Opinion
CLAIM NO. F602720
OPINION FILED NOVEMBER 18, 2008
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by the Honorable Melissa Wood, 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, 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. 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). 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 Construction Co., 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 August 1, 2008. The claimant was represented by an attorney at the hearing. Claimant's attorney received the opinion on August 4, 2008, as evidenced by the certified mail receipt a copy of which is attached to respondents' motion. Claimant's attorney moved to be dismissed as counsel and advised claimant that she had 30 days to appeal the decision of the Administrative Law Judge. Claimant filed a notice of appeal with the Commission on September 8, 2008. 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). The fact that the claimant is no longer represented by this attorney is of no moment. 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 September 4, 2008, 30 days after claimant received notice of the opinion via receipt by her attorney. Claimant did not file her notice of appeal with the Commission until September 8, 2008, 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.
________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion regarding this motion. The majority finds that the claimant, who represents herselfpro se on appeal, did not timely file the Notice of Appeal within the statutory time period allowed under Ark. Code Ann. § 11-9-711. I disagree and would deny the respondent's Motion to Dismiss Claimant's Notice of Appeal. The language of Ark. Code Ann. § 11-9-711(a)(1) is as follows:
A compensation order or award of an administrative law judge or single commissioner shall become final unless a party to the dispute shall, within thirty (30) days from the receipt by him or her of the order or award, petition in writing for a review by the full commission of the order or award. [emphasis added]
Therefore, the opinion of the Administrative Law Judge becomes final and the Full Commission cannot review it if the notice of appeal 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). 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).
Here, the Administrative Law Judge filed the opinion on August 1, 2008. A certified return receipt requested card (the "green card") shows that someone at the claimant's attorney's office signed for the Order on August 4, 2008. The record indicates that the claimant's attorney purportedly informed the claimant of the Administrative Law Judge's opinion and purportedly provided the claimant with a copy of the opinion with a letter dated August 5, 2008. However, the record clearly shows that despite dating the letter August 5, 2008, the claimant's attorney did not actually file the letter with the AWCC until almost three months later, on October 27, 2008. The letter from the claimant's attorney to the claimant uses a Dodge City, Kansas address, different from the address used by the Commission. The Administrative Law Judge's opinion was sent via standard, first-class mail to an incorrect address in Rogers, Arkansas and was subsequently returned to the Commission marked "Return to Sender, Not Deliverable as Addressed, Undeliverable to Forward." There is no "green card" showing that the claimant received the Administrative Law Judge's opinion from either her attorney or the Commission. Therefore, it cannot be shown that the claimant received the order of the Administrative Law Judge, to date.
As stated above, Ark. Code Ann. § 11-9-711(c)(3) requires strict compliance. Because of this, the relevant inquiry is not when the claimant's attorney had notice of the Administrative Law Judge's order, but rather when the claimant, as the only party to the dispute remaining, actually received the Administrative Law Judge's August 1, 2007 Order, due to the purported withdrawal of the claimant's attorney on August 5, 2008. To support the divergence from the strict construction of the Arkansas Workers' Compensation statute, the majority cites Stella Caffey v. Sanyo Mfg. Co., which is a Full Commission Order filed on March 12, 1993, which I would note was decided by this Commission prior to the effective date of Act 796 of 1993, under the doctrine of liberal, not strict, construction. 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 employed. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002). Furthermore, as to the majority's assertion that this is an elementary concept of law, I would posit that even elementary concepts of the common law must fall to the wayside when the General Assembly so mandates, as I find to be the case with Ark. Code Ann. § 11-9-711(a)(1).
Therefore, I would find that in order to strictly comply with Ark. Code Ann. § 11-9-711(a)(1), this Commission should remand this claim to the Administrative Law Judge for a finding regarding when the claimant received the opinion of the Administrative Law Judge.
For the aforementioned reasons I must respectfully dissent.
________________________________ PHILIP A. HOOD, Commissioner