Crosby v. City of Burlington

Johnson, J.,

¶ 26, 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 *251claimant 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.

*252¶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.’ ” Id. 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.

*253¶ 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 at896-97 (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).4 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 her 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 *254Commissioner required those seeking compensation for nontraumatic 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 “aE 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. State, 2003 VT 14, ¶¶ 8, 15, 175 Vt. 80, 819 A.2d 742 (administrative bodies have only adjudicatory authority conferred upon them by statute; administratively adopted regulations that compromise intent of authorizing statute wül not be upheld).

¶ 35.1 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. 165 Vt. 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 wül 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 *255injuries, 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 budding, 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 Philadelphia v. Workers ’ Compensation Appeal Board, 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 subj ected 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?

*256¶ 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 Colches-ter, 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 *257unusual-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) (“[0]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.

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.