Angolano v. City of South Burlington

453 A.2d 402, 142 Vt. 131, 1982 Vt. LEXIS 612
CourtSupreme Court of Vermont
DecidedNovember 2, 1982
DocketNo. 347-81
StatusPublished
Cited by2 cases

This text of 453 A.2d 402 (Angolano v. City of South Burlington) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angolano v. City of South Burlington, 453 A.2d 402, 142 Vt. 131, 1982 Vt. LEXIS 612 (Vt. 1982).

Opinion

Billings, J.

This is an appeal by the plaintiff from an order of the Commissioner of Labor and Industry denying his claim [133]*133for permanent partial disability compensation and medical and hospital benefits. 21 Y.S.A. § 672. Pursuant to § 672, the Commissioner certified five questions for our review, but because our ruling on the first question is dispositive of this appeal, it is not necessary to list the others. The first question is:

Did the Commissioner err in ruling that, as a matter of law, the employee could not recover in this proceeding for injuries incurred in the course of employment prior to March 2, 1980 ?

The facts giving rise to this disability claim may be briefly stated. On July 1, 1970, plaintiff was hired as a fireman by the defendant City of South Burlington. During the winter of 1970-71, plaintiff was exposed for several seconds to the blast of a malfunctioning fire siren while he was working in the firehouse. As a result, he claims to have suffered a hearing impairment. In the fall of 1976, while plaintiff was attempting to replace the siren switch on a fire truck, the siren again malfunctioned, blasting for several seconds before the wires were disconnected. As a result of this, plaintiff claims a further hearing impairment. Finally, on March 2, 1980, while plaintiff was en route to a fire, the truck’s siren stuck, this time sounding continually for about eight minutes. Plaintiff claims that his hearing was impaired yet again as a result. Several days after this latest incident, plaintiff filed the appropriate “notice of injury” form, 21 V.S.A. § 656, indicating that the accident occurred “since the 1st day of July, 1970.” In May of 1980, plaintiff filed a notice and application for hearing, as required by 21 V.S.A. § 663, stating the date of injury as “prior to March 10,1980.”

On August 22, 1980, attorneys for the parties met with the Department of Labor and Industry counsel for a pretrial conference. After that meeting, the Department’s attorney wrote a follow-up letter stating, among other things, the following:

The stipulations that were discussed at the pretrial conference will be read into the record at the time of the hearing. If there are any revisions to the list or any additional stipulations that may be agreed upon, they must be filed with this office at least one week prior to the hearing.

[134]*134In addition, the Department’s attorney reminded counsel for the plaintiff that he was to determine the precise “date of injury in this matter,” and to notify defendants’ counsel and the Department.

The following week, plaintiff’s counsel sent a responsive letter to the Department, with a copy to defendants, describing plaintiff’s alleged accidents in some detail, and listing the relevant dates as “Fall, 1972” [sic], “Fall, 1974” [sic], and “March 2, 1980.” The letter stated that it was plaintiff’s position “that the latest accident of March 2, 1980 aggravated the plaintiff’s hearing impairment or potentiality for hearing impairment suffered in the preeeeding [sic] accidents.” In addition, plaintiff’s counsel stated that he was enclosing a copy of his “proposed stipulations.” Unfortunately, nowhere in the printed case or certified record can we find copies of this enclosure.

After discovery, a hearing was held before the Commissioner of Labor and Industry. At the commencement of the hearing, the hearing examiner stated in part as follows: “Prior to the opening of this hearing the parties in this matter have agreed to a series of stipulations.” He then read a lengthy list of stipulations into the record, and concluded by listing the following stipulated issues:

1. Did the claimant sustain a personal injury by accident arising out of and in the course of his employment with the defendant on March 2,1980 ?
2. Is the claimant permanently partially disabled as a result of the injuries sustained on March 2, 1980, and if so, to what degree?
3. Is the claimant entitled to the payment of $1,185.71 in medical and hospital benefits ?

Immediately thereafter, plaintiff’s attorney made one correction to the stipulations, in a matter not relevant to this appeal. Defendants’ counsel then objected to several documents listed in the stipulations, and the record was duly corrected. Following this interchange, plaintiff presented his case. At no time did plaintiff’s counsel object to, or comment upon, the statement of the issues limiting the disability claim to injuries sustained on March 2, 1980. However, throughout the hearing plaintiff’s counsel elicited testimony concerning not only the [135]*135accident which occurred in March of 1980, but the two which occurred prior to that date as well. Defendants’ attorney repeatedly objected to evidence of prior injuries, maintaining that it was irrelevant to the claim at issue. These objections were noted by the hearing examiner, but the testimony was allowed nevertheless.

Based on the stipulations and the evidence produced at the hearing, the Commissioner found, inter alia, that the plaintiff had indeed suffered three accidents as a result of siren malfunctions, in the winter of 1970-71, in the summer of 1976, and on March 2, 1980. He found that plaintiff was examined in the fall of 1976, and again in December of 1980, by the employer’s otolaryngologist; that the doctor’s 1976 tests showed that plaintiff suffered from a 25% hearing loss; and that his subsequent examination in 1980 showed substantially the same loss. The Commissioner further found that plaintiff was examined by his own otolaryngologist, once just prior to the March 2 accident and then immediately following it; that as a result of his first examination, the doctor found plaintiff suffering from a 25% hearing loss; and that his second examination revealed only a “slight decrease” in plaintiff’s hearing capacities.

The Commissioner concluded that the plaintiff, a “noise sensitive” individual, did in fact have a hearing loss. However, he found that the only legal issue was whether plaintiff had suffered a compensable injury by accident on March 2, 1980. While acknowledging that plaintiff’s counsel had argued for compensation on the basis of a series of accidents, he concluded that evidence regarding the prior incidents was irrelevant, as the plaintiff had “accepted the framing of Issues #1 and #2 prior to the hearing, and suggested them in his initial stipulation proposal.” The Commissioner then held that plaintiff had not sustained his burden of proving a compensable injury on March 2, 1980, for he found from the evidence that plaintiff’s hearing loss resulted prior to that date. For this reason, he denied plaintiff’s claim for permanent partial disability compensation. 21 V.S.A. § 648. The Commissioner also denied plaintiff’s claim for medical and hospital benefits, 21 V.S.A. § 640, based in part on his finding that there was no compensable injury in 1980.

The first question certified for our review is whether the [136]*136Commissioner erred in ruling that plaintiff could not recover in this proceeding for injuries incurred prior to March 2,1980. We conclude that this ruling was not in error, and that the first question must therefore be answered in the negative.

The record reveals that plaintiff’s attorney made no objection to the clear statement read into the record at the commencement of the hearing, which effectively limited the issue of liability to the 1980 injury.

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Bluebook (online)
453 A.2d 402, 142 Vt. 131, 1982 Vt. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angolano-v-city-of-south-burlington-vt-1982.