Crosby v. City of Burlington, No. 01-271.

Docket NºNo. 01-271.
Citation844 A.2d 722
Case DateNovember 21, 2003

844 A.2d 722

Paul CROSBY
v.
CITY OF BURLINGTON

No. 01-271.

Supreme Court of Vermont.

November 21, 2003.

Motion for Reargument Denied February 11, 2004.


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

John T. Leddy and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Defendant-Appellant.

Susan P. Ritter, Montpelier, for Amicus Curiae Vermont League of Cities and Towns.

Joseph C. Galanes of Biggam, Fox & Skinner, Montpelier, for Amicus Curiae Vermont Association for Mental Health.

James J. Dunn of Mickenberg, Dunn, Kochman, Lachs & Smith, PLC, Burlington, and Kurt Rumsfeld, Washington, DC, for Amicus Curiae Professional Firefighters of Vermont and International Association of Fire Fighters.

844 A.2d 723
Present: AMESTOY, C.J., JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned

AMESTOY, C.J.

¶ 1. 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 of 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

844 A.2d 724
two-day trial, the court instructed the jury to determine: (1) whether plaintiff had suffered a psychological injury; (2) if so, whether the injury was caused by factors arising from his employment; and (3) if so, whether the injury resulted from stress that was significantly greater than that experienced by the general population of employees. The jury answered each of the three questions in the affirmative, and the trial court granted judgment in favor of plaintiff. This appeal followed

I.

¶ 6. The City first contends that the Vermont Constitution bars plaintiff's recovery because it prohibits workers' compensation benefits for psychological injuries unconnected with physical trauma. We disagree.

¶ 7. In relevant part, Chapter II, § 70 of the Vermont Constitution provides that the "General Assembly may pass laws compelling compensation for injuries received by employees in the course of their employment resulting in death or bodily hurt." The City argues that the plain meaning of the phrase "bodily hurt," particularly when considered in its historical context, is that the Legislature may authorize workers' compensation benefits only for injuries having a physical component. In support of this position, the City notes that at the time § 70 was added to the Vermont Constitution in 1913, the Vermont House of Representatives reported that workers' compensation would be allowed only for "violence to the physical structure of the body," Journal of the House of the State of Vermont, Biennial Session, at 1034 (February 20, 1913), and compensation for mental injuries unconnected to physical trauma was virtually unknown in Vermont negligence law. See Nichols v. Central Vt. Ry., 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., 154 Tex. 430, 279 S.W.2d 315, 318-19 (1955) (court construed phrase "physical structure of the body" to include any harm to person), the provisions of a defeated statute can hardly be relied upon to support the interpretation of a completely separate constitutional amendment.

¶ 9. As for the actual text of § 70, "bodily hurt," we agree with the City that we must consider the language in historical context, but we arrive at a different conclusion from that urged by the City. Section 70 was added to the Vermont Constitution in response to concerns that the employer liability bills being considered at the time were susceptible to constitutional attack. W. Flint, The Progressive Movement in Vermont, "Labor Obtains a Workmen's Compensation Act," at 86-87 (Am. Council on Public Affairs, Washington, D.C., 1941). These concerns were fueled by a 1911 decision of the New York Court of Appeals striking down New York's fledgling workers' compensation law. Id.; see Ives v. South Buffalo Ry., 201 N.Y. 271, 94 N.E. 431 (1911). It is thus clear that the purpose of § 70 was to insulate pending workers' compensation laws from constitutional attack, not to prevent workers

844 A.2d 725
from obtaining benefits based on psychological injuries

¶ 10. The City does not argue that the Legislature intended the term "personal injury" in 21 V.S.A. § 618 to require physical injury or to exclude psychological injury unconnected to physical trauma. Rather, the City would have us hold that such claims are prohibited based on a 1913 constitutional amendment that was added to the Vermont Constitution to assure the survival of the workers' compensation statute, not to restrict its reach. Absent any more persuasive evidence, we decline to so hold.

II.

¶ 11. The City next contends the trial court erred by instructing the jurors that they should consider the "general population of employees" in determining whether plaintiff was subjected to unusual work-related stress. To understand the claim, a brief review of the legal background is instructive. Our workers' compensation statute requires employers to compensate "a worker [who] receives a personal injury by accident arising out of and in the course of employment." 21 V.S.A. § 618(a)(1). In analyzing whether an injury qualifies under workers' compensation law as an accidental personal injury arising out of and in the course of employment, courts and commentators have divided claims into four general categories: (1) physical injury caused by physical stimulus; (2) physical injury caused by mental stimulus; (3) nervous injury caused by physical stimulus; and (4) nervous injury caused by mental stimulus. See 3 A. Larson, Larson's Workers' Compensation Law § 56.01, at 3 (2000). This case indisputably falls within the latter group, often described as "mental-mental" claims.

¶ 12. At least twenty-nine states provide workers' compensation coverage for mental-mental claims, and fifteen do not. Id. § 56.06[3]-[4], at 52. Of the states that accept mental-mental claims, some require no more of a showing than that required of claims for...

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3 practice notes
  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...inapplicable in workers' compensation cases heard by the superior court. Claimant cites Crosby v. City of Burlington, 176 Vt. 239, 249-50, 844 A.2d 722, 729-30 (2003), as support for his assertion that the Commissioner's interpretation of Vermont workers' compensation law is controlling abs......
  • Travelers Ins. Co. v. Carpenter, Docket No. 01-9474.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 20, 2005
    ...we follow the frequent practice of the Vermont Supreme Court. See, e.g., Crosby v. City of Burlington, 176 Vt. 239, 246 n. 2, 844 A.2d 722, 726 n. 2 (2003) (describing Larsen as "the preeminent workers' compensation authority"); Edson v. State, 175 Vt. 330, 334, 830 A.2d 671, 674 ......
  • Zebic v. Rhino Foods, Inc., No. 2020-209
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 21, 2021
    ...in evaluating the compensability of a psychological injury arising out of and in the course of employment. 2003 VT 107, 176 Vt. 239, 844 A.2d 722. The Commissioner denied the claimant's claim based on a standard that the claimant challenged. On appeal for a de novo trial, the superior court......
3 cases
  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...inapplicable in workers' compensation cases heard by the superior court. Claimant cites Crosby v. City of Burlington, 176 Vt. 239, 249-50, 844 A.2d 722, 729-30 (2003), as support for his assertion that the Commissioner's interpretation of Vermont workers' compensation law is controlling abs......
  • Travelers Ins. Co. v. Carpenter, Docket No. 01-9474.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 20, 2005
    ...we follow the frequent practice of the Vermont Supreme Court. See, e.g., Crosby v. City of Burlington, 176 Vt. 239, 246 n. 2, 844 A.2d 722, 726 n. 2 (2003) (describing Larsen as "the preeminent workers' compensation authority"); Edson v. State, 175 Vt. 330, 334, 830 A.2d 671, 674 ......
  • Zebic v. Rhino Foods, Inc., No. 2020-209
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 21, 2021
    ...in evaluating the compensability of a psychological injury arising out of and in the course of employment. 2003 VT 107, 176 Vt. 239, 844 A.2d 722. The Commissioner denied the claimant's claim based on a standard that the claimant challenged. On appeal for a de novo trial, the superior court......

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