COPELAND v. BALDWIN SHELL CONSTRUCTION, 1999 AWCC 58

CLAIM NO. E708812

DAVID COPELAND, EMPLOYEE, CLAIMANT v. BALDWIN SHELL CONSTRUCTION, EMPLOYER, RESPONDENT and BITUMINOUS CASUALTY CORP., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 25, 1999

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas.

[1] ORDER
[2] This matter is currently before the Commission on the claimant’s motion to extend the briefing schedule. After considering the claimant’s motion, and all other matters properly before the Commission, we find that the claimant’s motion should be granted. [3] In an opinion dated November 24, 1998, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable physical injury to his brain and/or nervous system on July 16, 1997. The claimant filed a timely appeal with the Commission and his initial brief was due on January 22, 1999. On January 20, 1999, the claimant filed a motion to extend the briefing schedule. On January 22, 1999, the Clerk of the Commission sent a letter to Mr. Tolley, the claimant’s attorney, stating that his request did not state the amount of time he needed nor did it secure the agreement of opposing counsel. In a letter dated January 25, 1999, Mr. Tolley stated that the respondent did not have any objection to granting a two week extension in the above referenced matter. On January 28, 1999, the respondents attorney, Scott Zuerker, wrote a letter to the Clerks office stating that he was never contacted by Mr. Tolley or his office for the purpose of determining whether or not he had an objection to the motion for an extension of time. Mr. Zuerker stated that if he had been contacted he would not have had an objection. On February 10, 1999, Mr. Tolley wrote a letter to the Commission stating the following:

I am not whining. I am just telling you that there was a valid reason for the request.
Furthermore, I am not blaming anything on any of my staff members, but I have a staff member who is relatively new and she took it for granted that there would be no objections by any of the lawyers, assumedly so because she takes telephone calls requesting consideration by these same lawyers for extensions of time.
Perhaps, we have gotten “sloppy” in northwest Arkansas, but I can assure you and I believe that experience would bare this out; the majority of lawyers who practice workers’ compensation simply agree to continuances and have told me that I have a “green light” to any reasonable request for an extension.
I believe that the real problem is that my assistant simply did not make a courtesy phone call to a lawyer who, while otherwise agreeable to this procedure, simply had not had the formal opportunity to reply.
I would respectfully request that you allow me to file a brief one week past the date that you determine whether I will be allowed to file a brief and to accordingly allow the respondents a date as well.
I also would very much appreciate it if the Commission could give me some consideration in staggering the due dates of my briefs.

[4] The Commission is patently aware that Mr. Tolley practices a great deal before this Commission. However, Mr. Tolley’s unprofessional behavior in this case is intolerable. Mr. Tolley contends that he is not blaming his office staff for not contacting Mr. Zuerker’s office. However, in the next sentence of his February 10, 1999, letter Mr. Tolley blames his office staff. This behavior on the part of Mr. Tolley is very unprofessional. As Mr. Tolley is aware, as a practicing attorney sworn to uphold the laws of the State of Arkansas and the United States of America he is responsible for the behavior and the performance of his office staff. It is his responsibility to make sure that when he assigns duties to his office staff that these duties are completed. Further, in our opinion, Mr. Tolley’s assertion in his letter that the majority of the lawyers who practice workers’ compensation simply agree to continuances and have told him that he has a “green light” to any reasonable requests for an extension is simply preposterous. Mr. Tolley is very aware that in order to obtain an extension for any brief filed with the Commission that the opposing party MUST
be contacted and have an opportunity to object to that request. [5] Although we grant the claimant’s motion for extension of time, we caution Mr. Tolley to not allow this type of behavior to reoccur. The Clerk of the Commission is hereby directed to set forth a new briefing schedule. The claimant’s brief should be due one week from the date of this Order. The respondent’s brief should be due within two weeks of the claimant’s brief being due. [6] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[7] Commissioner Humphrey concurs.