Longe v. Boise Cascade Corp.

Longe v Boise Cascade Corp. (98-384); 171 Vt. 214; 762 A.2d 1248 

[Filed 22-Sep-2000]

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal  revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of  Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any  errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 98-384


Ronald Longe	                               Supreme Court

                                               On Appeal from
     v.	                                       Department of Labor and Industry


Boise Cascade Corporation,	               November Term, 1999
Specialty Paperboard, Inc., and
Rock-Tenn Company, Mill Division, Inc.


Steve Janson, Commissioner

Peter J.R. Martin and Donald R. Pellman of Peter J.R. Martin & Associates, P.C., 
  St. Albans, for Plaintiff-Appellee.

Robert G. Cain and Kevin L. Kite of Paul, Frank & Collins, Inc., Burlington, for 
  Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Teachout, S.J., 
          Specially Assigned.


       SKOGLUND, J.  Boise Cascade Corporation (Boise) appeals from a
  decision of the  Commissioner of the Department of Labor and Industry
  (Department) that held Boise liable for  permanent partial disability (PPD)
  benefits to claimant Ronald Longe based on an injury he sustained  in 1983. 
  The Commissioner concluded that Boise breached its duty to investigate
  whether claimant  had suffered permanent impairment as a result of his 1983
  injury, and to inform claimant of his right  to PPD benefits.  Therefore,
  the Commissioner held that Boise was barred from raising the statute of 
  limitations as a defense to payment of PPD benefits.  On appeal, Boise
  argues:  (1) it had no duty 

 

  to investigate claimant's permanency status or to inform claimant of his
  right to PPD benefits; (2)  claimant's claim is barred by the statute of
  limitation; (3) claimant's claim is barred by laches; (4) the  Commissioner
  erred in assigning claimant a seventeen-percent impairment rating for
  purposes of  calculating his PPD benefits; (5) the Commissioner erred in
  awarding claimant interest from the date  he reached medical end result
  until the date Boise paid him PPD benefits; and (6) the Commissioner  erred
  in requiring Boise to pay claimant's attorney's fees and costs.  Because we
  agree with Boise's  first and second arguments, we reverse.

                                     I.

       The relevant facts are not in dispute.  Claimant worked at the
  Missisquoi paper mill.  Boise  owned the mill from approximately 1983 until
  June 30, 1989.  Specialty Paperboard, Inc.,  (Specialty), owned the mill
  from June 30, 1989 until March 15, 1991.  Since March 15, 1991, Rock-Tenn
  Company (Rock-Tenn), has owned the mill.  At all times relevant to this
  case, claimant was an  employee, and Boise, Specialty and Rock-Tenn were
  employers, within the meaning of Vermont's  Workers' Compensation Act (the
  Act), 21 V.S.A. § 601-711.

       On May 27, 1983, while performing in the course and scope of his
  employment at Boise,  claimant fell through a floor and injured his back. 
  He was diagnosed with a herniated disc in the  right L4-L5 region of his
  back, and underwent surgery in December 1984.  He subsequently filed a 
  workers' compensation claim and, on December 31, 1985, claimant and Boise
  entered into an  agreement, which the Department approved.  See 21 V.S.A. §
  662(a).  Under the agreement, Boise  paid claimant temporary total
  disability (TTD) benefits from November 23, 1984 until claimant  returned
  to work in May 1985, as well as medical expenses related to the 1983
  injury.  Claimant did  not request or apply for PPD benefits, and Boise did
  not provide them.  Nor did Boise investigate 

 

  whether claimant had suffered any permanent impairment as a result of his
  injury, or inform claimant  that, if he did suffer permanent impairment, he
  had a right to PPD benefits.  Claimant reached  medical end result in
  December 1985.

       In May 1991, claimant reinjured his back while working for Rock-Tenn. 
  In August 1991, he  underwent back surgery identical to the 1984 surgery. 
  He returned to work in December 1991.

       Claimant subsequently filed a claim against Boise, seeking workers'
  compensation benefits  for the 1991 injury.  Boise denied the claim in
  March 1992.  According to Boise, in 1991, claimant  suffered an
  aggravation, and not a recurrence, of the 1983 injury, and therefore, the
  employer at the  time of the 1991 injury, Rock-Tenn, was responsible for
  paying disability benefits.  See Pacher v.  Fairdale Farms, 166 Vt. 626,
  627-28, 699 A.2d 43, 46 (1997) (mem.) (if injury is recurrence,  employer
  at time of original injury is liable; if injury is aggravation, employer at
  time of new injury  is liable); 21 V.S.A. § 662(c) (employer at time of
  most recent injury presumed to be liable).  

       In August 1993, claimant filed a notice of hearing with the
  Department, seeking TTD, PPD,  and medical benefits from Boise for the 1991
  injury, as well as attorney's fees.  On the notice,  claimant stated that
  the claim was based on the 1983 injury, and specified that he was seeking
  TTD  benefits from August 1, 1991 to December 29, 1991, PPD benefits for an
  as-yet-undetermined  number of weeks, medical benefits related to the 1991
  injury, and attorney's fees.  In December 1993,  claimant filed an amended
  notice, naming Boise, Specialty and Rock-Tenn as defendants, and  framing
  the issue as the extent to which each of the defendants was liable to pay
  him benefits.

       The Department held hearings on December 8-10, 1997, and the
  Commissioner issued a  written decision in July 1998.  In his decision, the
  Commissioner framed the issues as:  (1) whether  claimant's 1991 injury was
  work-related; (2) whether, in 1991, claimant suffered a recurrence or an 

 

  aggravation of the 1983 injury; and (3) whether Boise was liable to pay
  claimant PPD benefits for his  1983 injury. (FN1)

       The Commissioner determined that claimant's 1991 injury was
  work-related and that it was  an aggravation of his 1983 injury. 
  Therefore, the Commissioner held Rock-Tenn liable for TTD and  PPD
  benefits, as well as medical expenses, for claimant's 1991 injury.  He
  further held that Boise  was liable to claimant for PPD benefits for the
  1983 injury.  Before the hearing officer, Boise had  argued that it could
  not be held liable for PPD benefits for claimant's 1983 injury because the
  statute  of limitations had expired.  However, the Commissioner rejected
  this argument because, according to  him, Boise had a duty to investigate
  whether claimant had suffered permanent impairment as a result  of his 1983
  injury and, if he had, to inform claimant of his right to PPD benefits. 
  Therefore, because  Boise had not done so, the Commissioner ruled that
  Boise could not assert the statute of limitations  as a defense.

       Next, the Commissioner calculated claimant's PPD benefits.  Dr.
  Dorothy Ford had evaluated  claimant in June 1993, and, applying the third
  edition of the American Medical Association Guides  to the Evaluation of
  Permanent Impairment (Guides), which was in effect at the time of her 
  evaluation, assigned a seventeen-percent permanent partial impairment
  rating to claimant's spine.   However, applying the second edition of the
  Guides, which was in effect in 1983, at the time of 

 

  claimant's injury, Dr. Andres Roomet assigned an eight-percent permanent
  partial impairment rating  to claimant's spine.  The Commissioner adopted
  Dr. Ford's approach and calculated claimant's PPD  benefits based on a
  seventeen-percent permanent partial impairment rating of his spine.

       Further, the Commissioner ordered Boise to pay claimant twelve-percent
  interest from  December 28, 1985-the date claimant reached medical end
  result-to the date of payment.  Finally,  the Commissioner ordered
  Rock-Tenn and Boise to pay claimant's attorney's fees and costs in 
  proportion to their liability.

       Pursuant to 21 V.S.A. § 672, the Commissioner certified the following
  questions for our  review:  (1) whether Boise must pay claimant PPD
  benefits for his 1983 injury; (2) whether, in  calculating claimant's PPD
  benefits, the Commissioner erred in accepting Dr. Ford's impairment  rating
  because she used the edition of the Guides that was in effect in 1993,
  rather than the edition  that was in effect at the time of claimant's 1983
  injury; and (3) whether the Commissioner erred in  awarding claimant
  interest from the date he reached medical end result on his 1983
  work-related  injury until the date of payment.  Because we answer the
  first certified question in the negative, we  do not reach the second and
  third certified questions.

                                     II.

       On appeal, we will affirm the Commissioner's decision if his
  "conclusions are rationally  derived from the findings and based on a
  correct interpretation of the law."  Pacher, 166 Vt. at 627,  699 A.2d  at
  46.  The parties do not challenge the Commissioner's findings; therefore,
  we review only  his conclusions. 

       In order to answer the first certified question, we must first
  determine whether the statute of  limitations on claimant's claim for PPD
  benefits had expired.  If it had, we must then determine

 

  whether the Commissioner erred in concluding that Boise could not assert
  the statute of limitations  as a defense.  

                                     A.

       There are two statutes of limitation that govern Workers' Compensation
  proceedings.  First,  under 21 V.S.A. § 656, a claimant (1) must file a
  notice of injury with the employer "as soon as  practicable" after he or
  she sustains an injury, and (2) must file a claim "within six months after
  the  date of the injury."  21 V.S.A. § 656 (amended by 1994, No. 225 §§ 9,
  32 (Adj. Sess.)).  However, 21  V.S.A. § 660 excuses the failure to timely
  give notice or make a claim "if it is shown that the  employer, his agent
  or representative, had knowledge of the accident or that the employer has
  not  been prejudiced by such delay or want of notice."  21 V.S.A. § 660
  (amended by 1994, No. 225 §§  10, 32 (Adj. Sess.)).  Second, a claimant
  must file a notice of hearing with the Department "within  six years from
  the date of injury."  Fitch v. Parks & Woolson Mach. Co., 109 Vt. 92, 98,
  191 A. 920,  923 (1937).

       In Hartman v. Ouellette Plumbing & Heating, 146 Vt. 443, 507 A.2d 952
  (1985), the  claimant had suffered a work-related injury to his left knee
  in 1976, but did not miss a significant  amount of work and received no
  disability benefits, although he suffered some problems with his  knee.  In
  1982, the claimant broke his right ankle in a non-work-related accident,
  and, with his right  leg in a cast, began to suffer increased problems with
  his left knee.  Based upon "the newly  discovered injury to his left knee,"
  he filed a claim, which his employer denied.  In 1983, he filed a  notice
  and application for hearing before the Department.  See id. at 445, 507 A.2d  at 953.  The  Commissioner dismissed his claim, holding that the
  six-year statute of limitations had expired.  The  claimant appealed to
  this court.

 

       We first addressed 21 V.S.A. § 656, the six-month statute of
  limitations for filing a notice  and claim, and, citing § 660, concluded
  that, because the employer had knowledge of the accident,  the claimant's
  delay in filing a notice and claim was not an "automatic bar to worker's
  compensation  in this proceeding."  Id. at 446, 507 A.2d  at 953.  Next, we
  stated that it would be unfair to rigidly  apply the six-month and six-year
  statutes of limitations, particularly where "the injury itself does not 
  exist in compensable degree during the claims period."  Id., 507 A.2d  at
  954 (quoting 3 A. Larson,  The Law of Workmen's Compensation § 78.42(a)
  (1985)).  Therefore, we held that, for purposes of  the notice and claim
  provisions of § 656, and for purposes of the six-year statute of
  limitations, the  date of injury "is the point in time when an injury
  becomes reasonably discoverable and apparent."   Id. at 447, 507 A.2d  at
  954.  After the injury becomes reasonably discoverable and apparent, a 
  claimant is allowed six months to file a claim with his or her employer. 
  And, "[i]f such claim is  denied or contested, the claimant may then bring
  an action within six years from the date the injury  was reasonably
  discoverable and apparent."  Id.  Consequently, we vacated and remanded the 
  claimant's case.

       Boise argues that claimant's injury became reasonably discoverable and
  apparent no later than  December 1985, when claimant reached medical end
  result with regard to his 1983 injury.  Claimant  does not contend
  otherwise (FN2) rather, he argues that we should not apply the reasonably-
  discoverable-and-apparent standard articulated in Hartman because that case
  is factually  distinguishable from the instant case.  According to
  claimant, in Hartman, before the claimant filed 

 

  his 1983 claim, the employer could not have been aware of the claimant's
  need for further workers'  compensation benefits, and thus, the claimant in
  Hartman was better informed about his disability  status than was his
  employer.  Here, claimant contends that, because Boise could have, and
  should  have, known that claimant suffered a permanent partial disability
  due to the nature of his injury,  Boise was better informed than claimant
  about claimant's disability status.  According to claimant,  the
  reasonably-discoverable-and-apparent standard applies only when the
  claimant is better informed  about his disability status than the employer. 
  We disagree.  There is nothing in Hartman to indicate  such a limitation,
  and we decline to read one into that holding. 

       Claimant does not dispute Boise's contention that the six-year statute
  of limitations began to  run in December 1985.  Nor does he dispute the
  claim that he did not initiate a proceeding for PPD  benefits until August
  1993, when he filed a notice of hearing before the Workers' Compensation 
  Board seeking benefits from Boise for the 1991 injury.  Rather, claimant
  argues that the original  notice of injury he filed with Boise was
  sufficient to inform Boise of his claim for PPD benefits, and  thus his
  claim is not time-barred.  This argument obviously invokes the six-month
  statute of  limitations for filing a notice and claim with the employer. 
  But, even if we were to accept claimant's  argument that he was not
  required to file a second notice or claim with Boise for PPD, nearly eight 
  years had elapsed between December 1985 and August 1993.  The six-year
  statute of limitations for  commencing a proceeding before the Department
  expired in December 1991.  See Hartman, 146 Vt.  at 447, 507 A.2d  at 954. 
  Thus, claimant's claim is time-barred.	

                                     B.

       The Commissioner held that Boise could not raise the statute of
  limitations defense because  he concluded that Boise had, and breached, a
  duty to investigate whether claimant suffered any 

 

  permanent impairment as a result of his 1983 injury, and, if so, to inform
  claimant of his right to  PPD benefits.  We disagree.

       Whether a duty exists in a particular case is a question of law.  See
  McGee v. Vermont Fed.  Bank,         Vt.        ,        , 726 A.2d 42, 44
  (1999).  By statute, some states impose a duty on  employers to notify
  employees of their rights under the applicable workers' compensation act. 
  See  Kaiser Found. Hosps. v. Workers' Comp. Appeals Bd., 702 P.2d 197,
  201-02 (Cal. 1985) (employer  has statutory duty to notify employee of his
  or her rights under workers' compensation act); Gaines v.  Orange County
  Pub. Util., 710 So. 2d 139, 140 (Fla. Dist. Ct. App. 1998) (same).

       Under 21 V.S.A. § 691, which was in effect during 1983-85, an employer
  who carries  workers' compensation insurance is required to "post and
  maintain, in a conspicuous place . . .  typewritten or printed notices in
  form prescribed by the commissioner" stating that the employer  carries
  workers' compensation insurance.  This is the only duty to inform
  explicitly imposed by the  Act, and claimant does not argue that Boise
  failed to post the required notices.  Thus, we must  determine whether the
  Legislature intended to impose a duty upon employers to inform beyond that 
  set forth in § 691. 

       In construing the intent of the Legislature, we "consider the whole
  and every part of the Act,  the subject matter and its effect and
  consequences so as to ascertain the true meaning and intent of  the
  Legislature."  Quinn v. Pate, 124 Vt. 121, 124, 197 A.2d 795, 797 (1964). 
  "[O]ur construction  must . . . be guided by the consideration that the
  'purpose of the workmen's compensation law is to  provide, not only for the
  employees a remedy which is both expeditious and independent of proof of 
  fault, but also for employers, a liability which is limited and
  determinative.'"  Id. at 124, 197 A.2d  at  797 (emphasis added).

 

       Claimant cites 21 V.S.A. §§ 642, 646, and 648 as indicative of a
  Legislative intent to impose  a duty on employers to investigate potential
  permanent partial disability and to inform a claimant of  the availability
  of PPD benefits.  We, however, fail to see how any of those provisions
  supports  claimant.  Section 642 sets forth an employer's responsibilities
  when a claimant has suffered TTD.   Yet, in this case, claimant received
  TTD benefits for his 1983 injury, and TTD benefits are not now  at issue. 
  Section 646 provides for temporary partial disability benefits, which are
  not at issue either. 

       Prior to its amendment in 1993, section 648 provided for PPD benefits
  and stated, in relevant  part:  "In case of the following injuries, the
  compensation shall be paid during total disability . . . and  at the
  termination of the total disability occasioned by such injuries, the
  employer shall pay" PPD  benefits in percentages specified by the statute.
  (FN3)  21 V.S.A. § 648 (amended by 1993, No. 225  (Adj. Sess.), § 7).  The
  statute listed several specific injuries, such as the loss of a limb, known
  as  scheduled injuries, for which the Legislature has conclusively
  determined the required  compensation. (FN4) Section 648(20) applied to
  unscheduled injuries and provided:  "In [the] event  an employee shall
  receive an injury which results in the permanent impairment of any physical 
  function not herein specifically mentioned, the commissioner shall
  determine the percentage of loss  and 

 

  award compensation accordingly."  21 V.S.A. § 648(20) (emphasis added)
  (amended by 1993, No.  225 (Adj. Sess.), § 7).

       Claimant argues that the language "shall pay" in § 648 indicates a
  legislative intent that an  employer is automatically required to pay PPD
  benefits when total disability benefits are terminated.  Apparently,
  claimant believes that, having requested and received TTD, he need not take
  any further  action to secure his or her rights to PPD.  Therefore,
  claimant argues, under the directive language of  § 648, the Legislature
  must have intended for the employer to investigate a claimant's permanency 
  status and inform the claimant of his or her right to receive PPD benefits.

       This argument ignores the fact that some injuries resulting in
  temporary total disability to  work do not necessarily result in permanent
  partial disability.  It further misconstrues the role of §  648, which, as
  noted above, is to provide an expedient, efficient remedy for injured
  workers by  specifying scheduled injuries:  "Because resolution of these
  issues on a case by case basis would  impede the process, thereby delaying
  awards to needy beneficiaries, the legislature has chosen a  'scheduled
  benefits' system.  The rate of compensation for listed injuries has been
  conclusively  determined in the Act."  Bishop v. Town of Barre, 140 Vt.
  564, 572, 442 A.2d 50, 53 (1982).

       Section 648 provides a substantive measure of a claimant's right to
  compensation for  scheduled injuries.  When the injury sustained is not a
  scheduled injury, the commissioner may  determine the percent of loss.  The
  section does not establish procedures or processes for initiating or 
  conducting a proceeding for PPD benefits.  It places no duty on employers
  to investigate the possible  existence of a permanent partial disability
  nor to initiate a proceeding for PPD benefits.

       We find no expression of legislative intent to impose a duty upon
  employers to notify  claimants of their rights under any aspect of the Act. 
  To the contrary, as evidenced by § 691, the 

 

  Legislature knows how to impose a duty upon employers when it wishes to do
  so.  Furthermore, as  evidenced by 21 V.S.A. § 660, the Legislature knows
  how to create an equitable tolling provision  when it wishes to do so. 
  However, the Legislature did not impose a duty upon employers beyond  that
  set forth in § 691.  Nor did the Legislature provide a tolling provision
  applicable to the six-year  statute of limitations for proceedings under
  the Act.  See Parker v. Gorczyk,         Vt.        ,        , 744 A.2d 410, 413 (1999) ("Legislature knows how to impose" limitations on
  discretion of  Commissioner of Department of Corrections, "but chose not to
  do so with respect to the furlough  statute").  As we stated in Archer v.
  Department of Employment Security, 133 Vt. 279, 336 A.2d 172  (1975),
  "'[t]his Court is not at liberty to read into the statute provisions which
  the legislature did not  see fit to incorporate, nor may it enlarge the
  scope of its provisions by an unwarranted interpretation  of the language
  used.'"  Id. at 281, 336 A.2d  at 174 (quoting Nurmi v. Employment Sec. Bd.,
  124 Vt.  42, 46, 197 A.2d 483, 486 (1963) (overruled on other grounds)). 
  See also Pate, 124 Vt. at 124, 197 A.2d  at 797-98 ("The burden placed upon
  the employer of compensating injured employees is only to  the extent
  provided for in the act."). (FN5)  

       The majority of courts that have addressed the issue have held that,
  absent a statutory duty, or  circumstances sufficient to invoke the
  doctrines of equitable estoppel or equitable tolling, an 

 

  employer has no duty to inform an employee of his or her rights under the
  workers' compensation  laws.  See Tegeler v. The Industrial Comm'n, 672 N.E.2d 1126, 1129 (Ill. 1996) (employer has no  duty to inform claimant
  about statute of limitations); Olson v. Horton, 258 N.W.2d 610, 614 (Minn. 
  1977); Schmidt v. Proctor & Gamble, 741 P.2d 382, 384-85 (Mont. 1987)
  (employer has no  affirmative duty to inform claimant of right to file
  claim); Tooley v. Alm, 515 N.W.2d 137, 141  (N.D. 1994) (Workers'
  Compensation Bureau has no duty to inform claimant of availability of 
  benefits); Miller v. Keystone Ins. Co., 636 A.2d 1109, 1113 (Pa. 1994)
  (absent evidence of fraud,  intentional deception, or making of misleading
  statements, employer had no affirmative duty to  apprise compensation
  claimant of any or all available benefits); Pate v. General Elec. Co., 260 P.2d 901, 903 (Wash. 1953).

       The circumstances of this case do not invoke the doctrines of
  equitable estoppel or equitable  tolling.  It is unclear whether the
  Commissioner based his decision on principles of equitable  estoppel,
  equitable tolling, or some newly fashioned rule of law.  We note, however,
  that, in this  case, the Commissioner's findings and conclusions were
  insufficient to support the application of  either equitable estoppel or
  equitable tolling.  See Beecher v. Stratton Corp.,         Vt.         ,       
  , 743 A.2d 1093, 1096, 1098 (1999).  

       Specifically, with regard to equitable estoppel, claimant would bear
  the burden of proving,  among other things, either that Boise, in not
  investigating claimant's permanency status or informing  claimant of his
  right to PPD benefits, intended that claimant not file a claim, or that
  Boise's inaction  was such that claimant had a "right to believe" that
  Boise intended that claimant not file a claim.  Id.  at ___, 746 A.2d  at
  1096 (quoting Fisher v. Poole, 142 Vt. 162, 168, 453 A.2d 408, 412 (1982).  
  Here, the Commissioner made no findings regarding Boise's intent in 1985
  when TTD ended, and 

 

  reached no conclusions regarding claimant's right to believe that Boise
  intended that he not file a  claim for PPD benefits.  See Tegeler, 672 N.E.2d  at 1129 ("Estoppel applies when the conduct or  statements of an
  employer or its representatives lull the employee into a false sense of
  security,  thereby causing the employee to delay the assertion of his or
  her rights."); Freese v. Carl's Service,  375 N.W.2d 484, 487 (Minn. 1985)
  ("There is no evidence that the employer, at any time, made  misleading or
  untrue representations to employee concerning the claim-the type of conduct
  which  would estop an employer from asserting the 3-year statute of
  limitations."); Schmidt, 741 P.2d  at 384  ("Questions of estoppel can arise
  in various ways through actions of the employer.  The employee  can be
  lulled into inaction.  The employer can take positive action which either
  prevents a claimant  from filing a timely claim or leads him reasonably to
  believe he does not need to file a claim.")  (citations omitted).

       With regard to equitable tolling, courts have generally limited the
  doctrine, applying it only  when either "(1) the defendant actively misled
  the plaintiff or prevented the plaintiff in some  extraordinary way from
  filing a timely lawsuit; or (2) the plaintiff timely raised the precise
  claim in  the wrong forum."   Beecher,         Vt. at        , 743 A.2d at       
  .  Again, the Commissioner made no  findings that Boise actively misled
  claimant or prevented claimant in some extraordinary way from  filing a
  timely lawsuit.  Further, it is clear that claimant did not timely raise
  the precise claim in the  wrong forum.  See Freese, 375 N.W.2d  at 487-88
  (state statutes provide that employer must file  report of injury and that
  statute of limitations begins to run when employer files report; however, 
  because statutes do not provide for tolling if employer does not file
  report, and because there was no  evidence that employer engaged in conduct
  sufficient to warrant estoppel, statute of limitations  applied to bar
  employee's workers' compensation claim).

 

       Finally, claimant relies on the Department's 1983 Rule 12(b) to
  support his assertion that  Boise had a duty in 1983 to determine if he
  suffered a permanent partial disability.  The rule  mandates that, when a
  claimant files a notice of injury and claim, the employer must investigate
  the  accident to determine whether or not compensation is due, and, if it
  is due, to enter into an agreement  with the claimant.  See Vermont Dep't
  of Labor and Industry, Workers' Compensation Laws and  Regulations, Rule
  12(b) (1983).  Boise fulfilled its responsibility under Rule 12(b) when it
  reviewed  claimants request for TTD, obviously concluded that it was a
  work-related, compensable accident,  and entered into a compensation
  agreement with claimant in 1985.  The rule requires no more.

       Obviously, parties may enter into an agreement in regard to
  compensation payable under the  Act, including agreement on any PPD to be
  provided for an unscheduled injury.  See 21 V.S.A. §  662(a).  In the
  absence of an agreement, however, the employee must apply for a hearing
  before the  commissioner.  See § 662(b). 

       The burden is generally on the party seeking relief to take some
  affirmative action in order to  protect his or her rights.  See Coburn v.
  Frank Dodge & Sons, 165 Vt. 529, 532, 687 A.2d 465, 467  (1996) (claimant
  "filed a claim with the Commissioner to recover additional temporary
  disability  compensation"); Stamper v. University Apartments, Inc., 147 Vt.
  552, 554, 522 A.2d 227, 228  (1986) ("Claimant collected temporary total
  disability benefits based on a stipulation between the  parties, but
  applied to the Commissioner for permanent partial disability and vocational
  rehabilitation  benefits when the parties could not agree on the degree of
  permanent partial disability."); Merrill v.  Town of Ludlow, 147 Vt. 186,
  187, 514 A.2d 1050, 1051 (1986) (employer discontinued TTD  payments, and
  claimant "filed a notice for hearing with the Department of Labor and
  Industry,  contending that he was entitled to additional temporary total
  disability"); Bishop, 140 Vt. at 569, 442 A.2d  at 52 (when employer discontinued temporary benefits, claimant filed
  for permanent benefits).   If the party seeking relief fails to preserve
  his right to relief, thereby letting the statute of limitations  expire,
  then, absent a legal disability or circumstances sufficient to invoke the
  doctrines of equitable  estoppel or equitable tolling, he has no right to
  relief.  See Beecher,         Vt. at      , 743 A.2d  at 1096  (attorney
  acted unreasonably in allowing statute of limitations to expire without
  confirming that  defendant was willing to waive or extend statute while
  parties continued settlement negotiations);  Fitch, 109 Vt. at 98, 191 A.  at 923; Minnesota Mining & Mfg. v. Baker, 989 S.W.2d 151, 157 (Ark.  1999)
  ("The burden of filing a claim within the statute of limitation is on the
  claimant.").

       We agree with the majority of jurisdictions that have addressed the
  issue and conclude that,  absent a statutory duty or circumstances
  sufficient to invoke the doctrines of equitable estoppel or  equitable
  tolling, an employer has no duty to inform an employee of his or her rights
  under the Act.   This ruling is in accordance with "'the time-honored
  principle that all persons are presumed to know  the law.'"  Tooley, 515 N.W.2d  at 141 (quoting State v. Carpenter, 301 N.W.2d 106, 110 (N.D. 
  1980)).  See also Texas Employers' Ins. Ass'n v. Herron, 569 S.W.2d 549,
  554 (Tex. Ct. App. 1978)  ("A claimant is presumed to know the law.");
  Pate, 260 P.2d  at 904 ("While a layman might not  know the implications of
  an injury as it relates to his future welfare, he has the obligation
  resting  upon him in law to know the provisions of the act as it relates to
  him, and he has [six years] from the  date the injury occurred in which to
  assert his rights."); State v. Woods, 107 Vt. 354, 356-57, 179 A. 1, 2
  (1935) ("The maxim, 'Ignorantia legis non excusat,' and the corresponding
  presumption that  everyone is conclusively presumed to know the law, are of
  unquestioned application in Vermont as  elsewhere, both in civil and in
  criminal cases"). 

       Accordingly, Boise is under no obligation to pay claimant PPD benefits
  for his 1983 injury.  

 

  Consequently, appellee's motion for attorney's fees is denied.  Because of
  our disposition of this  matter, we do not reach either the Commissioner's
  second and third certified questions or Boise's  remaining arguments. 



       First certified question answered in the negative.  Case reversed and
  remanded.


                                       FOR THE COURT:


                                       _______________________________________            
                                       Associate Justice



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                                  Footnotes


FN1.  It is not clear from the record when or how the third issue arose.  In
  response to a question  posed at oral argument before this Court,
  claimant's attorney was not able to recall when or how it  arose.  Based on
  the transcript of the hearings, it appears that the hearing officer may
  have raised the  issue herself, off the record, at the December 9 hearing. 
  At the December 10 hearing, Boise's  attorney stated to the hearing
  officer:  "The second issue is the permanency issue, and I completely 
  understand your brief comment yesterday.  As I understand it, no permanency
  benefits were paid  back in '85."  However, an examination of the
  transcript of the December 9 hearing revealed no  related "brief comment."

FN2.  Nor does claimant argue that the permanent nature of his injury was
  latent and therefore was not  reasonably discoverable and apparent until a
  later date.  See E-Z Mart Stores, Inc. v. Jones, No. CA  90-437, 1991 WL
  104060, at *2 (Ark. Ct. App., June 10, 1991) ("where the full extent and
  nature of  the injury are not known, nor reasonably ought to be known until
  a later date, the running of the  statute of limitations may be postponed
  under the latent injury rule").

FN3.  Section 648 was amended effective 1995 and now specifically provides
  that the most recent  edition of the Guides shall be used to determine the
  existence and degree of permanent partial  impairment, eliminating the
  listing of scheduled injuries in the statute.  21 V.S.A. § 648(b). 
  Further,  the amendment specifically adds mention of spinal injuries and
  provides that spinal impairment shall  be determined in accordance with the
  Department's rules.  See § 648(c).  We rely on the prior  version of § 648,
  as do the parties.
  
FN4.  As it existed in 1983-85, § 648 required the employer to pay to the
  injured employee sixty-six and two-thirds percent of the employee's
  average weekly wages-computed in accordance with  other sections of the
  law-for periods specified for each scheduled injury.  For example, the loss
  by  separation of one leg at or above the knee joint requires two hundred
  and fifteen weeks of PPD  benefits.
  
FN5.  The Commissioner relied upon Rule 11(d), which provides "[i]t shall be
  the employer's  responsibility to pay for at least one permanency
  examination and impairment rating from the claimant's  treating physician,
  notwithstanding its decision to obtain a rating from an independent medical
  examiner  as well if it so desires."  Vermont Dep't of Labor and Industry,
  Processes and Procedures for Claims  Under the Vermont Workers'
  Compensation and Occupational Disease Acts, 2 Code of Vermont Rules,  Rule
  11(d) (1993).  Rule 11(d) was enacted in 1993 and thus does not govern this
  case.  The  Commissioner found support in the Rule because, according to
  him, Rule 11(d) is "merely a  formalization of a well observed and regarded
  Departmental requirement."  However, the Commissioner  did not provide any
  support for his statement, and we decline to find a duty based upon his
  unsupported  assertion.