Nickell v. Diversicare Mgmt. Svcs.
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The Workers' Compensation Board affirmed a decision in which the Administrative Law Judge (ALJ) found that the Appellant's work-related injury was only partially disabling. The appellate court denied Appellant's motion for an enlargement of time in which to file a petition for review. The court rejected Appellant's argument that CR 76.25 permits time for filing a petition for review to be enlarged before it expires. On review of the record, the Supreme Court reversed and remanded the matter back to the appellate court, holding that CR 76.25 "serves two functions. It is both the document for invoking the court's jurisdiction to consider an appeal, and the document for stating the petitioner's grounds for seeking appellate relief."
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RENDERED : APRIL 21, 2011
TO BE PUBLISHED
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2010-SC-000481-WC
ILA NICKELL
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-002249-WC
WORKERS' COMPENSATION NO. 07-96867
DIVERSICARE MANAGEMENT SERVICES ;
HONORABLE CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING
The Workers' Compensation Board affirmed a decision in which the
Administrative Law Judge (ALJ) found that the claimant's work-related injury
was only partially disabling. This appeal is taken from a Court of Appeals
decision to deny the claimant's motion for an enlargement of time in which to
file a petition for review and to dismiss her action . The court rejected her
argument that CR 76.25(2) permits the time for filing a petition for review to be
enlarged before it expires .
We reverse and remand this matter to the Court of Appeals . A petition
for review under CR 76.25 serves two functions . It is both the document for
invoking the court's jurisdiction to consider an appeal of the Board's decision
and the document for stating the petitioner's grounds for seeking appellate
relief. The claimant's motion invoked the court's appellate jurisdiction within
the time for filing a petition for review. Thus, the Court of Appeals erred by
refusing to consider the merits of her request for what amounted to an
enlargement of time in which to file a brief.
The Board entered an opinion in which it affirmed the ALJ's decision on
November 3, 2009 . The record indicates that on December 3, 2009 the
claimant transmitted to the Clerk of the Court of Appeals by United States
Postal Service express mail a document styled as a motion for an extension of
time in which to file her "brief." The motion stated that the 30-day period set
forth in CR 76 .25 was due to expire on December 3, 2009 and sought leave for
an extension of time through December 15, 2009 in which to file a petition for
review . Justifications for the request involved office staffing during the
Thanksgiving holiday as well as counsel's workload at the time and personal
health issues .
The employer's response to the motion asserted that the time for
appealing the Board's decision expired on December 3, 2009 and, thus, that
the court lacked jurisdiction to consider an appeal . In a subsequent motion
the claimant sought leave to file a reply in which she argued that neither CR
76.25(2), nor CR 6.02, nor any judicial decision prohibited an enlargement of
the time for filing a petition for review.
In an order entered on April 15, 2010, the Court of Appeals granted the
motion for leave to file a reply to the employer's response. The court denied the
motion for an enlargement of time to file a petition for review, however, having
construed CR 76.25(2) as mandating dismissal . The claimant filed a motion to
reconsider, which was denied, and now appeals .
The claimant maintains that neither Hutchins v. General Electric Co.,'
upon which the Court of Appeals relied, nor CR 73 .02 governs the present
facts. She argues that CR 76 .25(2) and CR 6 .02 permit the time for filing a
petition for review to be enlarged before it expires . She notes that a petition for
review, unlike a notice of appeal, includes a brief of the appellant's arguments .
Moreover, unlike the brief of an appellant seeking relief under CR 73 .02, the
brief included in a petition for review must take into account the arguments
likely to be raised in response because CR 76 .25 does not provide an appellant
with the opportunity to file a reply brief. She concludes that CR 76.25(2) and
CR 6 .02, when construed in tandem, give the Court of Appeals discretion to
enlarge the time for briefing for good cause shown . We agree.
The right to appeal the decision of an administrative agency to a court is
a matter of legislative grace . As amended effective January 4, 1988, KRS
342 .290 provides that the Board's decisions may be appealed to the Court of
Appeals "pursuant to Section 111 of the Kentucky Constitution and rules
adopted by the Supreme Court." Following the amendment of KRS 342 .290,
1 190 S.W.3d 333, 337 (Ky. 2006) .
2 See Kentucky Unemployment Insurance Commission v. Carter, 689 S.W .2d 360 (Ky.
1985) .
the Supreme Court adopted SCR 1 .03(3), which provides that final decisions of
the Board are subject to review by the Court of Appeals under procedures set
forth in the Rules of Civil Procedure . CR 76 .25 provides, in pertinent part, as
follows :
(1) General.
Pursuant to Section 111(2) of the Kentucky
Constitution and SCR 1 .030(3), decisions of the
Workers' Compensation Board shall be subject to
direct review by the Court of Appeals in accordance
with the procedures set out in this Rule . ,
(2) Time for Petition .
Within 30 days of the date upon which the Board
enters its final decision pursuant to KRS 342 .285(3)
any party aggrieved by that decision may file a petition
for review by the Court of Appeals and pay the filing
fee required by CR 76.42 (2)(a) (xi) . Failure to file the
petition within the time allowed shall require dismissal
of the petition .
This appeal concerns whether the 30-day period set forth in CR 76 .25(2)
may be enlarged before it expires pursuant to a motion by the appellant under
CR 6 .02, which states as follows :
When by statute or by these Rules or by a notice given
thereunder or by order of court an act is required or
allowed to be done at or within a specified time, the
court for cause shown may, at any time in its discretion,
(a) with or without motion or notice order the period
enlarged if request therefor is made before the
expiration ofthe period originally prescribed or as
extended by a previous order or (b) upon motion made
after the expiration of the specified period permit the
act to be done where the failure to act was the result of
excusable neglect ; but it may not extend the time for
taking any action under Rules 50.02, 52.02, 59.02,
59.04, 59.05, 60.02, 72.02, 73.02 and 74 except to the
extent and under the conditions stated in them.
(emphasis added) .
The Court of Appeals relied on dictum from Hutchins to conclude that
"CR 76.25, like CR 73 .02, embodies a policy choice that a tardy petition for
review is subject to automatic dismissal and cannot be saved through
application of the doctrine of substantial compliance." The statement from
Hutchins is correct but does not control the present facts.
The court noted in AK Steel Corp. v. Caricc 3 that a petition for review, like
a motion for discretionary review, serves two functions. It is both the
jurisdictional document and the means to allege error in the lower court's
decision . CR 76 .20(2)(c) provides as follows :
The failure of a party to file - a Motion for Discretionary
Review within the time specified in this Rule, or as
extended by a previous order, shall result in a
dismissal of the Motion for Discretionary Review.
(emphasis added) .
Like CR 73 .02(2), CR 76.25(2) and CR 76 .20(2)(c) indicate clearly that a
failure to timely file the document by which the court's appellate jurisdiction is
invoked requires dismissal . Yet, CR 76.20(2)(c) clearly permits the court to
grant a motion to enlarge the time specified in CR 76 .20 if the motion is filed
before the time expires . The provision recognizes implicitly that a motion to
enlarge the time for filing a motion for discretionary review that is filed before
the 30-day period has expired has invoked the court's jurisdiction over the
underlying matter. Also implicit is recognition of the fact that an appellant's
failure to state a basis for requesting appellate relief within the time allowed
3
122 S.W.3d 585, 587 (Ky. 2003) .
4 CR 73.02(1)(d) provides the only basis for enlarging the period for taking an appeal
after the time for doing so expires .
does not require dismissals and that CR 6.02(a) permits the time for doing so to
be enlarged .
In AK Steel Corp. v. Carrico the employer filed a motion after the 30-day
period expired in which it alleged excusable neglect and requested additional
time to file a petition for review . The court noted that "CR 76.25 does not
specify whether the time for filing a petition for review maybe extended" 6 but
determined that CR 76.25(2) required dismissal if the jurisdictional document
was not timely filed. Thus, the employer's failure to file its petition (or motion)
within the 30-day period, though inadvertent, required dismissal. The
claimant maintains that AK Steel Corp. v. .Carrico is distinguishable because
she filed her motion within the 30-day period and, thus, sought relief under CR
6 .02(a) rather than under CR 6 .02(b) .
CR 76 .40(2) provides as follows :
To be timely filed, a document must be received by the
Clerk of the Supreme Court or the Clerk of the Court
of Appeals within the time specified for filing, except
that any document shall be deemed timely filed ifit has
been transmitted by United States registered (not
certified) or express mail, or by other recognized mail
carriers, with the date the transmitting agency received
said document from the sender noted by the
transmitting agency on the outside of the container used
for transmitting, within the time allowed forfiling.
(emphasis added) .
The parties do not dispute that CR 76.25(2) required the claimant's
petition for review to be filed on or before December 3, 2009. The record
5 See CR 76 .12(8) (b) .
6 122 S .W.3d at 587 .
contains her motion for an extension of time in which to file her brief as well as
a copy of a United States Postal Service express mail envelope, which indicates
that the contents were received for transmission to the Clerk of the Court of
Appeals on December 3, 2009 . Moreover, the employer concedes that she filed
the motion on December 3, 2009 . We conclude, therefore, that the claimant
invoked the court's appellate jurisdiction within the 30-day period specified in
CR 76.25(2) .
CR 76 .25 contains no explicit provision that prohibits the time for filing a
petition for review from being enlarged. Mindful of the similarities between a
petition for review and a motion for discretionary review, we conclude that the
use of the phrase "within the time allowed" in the second sentence of CR
76 .25(2) rather than the words "30 days" has significance and implies that the
time for filing a petition for review may be enlarged pursuant to a motion filed
before it expires. The Court of Appeals erred in the present case by denying the
claimant's motion without considering the merits of her request for what
amounted to an enlargement of time in which to file a brief.
The decision of the Court of Appeals is reversed and this matter is
remanded for the court to consider the merits of the motion for an extension of
time and proceed accordingly.
All sitting . All concur.
COUNSEL FOR APPELLANT,
ILA NICKELL :
Eric M . Lamb
Lamb 8s Lamb, PSC
P.O . Box 34275
Louisville, KY 40232-4275
and
William Grover Arnett
P.O . Box 489
Salyersville, KY 41465
COUNSEL FOR APPELLEE,
DIVERSICARE MANAGEMENT SERVICES :
Ronald Jude Pohl
Erik Shane Branham
Pohl, Kiser & Aubrey, PSC
100 First National Building
167 West Main Street
Lexington, KY 40507
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