The Money Shuffle

By Andrew Delaney

Yustin v. Dept. Pub. Safety, 2011 VT 20 (mem.)

Claimant in this case was working as a Vermont State Trooper.  While prepping for his physical fitness exam, Claimant suffered a shoulder injury.  Ironic, huh?  He continued to work for about six months, and then underwent surgery for a partial rotator cuff tear.  This kept him out of work for about four months.  The Risk Management Division (the state agency that handles state employees’ workers’ comp claims) disputed whether the injury was work related and denied coverage.  So Claimant used his sick-leave to receive full wages during the time he was out of work, and challenged the workers’ compensation denial.  The Labor Department issued an interim finding that the injury was work related and ordered temporary total disability payments to Claimant for the time he was out of work.

The Department of Public Safety (DPS) did not dispute the order, and restored Claimant’s sick leave by the amount of disability benefits owed, pursuant to a provision in the State of Vermont’s personnel policy that provided for this.  Claimant challenged the method of payment, arguing that he was entitled to a separate and direct payment of benefits, from which he could pay his attorney’s fees.  The Commissioner reasoned that the structure here made the sick wages already paid to Claimant akin to an advance on his workers’ comp.  Claimant made a direct appeal to the SCOV.

Though the parties focused on the applicability of the State personnel policy, the majority held that the method of payment here was “entirely consistent with the compensatory purpose of the Act pertinent to claimant’s situation.”  DPS paid Claimant through his sick leave.  When the Labor Department found that the injury was work related, DPS replenished Claimant’s sick leave.  The majority also reasoned that this method of compensation was consistent with the policy against double recovery contained in the Act. 

The majority noted that Vermont’s workers’ comp law doesn’t contain an express provision authorizing the sort of “credit” or “offset” that was present in this case.  But, the majority reasoned that such provisions are “not uncommon” and that Vermont law generally limits recovery to the amounts specified by statute.  The majority addressed the dissent’s arguments somewhat dismissively, noting that by paying the Claimant sick-leave pay, the DPS had already paid “to the person” as required by statute.  The majority reasoned that Claimant simply does not get to get paid “twice” for the same injury. 

Claimant also made the argument that the payment scheme violates the Act’s prohibition on assignment of benefits to creditors.  Not so, says the majority.  The policy at issue here just lets workers draw a substitute payment from employers in advance of any workers’ comp benefits due. 

Finally, the majority dismisses Claimant’s argument that he had to incur legal fees and that a lump-sum payment would allow him to pay those fees.  The majority notes that there is a statute that authorizes an award of attorney’s fees even in a case like this.  Accordingly, the majority affirms the Commissioner’s decision to allow the offset.

The dissent—as dissents often do—sees things a little differently.  Justice Dooley began his analysis with a sarcastic hypothetical letter from DPS to Claimant.  To paraphrase the paraphrasing, the hypothetical letter essentially says: “Yeah, we were ordered to pay you, but we already paid you more in sick leave than we were ordered, so we’re just going to credit your account with some of that sick leave.  If you don’t like that, well, tough.”

The dissent reasoned that DPS was violating the Department of Labor’s order.  None of the rules and statutes cited by the majority provided support for DPS’s position.  The dissent reasoned that the majority simply provided “a fig leaf” for DPS’s policy argument that the payment method prevents a double recovery.  Accordingly, the dissent would award the Claimant the lump-sum ordered by the Commissioner and leave the policy-making to the Legislature.

The dissent reasoned that the majority substituted its own reasoning where the Legislature left a void.  The statute does not say anything about the credit or offset situation here.  The decisions from other states—states with provisions in the workers’ compensation law that allow for credit or offset—are not on point because Vermont’s law has no such provision.  The personnel policy is not a source of law and just assumes that the employer has some right to keep workers’ compensation benefits it has been ordered to pay.  The dissent reasons that the policy doesn’t even address the issue at hand. 

Even if it did, there’s no evidence that it was collectively bargained, and this is a subject that the dissent reasons must be collectively bargained.  If DPS wants to rely on the policy, then it needs to show that it reached the level of an implied contractual provision—DPS hasn’t even tried to do that.

The dissent also takes issue with the majority’s contention that the preventing-double-recovery policy is the correct policy factor to consider in this case.  DPS is conditioning receipt of an earned entitlement on foregoing a statutory right to workers’ comp.  Sick leave isn’t something that you get to take with you when you leave the job.  Finally, the dissent points out that this case illustrates what can happen when the Court substitutes its judgment for the Legislature’s, and notes that this decision is a disincentive for attorneys to take any temporary disability case involving a state worker.  

This is a tricky issue, and I certainly don’t have the right answer—I don’t even have a good, snarky comment about it.  This case did give me an interesting thought, though.  When I bang my head against the wall—which I do at work on a daily basis—and I injure myself, will that qualify as a work-related injury?  What if it happens in court?