ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-058

                              JUNE TERM, 1990


Ronald Coleman                    }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Commissioner
                                  }          Labor & Industry
                                  }
United Parcel Service             }
                                  }          DOCKET NO. A-27178


             In the above entitled cause the Clerk will enter:

     In this appeal from a decision of the commissioner of labor and
industry granting plaintiff disability benefits, defendant United Parcel
Service claims that the award must be reversed because it was not made
within 60 days of hearing as mandated by 21 V.S.A. { 664 ("Within sixty days
[of hearing], the commissioner shall make h[er] award . . . .").

     Arguing that the "plain meaning" of { 664 evidences legislative intent
that workers' compensation awards be "quick," Kittell v. Vermont Weather-
board, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980), defendant maintains
that the matter should be removed from the commissioner's jurisdiction and
litigated in court when she is not as "quick" as the statute requires.
Such a construction of { 664 would serve only to defeat expeditious awards
and is unsupported by any precedent we can find.  We note also there is no
enabling legislation that would permit a worker's compensation claim be
tried should we hold the commissioner lost jurisdiction on the sixtieth day.
Defendant refers to 21 V.S.A, {{ 670 and 671 as providing authority, but a
trial in superior court is available only "after copies of an award have
been sent."

     A statutory time period is not mandatory unless it both expressly
requires an agency or public official to act within a particular time period
and specifies a consequence for failure to comply with the provision.
Moreover, compliance with the time limit is never considered essential to
the validity of the proceeding, unless such is the expressed or evident
intention of the Legislature.  In re Mullestein, 148 Vt. 170, 173-174, 531
A.2d 890, 892-893 (1987).  Where the Legislature has intended a time limit
to be mandatory, it has clearly expressed that intent.  See 24 V.S.A. {
4470(a) (failure to render decision by zoning board of adjustment within 45
days of hearing deemed a decision favorable to appellant); 24 V.S.A. {
4407(2) (failure to act to approve or disapprove conditional uses within 60
days is deemed approval).  We hold, therefore, that exceeding the time limit
of 21 V.S.A. { 664 does not deprive the commissioner of jurisdiction.  Our
holding does not, as defendant suggests, render the sixty-day time frame
nugatory.  The provision expresses legislative policy and may serve to
bring about priority of service in light of competing demands.

     Defendant also claims the commissioner erred by improperly assigning
the burden of proof to it to demonstrate that plaintiff did not make a bona
fide work search.  What defendant is really arguing is that the evidence
does not support a finding that plaintiff "did not unreasonably fail to seek
light duty work."  No where in the record does it appear the burden of proof
was improperly allocated.

     The facts may be simply stated.  Plaintiff injured his knee during his
employment with UPS. Plaintiff had always worked at jobs demanding physical
activity (lifting packages for UPS and a farm laborer).  Expert testimony
demonstrated that plaintiff's injury made his UPS work inappropriate, at
least until he sufficiently recovered or was given less strenuous work.  UPS
did not, contrary to its own personnel policy, offer plaintiff lighter work
and, after a certain point, did not offer any work at all to plaintiff.
Plaintiff had worked for defendant on two occasions despite discomfort and
contrary to expert advise.  Moreover, UPS delayed plaintiff's recovery by
initially refusing to pay for recommended physical therapy.  Defendant
points to plaintiff's application to work as a delivery driver for three
other employers during the year he was out of work as insufficient evidence
as a matter of law to support a bona fide work search.  We disagree.  Given
plaintiff's limited skills to work in non-physical jobs, and UPS's refusal
to acknowledge that plaintiff was capable of lighter work for it, the
findings are not clearly erroneous.  See Gee v. Burlington, 120 Vt. 472,
476, 144 A.2d 797, 800 (1958) (evidence supported finding of limited job
market especially when employer offered no evidence on point).

     Affirmed.  Pursuant to 21 V.S.A. { 678(b), plaintiff is entitled to
interest at the statutory rate and attorney's fees on appeal as approved by
this Court.  Plaintiff may file an affidavit of attorney's fees no later
than ten days from the filing hereof.  Defendant may respond within seven
days of service of plaintiff's affidavit.


                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice