Sanz v. Douglas Collins Construction

Sanz v. Douglas Collins Construction (2005-117); 180 Vt. 619; 910 A.2d 914

2006 VT 102

[Filed 04-Oct-2006]

                                 ENTRY ORDER

                                 2006 VT 102

                      SUPREME COURT DOCKET NO. 2005-117

                             FEBRUARY TERM, 2006


  Antonio Sanz                         }         APPEALED FROM:
                                       }
                                       }
       v.                              }         Commissioner of Labor & 
                                       }         Industry
                                       }  
  Douglas Collins Construction         }
                                       }         DOCKET NO. L-14865


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


       ¶  1.  Claimant Antonio Sanz appeals the Commissioner of Labor and
  Industry's denial of his request for a lump sum payment of his permanent
  total disability (PTD) workers' compensation benefits.  The Commissioner
  concluded that a 2000 amendment to 21 V.S.A. § 652 allowing PTD benefits to
  be paid in a lump sum was a substantive change to the law that could not be
  given retroactive effect.  Claimant argues that the Commissioner erred in
  not applying the statute as amended.  We affirm.

       ¶  2.  The relevant facts of this case are not disputed.  Claimant
  was seriously injured on January 30, 1998, when, in the course of his
  employment with Douglas Collins Construction ("employer"), he hit his head
  on a ceiling rafter and fell fifteen feet from the top of a ladder. 
  Claimant's injuries include incomplete quadriplegia with central spinal
  cord syndrome leaving him permanently and totally disabled. 

       ¶  3.  In April of 2003, employer's independent medical examiner
  placed claimant at his medical end result and assessed claimant with a 60%
  whole person impairment.  The parties disputed the severity of claimant's
  permanent disability and, on February 3, 2004, claimant filed notice and an
  application for a hearing on the issue.  On August 20, 2004, employer
  agreed to permanent total disability benefits, entitling claimant to at
  least 330 weeks of benefits, 21 V.S.A. § 645(a), but would not agree to pay
  those benefits in a lump sum as claimant requested.  Employer's insurance
  carrier has been paying claimant's PTD benefits weekly, at a current rate
  of $365.88. 
          
       ¶  4.  On September 29, 2004, claimant filed a motion with the
  Commissioner, requesting that his benefits be paid in a lump sum, pursuant
  to 21 V.S.A. § 652(b), in an effort to qualify for greater Social Security
  benefits.  Section 652(b) provides that "[u]pon application of the
  employee, if the commissioner finds it to be in the best interest of the
  employee or the employee's dependents, the commissioner may order the
  payment of permanent disability benefits pursuant to section 644 or 648 of
  this title to be paid in a lump sum."  The Commissioner denied the motion,
  rejecting claimant's argument that § 652(b) as amended in 2000 was a
  procedural change, and held that it could not be retroactively applied to
  cases in which the injuries predate its enactment. 

       ¶  5.  Our review in a direct appeal from a decision by the
  Commissioner of Labor and Industry is limited to questions of law certified
  by the Commissioner.  21 V.S.A. § 672.  The Commissioner certified the
  following question:  "Does the Amendment to 21 V.S.A. § 652(b) apply
  retroactively to injuries predating the statute's effective date?"  PC5  We
  will affirm the Commissioner's conclusion if it is "rationally derived from
  the findings and based on a correct interpretation of the law."  Pacher v.
  Fairdale Farms, 166 Vt. 626, 627, 699 A.2d 43, 46 (1997) (mem.).  Here,
  there is no challenge to the Commissioner's findings.  We determine solely
  whether the Commissioner's conclusion was based on a correct interpretation
  of the law, and therefore our review is nondeferential and plenary.  Wesco,
  Inc. v. Sorrell, 2004 VT 102,   9, 177 Vt. 287, 865 A.2d 350.

       ¶  6.  In 2000, the Legislature amended Vermont's Workers'
  Compensation Act to allow the Commissioner to order an employer to pay
  permanent disability benefits, partial or total, in a lump sum upon
  application of a claimant and after finding that a lump sum payment would
  be in the best interest of the claimant or the claimant's dependents. 
  1999, No. 97 (Adj. Sess.),   2 (codified at 21 V.S.A. § 652(b)).  The
  employer's consent is not required.  Before the amendment, § 652 provided
  only monthly or quarterly periodic payment options as alternatives to
  weekly payments of permanent disability benefits.  Id.  (codified at 21
  V.S.A. § 652(a)).  Under the previous statutory scheme and workers'
  compensation rules, lump sum payments were allowed only when the parties
  agreed to lump sum payments in settlements under 21 V.S.A. § 662(a) and
  when the Commissioner approved such settlements.  The employer's consent
  was, by necessary implication, required.

       ¶  7.  On appeal, claimant argues that § 652(b) should apply in this
  case because 1) it is remedial, 2) it is procedural, and 3) it does not
  affect any preexisting right, privilege, or obligation of any party under 1
  V.S.A. § 214(b).  The controlling law in determining the retroactive effect
  of a statutory amendment is 1 V.S.A. § 214; we therefore first address its
  application to the case.  See Myott v. Myott, 149 Vt. 573, 576, 547 A.2d 1336, 1338 (1988) ("The application of an amendment to an existing case is
  governed by 1 V.S.A. § 214(b)(2), (4).").  Section 214(b)(2) provides that
  "[t]he amendment or repeal of an act or statutory provision . . . shall not
  [a]ffect any right, privilege, obligation or liability acquired, accrued or
  incurred prior to the effective date of the amendment or repeal."  Given
  this express prohibition of retroactive effect, 21 V.S.A. § 652(b) can only
  be applied here if allowing the Commissioner to order lump sum payments
  will not affect any right, privilege, obligation, or liability acquired
  prior to the statute's effective date in 2000.  We disagree with claimant's
  contention that the amendment does not affect any previously acquired
  right, privilege, or obligation, and conclude that application of 21 V.S.A.
  § 652(b) is barred by 1 V.S.A. § 214(b)(2).  As further discussed below,
  claimant's remaining arguments do not change this analysis or the result.
         
       ¶  8.   Claimant argues that no rights affected by the amendment
  existed prior to the amendment because he did not acquire the right to
  receive permanent disability benefits until the time of his medical end
  result in 2003 at the earliest.  See Kraby v. Vt. Tel. Co., 2004 VT 120,
  ¶ 6, 177 Vt. 614, 868 A.2d 689 (mem.) ("Medical end result is generally
  recognized as the point in time when further improvement is not expected
  and the employee, under proper documentation, transitions from temporary
  benefits to a permanency evaluation and eligibility for permanent
  benefits.").  Accordingly, he argues, employer had no obligation to pay
  permanent disability benefits and no right to the more restrictive method
  by which the benefits could be paid until that time. 

       ¶  9.   The cases claimant relies on all deal with the application
  of workers' compensation statutes of limitation.  See Murray v. Luzenac
  Corp., 2003 VT 37, ¶ 7, 175 Vt. 529, 830 A.2d 1 (holding that an
  amendment lengthening the statute of limitations could be applied to
  injuries occurring prior to the amendment so long as the previous statute
  of limitations period had not lapsed); Longe v. Boise Cascade Corp., 171
  Vt. 214, 218-20, 762 A.2d 1248, 1253-54 (2000) (holding that statute of
  limitations for filing notice of hearing did not begin to run until
  claimant's work injury became "reasonably discoverable and apparent," which
  was no later than date on which he reached his medical end result); Hartman
  v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447, 507 A.2d 952, 954
  (1985) (holding that extent of claimant's original injury was not
  reasonably discoverable until after a subsequent injury occurred, therefore
  statute of limitations did not being to run until that time).  These cases
  are inapposite.  As we explained in Montgomery v. Brinver Corp., "[t]he
  right to compensation for an injury under the Workmen's Compensation Act is
  governed by the law in force at the time of occurrence of such injury." 
  142 Vt. 461, 463, 457 A.2d 644, 645 (1983) (citing 1 V.S.A. §§ 213 & 214). 
  There is a difference between a claimant's right to compensation and a
  defendant's right to bar an action through the running of a statute of
  repose.  Murray, 2003 VT 37, ¶¶ 7-9.  The right to bar action by use of
  a statute of limitation or repose only accrues once the time limit has
  lapsed.  Id.   7.  In Murray, we rejected the defendant's argument that
  Montgomery required a different result, explaining that our holding that no
  rights vest in a statute of repose until the time period has lapsed does
  not affect the right to compensation.  Id.   9.

       ¶  10.  The right to compensation encompasses the right to any
  benefits under the workers' compensation statutes, whether temporary or
  permanent, partial or total.  Although the time at which a claimant may
  receive certain benefits while disabled depends on claimant's medical
  progress as well as his ability to work, the right to receive the
  statutorily-defined benefits-the right to compensation-is acquired at the
  time of the injury.  Correspondingly, the obligation to pay those benefits
  is also governed by the law in force at the time of injury.
   
       ¶  11.  Given our clarification of this issue in Murray, we find
  unpersuasive claimant's additional reliance on our holdings in Longe and
  Hartman, both of which are expressly limited to the applicability of
  statutory limitations periods.  See Longe, 171 Vt. at 219, 762 A.2d  at 1253
  ("[F]or purposes of the six year statute of limitations, the date of injury
  'is the point in time when an injury becomes reasonably discoverable and
  apparent.'" (quoting Hartman, 146 Vt. at 447, 507 A.2d  at 954 (emphasis
  added)).  The Montgomery rule is unaffected by these cases; the right to
  compensation is still governed by the law in effect at the time the injury
  occurs.   Thus, we reject claimant's argument that his right to benefits,
  and employer's obligation, are dependent upon the statutes in effect at the
  time of his medical end result.

       ¶  12.  What remains to be determined is whether the options for the
  method of payment included in 21 V.S.A. § 652 are within the right to
  compensation.  If the method of payment fundamentally changes the right to
  benefits or the obligation to pay those benefits, then it is within the
  preexisting right to compensation, and that right would be affected by
  application of the amendment.  When a post-injury amendment does not
  fundamentally change preexisting rights, it may be applied in a pending
  action.  See Myott v. Myott, 149 Vt. at 576, 547 A.2d  at 1338 (holding that
  amendment to child custody statute after divorce action was filed, but
  effective prior to the final custody hearing, did not fundamentally change
  the "best interests" standard and therefore could be applied in pending
  dispute); Murray v. Luzenac Corp., 2003 VT 37, ¶ 7 (holding that where
  time limitation in repealed statute of repose had not yet run on claim at
  time of repeal, defendant had no vested right in former limitations law).

       ¶  13.  Employer argues that there is a fundamental change to its
  obligation because the lump-sum option now requires employers to produce a
  large lump sum upon request of the claimant and approval by the
  Commissioner, with no consideration of the employer's interests.  It argues
  that lump-sum payment is a substantially different burden from making
  periodic payments over 330 weeks.  We agree that application of the
  amendment would fundamentally alter employer's obligation by allowing the
  Commissioner to order it to discharge its obligation all at once (FN1)
  where it previously would have been able to discharge that obligation
  gradually over a six-year period.  Just as significantly, a lump sum
  payment fundamentally changes the benefit to claimants by giving them a
  large up-front payment to use or invest in their complete discretion. 
  Because we conclude that a change in the method of the payments alone
  substantially affects claimant's  right to compensation and employer's
  obligation to provide it, we need not address employer's argument that a
  lump sum without a present value reduction would actually require it to pay
  more. (FN2)  Accordingly, we hold that 1 V.S.A. § 214(b)(2) prohibits
  retroactive application of 21 V.S.A. § 652(b) to injuries that predate its
  enactment.
                                                          
       ¶  14.  Claimant alternatively argues that § 652(b) should apply
  retroactively under 1 V.S.A. § 213 because the amendment is procedural. 
  Section 213 provides that "[a]cts of the general assembly, except acts
  regulating practice in court, relating to the competency of witnesses or to
  amendments of process or pleadings, shall not affect a suit begun or
  pending at the time of their passage." (Emphasis added.)  But § 213 applies
  only to new enactments and not to amendments which are governed by 1 V.S.A.
  § 214.  In re T.L.S., 144 Vt. 536, 544-45, 481 A.2d 1037, 1042 (1984) ("1
  V.S.A. § 213 and its exceptions are intended to apply to newly added
  legislative enactments only. When faced with an amendment to a statute, we
  must turn to 1 V.S.A. § 214." (citation omitted)).  We need not consider
  claimant's argument that the change in the payment options is akin to §
  213's "procedural" exceptions, because the relevant inquiry under § 214 is
  whether application of the amendment would affect a preexisting right or
  obligation; we have already determined that it would. Whether the amendment
  may also be procedural in nature is not dispositive because we have already
  found that it would affect preexisting rights. 

       ¶  15.  Finally, we address claimant's argument that the amendment
  should apply in this case because it is remedial.  The argument relies on
  our statement in Myott that "[w]hile, in general, new statutes do not apply
  to cases that are pending at the time of the effective date of the new
  statute, there is an exception for statutes that are solely procedural or
  are remedial in nature."  149 Vt. at 575, 547 A.2d  at 1338.  Claimant's
  attempt to construe this language as an alternate basis for application of
  an amended statute, independent from 1 V.S.A. § 214, is misplaced. (FN3) 
  As we further stated in Myott, "[u]nder [§ 214(b)(2)], the remedial change
  will apply to the case in progress unless it affects a pre existing 'right,
  privilege, obligation or liability.' "  149 Vt. at 576, 547 A.2d  at 1338
  (emphasis added).   The analysis of a remedial statutory amendment is no
  different from our first inquiry under § 214(b)(2).
                                                                             
       ¶  16.     Claimant 's right to receive compensation and
  employer's obligation to pay it both accrued at the time of claimant's
  injury and are governed by the version of 21 V.S.A. § 652 in effect at that
  time. Application of the amended § 652 would alter the preexisting rights
  of the parties.  Therefore, 1 V.S.A. § 214(b)(2) prohibits its retroactive
  application. 

       Affirmed.


------------------------------------------------------------------------------
                                 Dissenting


       ¶  17.  DOOLEY, J., dissenting.  The majority holds that employer
  acquired a vested right to pay any resulting workers' compensation benefits
  awarded to Antonio Sanz in periodic installments because that was the state
  of the law on the date Sanz had his accident.  The holding represents an
  overly-broad application of vested rights law, as provided in 1 V.S.A. §
  214(b), inconsistent with our precedents and the decisions on the exact
  same issue from other jurisdictions. I agree that 21 V.S.A. § 652(b), the
  statute that grants the Commissioner of Labor and Industry the discretion
  to order payment of permanent disability benefits in a lump sum, is
  prospective.  In this case, prospective means that it applies to any award
  made on or after its 2000 effective date.
    
       ¶  18.  As the majority holds, the question is controlled by 1 V.S.A.
  § 214(b)(2), which provides that an "amendment . . . of an act . . . shall
  not . . . (2) [a]ffect any right, privilege, obligation or liability
  acquired, accrued or incurred prior to the effective date of the amendment
  . . . ."  The question then is whether employer acquired a "right" or
  "privilege" to pay benefits in installments that could not be affected by
  the 2000 amendment that authorized the Commissioner to order a lump-sum
  payment.  The majority's simple answer to this question is the general
  statement in the case of  Montgomery v. Brinver Corp., 142 Vt. 461, 463,
  457 A.2d 644, 645 (1983), that "[t]he right to compensation for an injury
  under the Workmen's Compensation Act is governed by the law in force at the
  time of occurrence of such injury."  We are, however, dealing with neither
  "the right to compensation," the language of Montgomery, nor the amount of
  compensation, the actual facts of Montgomery. 
   
       ¶  19.  The majority recognizes that Montgomery's general rule does
  not always determine whether the employer or employee has a right or
  privilege protected by § 214(b).  Put another way, neither the employer nor
  employee has a right to enforce every word and section of the workers'
  compensation law as it existed at the time of the accident.  Thus, an
  amendment to a statute of limitations or statute of repose applies to
  existing claims as long as the prior limitation period has not expired when
  the claim is brought.  In Murray v. Luzenac Corp., we explained that the
  amendment to the statute of repose "does not affect plaintiff's right to
  compensation," and therefore, the Montgomery general rule did not apply. 
  2003 VT 37, ¶ 9, 175 Vt. 529, 830 A.2d 1. 

       ¶  20.  The closest we have come to explaining the principles
  involved in determining whether a party has a right or privilege controlled
  by § 214(b) is in Myott v. Myott, 149 Vt. 573, 575-76, 547 A.2d 1336, 1338
  (1988): 

       While, in general, new statutes do not apply to cases that are
    pending at the time of the effective date of the new statute,
    there is an exception for statutes that are solely procedural or
    are remedial in nature.  See Murray v. Mattison, 63 Vt. 479, 480,
    21 A. 532 (1891); . . . 2 Sutherland Stat Const § 41.04, at 349
    (4th ed. 1986). . . . The application of an amendment to an
    existing case is governed by 1 V.S.A. § 214(b)(2), (4).  In re
    T.L.S., 144 Vt. 536, 544 45, 481 A.2d 1037, 1042 (1984).  Under
    this section, the remedial change will apply to the case in
    progress unless it affects a preexisting "right, privilege,
    obligation or liability."  1 V.S.A. § 214(b)(4); State v. Willis,
    145 Vt. 459, 466 67, 494 A.2d 108, 111 12 (1985).

       There are no pre existing vested rights involved here. The court
    was determining custody prospectively from the time of its order
    forward. The statute worked no fundamental change in the standards
    under which custody is considered. It now requires the court to
    look at factors that were formerly optional and specifies the
    relevant factors in greater detail.  However, the overall
    standard-the best interests of the child-is the same before and
    after the statutory amendment. . . . Therefore, 15 V.S.A. § 665(b)
    effective July 1, 1986 applied to this case.

  As applied to workers' compensation, the general rule is that "[w]hen a
  statute or its amendments refer only to a remedy or procedure, they may be
  given retrospective application."  3B N. Singer, Statutes and Statutory
  Construction § 75:3 at 67-68 (6th ed. 2003) (collecting cases from numerous
  jurisdictions).  

       ¶  21.  Section 652(b) prescribes only the manner of disbursal of
  benefits.  It affects neither the merits nor the amount of any workers'
  compensation award.  Its effect is primarily procedural, and it affects
  only the remedy available to the employee.

       ¶  22.  With one exception, all reported decisions from other
  jurisdictions considering this question have reached the same conclusion
  for the same reason.  In Hooks v. Southern Bell Telephone and Telegraph
  Co., 351 S.E.2d 900, 902 (S.C. Ct. App. 1986), the court considered the
  effect of a statutory amendment that expanded the circumstances under which
  the employee could be awarded lump-sum benefits.  As in this case, the
  amendment was enacted after the employee was injured, and the employer
  argued that it could not be applied to a case in progress.  The court
  rejected the argument under the general rule that a statute is prospective
  "unless it is remedial or procedural in nature."  Id.  It held:

       A statute is remedial when it creates new remedies for existing
    rights or enlarges the rights of persons under disability, unless
    it violates a contractual obligation, creates a new right, or
    divests a vested right. . . .

       Section 42-9-301 enlarges the remedy available to claimants
    without creating any new right.  The statute merely enables
    claimants to obtain lump sum payment of funds to which they are
    already entitled.  We hold, therefore, that Section 42-9-301 is
    remedial and may be applied retroactively.

  Id.; see also Ronnie D. Talley, Note, Retroactive Application of Statute
  Forces Employer to Pay Disability Award in a Lump Sum, 40 S.C. L. Rev. 282,
  283 (1988) (Hooks "is in accord with the widely-accepted rules of statutory
  construction applied in most jurisdictions.").  The same result was reached
  in similar circumstances in Special Indemnity Fund v. Dailey, 272 P.2d 395
  (Okla. 1954), essentially for the same reason: 

       The amendment did not change the liability of the fund in any
    manner.  It merely provided that in certain instances claimants
    could, at the discretion of the Commission, have a portion of the
    award commuted to a lump sum.  Such provision goes only to the
    method of payment.

  Id. at 396.  To the same effect is Pebworth v. Workers' Compensation
  Appeals Board, 10 Cal. Rptr. 3d 832 (Ct. App. 2004) (holding that statute
  permitting settlement via lump-sum payment merely changed manner in which
  rights were invoked and therefore applied to pending cases).  The court
  noted that "[t]he test is whether the statute imposes a new or additional
  liability or affects existing vested or contractual rights on the one hand
  or merely changes the manner in which established rights or liabilities are
  invoked in the future."  Id. at 835.  It held that the lump-sum amendment
  fell in the latter category, noting that it did not increase the amount of
  the employer's liability.  Id. at 835-36.

       ¶  23.  Finally, there are two constitutional decisions that go
  opposite ways.  The court in State Industrial Insurance System v. Surman,
  741 P.2d 1357, 1358-59 (Nev. 1987) upheld a statutory amendment taking away
  an employee's right to be paid by a lump sum even though the accident
  occurred before the statute was effective.  The court reasoned that "[t]he
  legislation . . . neither decreased nor increased the amount of
  compensation payable.  It merely altered the timing of the payments."  Id.
  at 1358.   With no analysis, the Supreme Court of Montana disagreed,
  holding that application of a statute on lump-sum benefits-which the court
  labeled as containing a "procedure"-to an injury that occurred before the
  effective date of the statute was unconstitutional.   Buckman v. Mont.
  Deaconess Hosp., 730 P.2d 380, 381-82 (Mont. 1986).  The court found that
  the issue was controlled by a case that struck down retroactive application
  of a statute that reduced the amount of benefits by any social security
  benefits awarded to the employee, a clearly substantive change.  Id. at
  382.  I would give little weight to this precedent because it purports to
  be a constitutional decision and not one of statutory construction, it
  lacks analysis, and it appears inconsistent with our settled law that the
  Legislature may make procedural changes retrospective.  
   
       ¶  24.  Applying § 652(b), as amended, to determine whether claimant
  should receive benefits in a lump sum does not offend 1 V.S.A. § 214(b). 
  As other courts that have considered this question have held, the amendment
  is remedial and procedural and applies to employees who were injured prior
  to the effective date of the amendment.  I would reverse for the
  Commissioner to exercise discretion pursuant to § 652(b) and determine
  whether it is "in the best interest of the employee or the employee's
  dependants" for claimant to receive his permanent disability benefits in a
  lump sum as he requested.   I respectfully dissent. 

       ¶  25.  I am authorized to state that Justice Johnson joins in this
  dissent.



                                         BY THE COURT:
  Dissenting:
       
  ____________________________________   ______________________________________
  John A. Dooley, Associate Justice      Paul L. Reiber, Chief Justice


  ____________________________________   ______________________________________ 
  Denise R. Johnson, Associate Justice   Marilyn S. Skoglund, Associate Justice

                                         ______________________________________
                                         Brian L. Burgess, Associate Justice

          



------------------------------------------------------------------------------
                                  Footnotes


FN1.  Even if the amendment were to be applied here, the discharge from
  obligation only extends to PTD benefits for the first 330 weeks, employer
  would still be obligated for any benefits due beyond the first 330 weeks
  absent agreement of all interested parties and approval by the
  Commissioner.  Vermont Workers' Compensation and Occupational Disease Rules
  19.4000, 3 Code of Vermont Rules 24 010 003-20 (Sept. 2001).

FN2.  Employer argues that the statute contains no reduction for present
  value, which would require it to pay more in benefits overall, resulting in
  a windfall to claimant.  This argument appears to ignore that a lump sum
  payment would also require the claimant to forego the annual increases as
  provided by 21 V.S.A. § 650(d).  Because we conclude that the timing of the
  payments required under the lump sum payment option would fundamentally
  change the parties' rights and obligations, we need not determine whether
  application of the statute would in fact result in a change to the overall
  amount paid.

FN3.  The quoted language in Myott derives from general statements of
  statutory construction in the early case of Murray v. Mattison, 63 Vt. 479,
  21 A. 532 (1891), and a leading treatise on statutory construction.  Myott,
  149 Vt. at 575, 547 A.2d  at 1338.  Neither provides a basis to override the
  plain language of 1 V.S.A. § 214.  In Murray, the Court applied the
  statutory precursor to § 213 to determine whether a new act empowering
  courts to strike the names of improperly joined plaintiffs from pleadings
  could be applied to a suit begun before passage of the act.  63 Vt. at 479,
  21 A.  at 532.  While the Court noted the remedial nature of the act, the
  Court's reasoning was based on the precursor to § 213, which allowed new
  statutes regulating practice in courts and amendments to pleadings to be
  applied to cases in progress.  Murray, 63 Vt. at 479, 21 A.  at 532 (stating
  also the rule of construction that "when a new enactment deals with
  practice and procedure only, it applies to all actions, unless otherwise
  expressed, whether commenced before or after its passage"); see also 2 N.
  Singer, Statutes and Statutory Construction § 41:4 at 405-06 (6th ed. 2001)
  ("A remedial statute that does not take away vested rights can operate
  retroactively in the absence of language manifesting a contrary intent.").