Affirmative Defenses Are Tough to Win in Vermont

The claimant in Deuso v. Shelburne Limestone Corporation, Op No. 13-18WC was the instigator in a physical altercation with a superior at work that led to an alleged head injury.   The day of the scuffle also became the claimant’s last day of work as he was, unsurprisingly, fired from his job. Two weeks later, the claimant filed a Report of Injury, not just for the asserted concussion, but also for a hernia and for hearing loss/tinnitus, both conditions that long pre-dated his termination date.  His claim was denied and the dispute came before the Department on the employer’s Motion for Summary Judgment. 

The employer first invoked 21 V.S.A. § 649 and argued that the claim was barred in its entirety because claimant, as the aggressor, was injured as the result of his intent to injure another.  The Department rejected the premise that starting a fight was the same as intending to injure the victim.  Essentially, for the defense to be successful, the instigating act has to be violent enough to overcome an inference that the claimant was merely acting impulsively, without an understanding that the act could or would cause physical harm.   The evidence in Deuso was that the claimant was an “emotional wreck” at the time of the altercation (which had followed a negative personnel review); thus, the inference remained that he was acting with impulse and not intent to injure when he merely “grabbed” his supervisor. 

The Employer also asserted the statute of limitations on the hearing loss/tinnitus claim, which had not only been diagnosed eight years prior, but had also been causally linked to claimant’s work place at that time.   Accordingly, Administrative Law Judge DiBernardi found that the condition and its relationship to the workplace were “reasonably discoverable and apparent” more than three years before claimant initiated his claim for benefits.  This is traditionally where the statute of limitations analysis ends.  Not in this case.  ALJ DiBernardi went on to conclude that the statute didn’t actually begin to run from that date because at the time, the claimant had no claim for benefits to assert.  She found that he didn’t have a claim to assert until hearing aids were recommended, and it was at that point that the statute of limitation began to run.   This analysis seems faulty to us.   The evidence showed that the claimant on several occasions reported the condition to his primary care physician; he could have asserted a claim for benefits on those occasions, and directed the office visit to be billed as workers’ compensation.    We don’t think the fact that he didn’t assert a claim then means that he didn’t have one to assert.