CLAIM NOS. F603787 F606715
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 4, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by the HONORABLE MICHAEL DENNIS, Attorney at Law, Pine Bluff, Arkansas.
ORDER
This case comes before the Commission on the respondent’s Motion to File a Belated Cross Appeal. After our consideration of the respondent’s motion and all other matters properly before the Commission, we find that the respondent’s motion should be denied.
On October 21, 2008, the Administrative Law Judge filed an Opinion on this claim concerning the claimant’s entitlement to Workers’ Compensation benefits. The claimant filed a timely notice of appeal. The respondent filed a Motion to File Belated Cross
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Appeal, which is the subject of this order.
The applicable statute is Ark. Code Ann. § 11-9-711(a)(2), which states:
Any other party to the dispute may cross appeal by filing a written petition for cross appeal within fifteen (15) days after the notice of appeal is filed in the office of the Workers’ Compensation Commission, except that in no event shall a cross appellant have less than thirty (30) days from the receipt by him or her of the order or award within which to file a notice of cross appeal. [emphasis added]
The procedural requirements set forth in the statute are mandatory or jurisdictional and require strict compliance. See Ark. Code Ann. § 11-9-704(c)(3); Lloyd v. Potlatch Corporation, 19 Ark. App. 335, 721 S.W.2d 670 (1986); Cooper Industrial Products v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982); Amlease, Inc. v. Kuligowski, 59 Ark. App. 261, 957 S.W.2d 715 (1997). Strict construction is a narrow construction, requiring that nothing be taken as intended that is not clearly expressed and that the plain meaning of the language be
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employed. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002). The claimant filed the notice of appeal with the Clerk of the Workers’ Compensation Commission on November 7, 2008. Therefore, the deadline for the filing of a cross appeal by the respondent was November 22, 2008 for the 15 day deadline, and no later than November 20, 2008 for the 30 day deadline. The respondent’s cross appeal was filed by fax on December 21, 2008, after both of these deadlines had passed. Therefore, because the respondent’s Motion to File Belated Cross Appeal was not timely per Ark. Code Ann. § 11-9-711(a)(2), we find the motion must be denied.
The claimant also filed a Motion to Change Physicians and a Motion to Request a hearing. As this claim is on appeal, these pending motions of the claimant must be denied.
IT IS SO ORDERED.
_______________________________ A. WATSON BELL, Chairman
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_______________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney concurs.
KAREN H. McKINNEY, Commissioner.
CONCURRING OPINION
I must reluctantly concur with the majority opinion finding that the respondent’s Notice of Cross Appeal was not timely filed. InSunbelt Couriers v. McCartney, 303 Ark. 522, 798 S.W.2d 92 (1990), our Supreme Court stated:
We did not intend for Rule 4 to govern appeals from the Worker’s Compensation Commission. We intended for the Rules of Appellate Procedure to govern appeals from circuit, chancery, and probate courts; we did not intend it to apply to appeals from state agencies. See Ark. R. App. P. 2(a). One reason is that many agencies and commissions, such as the Worker’s Compensation Commission, do not have an office comparable to a clerk of the court where agency orders are known by the public to be filed and immediately available. There is no known office where agency orders are “entered.” Rule 4(a) provides “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment,. . . .” “Entry” occurs when a judgment or order is filed with the clerk of the court. Similarly, we have held that appeal provisions of the Administrative Procedure Act, instead of the Rules of Civil Procedure, govern
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the review of an agency decision. Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984).
Thus, the time for filing a Notice of Appeal is calculated from when the party receives the opinion pursuant to A.C.A. § 11-9-711(a)(1). While the reasoning set forth by the Supreme Court in Sunbelt Couriersv. McCartney, supra, should also apply to the filing of a Notice of Cross Appeal, A.C.A. § 11-9-711(a)(2), plainly states that a cross appeal must be filed within 15 days after the Notice of Appeal is filed with the Commission. In the present case, Claimant admitted that she only mailed the Notice of Appeal to the Commission, which was received and filed by the commission on November 7, 2008. Thus, it is undisputed that the respondents did not receive a copy of the claimant’s Notice of Appeal. The first notice respondents had of claimant’s appeal was when the claimant sent a copy of her brief to the respondents on or about December 4, 2008. Nowhere in this brief is there any indication that the claimant actually filed a timely Notice of Appeal. From respondents point of view, this brief which states, “Comes Betty Boykin, Here in, Appeals to The Full Commission . . .” was an untimely filing of an appeal from the Administrative Law Judge’s October 21, 2008, opinion.
As acknowledged by the claimant in her response to the respondents’ Motion to File a Belated Notice of Cross Appeal, she had not received any
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correspondence from the commission regarding her appeal, nevertheless she filed her brief anyway in order to protect her rights. Moreover, there is no evidence in the file of the commission notifying respondents of the claimant’s Notice of Appeal until the commission mailed the briefing schedule to both parties on December 29, 2008. Respondents filed their present Motion to filed a Belated Notice of Cross Appeal on December 31, 2008; just two days after its first notice from the commission that the claimant had filed an appeal.
Applying the rational of the Supreme Court in Sunbelt Couriers v.McCartney, supra., since the commission does not have an office comparable to a clerk of the court where agency orders are known by the public to be filed and immediately available, the time for filing a notices of appeal does not begin to run until the party has received a copy of the commission order. Likewise, since the commission does not have such an office, the time for filing a notice of cross appeal should not begin to run until the party has received notice of the initial appeal. However, A.C.A. § 11-9-711(a)(2) does not extend this jurisdictional requirement to the filing of cross appeals. Cross appeals must be filed within 15 days of the filing of the appeal. Even though in the present case the claimant did not attach a Certificate of Service to her Notice of Appeal nor did she mail a copy of the Notice to the respondents, the statute clearly states that the Notice of
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Cross Appeal must be filed within 15 days of the filing of the Notice of Appeal. Respondents are clearly prejudiced by this jurisdictional requirement since there was no way for respondents to have known of the filing of the claimant’s appeal once she failed to ever notify the respondents or provide them with a copy of her Notice of Appeal. Clearly this is a travesty of justice, but one which I am constrained to follow.
_______________________________ KAREN H. McKINNEY, Commissioner
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