Russell v. Duchess Footwear

487 A.2d 256, 1985 Me. LEXIS 618

• Court: Supreme Judicial Court of Maine
• Decided: February 1, 1985
• Status: Published

Opinions

GLASSMAN, Justice.

Jonathan Russell appeals from a decision of the Appellate Division of the Workers’ Compensation Commission upholding the hearing commissioner’s denial of Russell’s motion requesting findings of fact and rulings of law pursuant to 39 M.R.S.A. § 99 (Supp.1984). We dismiss the appeal for lack of a final judgment.

In March 1982, Jonathan Russell petitioned the Commission for an award of compensation, claiming he had been injured in the course of his employment at Duchess Footwear in South Berwick. On March 31, 1983, after hearing, the commissioner denied Russell’s petition. While not contending that the commissioner’s office failed to mail him a copy of the decision in the ordinary course of business, Russell claims his first notice of the disposition was in May 1983. On May 31, Russell moved for findings of fact and conclusions of law as provided by 39 M.R.S.A. § 99 (Supp.1984).¹ The commissioner denied the motion on the basis that it was not filed in a timely fashion. On appeal, the Appellate Division affirmed the commissioner’s decision.

Russell argues on appeal to this court that the Appellate Division erred in its determination that “20 days after notice of the decision” means twenty days from the time notice was mailed. He contends that the twenty day period should commence upon actual receipt of the notice of decision. To support his position, Russell refers us to sections 103-B and 103-C of the statute, which provide for appeals to the Appellate Division and to this court. 39 M.R.S.A. §§ 103-B & 103-C (Supp.1984). Both sections require that such appeals must be taken “within 20 days after receipt of notice of the filing of the decision.” Id. Russell urges us to interpret the section 99 language as the equivalent of the appeal provisions.

We need not, however, construe section 99. Russell does not present us with a final judgment, which we require for our review, but appeals from an interlocutory order. See 2 Field, McKusick & Wroth, Maine Civil Practice § 73.1 (2d ed. 1970 & Supp.1981). With no final adjudication of his claim for compensation at the Appellate Division level, any review of the denial of Russell’s motion for findings of fact and rulings of law is premature.

The entry is:

Appeal dismissed.

It is further ordered that employer pay to the employee an allowance for counsel fees in the amount of $550 together with his reasonable out-of-pocket expenses for this appeal.

McKUSICK, C.J., and NICHOLS, WATHEN and SCOLNIK, JJ., concur.

1 . The statute provides in pertinent part:

The commissioner shall, upon the request of a party made as a motion within 20 days after notice of the decision ... find the facts specially and state separately its conclusions of law thereon....

39 M.R.S.A. § 99 (Supp.1984).