by Keith Kasper, Esq.
Interview with Justice Brian Burgess
Keith Kasper: Today is April 17, 2105,
and I’m here to interview Justice Brian
Burgess. Justice Burgess, you sort of have
done it all. You have done private practice,
staff attorney, deputy commissioner, commissioner, AG’s office, district court judge,
chief administrative trial judge, associate
justice. There are not a whole lot of things
in Vermont legal work that you have not
done. We would like to focus today on your
background as well as your work within the
workers’ compensation field in anticipation of the 2015 Centennial of the Workers
Compensation Act. First some background
information. I know you were born in DC
in 1951. What kind of Vermont connection
did you or your family have with Vermont?
Justice Burgess: I had no Vermont connection. I wound up here sort of by happenstance. I finished with law school in Philadelphia. My family is from Rhode Island.
I wanted to get back to New England; I
didn’t want to settle in Philly. I started looking through all of the New England states.
I was trying to get to the seashore, but that
didn’t work out. I got offered a job by Timmy O’Connor of Brattleboro and came up
here to work for him in real estate work
for about a year and a half and then was
asked to come up and work for the state
child support office. So I did that and from
there I got recruited into the AG’s office.
Over the years Jeff Amestoy was Commissioner of Labor and Industry and we had
worked together in the AG’s office doing
fraud cases. He got this administrative post
from Governor Snelling and asked me to
be his deputy, and I wound up doing workers’ compensation for the first time. I did
a little bit of workers’ comp when I was in
private practice with Tim O’Connor and for
my father in law who had done comp work.
So I had done just a little bit with them. But
it was sort of a whole new world for me. I
found it quite fascinating. It is such an interesting system of no fault liability, but with
limits on compensation, that balance that
is so interesting about workers’ compensation.
KK: So you were deputy commissioner
for Chief Justice Amestoy and then when
he left you became commissioner of the
department in 1984.
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JB: Yes.
KK: I have to say one of your early decisions as commissioner, Wasicki v. Poncho’s
Wreck1 is actually one of my favorite workers’ compensation cases of all time, because in that case you found that you could
not figure out which of the two employers
was the employer of the injured claimant
and so they are both liable as employers. I
do not think that was ever done ever again
in the workers’ compensation system.
JB: Did I get affirmed for reversed?
KK: I don’t think anyone appealed it, so
no. But the other thing I noticed was Marilyn Skoglund was the hearing officer for
you at the time from the assistant attorney
general.
JB: Oh my. I had forgotten that. Meredith Sumner was a hearing officer for a
long, long time. So maybe Marilyn was filling in for her at that point.
KK: In your role as commissioner there
are a couple cases that I have looked at,
again the Poncho’s Wreck case was always
one of my favorites just because it was so
unusual and different. But you also had
Jackson v. True Temper,2 which went on to
the Supreme Court on the issue of compensability of a seizer disorder. You also
had the one of the early going/coming rule
cases in Makovec v. S & A Electric.3 From
your perspective what kind of issues were
you focusing on during your time as commissioner?
JB: Well, the legal issues were interesting. Some of the ones you described here
I can barely recall. There was precedent to
look at; we had statutes. We were just trying to come up with the result; assuming
one party had the facts, you would come up
with a result. Sometimes it might be novel,
but you at least try to be consistent with
the purpose of the Act and stay within the
spirit of the compensation ranges and what
the public policy was on the issue. Our focus—first under Amestoy and then when I
was commissioner—was probably more on
the operational side. When we came into
that department the comp claims were still
being registered on 3x5 cards by hand.
And, the deputy’s primary job was to reTHE VERMONT BAR JOURNAL • SUMMER 2015
view the paperwork. Well, these woman
who had been working on comp for thirty
or forty years, we were supposed to check
their arithmetic and, I just thought that was
crazy. You can all of your days going over
arithmetic. These people made very few
errors. So I pitched to Amestoy, and he
agreed, that we could delegate, the statute would allow us to delegate this as long
as we passed some regulations. And so we
put the primary responsibility for the determinations of comp on the specialists who
have been doing this work for so long. My
only instructions to them were: “It is okay
if you make a mistake, we all make a mistakes. But you know we are going to learn
each time and I don’t expect the same mistake to be made twice.” I think they made
very few mistakes.
KK: I always rely on them. I always figure
their math is way better than mine.
JB: I would always find that the practitioners would call and speak directly with
the two women primarily involved and they
would run their comp questions by them,
and they knew the standards and regulations by heart of course. They were experts
where I was not, and they had quite a bit
of trepidation when I told them that they
could sign the comp awards and they could
sign the settlements as long as they were
satisfied that they were the way they should
be. It