Langham: Time Is Critical

Tuesday, December 11, 2018 | 0

In October, the Mississippi Court of Appeals published Emmanuel Ridge Community Services Inc. v. Loggins. It is a case primarily about about time, and there are lessons to be learned from that aspect. It also appears to be about diligence in a broader sense, and that is worthy of examination as well. 

Judge David Langham

In Emmanuel Ridge, the injured worker prevailed in her petition seeking workers' compensation benefits. The employer was dissatisfied with the result and sought review by the Workers' Compensation Commission. In Mississippi, as in many states, there is an administrative level of review before a party may invoke the jurisdiction of the appellate court. 

The commission noted that the petition for review was filed on Oct. 10, 2017, 21 days after the administrative law judge had awarded benefits. The commission deemed that filing untimely and dismissed the appeal.

Emmanuel Ridge filed a motion for rehearing. That process is appropriate because it allows for correction of any overlooked facts or misapplication of the law. This encourages correction of error prior to invoking the appellate court jurisdiction.

Errors should be corrected as early in a proceeding as possible. That prevents wasting of judicial resources at the appellate courts. 

In Florida, the parties at trial are obligated to raise issues with the trial judge. They must "preserve error" in order for it to be later considered by the appellate court. This generally means a party is obligated to object at trial. And if the error about which there is concern is first evident from the trial order, the aggrieved party is obligated to raise that issue with the trial judge by motion for rehearing.

If the party fails to do so, that may be grounds for dismissal of the appeal. 

In Mississippi, the statute requires that a petition for review is filed within 20 days. The petition in Emmanuel was filed 21 days after the trial judge's decision was rendered. The commission therefore dismissed the appeal, and the employer sought review by the court.

The court noted that this time limitation "is not merely procedural." The requirement is "jurisdictional," meaning that “if the notice of appeal is not filed within 20 days, the commission does not have jurisdiction to hear the matter.” There is an exception to that legal requirement if the commission finds “unique facts which would permit [the] petition to be considered constructively filed.” 

Until this point, one might struggle to understand why the employer either sought commission rehearing or review by the appellate court. The law requires the notice within 20 days and in this instance it was clearly not filed within that period.

But the argument Emmanuel raised is factual. It argued to the commission that its Oct. 10, 2017, filing should be deemed timely because Oct. 9, 2017, was a holiday, Columbus Day. 

The court acknowledged the holiday but explained that Columbus Day is "not a legal holiday." As a result, the commission's offices were open for business on Oct. 9, 2017. There was no factual impediment to filing the petition within the statutory deadline, and thus it was untimely, regardless of Columbus Day.

The situation might be different if one of the days in that 20-day period had been Labor Day, Martin Luther King Day or Thanksgiving, and the commission's office had been closed. 

But the decision is also broader in its criticism of diligence. The court also noted that Emmanuel failed to support its argument seeking reversal.

In many settings, the failure of a party to make a substantive argument, supported by authority, can be fatal to the party's cause. In Florida, there is ample appellate authority that holds it is the party's obligation to be specific as to arguments and to cite specific authority in support of its arguments.

There is also, unfortunately, other authority in which the appellate court has conflated that requirement and insinuated some duty on the part of the trial judge to perform the party's research for them. The lack of appellate consistency in this regard is lamentable. 

The Mississippi court noted that "Emmanuel Ridge does not cite any authority in support of" its argument of timeliness. It reminded that in Mississippi, “failure to cite any authority is a procedural bar, and this court is under no obligation to consider the" arguments of error by the commission.

Essentially, the court could have affirmed the commission's dismissal of the petition for review merely because Emmanuel cited no authority in its argument. That seems logical and functional. Some would argue such an obligation on the parties is appropriate. 

The issue of timeliness occurs periodically in Florida workers' compensation disputes. There are some some who misconstrue the legal authorities regarding time constraints. Others misapply the requirements of irrelevant rules or laws, to their detriment or the detriment of their clients. Attorneys and parties alike should remember that the calculation of time in Florida workers' compensation disputes are controlled by the Rules of Procedure for Workers' Compensation Adjudications. 

Certainly, those rules are not the only litigation procedural rules in Florida, but they are the procedural rules for the Office of Judges of Compensation Claims. Too often, parties or lawyers will cite the provisions of the Florida Rules of Civil Procedure or the Florida Rules of Judicial Administration in support of their timeliness arguments. While it is possible for these rules to influence workers' compensation proceedings, that influence is permissible only if the Rules of Procedure for Workers' Compensation Adjudications provides therefore.

In the absence of such specific adoption or implication, the Florida courts cannot make rules for this administrative process. 

Generally, the Florida Courts have no authority to dictate process and procedure for the OJCC. This, as explained by the Florida Supreme Court in Amendments to the Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004), is because of the "separation of powers" in the Florida Constitution.

The Florida OJCC is part of the executive branch. The courts have authority to dictate process and procedure in the courts, the judicial branch, but not the executive branch. 
That does not mean that the executive branch cannot elect to follow court rules; it merely means the OJCC is not compelled to do so.

The Florida Rules of Civil Procedure are applied in some instances in workers' compensation proceedings because the Rules of Procedure for Workers' Compensation Adjudications say so. The Florida Rules of Judicial Administration are similarly applied in some instances, but also because the adjudication rules say so. But those rules have no general application in workers' compensation disputes. 

It is therefore important for practitioners and parties to understand that timeliness under the Rules of Procedure for Workers' Compensation Adjudications is determined by reference to Rule 60Q-6.108, Rule 60Q-6.109 and others. These explain when time is extended based upon the use of mail or electronic service, explain the effect of weekends and holidays in calculating times, and even provide specific definition of what is and is not a holiday by reference to section 110.117, Fla. Stat., which, coincidentally, does not include Columbus Day, either. 

Familiarity with the Rules of Procedure for Workers' Compensation Adjudications is critical. Failure to comply with time requirements in rules or statutes can affect the rights of parties before the OJCC. It is also important to remember that any proceedings before the Florida appellate courts is similarly controlled by the Florida Rules of Appellate Procedure.

And like Mississippi's requirement for filing is "jurisdictional," so is the Florida rule that an appeal must be filed withing 30 days, or the court cannot hear the case.

Familiarity with the rules is a matter of diligence. Researching and presenting authority in support of the advocated outcome is a matter of diligence. And in the end, diligence is a matter of professionalism and due care.

Lawyers owe their clients both competence and diligence.

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.