Pacher v. Fairdale Farms

• Decision Date: 02 June 1997
• Docket Number: No. 96-434,96-434
• Citation: 166 Vt. 626,699 A.2d 43
• Court: Vermont Supreme Court
• Parties: Joseph PACHER v. FAIRDALE FARMS & Eveready Battery Company.

Page 43

699 A.2d 43

166 Vt. 626

Joseph PACHER v. FAIRDALE FARMS & Eveready Battery Company.

No. 96-434.

Supreme Court of Vermont.

June 2, 1997.

Before AMESTOY, C.J., and GIBSON, DOOLEY and MORSE, JJ.

ENTRY ORDER

Appellant Fairdale Farms appeals a decision by the Commissioner of the Vermont Department of Labor and Industry ordering Fairdale to resume payment of workers' compensation benefits once appellee Eveready Battery Company's responsibility for a subsequent injury ends. We affirm.

In November 1977, claimant Joseph Pacher fell off a roof while working for Fairdale, rupturing his spleen and fracturing several vertebrae and two left ribs. Fairdale paid workers' compensation benefits during claimant's convalescence and following his employment with Eveready Battery Company in 1978. In August 1992, claimant injured his right-side lower back while attempting to push a clip into a machine at Eveready.

In the ensuing dispute between Fairdale and Eveready, Fairdale argued that claimant's work at Eveready had begun aggravating the first injury in March 1990, and therefore Eveready was liable for all workers' compensation payments after that date. Eveready argued that the 1992 injury was a recurrence of the original injury and that Fairdale continued to be liable for all workers' compensation payments. The Commissioner rejected both of these arguments, ¹ finding that claimant's medical problems until the 1992 injury were recurrences of his original injury, while the 1992 injury was a new, distinct injury for which Eveready was responsible. Accordingly, the Commissioner ordered Eveready to pay temporary total disability benefits until claimant reached "medical end result with regard to the August 11, 1992 new injury; i.e., until [claimant's] condition return[ed] to his pre-August 11, 1992 baseline," with a similar provision for psychological counseling, after which Fairdale would resume responsibility.

Both employers appealed the Commissioner's order to Bennington Superior Court pursuant to 21 V.S.A. § 670. To the first question certified by the Commissioner, "Did [claimant's] work at Eveready aggravate his preexisting condition or result in a new injury such that it relieved Fairdale Farms of responsibility for any workers' compensation liability as of March 23, 1990?" the jury answered, "No." To the second certified question, "Was the event [claimant] experienced on August 11, 1992 while employed at Eveready a recurrence of the condition caused by his original work injury at Fairdale Farms such that Fairdale Farms is liable for any workers' compensation owed [claimant] because of that event?" the jury also answered, "No." Based on these answers, the trial court entered judgment that claimant's work at Eveready did not aggravate his preexisting condition or result in a new injury that would relieve Fairdale of responsibility as of 1990 and that the 1992 injury was not a recurrence of the original injury. After the Commissioner concluded that the trial court's judgment was consistent with the original findings and conclusions, the original order was reissued in April 1996, with the added provision that Eveready and Fairdale would be responsible for reasonable and necessary medical expenses under the same conditions as temporary disability payments. This appeal followed.

We will affirm the Commissioner's order if her conclusions are rationally derived from the findings and based on a correct interpretation of the law. See In re Southview Assocs., 153 Vt. 171, 178, 569 A.2d 501, 504 (1989). Fairdale first asserts that the Commissioner's order requiring it to resume workers' compensation liability once claimant recovers from the 1992 injury is contrary to the jury's finding that the 1992 injury was not a recurrence. In effect, Fairdale appears to argue that because the jury found that the 1992 injury was not a recurrence of the original injury, it must have decided that the 1992 accident aggravated claimant's prior condition--and that the Commissioner's order conflicts with such a finding.

In workers' compensation cases involving successive injuries during different employments, the first employer remains liable for the full extent of benefits if the second injury is solely a "recurrence" of the first injury--i.e., if the second accident did not causally contribute to the claimant's disability. Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280, 286 (1987); In re Dundon, 86 Or.App. 470, 739 P.2d 1069, 1070 (1987). 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 incident is an "aggravation," and the second employer becomes solely responsible for the entire disability at that point. Port of Portland v. Director, Office of Workers Compensation Programs, 932 F.2d 836, 839-40 (9th Cir.1991); In re Dundon, 739 P.2d at 1070; see Jackson v. True Temper Corp., 151 Vt. 592, 595-96, 563 A.2d 621, 623 (1989) (sawmill owner liable for seizures brought on by drinking alcohol where sawmill injury aggravated or accelerated claimant's preexisting alcoholism); Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36, 421 A.2d 1291, 1294 (1980) (employer liable where exposure to fumes aggravated claimant's preexisting mild to moderate bronchitis to cause acute bronchitis and myocardial infarction).

We begin by noting that there is no support for Fairdale's assertion that because the jurors decided that the 1992 accident was not a recurrence, they must have found it was an aggravation. The jury was asked only if the 1992 accident was or was not a recurrence, without being questioned concerning other options. A third possibility, and the one that coincides with the Commissioner's findings and conclusions, is that the jury found the 1992 incident was neither an aggravation nor a recurrence, but rather a new injury distinct from claimant's prior injuries. Where an employee...