offers the practical
advantage of allowing both parties to focus on producing evidence of actual
employment conditions in a specific field, "rather than trying to take into
account the level of stress placed on the workplace as a whole." Riley,
supra, 65 Mo. L. Rev. at 1043. This has the added benefit of promoting
consistency among similar cases; an all-employees test, in contrast, could
result in dissimilar outcomes depending upon the stress levels in the
at-large employment context on which the parties choose to focus. See G.
Dawes, Eligibility for Workers' Compensation in Cases of Nontraumatic
Mental Injury: The Development of the Unusual Stress Test in Wisconsin,
1987 Wis. L. Rev. 363, 372 (1987) (different results could occur where
"each court focuses on the stresses present in a different context of daily
life").
¶ 22. These various advantages have led commentators to conclude
that the similarly-situated standard provides a "realistic and balanced
test of legal causation," M. Duckworth & T.Eick, Recent Developments in
Mental/Mental Cases Under the Iowa Workers' Compensation Law, 45 Drake L.
Rev. 809, 837 (1997), that is "superior to the other comparison standards."
Riley, supra, 65 Mo. L. Rev. at 1043. The result, to be sure, may be that
some employees in high-stress jobs will fail to establish claims where
other workers, confronted with similar strains, might succeed. By its
nature, however, the unusual-stress test "is necessarily underinclusive."
Dawes, supra, 1987 Wis. L. Rev. at 373. Bedini established that not every
employee who suffers mental injury from workplace stress will recover; to
establish the requisite causal nexus between psychological injury and
workplace stress a claimant must meet a heightened standard of proof
premised upon a showing of unusual stress. 165 Vt. at 169-70, 678 A.2d at
894. By focusing on the conditions and pressures endemic in the
claimant's specific field of employment, the Commissioner does not
undermine the purpose of the workers' compensation law - as plaintiff
asserts - but rather serves that purpose by ensuring that only genuine
claims for workplace stress are compensated.
¶ 23. Although the similarly-situated standard thus enjoys the
support of the Commissioner, commentators in the field, and other states,
plaintiff asserts that it is predicated on the discredited doctrine of
"assumption of the risk." Plaintiff is mistaken. It is fair to measure a
claimant's stress by the conditions normal to his or her field or
profession not because the claimant implicitly "assumes" the risks of
employment, but rather because it is reasonable to assume that the claimant
is prepared to deal with the normal strains of his or her occupation
through training, temperament, and experience. Thus, the standard does not
prejudice workers in high-stress fields, or benefit workers in low-stress
occupations, but "allows for a uniform application of a legal standard
across the wide spectrum of all jobs." Duckworth & Eick, supra, 45 Drake
L. Rev. at 837.
¶ 24. While other approaches are certainly possible, the
Commissioner's reliance on a control group comprised of "similarly
situated" employees is well supported by established authority and sound
policy. Therefore, under our traditionally deferential standard of review
the Commissioner's approach is entitled to control. See In re Duncan, 155
Vt. 402, 408, 584 A.2d 1140, 1144 (1990) (absent compelling indication of
error, interpretation of statute by administrative body responsible for its
execution will be sustained on appeal). We hold, therefore, that the trial
court erred in instructing the jury to determine whether plaintiff's stress
was unusual as compared with the general population of employees, rather
than with all other employees performing similar work. Accordingly, the
judgment must be reversed.
¶ 25. The parties raise several additional claims that require
little discussion. The City urges an unusual-stress rule that would bar
any claim for injuries sustained in the performance of duties within the
claimant's job description. The City cites no persuasive authority for
such a rule, which we reject as inflexible and unnecessary to serve the
purposes of the unusual-stress standard. The City also contends the
"working world" standard contained in the trial court instruction violates
the Common Benefits Clause, Vt. Const., ch.I, art. 7, by treating
dissimilar employees the same. Our holding renders this argument moot.
Finally, plaintiff asserts on cross-appeal that regardless of the
applicable control group, there was no need to give an unusual-stress
instruction because his injuries were the result of a "sudden stimulus."
See 3 Larson, supra, § 56.04[2-7] (discussing distinction some courts have
drawn between injuries caused by sudden stimulus and those caused by
cumulative stress). We need not address the question, however, as the
record shows that plaintiff's psychological injury claim had several
sources, including personnel problems unrelated to the 1991 and 1994
fires, and we therefore find no error in the instruction.
The judgment is reversed, and the matter is remanded for further
proceedings consistent with the views expressed herein.
FOR THE COURT:
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Dissenting
¶ 26. JOHNSON, J, dissenting. The majority opinion not only lacks
support in the workers' compensation statute, but it interprets that
statute in a way that disadvantages workers who perform society's most
dangerous and often most critical jobs. The claimant in this case was
employed as a firefighter. After nineteen years on the job, he terminated
his employment and filed a compensation claim because he was experiencing
an intolerable level of stress and anxiety related to his work. The
Commissioner of Labor and Industry acknowledged that claimant's injury was
caused by workplace pressures, but nonetheless denied the claim on the
ground that the pressures were typical of those encountered by all
firefighters. In other words, claimant should have been able to tolerate
any stress suffered from the day-to-day work of fighting fires. Following
a de novo trial in the superior court, the jury concluded in special
interrogatories that claimant's stress was work-related and that claimant
was entitled to workers' compensation benefits because his psychological
injury resulted from stress significantly greater than that typically
encountered in the general workplace. On appeal to this Court, the
majority acknowledges, as it is bound to do, that claimant's injury is
work-related. Nevertheless, the majority refuses to uphold the jury's
award because the trial court did not instruct the jury that, to prove
causation, a firefighter must demonstrate that the claimed injury resulted
from extraordinarily stressful events compared to those typically
encountered by other firefighters. In so holding, the majority decision
sets forth an entirely new policy direction that is inconsistent with our
statute mandating that workers be compensated for work-related injuries.
Accordingly, I respectfully dissent.
¶ 27. The governing statute, 21 V.S.A. 618(a)(1), provides for
compensation to any worker who "receives a personal injury by accident
arising out of and in the course of employment." The majority acknowledges
that the term "personal injury" includes a mental disorder or disability
arising from workplace experiences, whether or not caused by physical
trauma. The statute requires only that the injury be work-related; it does
not require any additional proof of causation for mental stress claims.
The test that the majority adopts to reverse the jury verdict is employed
by the Commissioner to ferret out fraudulent claims and to assure that
workers claiming mental injuries have been injured as the result of stress
caused by work - a fact that is not in doubt in this case. Thus, the test,
which is merely a tool to aid the Commissioner in determining a difficult
factual question, is being used to deny the claim in a case where we know
the injury is work-related. The tail is wagging the dog.
¶ 28. Nor do I find persuasive the majority's position that it is
fair to adopt a higher standard of causation, one that makes it more
difficult for emergency personnel to establish stress-related claims,
because persons in stressful occupations should be able to cope with the
greater strains of their occupation through training, temperament, and
experience. Like all of us, those working as police officers, firefighters
and other emergency personnel are human beings susceptible to stress, and,
invariably, some of them will suffer work-related injuries because of that
stress. When they do, our law entitles them to compensation. It may well
be that emergency personnel will submit more stress-related claims than
office workers. So be it. It is beyond our role, or that of the
Commissioner, to rewrite the law in an attempt to limit the number of
claims filed or to prevent the workers' compensation system from becoming
a "general health insurance program," as the majority fears.
¶ 29. Notwithstanding the majority's contentions to the contrary,
today's decision is not compelled by our prior case law or by any
deferential standard of review that we have applied to the Commissioner's
decisions in the past. Until today, the only time that this Court has
addressed a mental stress claim is in Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996), where we upheld the Commissioner's denial of a medical
receptionist's stress-related claim. The sole issue on appeal in that case
was whether we should defer to the Commissioner's standard requiring those
making so-called mental-mental claims to " 'show that the stresses at work
were of a significantly greater dimension than the daily stresses
encountered by all employees.' " Bedini, 165 Vt. at 169, 678 A.2d at 894
(quoting Commissioner). We deferred to the Commissioner's heightened
standard for mental-mental claims - even though the statute does not
distinguish between mental and physical injuries - because there was a
reasonable basis for concluding that the standard furthered the purpose of
Vermont law to compensate workers only for work-related personal injuries.
We acknowledged "that the precise etiology of most mental disorders is
inexplicable," and that because of the diverse factors that may cause
mental illness, diagnosing cause is a highly uncertain task. Id. We
emphasized that requiring mental-mental claimants to show that they were
subjected to unusually stressful working conditions would create more
objectivity in determining causation, particularly "because the claimant's
subjective impression that work-related stress caused [the] injury often
forms the basis for the medical opinion that the injury was caused
primarily by work-related stress." Id. at 169-70, 678 A.2d at 894.
¶ 30. In short, in Bedini, we concluded that the policy objectives
underlying our workers' compensation law - to restrict benefits to
work-related injuries - supported the Commissioner's decision to require
mental-mental claimants to show that they had been subjected to unusually
stressful working conditions "of a significantly greater dimension than the
daily stresses encountered by all employees." Id. In this case, the
superior court instructed the jury using precisely the same language that
we accepted in Bedini. Nevertheless, the majority now concludes that we
never addressed what the control group should be under the unusual-stress
standard, and that, to the extent that the Commissioner and this Court in
Bedini articulated an "all employees" control group, a different control
group - "all similarly situated employees" - was really intended. In
support of these contentions, the majority cites other decisions by the
Commissioner invoking the "similarly situated employees" standard, as well
as my dissent in Bedini.
¶ 31. Neither the Commissioner's prior or subsequent decisions nor
my dissent in Bedini support the majority's position. To apply the
unusual-stress standard, there must be some control group - the standard
cannot exist in a vacuum. In determining whether unusual stressors existed
at work, the question must be answered - unusual in what context? As I
repeatedly emphasized in my dissent in Bedini, the Commissioner in that
case had "articulated," "adopted," and "chosen" the broad Wisconsin "all
employees" standard, but had actually considered criteria inconsistent with
that standard. See id. at 172-74, 678 A.2d at 896-97 (Johnson, J.,
dissenting). The main thrust of the dissent, however, was my concern that
the Commissioner had exceeded her statutory authority by employing any kind
of heightened standard for mental-mental claims, given that our workers'
compensation law did not distinguish between physical and mental injuries.
See id. at 175, 678 A.2d at 897 (Johnson, J., dissenting). In any event,
my dissent in Bedini certainly made the Court aware of the various control
groups - including the "similarly situated employees" control group adopted
today - that had been followed by other jurisdictions. See id. at 173, 678 A.2d at 896 (Johnson, J., dissenting) (delineating different approaches).
(FN4) Nevertheless, the majority in Bedini simply adopted the "all
employees" standard articulated by the Commissioner in that case.
¶ 32. Further, although the Commissioner in Bedini considered
criteria inconsistent with the "all employees" control group she
articulated, there is little doubt that she intended to apply that control
group. The Commissioner cited three prior decisions in support of its
application of the "all employees" control group. The earliest was a 1985
case in which the Commissioner first determined that mental-mental injuries
were covered under Vermont's workers' compensation act. See Hannon v.
Woodstock Inn, Op. No. 19-85WC, at 7 (Apr. 22, 1986). In that case, the
Commissioner concluded that there was no logical basis for distinguishing
between physical and emotional disability, and that the governing statute
did not make any such distinction. Id. The Commissioner determined that
the standard for accepting mental-mental claims should not be any more
restrictive than for claims based on physical injuries, but that awards for
mental-mental injuries could not be based solely on the claimant's
subjective perceptions. Id. at 7-8. In the second decision, however, the
Commissioner required those seeking compensation for non-traumatic
mental-mental work-related injuries to show that the injury resulted "from
an employment situation of clearly greater dimension than the day-to-day
emotional strain and tension experienced by an ordinary employee or there
must be no other possible causes for the claimant's mental injury, except
for the tensions of the workplace." Wilson v. Quechee Lakes Landowners
Ass'n, Op. No. 9-87WC, at 6 (Nov. 4, 1987) (emphasis added). In the third
decision, the Commissioner applied the same "all employees" standard
articulated in Wilson. See Mazut v. Gen. Elec. Co., Op. No. 3-89WC, at 8
(Oct. 26, 1990).
¶ 33. For the most part, the majority cites more recent decisions by
the Commissioner to support its conclusion that, in Bedini, the
Commissioner was not really adopting the standard that she stated she was
adopting. It may be that the Commissioner's decisions have evolved to
apply a "similarly situated employee" control group, but that does not
change the fact that (1) the Commissioner in Bedini articulated the "all
employees" control group; (2) this Court adopted that standard; and (3) the
trial court in this case properly instructed the jury on that standard.
¶ 34. Nevertheless, because the majority prefers the Commissioner's
current policy approach, it now concludes that this Court must defer to the
Commissioner's ever-evolving and more exclusive control group. I strongly
disagree. We owe the Commissioner no deference in such circumstances. See
Martin v. Dep't of Motor Vehicles, 2003 VT 14, 8, 15, 819 A.2d 742
(administrative bodies have only adjudicatory authority conferred upon them
by statute; administratively adopted regulations that compromise intent of
authorizing statute will not be upheld).
¶ 35. I reiterate that, in Bedini, we deferred to the Commissioner's
judgment only because we found that the heightened standard for
mental-mental claims adopted in that case furthered the statute's goal of
providing relief for only work-related injuries. Id. at 169-70, 678 A.2d
at 894. The rationale underlying the unusual-stress standard is that
requiring employees to show that their mental-mental injuries resulted from
pressures of a significantly greater dimension than those generally
encountered in the workplace will help to assure that workers' compensation
benefits are limited to legitimate work-related claims. See Sch. Dist. #
1, Vill. of Brown Deer v. Dep't of Indus., Labor & Human Relations, 215 N.W.2d 373, 377-78 (Wis. 1974).
¶ 36. The same cannot be said, however, of the standard adopted by
the majority today. I fail to see how requiring employees to demonstrate
that the pressures they experienced exceeded the level typically
encountered by other similarly situated employees helps to assure that
work-related injuries, and only work-related injuries, are compensated. In
my view, such a standard is both overinclusive - in that it tends to allow
more claims involving mental-mental injuries of questionable origin in
low-stress occupations - and underinclusive - in that it tends to exclude
legitimate claims of work-related mental-mental injuries in high-stress
jobs. See Bedini, 165 Vt. at 173, 678 A.2d at 896 (Johnson, J.,
dissenting) (applying standard that compares similarly situated employees
would be unfair because workers in low-stress jobs could meet standard
easily, while persons in particularly stressful occupations would rarely be
able to show unusual stress).
¶ 37. The instant case underscores that the control group adopted by
the majority is underinclusive. The City does not challenge the
sufficiency of the evidence supporting the jury's conclusions that
plaintiff suffered a psychological injury, that the injury was caused by
work-related stress, and that the stress causing the injury greatly
exceeded that typically encountered by the general population of workers.
Hence, it is difficult to see why claimant's injury should not be
compensable under § 618(a)(1), which "guarantees workers a remedy for a
work place injury." Gerrish v. Savard, 169 Vt. 468, 470, 739 A.2d 1195,
1197 (1999). A standard that would award compensation to a clerical worker
who suffered a nervous breakdown after escaping from a burning building,
but would deny benefits to a firefighter who suffered a nervous breakdown
from fighting the very same fire - simply because firefighters typically
experience such stressful stimuli, while clerks do not - violates the
underlying purpose of our workers' compensation law to provide relief to
all employees who have suffered work-related accidental injuries.
¶ 38. Examining cases in other jurisdictions that have adopted the
"similarly situated employees" control group vividly demonstrates how
difficult it can be for workers in high-stress jobs to obtain workers'
compensation benefits for mental-mental claims, even when those claims are
plainly based on work-related injuries. For example, in City of Phila. v.
Workers' Comp. Appeal Bd., 728 A.2d 938, 940 (Pa. 1999), a divided
Pennsylvania Supreme Court applied such a control group in upholding a
determination that a police officer who was indicted on manslaughter
charges and subjected to intense media publicity before eventually being
acquitted of shooting and killing an unarmed individual had not experienced
abnormal working conditions so as to entitle him to workers' compensation
benefits for his psychological injury. In Vermont, what level of tragedy
will have to occur before firefighters or other emergency personnel will be
able to obtain compensation for disabling workplace stress?
¶ 39. Undoubtedly, workers in high-stress occupations are going to
suffer more work-related psychological injuries than workers in low-stress
occupations, just as workers in certain types of jobs will be more likely
to suffer back injuries than workers in other jobs. But there is no
indication that the Legislature intended to preclude compensation for
mental-stress injuries suffered by firefighters, police officers, and other
workers in high-stress occupations because of greater expectations as to
their ability to withstand stress. The principle of assumption of risk has
no place in our no-fault workers' compensation law. See Gerrish, 169 Vt.
at 470, 739 A.2d at 1197 (Vermont's workers' compensation law represents
public policy compromise in which employee gives up right to sue employer
in tort, and employer assumes strict liability for work-related injuries).
The fact that emergency personnel are carefully screened before being hired
and are trained to deal with the heightened daily stress they encounter on
the job does not preclude them from receiving workers' compensation
benefits when they suffer a mental injury notwithstanding the screening and
training. Undoubtedly firefighters are trained in many areas, including
how to avoid being burned. Yet, when they are burned on the job despite
the training, they receive compensation. The same should be true when the
injuries are psychological rather than physical.
¶ 40. The City expresses concerns that allowing mental-mental
claims without requiring workers in stressful occupations to show that they
experienced pressures beyond that normally encountered by other similarly
situated workers has the potential to create an early pension system for
such workers, at the expense of the workers' compensation system. But
those are the types of complex policy considerations that the Legislature
is better suited to consider. See Hillerby v. Town of Colchester, 167 Vt.
270, 276, 706 A.2d 446, 449 (1997). As it stands now, the unusual-stress
standard is being applied administratively in Vermont in a manner that
thwarts the stated policy of our workers' compensation law to compensate
workers for work-related injuries, irrespective of whether those injuries
have a physical or psychological origin. Absent a statutory amendment, the
Commissioner may not implement the workers' compensation statute by
limiting mental-mental claims in an effort to reduce the cost of insurance,
rather than to ensure that benefits are being conferred for only
work-related claims.
¶ 41. Some jurisdictions with statutes similar to ours do not
require any additional showing of causation for workers claiming
mental-mental injuries. See 2 A. Larson, Larson's Workers' Compensation
Law § 44.05[4][d][iii], at 56-57 (2000). Other jurisdictions have imposed
the unusual-stress standard using an "all employees" control group,
notwithstanding the potential difficulty in determining whether the claimed
injury was caused by unusual pressures when compared with those experienced
by all employees. See, e.g., Me. Rev. Stat. Ann. tit. 39-A, § 201(3)(A)
(work-related mental injury is not compensable unless it is shown by clear
and convincing evidence that stress was "extraordinary and unusual in
comparison to pressures and tensions experienced by the average employee").
In Bedini, we deferred to the Commissioner's decision to adopt the latter
approach despite the absence of explicit statutory authority, but I would
decline to allow further administratively imposed restrictions that are
inconsistent with the fundamental underlying purpose of our statute to
compensate workers for work-related injuries. See St. Paul Fire & Marine
Ins. Co. v. Surdam, 156 Vt. 585, 590, 595 A.2d 264, 266 (1991) ("[O]ur
workers' compensation statute is remedial and must be liberally construed
to provide injured employees with benefits unless the law is clear to the
contrary.").
¶ 42. Ultimately, our Legislature may choose to enact a detailed
workers' compensation law that imposes explicit and detailed limitations
pertaining to mental-mental claims, as some other jurisdictions have done.
Until then, I would hold the line at Bedini and allow the Legislature to
weigh the complex policy considerations involved in determining whether,
and if so how, to limit mental-mental workers' compensation claims.
____________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. This appeal was originally argued in March 2002, and then resubmitted
on briefs in August 2003 following the retirement of Justice Morse and the
recusal of Justice Dooley from the case.
FN2. Although plaintiff here claims that Bedini adopted the
"all-employees-in-the-workforce" standard, our opinion was concerned solely
with whether the workers' compensation statute supported the Commissioner's
decision to "differentiate between physical and mental injuries" by
adopting an unusual-stress standard. 165 Vt. at 170, 678 A.2d at 894. To
assert that Bedini resolved the complex control-group issue without comment
or discussion strains credulity. If anything, however, the Commissioner's
broad reference in Bedini to "all employees" masked a decision to utilize a
much narrower control group composed of similarly situated employees of the
same employer. See Graves v. Utah Power & Light Co., 713 P.2d 187, 192
(Wyo. 1986) (the "'all employees' standard could be based upon three
different groups," a worker's "fellow employees" doing the same or similar
job, workers generally in the same job, or the "working world at large").
As Justice Johnson observed in her dissent, while the Commissioner had
"articulated" a standard based on "all employees," the approach that came
"closest to what the Commissioner ha[d] actually done" utilized a control
group of "other employees in the same workplace with similar
responsibilities." Bedini, 165 Vt. at 173, 678 A.2d at 896 (Johnson, J.,
dissenting). Thus, by adopting the Commissioner's approach, it is at least
arguable that Bedini endorsed the most narrow control group of the three.
This is the conclusion, in fact, of the preeminent workers' compensation
authority, who has categorized Bedini as a case requiring the claimant to
"show that his or her stresses at work were significantly greater than the
stress levels affecting co-employees." 3 A. Larson, Larson's Workers'
Compensation Law § 56.06D[6], at 143 (2000). It is clear to us, however,
that Bedini did not actually address or decide the control-group issue.
FN3. Still another approach is to compare the claimant's stress with the
strains of everyday non-employment life in general. See 2A Larson, supra,
§ 44.05[4][d] at 53.
FN4. In discussing the various control groups adopted in other
jurisdictions, I noted some of the problems inherent to each group,
including the "all employees" group. See Bedini, 165 Vt. at 173, 678 A.2d
at 896-97 (Johnson, J., dissenting). Nevertheless, my view was, and still
is, that the Legislature, not the Commissioner or this Court, should weigh
the complex policy considerations involved in determining whether and, if
so, how to limit mental stress claims.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
