John Bannon v. Ford Motor Co. ( 2021 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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NOT TO BE PUBLISHED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.
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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.
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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.”
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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
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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.
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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.
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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
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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
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