Farris v. Bryant Grinder Corp., 03-516.

CourtUnited States State Supreme Court of Vermont
Citation869 A.2d 131
Docket NumberNo. 03-516.,03-516.
PartiesCharles FARRIS v. BRYANT GRINDER CORPORATION/WAUSAU INSURANCE COMPANY v. Bryant Grinder Corporation/AIG Insurance Company.
Decision Date14 January 2005

869 A.2d 131

Charles FARRIS
Bryant Grinder Corporation/AIG Insurance Company

No. 03-516.

Supreme Court of Vermont.

January 14, 2005.

869 A.2d 132
Joshua L. Simonds of Mertz, Talbott & Simonds, P.L.C., Burlington, for Defendant-Appellant

John W. Valente and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellee.

Present: DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.


¶ 1. This appeal involves a dispute between two insurance companies as to which one should pay workers' compensation benefits for an injury to Bryant Grinder Corporation (Bryant Grinder) employee Charles Farris. Appellant, Wausau Insurance Company (Wausau), appeals a superior court jury determination that Farris suffered a recurrence of a previous injury and therefore that it was liable instead of AIG Insurance Company (AIG), successor to Wausau and insurer at the time of Farris's later injury. On appeal, Wausau argues that the superior court erred by failing to: (1) allocate a burden of proof to one of the parties; (2) reformulate the certified question into five separate interrogatories; and (3) provide a specific jury instruction on the last injurious exposure rule. We find that although failure to allocate a burden of proof was error, it was harmless, and the jury instructions were otherwise within the court's discretion. We affirm.

¶ 2. Charles Farris began working for Bryant Grinder in July 1973, a year after he first had surgery on his right knee in May 1972. He again injured his right knee in April 1991 when he slipped on

869 A.2d 133
some oil at work. Farris received medical treatment for this injury, including surgery, and was out of work for fifteen months. He received workers' compensation benefits from Wausau, which insured Bryant Grinder from May 1989 to May 1992. Farris returned to work, and the condition of the knee deteriorated to the point where he again had surgery in 1993. Although after nine months Farris returned to work for Bryant Grinder, the condition of his knee continued to worsen until he had another operation in December 1996. He did not return to work after this operation

¶ 3. Bryant Grinder had three different insurance carriers during the period between the end of the Wausau coverage in 1992 and Farris's 1996 surgery. Only the last carrier, AIG, is involved in this action. It began to insure Bryant Grinder in May 1995. Despite the new carriers, Wausau continued to pay Farris workers' compensation benefits through the 1996 surgery and thereafter. In January 1998, it received an opinion from an orthopedic doctor that Farris's "degenerative arthritis of the right knee is aggravated and probably accelerated by his type of work which places excess stress across the knee through the work day." Based on that opinion, Wausau filed a "Notice of Intention to Discontinue Payments" pursuant to 21 V.S.A. § 643a, on the ground that Farris's current condition "should be current carrier's responsibility." This led to a proceeding before the Commissioner of Labor and Industry to determine whether Wausau or AIG was responsible for payments to Farris.1

¶ 4. Generally, when two employers or insurers dispute liability for a workers' compensation claim arising out of successive injuries, the liability remains with the first insurer or employer if the second injury is a recurrence of the first. Pacher v. Fairdale Farms, 166 Vt. 626, 627, 699 A.2d 43, 46 (1997) (mem.). "If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second...

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