Roethke v. Jake's Original Bar and Grill

Roethke v. Jake's Original Bar and Grill (2000-080); 172 Vt. 555; 772 A.2d 492

[Filed 01-Mar-2001]

[Motion for Reargument Denied 27-Mar-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-080

                             DECEMBER TERM, 2000


LuAnn Roethke	                        }	APPEALED FROM:
                                        }
                                        }
     v.	                                }	Department of Labor and Industry
                                        }	
                                        }
Jake's Original Bar and Grill	        }	DOCKET NO. B-26886


             In the above-entitled cause, the Clerk will enter:


       This is an appeal from a final order by the Department of Labor and
  Industry, which certified  as a question for review by this Court whether a
  claimant's workers' compensation rate pursuant to  21 V.S.A. §§ 642 and 648
  (temporary total and permanent partial disability) may exceed the 
  claimant's actual average weekly wage at the time of injury.  The
  department answered the question  in the negative, and claimant argues the
  question should be answered in the affirmative.  Because this  Court lacks
  jurisdiction to address the certified question, the appeal is dismissed.

       In 1989, claimant LuAnn Roethke suffered a back injury while working
  at Jake's Original Bar  and Grill.  The injury resulted in her eventually
  undergoing a series of surgical procedures, ultimately  resulting in the
  fusion of two vertebrae in her back.  Within a few months of the injury,
  claimant  filed for workers' compensation, and has been receiving either
  temporary total or permanent partial  disability benefits since 1990.  

       Claimant instituted this action, seeking reimbursement for her unpaid
  medical bills and  recalculation of her average weekly wage from $155 to
  $300, with a corresponding increase in her  computation rate.  On June 2,
  1999, the department issued a ruling on the parties' cross-motions for 
  summary judgment, holding that claimant would not be entitled to annual
  adjustments of her  workers' compensation benefits.  On January 19, 2000,
  the department issued an order, after a  hearing on the merits, on the
  issue of her actual earnings during the twelve weeks prior to her injury 
  and the insurance carrier's responsibility for certain disputed expenses. 
  Claimant then expressed to  the department her intention to appeal the
  January 19 decision to the superior court.  On February 10,  the
  commissioner, upon an unopposed motion by claimant, entered a final
  judgment on the June 2,  1999, summary judgment ruling, agreeing with
  claimant that the summary judgment claim should be  granted prior to
  superior court adjudication of the factual issues.  On February 16 claimant
  filed her  appeal of the February 10 judgment, on a question of law, to
  this Court.  Two days later, on February  18, claimant filed a separate
  appeal of the same judgment, on questions of fact, in

 

  Chittenden Superior Court. (FN1)  On March 20, the commissioner certified
  the above  question of law for review by this Court, and three questions of
  fact for review by the superior court. 
 
       We conclude that we are without jurisdiction to answer the certified
  question.  There are two  avenues available to a claimant that would enable
  her or him to present a question of law, certified  by the commissioner, to
  a court for review.  First, within thirty days of the commissioner's
  sending  of an award, a claimant may appeal to the superior court questions
  of fact, or questions of fact and  law, certified to that court by the
  commissioner.  21 V.S.A. §§ 670, 671.  Should claimant be  aggrieved with
  the superior court's adjudication on the matter, he or she could appeal
  that ruling to  this Court.  See id. § 672 (providing this Court with
  jurisdiction over appeals from superior court  decisions on questions
  presented to it pursuant to 21 V.S.A. §§ 670 and 671).  Alternatively, a 
  claimant may appeal directly to this Court "questions of law certified to
  it by the commissioner."  Id.  However, appeal to this Court as provided in
  § 672 is available to a party only "[i]f an appeal is not  taken under the
  provisions of section 670 of this title within the time limited therefor." 
  Id.  The  language of § 672 makes clear that these avenues for review are
  mutually exclusive-an appeal made  to the superior court as provided in §§
  670 and 671 precludes appeal directly from the commissioner  to this Court
  as provided in § 672.

       In this case, on February 18, eight days after the commissioner's
  entry of final judgment and  two days after filing an appeal with this
  Court, claimant brought a separate appeal in this case to  superior court. 
  In appealing to the superior court within the thirty-day time frame
  provided under §  670, claimant deprived this Court of jurisdiction under §
  672 to review the certified question.  See id.  § 672.

       It is perhaps a result of claimant's attempt to bring two appeals, in
  two different tribunals, in  this one case that the briefing in this case
  is so unclear.  This Court cannot determine from the record  before us
  whether claimant is even receiving permanent partial disability benefits at
  this time.  It may  be that, even if we had jurisdiction to address the
  certified question, any decision this Court might  make as to the
  availability of statutory increases in permanent partial disability
  benefits would be  purely advisory.  See Anderson v. State, 168 Vt. 641,
  644, 723 A.2d 1147, 1149 (1998) (mem.)  (advisory opinions are "beyond the
  authority vested in the judicial branch by the constitution").  
  Furthermore, the issue presented in the certified question may have been
  rendered moot by the  superior court's ruling in claimant's favor.  See In
  re J.S., 139 Vt. 6, 14,  420 A.2d. 870, 874 (1980)  ("Under the mootness
  doctrine an appellant's stake in the litigation must continue throughout
  its  entirety, and this Court may not issue advisory opinions.").

       It does not appear that claimant raised in the superior court the same
  question of law certified  to this Court by the commissioner.  If that is
  the case, she has rendered the commissioner's judgment 

 

  on this certified question of law final and controlling in this matter. 
  Claimant would therefore  be precluded from challenging the commissioner's
  previous judgment on the question upon entry of  a new award.  See Sheehan
  v. Department of Employment & Training, 169 Vt. 304, 308, 733 A.2d 88, 91
  (1999) (collateral estoppel applies to administrative agencies when they
  are acting in judicial  capacity). 

       Appeal dismissed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  We take judicial notice of the docket entries made, the questions
  certified by the  commissioner, and the judgment entered in Chittenden
  Superior Court in the matter of Roethke  v. Jake's Original Bar and Grill,
  Docket No. S0227-00 CnC.