Ruth Wilkinson v. Harp's Food Stores, Inc. and Cannon Cochran Management Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RUTH WILKINSON

APPELLANT

V.

HARP'S FOOD STORES, INC.

and CANNON COCHRAN

MANAGEMENT SERVICES

APPELLEES

CA 05-31

September 14, 2005

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F210326]

DISMISSED

David M. Glover, Judge

Appellant, Ruth Wilkinson, appeals the Workers' Compensation Commission's decision to affirm the administrative law judge's denial of her claim for benefits for a skin condition on the basis that she had failed to prove by a preponderance of the evidence that she had suffered a compensable injury while employed by appellee Harp's Food Stores. We dismiss the appeal for lack of jurisdiction due to the fact that appellant failed to file a timely appeal.

Arkansas Code Annotated section 11-9-711(b)(1) (Supp. 2003) provides in pertinent part:

A compensation order or award of the commission shall become final unless a party to the dispute shall, within thirty (30) days from receipt by him or her of the order

or award, file notice of appeal to the Court of Appeals, which is designated as the forum for judicial review of those orders and awards.

(A) The appeal to the court may be taken by filing in the office of the commission, within thirty (30) days from the date of the receipt of the order or award of the commission, a notice of appeal, whereupon the commission under its

certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.

In the present case, the Commission's opinion was dated September 16, 2004, and appellant's notice of appeal was not filed with the Commission until October 21, 2004. Appellees filed a motion to dismiss the appeal, asserting that the notice of appeal was not timely filed because appellant had received the Commission's decision on September 20, 2004, but had not filed her appeal until October 21, 2004. The Commission determined that appellant received the Commission's opinion on September 20, 2004, because that was the date her attorney's office signed the postal return receipt, and that her notice of appeal should have been filed on or by October 20, 2004. Although the Commission found appellant's notice of appeal to this court to be untimely, the Commission further found that it did not have any authority to dismiss the appeal under Rule 3(b) of the Arkansas Rules of Appellate Procedure - Civil and denied appellees' motion to dismiss.

Appellant does not refute that the Commission's opinion was received on September 20, 2004. Rather, appellant argues that the notice of appeal was mistakenly filed in the Washington County Circuit Court on October 18, 2004, which would have been a timely notice of appeal had it been filed in the proper place; that appellant's attorney's office was not notified until October 21, 2004, of the error; that an amended notice of appeal was filed on that date with the Commission; and that the amended notice of appeal should relate back to the October 18, 2004, date that the notice of appeal was filed in the Washington County Circuit Court. Appellant also asserts that although the original notice of appeal was filed in the wrong court, appellees were not prejudiced because they were notified that appellant was appealing the denial of workers' compensation benefits.

The failure to file a timely notice of appeal leaves this court without jurisdiction to entertain the appeal. See Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996). There is no provision for making an untimely appeal effective by relating it back to an earlier filed notice of appeal filed in the wrong court. Therefore, we must dismiss this appeal for lack of jurisdiction.

Appeal dismissed.

Pittman, C.J., and Gladwin, J., agree.