Stoll v. Burlington Electric Department

2009 VT 61, 977 A.2d 1282, 186 Vt. 127, 2009 Vt. LEXIS 58

• Court: Supreme Court of Vermont
• Decided: June 19, 2009
• Docket: 2008-051
• Status: Published

Opinions

Skoglund, J.

¶ 1. Employee Robert Stoll appeals the Chittenden Superior Court’s dismissal of his workers’ compensation appeal for lack of jurisdiction. We affirm. Employee further asks that we grant his motions for leave to file an untimely direct appeal from the Commissioner’s decision and to consolidate his appeals. We deny these motions.

¶2. For twenty-six years, employee worked for the Burlington Electric Department, during which time he claims to have been exposed to asbestos. In August 2004, employee was diagnosed with several conditions caused by asbestos exposure. He filed a claim for workers’ compensation benefits with the Vermont Department of Labor and Industry in May 2005.

¶ 3. Before the Commissioner, appellee insurance companies sought a ruling that the statute of repose in the Occupational Disease Act (ODA) barred employee’s claim. On September 22, 2006, the Commissioner granted the insurance companies’ motions. On October 23, 2006, the Commissioner forwarded employee’s notice of appeal of the Department’s decision to Chittenden Superior Court. On February 7, 2007, the Commissioner certified the following questions to the superior court:

1. Whether the Chittenden Superior Court has jurisdiction to hear this appeal under 21 V.S.A. § 671, when the Department of Labor’s decision granting the Defendants’ Motions for Summary Judgment was based on a pure question of the law and no facts were disputed by the parties for the purpose of the summary judgment motions?

2. If the Chittenden Superior Court has the jurisdiction to hear this appeal, whether the Occupational Disease Act’s five year statute of repose bars Claimant’s claim for alleged work-related asbestosis disease, when the Claimant’s last injurious exposure to asbestos occurred no later than 1985, no diagnosis of asbestos[is] (or any physician’s reports relating to it) occurred until 2004, and no claim was filed until 2005?

¶ 4. Before the superior court, appellee insurance companies filed motions for summary judgment. They argued that the superior court lacked jurisdiction to hear the appeal. The superior court agreed and granted the motions. Employee appealed to this Court. One month later, employee filed a motion with this Court requesting that we grant him leave to file an untimely direct appeal from the Commissioner’s decision. We reserved ruling on that motion until we considered the merits of employee’s appeal.

¶ 5. The rights to appeal the Department’s workers’ compensation decisions are circumscribed by statute. 21 V.S.A. § 671 provides that the superior court’s jurisdiction over an appeal from the Department “shall be limited to a review of questions of fact or questions of fact and law certified to it by the commissioner.” Appeals of pure questions of law, in contrast, must be taken directly to this Court. Id. § 672.

¶ 6. We have had occasion to interpret these statutory provisions in the past. In Pitts v. Howe Scale Co., 110 Vt. 27, 38, 1 A.2d 695, 699 (1938), we ruled that the superior court did not err by submitting to the jury only one out of eight questions certified to it by the Commissioner where that question was the only one that could be interpreted either as a question of fact or a mixed question and the other seven were pure questions of law. In so ruling, we reasoned that § 671 “does not authorize the certification of questions of law to [the superior] court but only questions of fact or mixed questions of fact and law,” and that “it would be [the superior court’s] duty, to disregard questions which are not within the statutory authority of the commissioner to certify . . . because they are pure questions of law.” Id. at 35-36, 1 A.2d at 698-99. We therefore found no error in the court’s submission of only the first question — which we reasoned could be interpreted as a request for retrial on an issue of fact — to the jury, since “[t]he remaining seven questions certified by the commissioner . . . raise[d] only questions of law.” Id. at 37, 1 A.2d at 699. More recently, in Lorrain v. Lorrain Carpets, 167 Vt. 574, 575, 705 A.2d 536, 537 (1997) (mem.), we affirmed the superior court’s dismissal for lack of jurisdiction of an appeal challenging the Commissioner’s conclusion that the employee was collaterally estopped from making a particular argument in furtherance of his workers’ compensation claim. We reasoned that dismissal was appropriate because “the applicability of collateral estoppel to a given set of facts is a question of law,” “the superior court’s jurisdiction extends only to questions of fact or questions of fact and law,” and “that court has no jurisdiction over questions that are purely legal.” Id.

¶ 7. In sum, the superior court’s order granting summary judgment for appellee insurance companies on jurisdictional grounds was appropriate because both certified questions presented pure questions of law. Whether a court has subject matter jurisdiction over a particular dispute is a pure question of law. Office of Child Support v. Sholan, 172 Vt. 619, 620, 782 A.2d 1199, 1202 (2001) (mem.). Thus, as framed, the first certified question is clearly improper. Moreover, it had nothing to do with the issues presented to the Commissioner, so we are puzzled by her certification of this question.¹ The question of the applicability of a statute of repose to a set of undisputed facts is also a pure question of law. Gettis v. Green Mountain Econ. Dev. Corp., 2005 VT 117, ¶ 20, 179 Vt. 117, 892 A.2d 162. Employee does not challenge the superior court’s finding that the facts pertinent to the Commissioner’s application of the ODA’s statute of repose were undisputed: employee’s last exposure to asbestos occurred no later than 1985, he was diagnosed in June 2004 with diseases caused by exposure to asbestos, and he filed his claim for workers’ compensation on May 16, 2005. Therefore, the second question, while it brought before the superior court a question decided by the Commissioner, was also improper.² The second question also contains a misstatement of employee’s condition which we take this opportunity to correct. Employee has not been diagnosed with asbestosis disease; rather, he has been diagnosed with pleurisy, emphysema, and bronchiectasis.

¶ 8. Employee also argues that the superior court erred in not construing the Commissioner’s second certified question as follows: “whether . . . the Occupational Disease Act’s five year statute of repose bars [claimant’s] claim for compensation due to his asbestos-related diseases.” Employee argues that our decision in Pitts requires the superior court to construe a certified question so that it confers jurisdiction on the court, if possible, and that the Commissioner’s second certified question would be a mixed question of fact and law as rephrased by employee. However, Pitts does not stand for that proposition. In Pitts, we reasoned that a superior court faced with an ambiguous certified question could, in its discretion, return the question to the Commissioner to be clarified. 110 Vt. at 36, 1 A.2d at 697. We nevertheless approved of the superior court’s interpretation of a certified question as a question of fact although it could also have been interpreted as a question of law. Id. Nothing in Pitts suggests that the superior court must — or even that it may — recast a question that is unambiguously purely legal as a question of fact or a mixed question in order to create jurisdiction. Moreover, as employee has not challenged the superior court’s finding that the facts material to the Commissioner’s application of the statute of repose were undisputed, the question remains one of pure law even as rephrased by employee.

¶ 9. Nothing in the dissent calls into question the clarity of the statutes circumscribing the courts’ jurisdiction to hear appeals from the Commissioner’s workers’ compensation determinations. In particular, the dissent’s reliance on Letourneau v. A.N. Deringer/Wausau Insurance Co., 2008 VT 106, 184 Vt. 422, 966 A.2d 133, and Roethke v. Jake’s Original Bar & Grill, 172 Vt. 555, 772 A.2d 492 (2001) (mem.), are unpersuasive. In Letoumeau, the jurisdictional issue was neither raised by the parties nor considered by this Court. And the last paragraph of Roethke, upon which the dissent places heavy reliance, is purest dicta. While Justice Dooley clearly believes that the scheme he suggests is superior — in efficiency, in fairness, and in its allocation of the means to control workers’ compensation appeals between the Commissioner and litigants — to that provided by law, he would do better to direct his comments to the Legislature rather than sow the seeds of interpretive latitude in and around an entirely clear statutory scheme.

¶ 10. We find no error in the superior court’s grant of summary judgment to appellee insurance companies. Moreover, we decline to exercise our discretion under § 673 to allow employee to file a direct appeal of the Commissioner’s September 2006 order with this Court.³ Further, we dismiss appellee CNA Insurance Company’s motions to strike portions of appellee Vermont Property and Casualty Insurance Guaranty Association’s and appellee Insurance Company of North America’s briefs as moot.

The superior court’s order granting summary judgment to appellee insurance companies is affirmed. Employee’s motions for leave to file an untimely direct appeal from the Commissioner’s decision and to consolidate the appeals are denied. Appellee CNA Insurance Company’s motions to strike portions of appellee Vermont Property and Casualty Insurance Guaranty Association’s and appellee Insurance Company of North America’s briefs are dismissed as moot.

1 Employee finds fault with the superior court’s ruling on subject matter jurisdiction on the grounds that the Commissioner’s first question was a pure question of law. While the superior court’s decision is styled as a response to the Commissioner’s first question, it is axiomatic that an adjudicative body always has the power to determine whether it has subject matter jurisdiction over the dispute before it. See Town of Woodstock v. Cleveland, 125 Vt. 510, 512, 218 A.2d 691, 693 (1966) (“Every court has the power to determine in the first instance its jurisdiction to entertain the proceedings brought before it.”). It was therefore proper for the superior court to address the threshold question of subject matter jurisdiction even though the question had also been erroneously certified to it by the Commissioner.

2 The dissent argues that the Commissioner should have decided factual issues not necessary to its disposition of this case so that employee could have his choice of appellate forums. While the dissent rightly recognizes that if the Commissioner had done so employee could have appealed questions of fact or mixed questions to the superior court under § 671, the fact remains that the Commissioner did not decide such factual issues in this case.

3 The dissent suggests that we should excuse the employee’s “mistake in choice of forum,” post, ¶ 22, by allowing a late appeal to this Court on account of the Commissioner’s malfeasance. We take it that the dissent accuses the Commissioner of seeking to insulate her ruling from reversal and to sabotage employee’s case by certifying two pure questions of law to the superior court. See post, ¶ 23. There is no basis in the record upon which to ascribe such motives to the Commissioner. Finally, the dissent registers its apparent disapproval of the Commissioner’s power to shape workers’ compensation appeals without any acknowledgement that the Legislature may have intended to vest such control in the Commissioner through the duty to certify questions.