Blog

STATE OF VERMONT

DEPARTMENT OF LABOR

Brandy Clayton v.  J.C. Penney Corporation Opinion No. 13S-16WC

1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. GG-61153

RULING ON DEFENDANT’S MOTION FOR STAY AND IN THE ALTERNATIVE

FOR PERMISSION TO TAKE INTERLOCUTORY APPEAL

Defendant moves to stay the Commissioner’s August 24, 2016 Order pursuant to 21

V.S.A. §675. Alternatively, it moves for permission to take an interlocutory appeal on the legal

question decided therein – whether the parties’ September 24, 2014 approved settlement

agreement bars Claimant as a matter of law from asserting a claim for workers’ compensation

benefits on account of her alleged March 10, 2015 work-related right foot injury.

To prevail on a request for a stay, the moving party must demonstrate all of the

following:

1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing a stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.

In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).

As contemplated by the legislature, the granting of a stay must be the exception, not the

rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this

stringent standard, I find that Defendant has failed to establish its right to a stay.

For a trial court to grant a party permission to take an interlocutory appeal, the criteria are

somewhat less strict, however. In reviewing such a request, Vermont Rule of Appellate

Procedure 5(b)(1) requires only that the ruling “involve a controlling question of law about

which there exists substantial ground for difference of opinion,” and that an immediate appeal

“may materially advance the termination of litigation.” V.R.A.P. 5(b)(1)(A) and (B); see, e.g.,

Dodge v. Precision Construction Products, Opinion No. 38-01WC (December 5, 2001).

The decision whether to grant or deny permission to take an interlocutory appeal rests in

the sound discretion of the trial court. State v. McCann, 149 Vt. 147, 151 (1987). I conclude

here that the criteria for granting permission have been met. The legal issue presented involves a

controlling question of law – whether a workers’ compensation settlement that purports to cover

not only injuries arising from a pending claim but also those that might arise from completely

unrelated causes in the future is impermissibly broad. There are substantial grounds for

2

difference of opinion as to the correctness of the Commissioner’s ruling, including whether she

forfeited her right to void the objectionable portions of the agreement by initially approving it

when it was first submitted for her review. And regardless of the Supreme Court’s ruling, an

immediate appeal might materially advance the termination of litigation – if it reverses the

Commissioner’s order, the pending claim will be forever barred; if it affirms it, it will likely be

settled.

Defendant’s Motion for Stay is hereby DENIED. Defendant’s Motion for Permission to

Take Interlocutory Appeal is hereby GRANTED.

DATED at Montpelier, Vermont this13th day of October 2016.

____________________________

Anne M. Noonan

Commissioner