Schnabel v. Nordic Toyota, Inc., 97-336.

• Decision Date: 02 October 1998
• Docket Number: No. 97-336.,97-336.
• Citation: 721 A.2d 114
• Court: Vermont Supreme Court
• Parties: Keith SCHNABEL v. NORDIC TOYOTA, INC., et al.

721 A.2d 114

Keith SCHNABEL v. NORDIC TOYOTA, INC., et al.

No. 97-336.

Supreme Court of Vermont.

October 2, 1998.

Christopher J. McVeigh of Paul, Frank & Collins, Burlington, for Plaintiff-Appellee.

Robert A. Mello and John H. Klesch (On the Brief), South Burlington, for Defendants-Appellants.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Plaintiff-employee Keith Schnabel sustained a work-related injury, recovered, and then sought reinstatement to suitable employment under Vermont's workers' compensation statute. When defendant-employer Nordic Toyota did not offer the first available suitable position, Schnabel sued for reinstatement under 21 V.S.A. § 643b, and alleged handicap discrimination in violation of 21 V.S.A. § 495(a). After a bench trial, the superior court found liability under § 643b and awarded damages. Nordic Toyota appeals its liability and the award of damages based on Schnabel's alleged failure to mitigate. Schnabel cross-appeals the court's rulings on damages and its failure to issue findings and conclusions on the § 495(a) discrimination claim. We affirm.

The relevant facts are not in dispute. The record reflects that Schnabel was injured in 1991 while working for Nordic Toyota as an automobile mechanic. The injury occurred when an alignment lift failed and caused a car to drop and hit his head. After a brief absence, Schnabel returned to work, and eventually was promoted to shop foreperson with supervisory responsibility over two technician teams comprising seven technicians in all. In August of 1992, Schnabel left work because of increasing back pain resulting from the 1991 accident. In the fall of 1993, after receiving medical treatment for his injury, Schnabel believed he was ready to return to work. In November of that year, he was evaluated by a physician with the Spine Institute of New England in Williston and scheduled to enroll in a "work hardening" program designed to help him manage the psychological and emotional aspects of his pain and improve his strength and endurance for work.

In December of 1993, Schnabel learned that the Nordic Toyota employee who had replaced him as shop foreperson intended to quit the position. On December 17, 1993, Schnabel's attorney sent a letter to Nordic Toyota expressing Schnabel's interest and preparedness to be reinstated to that position, and asserting his rights to reinstatement pursuant to 21 V.S.A. § 643b.

On January 6, 1994, Nordic Toyota's director of human resources spoke with Schnabel's attorney and indicated that there was no foreperson's job available at Nordic Toyota. In a subsequent letter dated January 19, 1994, the director explained that the position had been eliminated in 1992 and replaced by the position of "Technician Group Leader" with a different pay structure. The director also represented that the group leader position for which Schnabel applied had been filled prior to the January 6, 1994 phone call. The letter further stated: "As previously discussed, because of Mr. Schnabel's own actions, and the hostile environment he has created in Nordic Toyota, Inc., we can only offer him employment in one of our other facilities."

The January 19, 1994 letter to Schnabel from the human resources director also contained an invitation to interview for a position as a "Service Writer" at Nordic Ford, a division separate from Nordic Toyota, but within the same parent company. Schnabel rejected the invitation. In March of 1995, he was offered a position as service writer at Nordic Toyota, which he accepted.

Schnabel sued Nordic Toyota for failure to reinstate him pursuant to 21 V.S.A. § 643b and for handicap discrimination under 21 V.S.A. § 495(a). He sought damages for past and future lost wages, as well as emotional and punitive damages. The court granted judgment for Nordic Toyota on emotional and punitive damages after the close of Schnabel's evidence. After trial, the court found Nordic Toyota liable for violation of Schnabel's reinstatement rights under 21 V.S.A. § 643b and awarded damages for past lost wages. It found that Schnabel was capable of performing the essential functions of the group leader position when it became available in January of 1994, and every conceivable function within a few days after the position became available. The court awarded damages for lost wages from 1994, 1995, and 1996. It found, however, that an award of future damages was not justified because Schnabel had returned to the same career track he would have been on had he been offered the group leader position in 1994, and evidence on the proper amount of future damages was speculative. The court also stated that the evidence presented did not support punitive damages. It did not issue findings and conclusions on the handicap discrimination claim under 21 V.S.A. § 495(a).

On appeal, Nordic Toyota claims the court erred in finding liability under 21 V.S.A. § 643b and claims that the award of damages should have reflected Schnabel's capacity to mitigate his damages by accepting the service writer position with Nordic Ford. Schnabel cross-appeals and claims the court erred by failing to issue findings and conclusions on the handicap discrimination claim and failing to award future damages as well as emotional and punitive damages.

I. Liability for Failure to Reinstate Under 21 V.S.A. § 643b(b)

Under Vermont's workers' compensation statute, an injured worker is entitled to reinstatement to his or her former position or a suitable alternative position upon recovery, provided the recovery occurs within two years of the onset of the disability. See 21 V.S.A. § 643b(b). The statute further provides that:

[a] worker who recovers within two years of the onset of the disability shall be reinstated in the first available position suitable for the worker given the position the worker held at the time of the injury.

21 V.S.A. § 643b(b). Under the statute, "`[r]ecovery' means that the worker can reasonably be expected to perform safely the duties of his or her prior position or an alternative suitable position." Id. § 643b(a)(2). Nordic Toyota's central claim on appeal is that the court erred in finding liability.

A. Schnabel's Recovery

Nordic Toyota claims the court erred in finding that Schnabel had recovered sufficiently to perform the duties required of the group leader position. The issue is whether Schnabel, in early 1994, could "reasonably be expected to perform safely the duties" of the group leader position in satisfaction of 21 V.S.A. § 643b(a)(2).

"This Court will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous." Jacobs v. Jacobs, 144 Vt. 124, 126, 473 A.2d 1165, 1167 (1984). Findings will not be disturbed merely because they are contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support them. See Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 154-55, 559 A.2d 1068, 1069 (1989). Where the trial court has applied the correct legal standard, the Supreme Court will uphold its conclusions of law if reasonably supported by the findings. See Highgate Assocs., Ltd. v. Merryfield, 157 Vt. 313, 315-16, 597 A.2d 1280, 1281-82 (1991).

According to the record, Schnabel underwent surgery in December of 1992 for a disc problem related to the 1991 injury and thereafter commenced a period of rehabilitation. Schnabel's treating surgeon placed him at an "end medical result" on August 11, 1993, which permitted subsequent "work hardening" rehabilitation to improve his strength and pain management. Dr. Rowland Hazard, a specialist in the treatment of back pain and a staff member of the New England Spine Institute, stated it was more likely than not that Schnabel was capable, as of February 19, 1994, of performing most, if not all, of the duties of group leader with the exception of repetitive lifting of fifty pounds.

Schnabel testified that in January 1994 he could have satisfactorily performed the duties of a full-time mechanic at Nordic Toyota — a position with physical demands similar to those required of a group leader. The record indicates that the group leader position affords the person so employed the flexibility to assign physically demanding tasks to others. Although the court acknowledged conflicting evidence in the medical records concerning Schnabel's ability to return to work in the fall of 1993, the record provides support for the court's conclusion that Schnabel's disability "had come to a final medical resolution by August 11, 1993," and that Schnabel could reasonably be expected to perform safely the duties of group leader beginning in January of 1994.

B. Notice to Employer of Schnabel's Recovery

Nordic Toyota next claims that even if Schnabel had sufficiently recovered to perform the duties of the group leader position, he failed to notify it of that fact and therefore responsibility for reinstatement under § 643b never attached. According to Nordic Toyota, the court misapplied the statute by charging it with the burden of discovering the status of Schnabel's recovery. The factual premise underlying this argument, however, is incorrect.

The court found that Nordic Toyota "had ample notice that [Schnabel] wanted the job," and had received all medical records relevant to Schnabel's recovery. Thus, it was aware that Schnabel had reached a "medical end result" and was enrolling in a work hardening program. Furthermore, in mid-December of 1993, Schnabel's attorney contacted Nordic Toyota to inquire about the departure of Schnabel's replacement from the group leader position and to request that Schnabel be reinstated. The letter specifically referred to Schnabel's reinstatement rights under § 643b and asserted that the group leader position would be appropriate "given [Schnabel's] physical...