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

  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

  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.  

       ¶  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

       ¶  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. 

       ¶  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
       ¶  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


       ¶  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

       ¶  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


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.  

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