PHILLIPS v. MID-AMERICA PACKAGING, 2009 AWCC 63

CLAIM NO. F603359

MICKEY PHILLIPS, EMPLOYEE CLAIMANT v. MID-AMERICA PACKAGING, LLC, EMPLOYER RESPONDENT NO. 1 CONTINENTAL CASUALTY CO., CARRIER RESPONDENT NO. 1 SECOND INJURY FUND RESPONDENT NO.

Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 20, 2009

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

Claimant is not represented by counsel, but appeared pro se.

Respondent No. 1 represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.

ORDER
This matter is presently before the Full Commission on Respondents’ Motion to Dismiss Claimant’s Notice of Appeal. After our consideration of the respondents’ Motion, the Second Injury Fund’s and the claimant’s response thereto, and all other matters properly before the Commission, we find that Respondents’ Motion to Dismiss should be granted.

Pursuant to Ark. Code Ann. § 11-9-711(a)(1) (Repl. 2002), the opinion of the Administrative Law Judge becomes final unless the claimant files an appeal in writing within 30 days from the receipt of the opinion. The procedural requirements set forth in the statute are mandatory or jurisdictional and require strict compliance. Lloyd v. PotlatchCorporation, 19 Ark. App. 335, 721 S.W.2d 670 (1986); Cooper IndustrialProducts v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400

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(1982). Therefore, the opinion of the Administrative Law Judge becomes final and the Full Commission cannot review it if the petition for review is not received within 30 days, as set forth in the statute.Smith v. Servomation, 8 Ark. App. 274, 651 S.W.2d 118 (1983). Moreover, the rule of unavoidable casualty does not apply to the failure to file a notice of appeal in a timely manner. Williams v. Luft ConstructionCo., 31 Ark. App. 198, 790 S.W.2d 921 (1990). Burris v. Burris, 278 Ark. 106, 643 S.W.2d 570 (1982).

The Administrative Law Judge issued an opinion on May 22, 2008. The claimant was represented by an attorney at the hearing. Claimant’s attorney received the opinion on May 26, 2008, as evidenced by the certified mail receipt maintained by the Commission. Claimant filed a notice of appeal with the Commission on March 20, 2009. The proposition that a “notice to the attorney of a particular party operates as notice to the party” is an elementary concept of law. It has long been held that for appeal purposes in workers’ compensation claims that receipt of a workers’ compensation opinion by a party’s attorney constitutes notice or receipt by the party. Stella Caffey v. Sanyo Mfg. Co., Full Commission Order filed March 12, 1993 (C808187). At the time of the hearing, and when the opinion was issued by the Administrative Law Judge, the attorney-client relationship existed between the claimant and this former attorney. Therefore we find that receipt of the opinion by the attorney representing the claimant at the hearing constitutes receipt by the party even when the attorney-client relationship was subsequently terminated. Kathy Kohl v. Linda Shepard, P.A., Full Commission Order filed April 2, 1993 (E204291). Marques Fisher v.Capital Hotel, Full Commission Order filed December 8, 2003 (F211461). The Administrative Law Judge’s opinion became final by at least June 25, 2008, 30 days after claimant received notice of the opinion

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via receipt by his attorney. Claimant did not file her notice of appeal with the Commission until March 20, 2009, after the opinion became final. Accordingly, we find that the respondent’s motion to dismiss the claimant’s appeal is well taken and should be and hereby is granted. Since the claimant’s notice of appeal was not filed within thirty days of receipt, it was untimely filed. Accordingly, the claimant’s appeal must be, and hereby is, dismissed.

IT IS SO ORDERED.

________________________________ A. WATSON BELL, Chairman
________________________________ KAREN H. McKINNEY, Commissioner

Commissioner Hood dissents.

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