David Flood v. Feed Commodities Inc. Opinion No. 09S-16WC



David Flood v.Feed Commodities, Inc. Opinion No. 09S-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan


State File No. GG-00758


Defendant moves to stay the Commissioner’s June 28, 2016 Order pursuant to 21 V.S.A.

  • 675.

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


  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.

As to the first criterion, Defendant argues that “the evidence is such that a jury could

reasonably conclude that Claimant’s injury did not arise out of and in the course of his

employment.” Indeed it might, but that possibility alone is insufficient to establish Defendant’s

likelihood of success on the merits, particularly given that one neutral fact-finder – the

Commissioner – has already concluded otherwise.

As to the second criterion, Defendant asserts that it will be irreparably harmed by having

to pay workers’ compensation benefits now, because these monies will be difficult to recoup

should it prevail on appeal. The Commissioner consistently has refused to accept this as an

adequate basis for establishing irreparable harm. See, e.g., J.D. v. Employer R, Opinion No. 22S-

07WC (September 12, 2007); Liscinsky v. Temporary Payroll Incentives, Inc., Opinion No. 09R-

01WC (June 26, 2001); Fredriksen v. Georgia-Pacific Corp., Opinion No. 28S-97WC

(December 4, 1997).

As to the third criterion, Defendant asserts that granting a stay will not harm Claimant

because if he prevails on appeal, he will be awarded interest on any unpaid benefits. This

argument ignores the substantial delay that accompanies any court proceeding. Claimant needs


to house and feed his family today, and to do so he needs access to the benefits the

Commissioner has determined Defendant should have paid him at the time he was injured,

almost three years ago. To say he will not be harmed by months, if not years, of further delay is


As to the last criterion, Defendant asserts that a stay will serve the best interests of the

public, by avoiding both an “unjustified windfall” to Claimant and the additional litigation to

recoup it once Defendant prevails on appeal. Again, this argument rests entirely on Defendant’s

assertion that it is likely to succeed on appeal. The contrary view, which I find more likely, is

that a jury will find that Claimant suffered a compensable work injury, on account of which

Defendant owes workers’ compensation benefits accordingly. The “windfall” he will now

receive is neither “unjustified” nor even a “windfall” at all, and Defendant will have no basis for

recouping it.

As noted above, the decision to grant a stay must be the exception, not the rule, Bodwell,

supra. I conclude in this case that Defendant has failed to establish its right to a stay in

accordance with the stringent requirements for doing so.

Defendant’s Motion for Stay is DENIED.

DATED at Montpelier, Vermont this ____ day of August 2016.


Phyllis G. Phillips, Esq.

Administrative Law Judge