                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2010-CT-01793-SCT

ERIKA L. FELTER

v.

FLOORSERV, INC., THE EMPLOYERS’ FIRE
INSURANCE COMPANY, AND ONE BEACON
INSURANCE

                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                          09/28/2010
TRIAL JUDGE:                               HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED:                 ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    ERIKA L. FELTER (PRO SE)
ATTORNEYS FOR APPELLEES:                   CHADWICK LESTER SHOOK
                                           LOUIE FREDERICK RUFFIN
NATURE OF THE CASE:                        CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                               REVERSED AND REMANDED - 05/16/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    After an administrative judge (AJ) rules on a claimant’s petition to controvert a

workers’ compensation claim, the claimant has twenty days to file a notice of appeal with the

full Mississippi Workers’ Compensation Commission (Commission). In this case, the Court

must determine whether an AJ’s order, handed down more than twenty days after the AJ’s

ruling and granting a claimant thirty additional days in which to prosecute her claim, should

be given legal effect by the Commission so that the claimant’s notice of appeal, filed within
the additional thirty days, is timely. We find that, under the facts and circumstances

presented, such an appeal is timely.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Erica L. Felter was injured in a car accident while working as a territorial manager for

Floorserv, Inc. She filed a petition to controvert with the Commission on February 1, 2007.

An AJ rendered a decision adverse to Felter on January 9, 2009. On January 29, Felter’s

attorney, Robert Clark, mailed to the AJ and Felter a motion to withdraw as counsel. The

stated reason was that he “does not do any appellate work.” Felter alleges that Clark

mishandled her case, argued with her, and probably was under the influence of drugs during

the pendency of her case.1 The motion to withdraw was received by the AJ on February 2,

2009. The AJ granted the motion to withdraw by order dated February 19, 2009. The order

also stated that Felter had thirty days from the date of the order to obtain new representation

or prosecute her claim     pro se. Felter appealed, pro se, the AJ’s decision to the full

Commission on March 4, 2009. The Commission dismissed her petition as untimely because

it was not filed within twenty days of the AJ’s January 9, 2009, decision. Felter appealed that

decision to the Adams County Circuit Court, which affirmed the decisions of the

Commission and the AJ. The Court of Appeals (COA) also affirmed. See Felter v. Floorserv

Inc., 2012 WL 2304275 (Miss. Ct. App. June 19, 2012).




       1
        None of these assertions has any support in the record. However, Clark was
suspended from practicing law in Louisiana for two years for distributing marijuana and
other drug-related charges. In re Clark, 25 So. 3d 728 (La. 2009). He was reciprocally
suspended by this Court in August 2010. The Mississippi Bar v. Robert E. Clark, 2010-BD-
00111-SCT (August 5, 2010).

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                                        ANALYSIS

¶3.    Felter argues that the AJ’s order dated February 19, 2009, granted her thirty days, or

until March 21, 2009, in which to pursue the prosecution of her claim. Because she filed her

notice of appeal with the Commission within thirty days of the AJ’s order, on March 4, 2009,

she claims her appeal was timely and should have been considered by the full Commission.

She also argues that the AJ’s decision was not based on substantial evidence and she should

have been able to present her case to a jury in the circuit court. Floorserv and the other

defendants (“Floorserv”) argue that the AJ’s ruling became final on January 29, 2009, twenty

days after the ruling was handed down. Floorserv claims that, after that, the Commission

lacked jurisdiction to hear the appeal. The Commission, the circuit court, and the Court of

Appeals all agreed with this conclusion. Because the issue of the timeliness of Felter’s appeal

to the Commission is dispositive to our holding, we will not analyze the other issues raised

on appeal.

¶4.    The procedural and practical rules governing workers’ compensation claims “shall be

determined by rules of the commission . . . .” Miss. Code Ann. § 71-3-47 (Rev. 2011).

Procedural Rule 10 states that any party desiring review of the AJ’s decision by the full

Commission “shall within twenty (20) days of the date of said decision file . . . a written

request or petition for review before the Full Commission.” Miss. Admin. Code 20-2-1:2.10

(2011). Procedural Rule 14 adds:

       In any case, for good cause shown, the Commission or the Administrative
       Judge may permit deviations from these rules insofar as compliance therewith
       may be found to be impossible or impracticable, except that the time limits for
       requesting review of an Administrative Judge’s decision or for perfecting an



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       appeal to circuit court from a decision of the Commission may not be waived
       unless otherwise provided by statute or case law.

Miss. Admin. Code 20-2-1:2.14 (2011). Procedural Rule 14 states that an AJ may deviate

from procedural rules if a party cannot comply with them. However, any deviation from the

time period to appeal an AJ’s decision is permitted only if it is allowed “by statute or case

law.” This language suggests that the courts of this state have authority to make allowances

for situations in which an AJ may waive the time limit for requesting review of an AJ’s

decision.

¶5.    By statute, an AJ’s decision to “make or deny an award . . . shall be final, unless

within twenty (20) days a request or petition for review by the full commission is filed.”

Miss. Code Ann. § 71-3-47 (Rev. 2011). If the notice of appeal is not filed within twenty

days, the Commission does not have jurisdiction to hear the matter. See Marlboro Shirt Co.

v. Whittington, 195 So. 2d 920, 921 (Miss. 1967). The Commission will hear an appeal filed

after the twenty-day time period only if there are “unique facts which would permit [the]

petition to be considered constructively filed” within the twenty days. Ford v. KLLM, Inc.,

909 So. 2d 1194, 1196 (Miss. Ct. App. 2005). There, the Court of Appeals found that an

appeal that was mailed on the last day it should have been filed, in the absence of any

“unique facts which would permit [the] petition to be considered constructively filed,” was

untimely. Id. Ford cited Williams v. Furniture Land, 637 So. 2d 191 (Miss. 1994), in which

this Court held that the Commission’s faulty method of handling incoming mail permitted

an out-of-time appeal to be considered constructively filed within the twenty-day period. In

Williams, the Commission was receiving notices of appeal on the last day; but since it



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checked its mail only once a day, before all the mail had come in for the day, notices that

were received a day late were deemed by the Commission to have been constructively filed

within the twenty-day time limit. Williams, 637 So. 2d at 191. This Court held that “a one

day only allowance may be made to compensate for internal procedures so as not to penalize

claimants for matters beyond their control.” Id. For Felter’s notice of appeal to be considered

timely, we must determine whether there is a set of “unique facts” regarding her appeal

which allows us to conclude that her petition was constructively filed within the deadline.

¶6.    Because the AJ’s ruling was dated January 9, 2009, the last day Felter could file a

notice of appeal with the Commission was twenty days later, on January 29. January 29 was

the day that Clark mailed his motion to withdraw as counsel to Felter and the AJ. As of that

date, no notice of appeal had been filed by Felter or Clark. Floorserv argues that, after

January 29, 2009, the Commission was without jurisdiction to hear the appeal, and the AJ’s

ruling was final. The AJ received the motion to withdraw on February 2 and granted it on

February 19. Seeing that Felter suddenly was without counsel and the time for her appeal had

expired, the AJ extended Felter’s deadline to prosecute her claim for thirty more days from

the date of the order.

¶7.    Floorserv correctly states that, generally, the Commission is without jurisdiction to

hear an appeal from an AJ if no appeal has been filed within twenty days of the AJ’s

decision. However, this Court has recognized that the deadline may be extended in light of

“unique facts” that would permit the filing to be considered timely. Williams, 637 So. 2d at

191. See also Ford, 909 So. 2d at 1196. Further, the procedural rules of the Commission

clearly state that case law is a proper basis for an expansion or waiver of the time period to

                                              5
file an appeal. Miss. Admin. Code 20-2-1:2.14 (2011). Therefore, if warranted by the facts

of the case, this Court is empowered to give an AJ or the Commission the authority to waive

the time period for filing a notice of appeal.

¶8.    We find that the facts before us warrant such an exception. On the last day that Felter

could have filed her notice of appeal, Clark mailed her a copy of his motion to withdraw as

counsel. In granting Clark’s motion to withdraw as counsel, the AJ clearly determined that

fairness required an extension of time for Felter to prosecute her claim. We agree. We also

find that it would be exceedingly unfair to a pro se litigant to be told by an AJ that she may

prosecute her appeal within a certain time, for her to comply with the terms of the order, and

then to have that order held for naught by the Commission. Erica Felter complied with the

ruling of the AJ granting her thirty additional days to pursue an appeal. This case presents

a set of unique facts under which the notice of appeal should be considered timely as

contemplated by Ford, 909 So. 2d at 1196. The order should be given legal effect, and the

Commission should hear Felter’s appeal.

                                      CONCLUSION

¶9.    We hold that the case before us presents a set of unique facts which permits this Court

to find that Erica Felter’s notice of appeal was timely. When an attorney for a claimant

moves to withdraw as counsel within the twenty-day time period to file a notice of appeal

with the Commission, and the administrative judge grants the motion and further grants the

claimant a reasonable extension of time to appeal her case, an appeal to the full Commission

is timely when it is filed within that additional time period. Here, Clark mailed his motion

to withdraw as counsel to Felter on January 29, 2009, the last day on which Felter could file

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an appeal with the Commission. The administrative judge granted the motion to withdraw

and granted Felter thirty additional days to prosecute her claim. Felter filed her appeal to the

Commission within that thirty-day time period. Accordingly, we hold that Felter’s appeal to

the Commission was timely. We reverse the dismissal of her claim as untimely, reverse the

decisions of the Adams County Circuit Court and the Court of Appeals, and remand the case

to the Mississippi Workers’ Compensation Commission for further proceedings consistent

with this opinion.

¶10.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON, P.J., PIERCE AND KING, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J., LAMAR AND CHANDLER, JJ.

       COLEMAN, JUSTICE, DISSENTING:

¶11.   The majority correctly notes that an applicant who is denied workers’ compensation

benefits by an administrative judge is required by statute to appeal the decision to the full

Commission within twenty days.          Miss. Code Ann. § 71-3-47 (Rev. 2011).              An

administrative judge may waive this time limitation only if such a waiver is sanctioned by

statute or legal precedent. Miss. Admin. Code 20-2-1:2.14 (2011) (“. . . except that the time

limits for requesting review of an administrative judge’s decision or for perfecting an appeal

to circuit court from a decision of the Commission may not be waived unless otherwise

provided by statute or case law.”). In the instant case, the applicant did not file her petition

for review within the allotted time prescribed by statute. Thus, her only hope of sustaining

her untimely appeal is to identify a precedent in the annals of our jurisprudence that would




                                               7
permit the administrative judge to waive the requirement. I find that she cannot. Therefore,

I respectfully dissent.

¶12.   The majority cites only two cases for its support of the administrative judge’s action.

In the first, Ford v. KLLM, Inc., 909 So. 2d 920, 921 (Miss. 1967), this Court held that an

applicant’s mailing of a petition on the last day by which it was to be filed was not sufficient

to meet the requirements of the statute and was thus untimely. Because the Ford Court held

that the appeal was untimely when mailed on the day of the deadline, it is of no help to Felter

here. The majority cites Ford because it cites Williams v. Furniture Land, 637 So. 2d 191

(Miss. 1994), in which the Court held that “unique facts” could allow a petition to be deemed

constructively filed. Id. at 191-192.

¶13.   In Williams, the claimant faced a deadline to appeal of December 10, 1991. Id. at

191. The Commission stamped the claimant’s petition to appeal as received on December

11, 1991. Id. However, the Commission would check its mail every day prior to the time

for delivery, so that, e.g., mail actually received on a Wednesday would not be picked up

until Thursday. In so doing, the Commission – unbeknownst to claimants – lengthened the

time it took for petitions to reach it by one day. Nevertheless, the Commission granted the

employer’s and carrier’s motion to dismiss the appeal as untimely, and the dismissal was

affirmed by the circuit court. Id. The Williams Court reversed based on the fact that the

Commission had twice before acknowledged that its mail-deadline procedure “resulted in a

‘loss of one day which could not be anticipated by a party mailing in pleadings to be filed

with the Commission,’” and the Commission therefore – in the two prior cases – considered

petitions for appeal to be timely filed when they were marked received on the twenty-first

                                               8
day. Id. at 191. Accordingly, the Williams Court held, “[T]he fiction that the petition was

constructively received and filed at the Commission’s post office box may be applied so long

as this method of calculation of time is allowed for all claimants.” Id. at 192.

¶14.   In other words, the Williams Court did not create an expansion of the twenty-day

deadline at all. Rather, it acknowledged that, due to the Commission’s procedure for

checking its mail before the daily time for delivery by the postal service, the Commission

could deem materials stamped “received” the day after the deadline to be timely. In the

instant case, even were we to deem that Felter’s petition to appeal was constructively filed

on the day she mailed it, it would be untimely. In order for the Commission to have

jurisdiction to hear her appeal, Felter must obtain an extension of the deadline – not a finding

that her petition to appeal was constructively filed.

¶15.   In the case sub judice, Felter’s petition was late due to her conduct – not any internal

operating procedure of the Commission. Felter claims her failure to file is due to the inaction

of her legal counsel. Even if we accept her allegation as true, neither case cited by the

majority nor any case cited by Felter provides that attorney inaction may form the basis for

an expansion of the twenty-day appeal period.

¶16.   I believe the applicant filed an untimely petition, and no legal grounds exist to extend

the twenty-day time period for an appeal. Therefore, I respectfully dissent.

       RANDOLPH, P.J., LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.




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