Smith v. Desautels (2006-146)
2008 VT 17
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, Vermont Supreme Court,
2008 VT 17
Carl M. Smith Supreme Court
On Appeal from
Emile Desautels and May Term, 2007
Desautels House Movers, Inc.
Matthew I. Katz, J.
Eugene Rakow of Eugene Rakow, P.C., and L. Maxwell Taylor and Alan Biederman of
Biederman Law Office,
Andrew Jackson, Middlebury, for Defendants-Appellees.
PRESENT: Dooley, Johnson, Skoglund and Burgess, JJ., and Cook, D.J. (Ret.),
¶ 1. DOOLEY, J. Plaintiff, Carl Smith, was working for defendants, Desautels House Movers, Inc. and Emile Desautels, when an acetylene tank fell on his hand and crushed it. Although defendants did not have workers’ compensation insurance, they paid for workers’ compensation benefits claimed and received by plaintiff. After exhausting his benefits, plaintiff brought this suit, seeking damages for defendants’ negligence. The superior court granted summary judgment for defendants, concluding that plaintiff had made a binding election to claim compensation pursuant to 21 V.S.A. § 618(b) and was, therefore, barred from bringing this civil action. Plaintiff appeals, arguing that: (1) the superior court does not have jurisdiction to determine whether an election occurred; and (2) his acceptance of compensation did not waive his right to a civil suit because he never completed a signed, written agreement approved by the Commissioner. See id. § 618(d). We find no jurisdictional bar to the superior court’s action but conclude that, under the terms of the statute, plaintiff did not waive his right to a civil suit against his employer. We therefore reverse and remand.
The undisputed facts are as
follows. Plaintiff was injured in the course of his employment for
defendants in May 2002 and thereafter, in June, filed a claim for benefits
¶ 3. In July, a workers’ compensation specialist in the Department of Labor notified the parties of some of their rights with respect to the claim. The specialist further urged defendants to show proof of workers’ compensation insurance coverage and advised both parties to obtain legal counsel. By December 2002, the Department had calculated the weekly benefit that the workers’ compensation statutes afforded plaintiff, and defendants paid this amount during the period in which plaintiff was deemed temporarily totally disabled. Defendants also covered the costs of plaintiff’s surgery. By that time, defendants had counsel, but plaintiff did not.
¶ 4. In September 2003, while defendants were still paying temporary total disability compensation pursuant to the Department schedule, plaintiff, through counsel, sent a letter to defendants’ attorney stating that he would be filing a negligence suit against defendants in addition to pursuing his workers’ compensation claim. Defendants continued to pay, and plaintiff continued to accept, temporary total disability payments until December 2003, when defendants filed a notice to discontinue benefits based on a physician’s determination that plaintiff had reached a medical end result at a 17 % whole-person impairment. The Department approved this request. Thereafter, defendants paid plaintiff permanent partial compensation at $296 per week for 68.85 weeks. Shortly after these benefits were discontinued, in April 2005, plaintiff brought this negligence suit in superior court. The court granted defendants’ motion for summary judgment in March 2006, and plaintiff’s appeal followed.
¶ 5. Two statutory subsections are central to the resolution of this case. One is 21 V.S.A. § 618(b), which provides:
A worker who receives a personal injury by accident arising out of and in the course of employment with an employer who has failed to comply with section 687 of this title may elect to claim compensation under this chapter or to bring a civil action against the employer for full damages resulting from the work injury.
Section 687 provides alternative means
for the employer to “secure compensation” for employees, the most common of
which is to purchase workers’ compensation insurance.
¶ 6. The second subsection is § 618(d), which provides:
The acceptance of any payment by an employee for a work injury shall not bar a subsequent election to pursue a civil suit under subsection (b) of this section unless the employee, with knowledge of his or her rights, signs a written agreement waiving the right to pursue a civil action. The agreement shall be filed with and approved by the commissioner. If the employer fails to pay any amount due and owing under the workers’ compensation act the waiver agreement shall be void and the employee may pursue a civil action.
Plaintiff never signed an agreement waiving his right to pursue a civil action and no such agreement was filed with and approved by the Commissioner.
¶ 7. The merits of this case involve the interplay between the two subsections. The superior court held that § 618(b) requires an election between workers’ compensation and tort damages and that plaintiff made a clear election by applying for and accepting workers’ compensation. It held that the requirements of § 618(d) apply only if the employer makes payments voluntarily and not pursuant to direction of the Commissioner of Labor, as it found occurred here.
¶ 8. The plaintiff argues he loses the right to sue only if he signs a written waiver pursuant to § 618(d) and if it is approved by the Commissioner. In the absence of such written waiver, he contends, acceptance of workers’ compensation payments, whether or not directed by the Commissioner, does not defeat the right to sue. Further, plaintiff argues that only the Commissioner, and not the superior court, can determine whether he has lost the right to sue. We start with the jurisdictional question, and, because we find that the superior court had jurisdiction to decide whether plaintiff could bring this action, we proceed to the merits. Each of plaintiff’s arguments presents an issue of law we review de novo. State v. Valyou, 2006 VT 105, ¶ 4, 180 Vt. 627, 910 A.2d 922 (mem.).
We note at the outset that
plaintiff has raised his jurisdictional argument for the first time on
appeal. Because it is a challenge to jurisdiction, however, we may
consider it. See Braun v. Greenblatt,
2007 VT 53, ¶ 7, ___
¶ 10. In making his jurisdictional argument, plaintiff relies primarily on 21 V.S.A. § 606, which provides that “[q]uestions arising under the provision of this chapter, if not settled by agreement . . . , shall be determined, except as otherwise provided, by the commissioner.” Because all provisions about workers’ compensation are in Chapter 9 of Title 21, plaintiff argues that all legal questions in the domain of workers’ compensation are in the exclusive jurisdiction of the Commissioner and may not be addressed by the superior court.
¶ 11. Plaintiff’s argument is very broad and would
apply to any legal question. We do not think that § 606 can be read as
creating jurisdictional exclusivity as broadly as plaintiff argues. See Dominguez
v. Evergreen Res., Inc., 121 P.3d 938, 943 (Idaho 2005) (under identical
¶ 12. We conclude that Gallipo governs here. We are addressing a pure question of law. The Commissioner has no particular expertise in adjudicating that question. Plaintiff argues that the Legislature intended the Commissioner to decide the waiver question because any written waiver must be approved by the Commissioner. We think instead that expertise in deciding whether a particular waiver is knowing and intelligent is different from statutory construction, which is a pure question of law.
¶ 13. In saying this, we do not suggest that the view of the Commissioner on the legal question would be unhelpful. Defendants could easily have obtained the Commissioner’s view by seeking a ruling on election of remedies from the Commissioner when plaintiff made clear he intended to accept compensation and also bring suit. Defendants failed to do so then, and they are not entitled to do so now.
¶ 14. As we stated in Gallipo,
when we are already in an independent proceeding in court, moving the
proceeding to the Commissioner is “inefficient.”
¶ 15. For the above reasons, we conclude that the doctrine of primary jurisdiction is applicable and supports the superior court determining whether a waiver occurred.
¶ 16. We turn next to the question of whether plaintiff’s receipt of workers’ compensation benefits, as calculated by the Department, is a binding election of remedies that precludes this negligence suit. On this point, it is undisputed that § 618(b) contemplates an election of remedies, a basic choice between a claim for compensation and a negligence suit. Moreover, apart from the effect of § 618(d), plaintiff has not challenged the superior court’s finding that he made a binding election to receive compensation under § 618(b). Thus, we do not address the validity of that conclusion. The issue then is whether § 618(d) changes that result.
¶ 17. Apart from our usual presumption in favor
of the plain and ordinary meaning of statutory language, Butler v. Huttig Bldg. Prods., 2003 VT 48, ¶ 11, 175 Vt. 323, 830
A.2d 44 (“When construing the [Workers’ Compensation] Act, we seek to implement
the Legislature’s intent as expressed in the words of the Act itself.”), two
other canons of statutory construction guide our review in this case.
The first, and more commonly applied in this
context, is that our workers’ compensation statutes are liberally construed in
favor of employees.
¶ 18. We start, as we must, with the plain meaning of the words used in the statute. The superior court narrowed the wording by holding that the statute applied only when the worker received voluntary payments. The court reasoned:
The intent of [§] 618(d) is to prevent employees from being prejudiced if they accept voluntary payments from their employer. The section is not intended to apply in the situation where an employer makes payments required by the Department of Labor and Industry, such as is the case here.
It is difficult to square the court’s holding with the language of the statute. Nowhere does the subsection indicate that it is limited to voluntary payments. Indeed, it specifically applies to “any payment.” 21 V.S.A. § 618(d). We find nothing in the statutory wording to suggest that the intent was as limited as the superior court held. Generally, we do not read extra conditions into a statute unless they are necessary to make the statute effective. Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999).
¶ 19. The superior court’s construction of § 618(d) also appears too limited in light of the statutory scheme. Normally, a worker cannot elect to sue the employer in tort because workers’ compensation is the exclusive remedy. 21 V.S.A. § 622. Furthermore, at least initially, the worker has no way of knowing that an employer has failed to comply with its obligation to secure compensation through insurance or other means. Thus, whether the worker accepts voluntary payments from the employer or applies to the Department of Labor for compensation, there is a significant chance that the worker will be unaware of the alternative of bringing a negligence action and will not make a knowing and intelligent waiver of that alternative, particularly if the worker is proceeding without legal counsel.
¶ 20. We are fortunate in this case to have the benefit of legislative history that shows that the Legislature had exactly this concern. Subsections (b) through (d) were added in 1997 by Act No. 19, § 1 in order to provide greater sanctions for employers who violate § 687 by failing to purchase workers’ compensation insurance or other surety. In addition to the provisions before us, the Legislature reversed the burden of proof on negligence and proximate cause in any civil action and prohibited many common-law defenses, id. (adding 21 V.S.A. § 618(b)); made violation of §687 a crime, id. § 10 (adding 21 V.S.A. § 2025); authorized the Commissioner to close the premises of an employer who fails to comply with § 687 within two years of receiving an order to do so, id. §9 (adding 21 V.S.A. § 692(c)); and made the officers and majority stockholders of a corporation, or partners of a partnership, personally liable for any benefits owed to the injured employee., id. § 7 (amending 21 V.S.A. § 687(b)).
¶ 21. Subsection (d) of § 618 was not part of the bill as it passed the House of Representatives and later passed second reading in the Senate. It was added as a result of a floor amendment proposed by Senator Sears for the Senate Judiciary Committee, just before Senate passage. See S. Journal, 1997 Biennial Session 763-64 (Vt. April 30, 1997). The discussion in the Senate Judiciary Committee indicates that Senators were concerned with the risk of an unknowing waiver of the right to sue and wanted to add requirements to ensure the worker was protected. 
¶ 22. We note that this case proceeded initially
exactly in the way that raised the concern behind the adoption of §
618(d). Plaintiff filed a workers’ compensation claim in June 2002,
apparently without benefit of the advice of counsel. As reflected in a
letter to plaintiff and defendants from a workers’ compensation specialist in
the Department in July, defendants were continuing to pay plaintiff’s salary
and cover his medical expenses. The letter urged each party to obtain
counsel, noting that “[t]here are many rights and responsibilities of both the
injured worker and the employer that you may not be familiar with,” but never
specifically said that plaintiff had a right to sue rather than accepting
compensation. A follow-up letter in December was similar, noting that
“[w]hile your employer has accepted liability for the
injury and is paying benefits, it would be in your best interest to have legal
counsel to ensure you receive all benefits to which you may be entitled under
¶ 23. Whether we view defendants’ payments as voluntary or as coerced by the actions of the Department, there is no indication that plaintiff made a knowing and intelligent waiver of the right to bring suit rather than accepting compensation or that he was even aware of that alternative. Thus, as the Senate Judiciary Committee feared, the addition of the right to sue as a deterrent to failure to purchase workers’ compensation insurance had a very limited effect in these circumstances.
¶ 24. In addition to the statutory construction
canons we outlined above that support plaintiff’s position, this is an area
where we must strictly enforce the statutory requirements to protect the
employee. Thus, in comparable circumstances where the statute requires a
writing to give effect to a waiver, the courts have been unwilling to find a
waiver without the specific writing described in the statute. See Nationwide
Ins. Co. v. Resseguie, 980 F.2d 226, 232 (3d Cir.
¶ 25. Although the Legislature passed § 618(d) to protect the worker’s election remedy, the employer is still able to force an election by the worker as long as it is knowing and voluntary pursuant to the terms of the statute. Thus, before making any compensation payments, whether voluntarily or under the direction of the Department, the employer can insist that the worker waive the right to sue. The employer never did that here. In fact, even when plaintiff’s lawyer informed defendants’ lawyer that he intended to bring suit, defendants continued to pay benefits without addressing the election issue. In the absence of a waiver that complied with § 618(d), plaintiff never made a binding election that precluded his right to bring this action. The dismissal of this action was error.
Reversed and remanded.
FOR THE COURT:
¶ 26. BURGESS, J., concurring. Today’s ruling is supported by the plain language of 21 V.S.A. § 618. The majority’s foray into legislative history is therefore entirely unnecessary, and potentially confusing in some future dispute over the meaning of a statute otherwise clear on its face. When interpreting a statute, we look first to the plain language of the text, In re D’Antonio, 2007 VT 100, ¶ 7, __ Vt. __, __ A.2d __ (mem.), and presume that the Legislature intended the ordinary meaning of the words. Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999). Legislative history is to be referenced only when the words of the statute are ambiguous, and thus “do not provide sufficient guidance to ascertain legislative intent.” State v. Kimmick, 2007 VT 45, ¶ 12, __ Vt. __, 928 A.2d 489 (mem.); LeClair v. Reed ex. rel. Reed, 2007 VT 89, ¶ 5, __ Vt. __, __ A.2d __ (“Where the language of a statute is clear, our inquiry is at an end and we apply the statute in accordance with its plain meaning.”) (quotations omitted); In re Carroll, 2007 VT 19, ¶ 9, __ Vt. __, 925 A.2d 990. Nevertheless, despite the clarity of § 618(b) and (d), the majority looks to, and cites in support of our reading of this statute, legislative committee commentary concerning amendments to the Act. In my view, such gratuitous exploration should be avoided, lest it be suggested, erroneously, that language as plain as that in § 618 may still be open to interpretation based on legislative comments arguably inconsistent with the actual words enacted.
 Defendants brought their motion to
dismiss under Vermont Rule of Civil Procedure 12(b)(6)
and alternatively moved for summary judgment under Rule 56. Plaintiff
responded to both motions with one memorandum, and the superior court disposed
of the case by concluding that plaintiff had failed to state a claim on which
relief could be granted. In light of our disposition of the matter as an
issue of law requiring minimal fact development, we find no significant
difference between the two rules in these circumstances, and review defendants’
motion de novo. See
 The Legislature has precluded
application of an additional canon of statutory construction—that statutes in
derogation of the common law be strictly construed—at least to the extent that
this interpretative device is contrary to the statutes’ “general purpose to
make uniform the law of those states which enact it.” 21 V.S.A. § 709;
see Kittell v. Vt. Weatherboard, Inc.,
 The parties disagree about when this rationale applies and about when the payments became involuntary in this case. In view of our disposition, we need not address this issue.
 The concurrence argues that we are precluded from looking at the legislative history because the language of § 318 is plain, even though our purpose in statutory construction is to implement the intent of the legislature. The concurrence finds further that prohibition in the memorandum decision in State v. Kimmick, 2007 VT 45, ¶ 12, __ Vt. __, 928 A.2d 489. Although the quoted words are in that decision, there is no indication that they are about the use of legislative history.
We have explained that in determining the
intent of the Legislature “we look to the words of the statute itself, the
legislative history and circumstances surrounding its enactment, and the
legislative policy it was designed to implement.” Perry v. Med. Practice
Bd., 169 Vt. 399, 406, 737 A.2d 900, 905(1999); see also Town of
Lunenburg v. Supervisor & Bd. of Governors of Unorganized Towns and Gores
of Essex County , 2006 VT 71, ¶ 7, 180 Vt. 578, 908 A.2d 424 (mem.). Consistent with that approach, we have used
legislative history on numerous occasions, even where we have found the meaning
of the statute to be plain, if, as here, the history confirms the meaning taken
from the language. See State v. Oscarson,
2004 VT 4, ¶ 19, 176 Vt. 176, 845 A.2d 337 (“we hold that the plain language,
legislative history and Reporter’s Notes . . . support the conclusion”); Judicial
Watch, Inc. v. State, 2005 VT 108, ¶ 11, 179 Vt. 214, 892 A.2d 191 (agency
interpretation of the statute “is consistent with its plain language and
legislative history” and therefore entitled to substantial deference); In re
Butson, 2006 VT 10, ¶ 4, 179 Vt. 599, 892 A.2d
255 (“the legislative history . . . shows that this plain reading of the
statute mirrors the Legislature’s intent . . .”). In that circumstance,
the legislative history supports the direction found from the wording and
confirms that it is a proper expression of legislative intent. It is an
entirely different situation where the conclusion suggested from the
legislative history is different by that expressed in the language of the
statute. See Colwell v. Allstate Ins. Co., 2003
As noted, supra, ¶ 7, we are dealing with the interplay of two subsections of the statute. In reaching our conclusion, we draw not only on the language of the subsections, but also on other canons of construction–for example, “specific statutory provisions generally trump more general ones,” ante ¶ 17 – and the need for strict enforcement of statutory language relating to waiver, infra ¶ 24. In this context, we think it is appropriate to use legislative history to reinforce conclusions drawn from other interpretative techniques.
 In presenting the bill to the Senate Judiciary Committee, Commissioner of the Department of Labor and Industry, Mary Hooper, testified that one of the purposes of the bill was to respond to “a number of employers who are failing” to carry workers’ compensation insurance by adding “a number of different ways of getting at that issue” and “incentives within the system for employers to carry worker’s compensation.” Hearing on H.32 Before Senate Judiciary Committee, 1997 Leg. 1, (Vt. Apr. 29, 1997) (statement of Mary Hooper, [Commissioner ] of Labor & Industry).
 The issue was discussed in the Senate Judiciary Committee on April 29, 1997. See generally Testimony on H.32 before Senate Judiciary Committee, (Vt. April 29, 1997). At that point, the draft provided the worker an election as specified in § 618(b): “A worker . . . may elect to claim compensation under this chapter or to bring a civil action against the employer.” The Commissioner of Labor and Industry, and her counsel, were testifying, and Senator John Bloomer questioned whether the election would work in practice.
Sen. Bloomer: . . . . The problem with most worker’s comp cases are a person needs money, and if they’ve been hurt, if I’m an employer and I don’t have insurance, I give you a check for what’s required, my bet is that you’re going to cash it. And if I was the employer, I would then argue you made an election to take it under . . . without even knowing you’re right–so I don’t know how the election works.
Mr. Monahan [Counsel for the Department]: The Department certainly wouldn’t interpret that as making your election. . . . [T]he Department’s view is that the election exists–is the employee’s and must be a knowing or conscious [election]. It can’t be the product of coercion or failure to understand your (inaudible).
. . .
Ms. Hooper: Could we address that?
Mr. Monahan: We certainly could try.
Senator Sears: Well, I think we’ll need to tighten up this election language, and I would suggest that–I know we’ve got to this. Can you get some language to tighten this election up to the committee for the committee hearing tomorrow morning?
The committee met on April 30th and Charles Bristow from the Legislative Council presented the amendment that became § 618(d):
Mr. Bristow: The changes to the amendment I’m passing out now is also a – is language with some changes from drafting stylistically that I received from the general counsel for the Department of Labor and Industry. It attempts to answer the question raised by Senator Bloomer, and that is what about the employee who is injured on the job, the employer runs out and makes some payments to that injured employee and the employee may not know that acceptance of that payment could conceivably eliminate the possibility of filing a later civil action. This is the department’s language, again, with some style changes.
Discussion of H.32, Senate Judiciary Committee, 1997 Biennial Session (Vt. April 30, 1997).
He added later in explaining the amendment:
Mr. Bristow: The first part is simply a statement that the acceptance of a payment of worker’s comp from an employer is not going to eliminate the employee’s right to file civil action.
[T]he employee can now elect instead of taking those payments to go and bring civil suit. . . . Of the civil suit, my concern yesterday was if you accept one of those payments, have you waived your right to a civil suit[?] This tries to clarify that you haven’t unless it’s a written agreement that’s been approved by the commissioner. . . . This basically says . . . the commissioner has to approve a written agreement that you won’t proceed civilly.
The committee approved the amendment and it was added on the Senate floor as 21 V.S.A. § 618(d).