West v. N. Branch Fire Dist. #1

• Decision Date: 18 June 2021
• Docket Number: No. 2020-252,2020-252
• Citation: 2021 VT 44
• Parties: John West v. North Branch Fire District #1
• Court: Vermont Supreme Court

2021 VT 44

John West v. North Branch Fire District #1

No. 2020-252

Supreme Court of Vermont

March Term, 2021

June 18, 2021

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Commissioner of Labor

Michael A. Harrington, Commissioner

Robert D. Mabey of Kalter, Kalter & Mabey, PLC, Rutland, for Plaintiff-Appellant.

William J. Blake of Boxer Blake & Moore PLLC, Springfield, for Defendant-Appellee Berkley Risk Administrators Company, LLC.

PRESENT: Reiber, C.J., Robinson, Carroll and Cohen, JJ., and Dooley, J. (Ret.), Specially Assigned

¶ 1. CARROLL, J. Claimant John West appeals a decision of the Commissioner of the Vermont Department of Labor concluding that the 2014 amendment to 21 V.S.A. § 644(a)(6) does not apply retroactively. West argues that, contrary to the Commissioner's conclusion, the 2014 amendment to § 644(a)(6) applies retroactively because it did not create any new substantive rights. We conclude that the 2014 amendment applies retroactively and therefore reverse and remand.

¶ 2. The following facts are undisputed. In March 2013, West fell fifteen to twenty feet while working in the course of his employment for North Branch Fire District. He was transported to the hospital and treated for extensive injuries, which included a rib fracture, epidural and subdural hematoma, parenchymal and subarachnoid hemorrhage along the temporal lobe, multiple skull fractures, and seizure-like activity. West was discharged from the hospital twelve days later.

¶ 3. In September 2014, West relocated to Florida, and at some point thereafter, began working at the Freedom Boat Club. Between 2014 and 2016, several different physicians provided conflicting opinions on the level of West's permanent impairment. In February 2016, Dr. Joseph Kandel conducted an independent medical examination (IME) at North Branch's request. At a deposition in September 2018, Dr. Kandel testified that it would be accurate to say that "West suffered an injury to the skull resulting in [a] severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities."

¶ 4. That October, West filed a request for a formal hearing, asserting that he was permanently and totally disabled under § 644(a)(6). Between the date of West's injury and his request for a formal hearing, however, the Legislature amended § 644(a)(6). As originally enacted in 1978, § 644(a)(6) defined total and permanent disability as "an injury to the skull resulting in incurable imbecility or insanity." 1977, No. 182 (Adj. Sess.), § 10. In 2014, the Legislature passed Act 96, which amended § 644(a)(6) to define total and permanent disability as "an injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities." 2013, No. 96 (Adj. Sess.), § 137. In the purpose statement accompanying Act 96, the Legislature explained that it sought "to replace offensive statutory terms with language that recognizes persons as opposed to their disabilities" and that the changes in terminology should not "be construed to alter the substance or effect of existing law or judicial precedent." Id. § 1.

¶ 5. In January 2019, North Branch filed a motion for summary judgment arguing that the pre-amendment version of § 644(a)(6)—which defined total and permanent disability as "an injury to the skull resulting in incurable imbecility or insanity"—applied to West's claim because that was the law on the date of his injury in March 2013. Further, North Branch argued that the2014 amendment did not apply retroactively because despite the Legislature's stated purpose, the amendment created a substantive change in the law. In any event, because West was employed, North Branch maintained that he was not totally and permanently disabled under either version of § 644(a)(6). As proof of West's current employment, North Branch attached several exhibits to its motion for summary judgment that contained photos of West at work at the Freedom Boat Club.

¶ 6. In opposition, West argued that the 2014 amendment to § 644(a)(6) applied retroactively because the Legislature's intent—as indicated by the purpose statement in Act 96—was not to change substantive rights, but to replace offensive statutory terminology with more respectful language. 2013, No. 96 (Adj. Sess.), § 1. In addition, West argued that summary judgment should be denied based on Dr. Kandel's September 2018 deposition testimony that "West suffered an injury to the skull resulting in [a] severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities."

¶ 7. In June 2019, the Commissioner denied North Branch's motion for summary judgment.¹ Although the Commissioner acknowledged that the Legislature's stated intent in passing Act 96 and amending § 644(a)(6) was to replace offensive statutory terms, and not to make any substantive change to existing law, it concluded that the Legislature "unintentionally changed the substance of" § 644(a)(6). The Commissioner explained that the language of the 2014 version of § 644(a)(6) was "significantly different" than the pre-amendment version. Specifically, the Commissioner noted that the term "physical disabilities" in the 2014 version had "no antecedent in the pre-amendment" version of the statute. In addition, citing Vermont case law and Wimp v. American Highway Technology, 360 P.3d 1100 (Kan. Ct. App. 2015), the Commissioner reasonedthat the Legislature's replacement for imbecility—severe cognitive disability—was inconsistent with the historical definition of imbecility, which refers to a person with a significantly diminished IQ. Because the 2014 amendment created a substantive change, the Commissioner determined that West's claim was governed by the pre-amendment version of § 644(a)(6).

¶ 8. Applying the pre-amendment "incurable imbecility or insanity" standard, the Commissioner concluded that it could not grant summary judgment because disputed facts remained about the scope of West's impairment. Although the Commissioner acknowledged Dr. Kandel's deposition testimony, it found that his testimony was "conclusory and insufficient to the form the basis for a finding that [West] is, or is not, permanently and totally disabled" in part because Kandel "did not provide any basis for his opinion that would allow evaluation of its persuasiveness." In addition, the Commissioner concluded that North Branch's evidence demonstrating that West was employed was not relevant because under § 644(a), an injured worker is deemed permanently and totally disabled if he or she has one of the enumerated injuries, regardless of current employment.

¶ 9. Following this decision, the Commissioner granted West permission to file an interlocutory appeal on the question of which version of § 644(a)(6) applied to his claim. We dismissed the appeal, however, concluding that it was improvidently granted because it did not meet the criteria outlined in Vermont Rule of Appellate Procedure 5(b)(1) for interlocutory appeals. In February 2020, Dr. Nancy Hebben conducted an IME of West and concluded that "under no definition" of which she was aware did "West suffer from incurable imbecility or insanity" because his "objective neuropsychological test results [did] not reveal any cognitive . . . impairment" or mental illness.

¶ 10. West subsequently moved for summary judgment in North Branch's favor, explaining that he did not want to proceed with a formal hearing where he had to prove that he was either insane or an imbecile because those terms are vague, ambiguous, offensive, and highlydisrespectful. He accordingly requested that the Commissioner grant summary judgment so that he could appeal the Commissioner's earlier decision concluding that the 2014 amendment to § 644(a)(6) did not apply retroactively. In opposition, North Branch argued that to grant summary judgment in its favor, West had to concede, or the Commissioner had to determine, that West would not be able to prevail on a claim for total and permanent disability under the applicable legal standard. North Branch accordingly requested that the Commissioner grant summary judgment based on Dr. Hebben's February 2020 IME, in which she concluded that West was not totally and permanently disabled under any definition of incurable imbecility or insanity.

¶ 11. The Commissioner granted West's motion, reasoning that North Branch was entitled to summary judgment because West had simply conceded that he could not establish a prima facie case for total and permanent disability under the pre-amendment version of § 644(a)(6). As a result, the Commissioner did not consider or rely upon Dr. Hebben's IME.

¶ 12. On appeal, West argues the Commissioner erred in concluding that the 2014 amendment to § 644(a)(6) does not apply retroactively. He asserts that the amendment applies retroactively because in the purpose statement accompanying Act 96, the Legislature expressly stated that the 2014 amendment to § 644(a)(6) did not make any substantive changes to existing law. In response, North Branch argues that the amendment is a substantive change, and—even if it is not—that West waived his right to total and permanent disability under § 644(a)(6) by asking the Commissioner to grant summary judgment in its favor. In any event, North Branch maintains that West is not totally and permanently disabled under either version of § 644(a)(6) because he is gainfully employed.

¶ 13. We review summary judgment decisions de novo, applying the same standard as the trial court. Lyons v. Chittenden Cent. Supervisory...