Eight Days Late Results in More than a Dollar Short for Mississippi Claimant
While some jurisdictions show significant flexibility when it comes to time limitations for filing workers’ compensation appeal or review requests, Mississippi appears to be much less forgiving. In Hardy v. Xanitos, Inc., 2019 Miss. App. LEXIS 541 (Nov. 5, 2019), a state appellate court recently affirmed a decision by the Mississippi Workers’ Compensation Commission that had dismissed a claimant’s appeal where the administrative judge (“AJ”) denied the worker’s claim on November 1, 2018, but the claimant did not file her request for Commission review until November 28, 2018, at least a week beyond the 20-day period set forth in Miss. Code Ann. § 71-3-47 (Rev. 2011). The court noted that claimant had cited no authority for her position that her late petition for review could be salvaged by excusable neglect. It added that even she had, in any event, failed to show any such excuse for her late filing.
Background
The claimant contended she sustained a work-related back injury and filed a petition to controvert with the Commission. Following a hearing on October 9, 2018, the AJ denied the claim in a detailed opinion on November 1, 2018. Pursuant to Miss. Code Ann. § 71-3-47 (Rev. 2011), and under Commission rules, the claimant had twenty days to appeal the AJ’s decision to the Commission. By operation of those rules, an AJ’s decision becomes final on the twentieth day if an appeal is not timely filed with the Commission.
Although the claimant was represented by counsel at her initial hearing, she filed a request for review by the Commission pro se, on November 28, 2018. In her request, she indicated that she had been notified of the AJ’s decision on November 26, 2018, by her former attorney. She indicated that she understood, from her former attorney, that she had until November 30, 2018 “to retain an appeal.” The claimant did not otherwise support her request for review with any evidence to explain or substantiate her reasons for failing to abide by the statutory timeline for appeal. On December 6, 2018, the Commission dismissed the claimant’s request for review as untimely without reaching the merits of her claim. The claimant appealed.
Appellate Court’s Opinion
The appellate court initially noted that for the most part, the claimant had sidestepped the Commission’s order dismissing her untimely request for review. The court added that in her reply brief, the claimant indicated that her failure to request timely review of the AJ’s denial of her claim was due to her former attorney’s late receipt of the AJ’s order and counsel’s incorrect advice that the claimant had thirty days to appeal. For additional support, the claimant cited two documents:
- A “cease and desist” letter the claimant sent her attorney dated December 21, 2018, in which the claimant demanded that her attorney withdraw from representation and complained that the law firm was “still logging in the [Commission’s] system checking the status of [the claimant’s] case”; and
- A notice of attorney’s lien filed with the Commission by her former attorney on January 8, 2019.
The appellate court noted that the Commission did not have either of these documents in its record when it dismissed the claimant’s request for review (or, for that matter, before the claimant filed her notice of appeal to the appellate court).
No Excusable Neglect
The court indicated that in the claimant’s reply brief to the Court, the claimant had essentially interposed the concept of excusable neglect to salvage her untimely Commission appeal. The claimant, however, had not cited any authority to support her position, so to the extent that she had raised this issue, it was procedurally barred from review. The court went on to say, however, that the claimant had not shown excusable neglect in the case.
The court continued that the situation in the instant case was similar to that in Stevenson v. GE Healthcare, 269 So. 3d 412 (Miss. Ct. App. 2018). There, as here, the claimant failed to provide any proof to the Commission to excuse the untimely filing. Claimant’s bare assertions that she was made aware of the AJ’s decision until November 26, 2018, and that her attorney told her she had 30 days to appeal, standing alone, was not enough to show excusable neglect.
As to the two documents that the claimant had offered for support of her argument, the appellate court allowed that even assuming they were probative, they were not before the Commission when it dismissed the claimant’s request for review on December 6, 2018. Accordingly, the appellate court declined to consider them here. Based on what was before the Commission, there was no error.