John Bannon v. Ford Motor Co.

• Court: Kentucky Supreme Court
• Decided: February 16, 2021
• Docket: 2019 SC 0718
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 18, 2021 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0718-WC

JOHN BANNON APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-1112 WORKERS’ COMPENSATION NO. 14-WC-68234

FORD MOTOR COMPANY; HONORABLE APPELLEES STEPHANIE KINNEY, ADMINISTRATIVE LAW JUDGE AND WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

John Bannon appeals the Court of Appeals’ opinion affirming the order of

the Workers’ Compensation Board (“Board”) which dismissed Bannon’s Notice

of Cross-Appeal as untimely filed. After review of the record and applicable

law, we affirm.

I. BACKGOUND

In the underlying workers’ compensation claim, which resulted from an

injury Bannon sustained while working on the assembly line at Ford Motor

Company, the Administrative Law Judge (“ALJ”) awarded Bannon temporary

total disability benefits, as well as 27% permanent partial disability benefits. After the ALJ ruled on both parties’ Petitions for Reconsideration, Ford timely

filed, on March 22, 2018, its Notice of Appeal to the Board pursuant to 803

KAR1 25:010 Section 22(2)(a), which permits an appeal within thirty days of an

ALJ’s decision. On April 6, 2018, Bannon attempted to file a Notice of Cross-

Appeal per 803 KAR 25:010 Section 22(2)(d), which allows for a cross-appeal to

be filed within ten days after the Notice of Appeal is served. Per that 10-day

regulation, Bannon’s Notice of Cross-Appeal was due by April 2, 2018, four

days before he attempted to file it. The Board dismissed Bannon’s Notice of

Cross-Appeal as untimely per 803 KAR 25:010 Section 22(2)(e), which

mandates the dismissal of any notice of appeal or cross-appeal that is not filed

within the time allowed. The Court of Appeals affirmed the Board and this

appeal followed.

II. ANALYSIS

The well-established standard of review for the appellate courts of a

workers’ compensation decision “is to correct the [Workers’ Compensation]

Board only where the Court perceives the Board has overlooked or

misconstrued controlling statutes or precedent, or committed an error in

assessing the evidence so flagrant as to cause gross injustice.” W. Baptist

Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky. 1992). With respect to questions

of law, an appellate court reviews de novo a decision of the Board or ALJ

regarding proper interpretation of the law or its application to the facts. Miller

1 Kentucky Administrative Regulations.

2 v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (citing Bowerman v.

Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)).

The law is well-settled that the filing of a notice of appeal or cross-appeal

to invoke a court’s jurisdiction “within the prescribed time frame is still

considered mandatory, and failure to do so is fatal to the action.” Workers’

Comp. Bd. v. Siler, 840 S.W.2d 812, 813 (Ky. 1992) (citing CR2 73.03(2)); City of

Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990); Rainwater v. Jasper &

Jasper Mobile Homes, 810 S.W.2d 63 (Ky. App. 1991)). Cf. Ready v. Jamison,

705 S.W.2d 479, 481–82 (Ky. 1986) (holding that nonjurisdictional defects in

the notice of appeal should not result in automatic dismissal; rather, the Court

should consider any harm or prejudice resulting from the defect in deciding the

appropriate sanction). In Stallings, this Court observed that “[t]here are policy

considerations that mandate strict compliance with the time limit on filing of

the notice of appeal. . . . CR 73.02(2) singles out the timely filing of a notice of

appeal as being different from other rules relating to appeals and mandates

that ‘[t]he failure . . . to file notice of appeal within the time specified in this

Rule . . . shall result in a dismissal of the appeal.’” 795 S.W.2d at 957.

In Siler, we stated that “[t]he Board is granted the authority under KRS[3]

342.260 to promulgate regulations necessary to carry on its work, including

regulations necessary for reviewing decisions of the ALJ. KRS 342.285.” 840

S.W.2d at 812–13. Consistent with this grant of authority, the Board

2 Kentucky Rules of Civil Procedure. 3 Kentucky Revised Statutes.

3 promulgated 803 KAR 25:010, which expressly provides that “[f]ailure to file

the notice within the time allowed shall require dismissal of the appeal.” 803

KAR 25:010 § 22(2)(e) (emphasis added). Case law is clear that “shall” is

mandatory language, as opposed to permissive. Miller v. Tema Isenmann, Inc.,

542 S.W.3d 265, 274 (Ky. 2018).

Nevertheless, Bannon implores us to apply the doctrine of substantial

compliance to save his tardy Notice of Cross-Appeal. To explain his delay in

filing, Bannon asserts that he was prevented from receiving timely notice of

Ford’s filing of its Notice of Appeal because of a technical issue with LMS, the

Litigation Management System of electronic filing utilized in the filing and

processing of workers’ compensation claims. Bannon maintains that he did

not receive notice that Ford had filed a Notice of Appeal until April 6, 2018,

when counsel for Bannon was trying to access LMS to file a Motion for

Attorney’s Fees. Upon discovering Ford’s Notice of Appeal, Bannon

immediately filed a motion for leave to file his Notice of Cross-Appeal and

included as an exhibit his e-mail communication dated April 6, 2018 with the

Department of Workers’ Claims (“DWC”), which Bannon contacted about his

inability to access LMS. In that April 6, 2018 e-mail correspondence, the DWC

representative replied: “I see Chad Jennings [Bannon’s counsel] on the appeal,

but I am not seeing him associated to the claim. You may need to re-associate

to this claim. The access # is: 4409784. If this doesn’t work, please let us

know. Thanks! Austin Wright Maddox.”

4 Bannon argues this evidence demonstrates an LMS technical

malfunction and is sufficient to excuse his delay in filing. However, 803 KAR

25:010 Section 4(1) anticipated and addressed the issue of technical

difficulties, providing:

Section 4. Technical Difficulty: Litigation Management System Unavailability. (1) Jurisdictional Deadlines. A jurisdictional deadline shall not be extended. A technical failure, including a failure of LMS, shall not excuse a failure to comply with a jurisdictional deadline. The filing party shall insure that a document is timely filed to comply with jurisdictional deadlines and, if necessary to comply with those deadlines, the filing party shall file the document conventionally accompanied by a certification of the necessity to do so in order to meet a jurisdictional deadline.

Thus, 803 KAR 25:010 Section 4(1) does not excuse jurisdictional

deadline issues. And under the substantial compliance rule, the failure to

timely file a notice of appeal or cross-appeal is not one of the procedural steps

deemed not to affect the validity of the appeal. Siler, 840 S.W.2d at 813 (citing

CR 73.03(2); Ready, 705 S.W.2d at 479; Smith v. Goodyear Tire & Rubber Co.,

772 S.W.2d 640 (Ky. App. 1989)). Citing Jenny Wiley Health Care Center v.

Commonwealth, 828 S.W.2d 657 (Ky. 1992), the Siler court reiterated that

“under CR 73.02(2) and Ready v. Jamison, Jenny Wiley Health Care Center’s

good-faith attempt to file notice of appeal would require an automatic dismissal

because it did not meet the time specifications of the agency regulation.” Id.

Bannon asserts that the rule set forth in Siler is inapposite, as that case

was rendered in 1992 and electronic filings did not exist then. He argues that

the practical ramification of Siler and the Court of Appeals’ decision here places

5 an unreasonable burden on counsel of record to check LMS daily to determine

whether access has been lost or whether any new filings have been made.

Bannon asserts that a better rule would be to apply the substantial compliance

doctrine to DWC cases like this in which a party has demonstrated an LMS

malfunction with the filing system.

However, we find that in this case, the rules and regulations governing

the timeliness of a notice of appeal require strict compliance, regardless of

whether the case was litigated using the LMS. As noted above, 803 KAR

25:010 Section 4(1) contemplated this exact issue and expressly states that “[a]

technical failure, including a failure of LMS, shall not excuse a failure to

comply with a jurisdictional deadline.” Here, both parties to this litigation bore

the responsibility for exercising reasonable due diligence in maintaining their

filings and keeping track of the progress of the case, including the timeframe

for filing a notice of appeal and cross-appeal. To this point, Bannon does not

argue that he was unaware of the ALJ’s issuance of its decision in this case.

Thus, he could have, and should have, been aware of the date by which a

notice of appeal was due. Bannon’s filing of his Notice of Cross-Appeal on April

6, 2018 was inexcusably four days late, regardless of whether he experienced

any technical difficulty with LMS. Because Bannon failed to comply with the

time specifications of the regulation, the Court of Appeals did not err as a

matter of law in affirming the Board’s dismissal of his cross-appeal as untimely

filed.

6 Lastly, any challenges Bannon raises with respect to the constitutionality

of the retroactive application of KRS 342.730(4) are outside the scope of this

appeal because of his failure to timely raise them on cross-appeal. Moreover,

those issues have largely been resolved. On the same day the Court of Appeals

issued the opinion at bar, ruling on the timeliness of Bannon’s Notice of Cross-

Appeal, it also issued a separate opinion deciding the merits of Ford’s appeal in

this matter. In its opinion addressing the merits of Ford’s appeal, the appellate

court reversed the Board, and held that “as a matter of law, Bannon’s claim is

not subject to the tier-down provisions of the 1994 statute as applied by the

Workers’ Compensation Board, but rather it is subject to the 2018

amendments to KRS 342.730(4).” Ford Motor Co. (KTP) v. Bannon, 2018-CA-

001086-WC, 2019 WL 5854030, at *3 (Ky. App. Nov. 8, 2019). The Court of

Appeals remanded the case to the Board with instructions to apply the current

version of KRS 342.730 to Bannon’s award of benefits in this case. Id.

Accordingly, even though disallowed from proceeding with his cross-appeal,

Bannon has been afforded all the necessary due process protections to which

he was entitled in challenging the Board’s application of KRS 342.730(4).

III. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals.

All sitting. Minton, C.J.; Conley, Hughes, Nickell and VanMeter, JJ.,

concur. Lambert, J., dissents by separate opinion in which Keller, J., joins.

7 LAMBERT, J., DISSENTING: Respectfully, I dissent. I would reverse the

Court of Appeals and hold that, under the facts and circumstances of this case,

it was error for the Worker’s Compensation Board (“Board”) to deny Bannon’s

motion for leave to file his cross-appeal.

The following facts are not disputed. The parties in this case agreed to

use only the Department of Workers’ Claims’ Litigation Management System

(LMS) for filings. Ford timely filed its notice to the Board via LMS on March 22,

2018. But, due to an error with LMS that was neither Ford nor Bannon’s fault,

Bannon did not receive Ford’s notice of appeal until April 6, 2018. April 6 was

four days after Bannon’s deadline to file a cross-appeal. On April 6, the same

day counsel discovered the error, Bannon filed a motion for leave to file his

cross-appeal. Significantly, Ford did not object to this motion. The Board

nonetheless dismissed Bannon’s motion as untimely.

I do not dispute that Ford followed the controlling statute regarding its

appeal to the Board, 803 KAR 25:010 § 22(2) and filed a timely appeal. I also

do not dispute that 803 KAR 25:010 § 4(1) clearly provides that “[a]

jurisdictional deadline shall not be extended[,]” and that “[a] technical failure,

including a failure of LMS, shall not excuse a failure to comply with a

jurisdictional deadline.” However, I feel that strict adherence to those

regulations under these facts, so to speak, misses the forest for the trees.

Bannon, like all litigants, was entitled to notice that Ford intended to

appeal the ALJ’s decision to the Board. The very reason that litigants are

entitled to notice of an opposing party’s intent to appeal is so that they have

8 the opportunity to respond to that appeal if they so choose. A cross-appeal,

such as Bannon’s, is by its very nature filed in response to an appeal. But,

because of a technical error with LMS, Bannon was stripped of his right to

notice and his opportunity to respond. It is entirely unfair to expect Bannon to

meet a deadline he did not, and due to the LMS error could not, know existed.

Notwithstanding the administrative regulations to the contrary, under these

circumstances the Board should have recognized Bannon’s substantial

compliance with his filing deadline and allowed him to file his cross-appeal.

Due process so demands.

Keller, J., joins.

COUNSEL FOR APPELLANT:

Charles E. Jennings Jennings Law Office

COUNSEL FOR APPELLEE, FORD MOTOR COMPANY:

George Timothy Todd Kitchen III Reminger Co., LPA

COUNSEL FOR APPELLEE, STEPHANIE LETITIA KINNEY:

Not Represented by Counsel

COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD:

Michael Wayne Alvey