Merchant v. A&C Enercom, No. S0965-04 CnC (Norton, J., Dec. 9, 2004)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No.S0965-04 CnC



MERCHANT

v.

A & C ENERCOM




                                 ENTRY

       Employer A & C Enercom appeals the Commissioner of Labor and
Industry’s decision to order employer to pay permanency benefits with
interest plus attorney’s fee to employee Daniel Merchant. Employer also
appeals, pursuant to V.R.C.P. 74(c), the Commissioner’s partial denial of
its motion for a stay of the benefits award.

       Employer also seeks to consolidate its appeal with a separate action
filed by its workers’ compensation insurer to resolve a claim for money
received by employee from his own underinsured motorist recovery policy.
See V.R.C.P. 42(a); North River Insurance Co., v. Daniel Merchant, et al.,
Docket No. S0828-03 CnC. For the reasons stated below, employer’s
motions to stay and to consolidate are denied.

                            MOTION TO STAY

       An appeal from a Workers’ Compensation decision does not
automatically result in a stay of that decision. V.R.C.P. 74(c); 21 V.S.A. §
607. A court may, however, grant or overturn a stay on specific statutory
or equitable grounds. Under the workers’ compensation statute, when a
party files a notice of appeal of the decision, the party may also request a
stay from the Commissioner. 21 V.S.A. § 675(b). The Commissioner’s
response to such a request becomes part of the record on appeal. Id. This
decision may be reviewed by the superior court, but any such review
requires deference to the Commissioner’s determinations and will not be
reversed short of an abuse of discretion. V.R.C.P. 74(c); Wood v. Fletcher
Allen Health Care, 169 Vt. 419, 422 (1999) (“The Commissioner's decision
is presumed valid, to be overturned only if there is a clear showing to the
contrary.”). On equitable grounds, the court may also issue or deny a stay
as “necessary to preserve the rights of the parties upon such terms and
conditions as are just.” V.R.C.P. 74(c); 3 V.S.A. § 815(a).

        Under either basis for review, the Supreme Court has adopted four
factors to evaluate such motions to stay agency decisions. In re Ins. Servs.
Office, Inc., 148 Vt. 634, 635 (1987) (mem.). The moving party must
show: (1) a likelihood of succeeding on the merits; (2) irreparable injury if
a stay is not granted; (3) that issuance of a stay would not substantially
harm other parties; and (4) that a stay would serve the best interests of the
public. Id. The moving party has the burden of demonstrating that its
motion satisfies each of these factors. See Gilbert v. Gilbert, 163 Vt. 549,
560 (1995).
       In this case, the Commissioner used the factors to grant a partial stay
for employer. First, he found that the novel legal issues raised by employer
had raised some chance of success on appeal. Second, he found that the
evidence was inconclusive as to whether employer or employee would
suffer any harm either way. Finally, he found that public interests would be
best served by a partial stay that would balance the results. Thus, the
Commissioner concluded that the award of pre-judgment interest should be
stayed but not the 3% permanency benefits or attorney’s fees. Mindful of
these findings, the court finds that employer has failed to meet its burden in
regards to the factors and therefore denies the motion.

       On appeal, employer present no additional arguments that change
the Commissioner’s findings regarding its chance of winning on appeal.
The novel legal question concerning an employer’s right to withhold a
permanency award based on liens held for a separate personal injury award
may raise employer’s odds of wining its appeal above the normal workers’
compensation appeal, but there is no further reason to conclude that
employer is any more likely to succeed. Employer introduces no new case
law or jurisprudential analysis that would cause this court to question or re-
evaluate the Commissioner’s initial findings. The separate litigation
concerning employer’s subrogation claims, which may affect the
substantive disposition of this case, has likewise not been resolved or
advanced. Employer has also not challenged or disputed the critical
findings of the Commissioner that employee was in fact permanently
injured to at least a rating of 3%. As 21 V.S.A. § 648 states,
notwithstanding employer’s legal theories, this undisputed fact requires
immediate compensation.

         As to the second factor, employer maintains its position that it
would be unable to recover payment to employee in the event that it won on
the merits. This argument is less than persuasive since it could be raised by
every workers’ compensation defendant. The idea of “irreparable harm”
must go beyond a common problem and must include at least some
evidence of fiscal hardship or substantial loss to be supportable. To the
extent that there is a chance of harm, the Commissioner’s partial stay
addresses those concerns.

        Similarly, the final two factors regarding employer’s potential harm
and public policy are satisfied by the partial stay. To the extent that
employer’s arguments raise viable contentions, they do not demonstrate
how the Commissioner’s decision violates the underlying principles or
creates a result that does not support either the statutory concerns for
employee or the public policy that must balance any result. To the extent
that this action may come to resemble more of an insurance subrogation
claim, there has been a partial stay. To the extent that it remains a workers’
compensation issue, the stay has been denied. In conclusion, employer’s
arguments fail to persuade that the Commissioner’s decision regarding the
stay violate any of the four factors or require an equitable alteration.

                      MOTION TO CONSOLIDATE

        Rule 42(a) provides that two actions may only be consolidated with
the consent of the parties. V.R.C.P. 42(a) rep. n. (“full consolidation might
be had only with the consent of the parties.”); see also Mobbs v. Cent. Vt.
Ry., 155 Vt. 210, 215 n.2 (1990) (explaining a distinction between the use
of the term “consolidation” in federal and Vermont practice). In this case,
employee has filed an opposition to employer’s motion to consolidate, and
consent is clearly absent among the parties.

        Rule 42 also allows a court broad discretion to order a joint hearing
or trial for “actions involving a common question of law or fact pending”
without the consent of the parties. V.R.C.P. 42(a); Mobbs, 155 Vt. at 215.
Here, employer seeks to consolidate with North River Insurance Co., v.
Daniel Merchant, et al., a case currently stayed by the parties’ mutual
agreement while the Vermont Supreme Court decides another case on the
same issue. In the North River case, the issue is whether the employer has
a right under 21 V.S.A. § 624(e) to employee’s underinsured motorist
settlement. The narrow issue in this case is whether employee should
receive the 3% permanency benefits for which he is eligible and which
there is statutory language compelling its payment. The two cases are
distinct legally and factually. While any recovery decided in this case will
no doubt be reflected in employer’s claim against employee’s underinsured
motorist settlement, neither that case nor this one will benefit from
consolidation. Employer’s primary motivation for consolidation, to prevent
any possible overpayments, is not enough to justify the intermingling of
two separate areas of the law and two essentially separate fact scenarios.
The court finds it to be an inappropriate at this time to order any joint
hearings.

       Accordingly, employer A & C Enercom’s motions to stay and to
consolidate are denied.



      Dated at Burlington, Vermont this ___ day of December, 2004.



                                           __________________________
                                                                Judge
