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Langham: Deadline Calculations Are Critical

  • State: Mississippi
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The Mississippi Court of Appeals recently reminded that time matters, even when one might think it should not.

Judge David Langham

Judge David Langham

In early May 2020, the court decided Dildy v. McPeters Inc. Funeral Directors. The decision is en banc, meaning the entire court participated, rather than merely a panel of the court. That often signals a significant decision.

In all, an interesting read. The majority of five decided the case, and there is an interesting dissent of other judges included, which dwells on fairness and equity. 

The injured worker found herself dissatisfied with the decision of an administrative law judge regarding her claim for workers' compensation benefits. The decision is sparse in explanation, but essentially the ALJ entered an order on Nov. 29, 2018 (Thursday, not Thanksgiving, but the Thursday after). For some reason, that order was not "filed" until five days later, on Dec. 4, 2018. Unfortunately, when the order was filed, "it was apparently not mailed to the parties."

As Lewis Carrol might note, "curiouser and curiouser."

Despite the failures, the employer/carrier's attorney happened upon "the final order while searching the MWCC (Mississippi Workers' Compensation Commission) website." The defense attorney told Dildy's attorney. Both attorneys were "aware of the final order on Dec. 11, 2018." Through the vagaries of the U.S. Postal Service, the E/C "attorney also received the order in the mail on Dec. 13, 2018, and Dildy’s attorney received the order on Dec. 20, 2018."

The benefits of electronic service are illustrated by such delay.

The opinion offers no conjecture on why it took a week longer to reach the second address. It also notes that the Mississippi statute affords 20 days in which to file for review. Despite the order not being filed immediately, the appeals court concluded that the Workers' Compensation Commission was correct in its ruling, its conclusion that the notice was not timely.

The court noted that there is a narrow exception to the 20-day requirement "only when there are ‘unique facts which would permit the petition to be considered constructively filed’ within the 20 days.

Thus, when Dildy "file(d) her petition for review with the commission" on Dec. 28, 2018, it was dismissed as "untimely." The court noted an example of “constructive filing,” characterizing the application as "rare." The example involved a notice that was actually delivered to a mailbox within the deadline but was not retrieved from the mailbox by the commission and stamped "received" until the next day.

This was deemed as nonetheless "constructively filed within the 20-day time limit.” This prevented an internal practice (checking mail once a day) from altering the time period afforded to the party seeking review. 

The Dildy court provides a detailed explanation of the procedural rules regarding computation of time. The point is that not only is a requirement such as the 20 days important, but it is also critical to know how such days will be counted. To consider it elementary or rudimentary is a mistake.

The court affirmed the denial of review as untimely, concluding, "Dildy received the final order with sufficient time to file her petition for review by the Dec. 26, 2018, deadline." The court thereby agreed with the commission and affirmed its dismissal of the appeal. 

The dissent in the case concluded that by failing to file the order, the judge essentially "arbitrarily shortened the time period for filing the petition." Further, when the parties became aware on Dec. 11, 2018, there remained "only nine days" to seek review. The dissent stresses that the parties did get notice within the 20 days, but that it was "notice by happenstance," which it concludes "is not good enough." And thus, the dissent would have concluded that the petition for review was timely. 

An old and venerable law professor I studied under used to say that "a dissent does not matter; the majority is the law." There is merit in that. But a dissent may well illuminate flaws, considerations and counter-points that are worth consideration.

Reading this analysis reminded me of some complications we have with how days are counted in Florida workers' compensation. They are points worth discussing, and worth mastering if you are a practitioner who might engage in appellate practice of workers' compensation. 

The first arises from a recent change in Fla.R.App.P., Rule 9.180(f)(5)(B). This rule used to afford an appellant 15 days to pay the estimated cost of the record on appeal. That was consistent with section 440.25(5)(b), Florida Statutes. In 2018, the Florida Supreme Court amended the appellate rule, changing the deadline to 20 days. The statute and the rule may now be seen as conflicting, or at least confusing. 

There is also a potential for confusion regarding how days are counted. When a deadline is imposed by court rules, the calculation is controlled by the Florida Rules of Judicial Administration, Rule 2.514. This provides that such a calculation will "(A) begin counting from the next day that is not a Saturday, Sunday or legal holiday." Thus, if a court's order is entered on a Friday, the time calculation does not begin the next day (Saturday), but more likely on Monday (or Tuesday if Monday is a holiday). This rule applies "in computing time periods specified in any rule of procedure, local rule, court order or statute that does not specify a method of computing time." 

The Florida Rules of Procedure for Workers' Compensation Adjudication (Chapter 60Q, F.A.C.)(R.Pro.Work.Comp.Adj.) does not include that "not a Saturday" limitation. Thus, if a judge of compensation claims enters an order on a Friday, the time afforded for response or other action would begin to run on the next day, Saturday. There is, therefore, some potential for different deadlines to be controlled by different rules.

Dildy reminds that deadlines are critical, and failure to fulfill them might result in consequences, such as dismissal of an appeal. The discussion here reminds us that how deadlines are calculated may be complex and are worthy of review and careful consideration.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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