Haynes v. Tulsa Public Schools Transit , 65 O.B.A.J. 2408 ( 1994 )

SUMMERS, Justice.

On January 4, 1994, the trial judge of the Workers’ Compensation Court entered and mailed an order denying Claimant any benefits. On January 24, 1994, at 5:05 p.m. the Claimant’s petition for review was hand-delivered to a member of the Court Clerk’s staff. The computer records of the Clerk’s office disclose that the required $200 cost deposit was not received until the next day. Respondent moves to dismiss the petition for review as untimely.

Any Workers’ Compensation Court litigant desiring to appeal an order of that Court must, within 20 days after a copy of the decision has been sent to the parties, commence an action for review in this Court. 85 O.S.1991 § 3.6(B); Rules for Appellate Procedure in Civil Cases, Rule 1.100(a). A rule describes what is required to commence a Workers’ Compensation Court review proceeding in this Court:

The proceeding shall be commenced by:

(a) Filing a petition for review with four copies with the clerk of this court within the time prescribed in Rule 1.100(a).

Rules for Appellate Procedure, Rule 1.101. Although that quoted rule uses a paragraph numbered “(a)”, there is no paragraph “(b)” or subsequent paragraph imposing any additional requirement for commencement of the review proceeding.

Claimant’s petition for review filed January 24th, on the 20th day, satisfies the Workers’ Compensation statute and Rule, and is therefore timely, unless failure to remit the costs until the next day makes it out of time. This is the principal issue to be resolved on the motion to dismiss.

Respondent no doubt relies on Brown v. Butler, 194 Okla. 46, 146 P.2d 1010 (1944). In Brown and other more recent cases, mostly by unpublished orders, we dismissed as untimely appeals from the District Court where the cost deposit did not meet the 30-day deadline for appeals in such cases, even though the petition in error did. But notice the disparity between the requirement for commencing a Compensation Court appeal, as quoted above in Rule 1.101, and for commencing a District Court appeal under Rule 1.14.

(a) Manner of Commencing Appeal. An appeal from a decision of the trial [district] court shall be commenced by:

(1) Filing a petition in error ... within the time prescribed in Rule 1.11 [30 days];

(2) Remitting to the Clerk of the Supreme Court the cost deposit provided by statute....

Rules for Appellate Procedure, Rule 1.14. Thus the rule on appeals from District Courts requires both the filing of the petition in error and payment of costs as conditions of commencement, whereas the rule on appeals in Compensation Court eases states that a review proceeding is commenced simply by filing a petition for review.

Further, the Compensation Court Rules go on to say this:

Any defect in taking a proceeding other than failure to timely file a petition for review, must be disregarded unless a substantial right of the complaining party is affected, and no such defect, if correctable, shall result in dismissal of the appeal.

Rules for Appellate Procedure, Rule 1.101. We conclude that the Claimant’s petition for review timely commenced the action in this Court. The cost deposit required by statute is not jurisdictional in Compensation Court appeals, and no substantial right of the Respondent was affected. (Of course, a Compensation Court appeal is subject to dismissal if the costs are simply not paid. 20 O.S.1993 Supp. § 15).

Respondent also complains in its motion to dismiss that the Claimant did not timely comply with Rule 1.14 requiring the mailing of a copy of the petition for review to the Respondent. The Respondent apparently received notice of the review proceeding in a manner sufficient to file a timely response, and makes no claim that any substantial right was affected. The portion of Rule 1.101 last quoted above disposes of that argument.

The motion to dismiss is denied.

HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE, ALMA WILSON and WATT, JJ., concur. KAUGER, J., concurs in result. OPALA, J., dissents.