Longe v. Boise Cascade Corp., 98-384.

• Docket Nº: No. 98-384.
• Citation: 762 A.2d 1248
• Case Date: September 22, 2000
• Court: United States State Supreme Court of Vermont

762 A.2d 1248

Ronald LONGE
v.
BOISE CASCADE CORPORATION, Specialty Paperboard, Inc., and Rock-Tenn Company, Mill Division, Inc

No. 98-384.

Supreme Court of Vermont.

September 22, 2000.

762 A.2d 1250

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, Superior Judge, 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,

762 A.2d 1251

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.

762 A.2d 1252

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.¹

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

762 A.2d 1253

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 1993, No. 225 (Adj.Sess.), §§ 9, 32). 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 1993, No. 225 (Adj.Sess.), §§ 10, 32). 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 Corp., 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 nonwork-related accident, and, with his right leg in a cast, began to suffer increased problems with his left knee....