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MAINE SUPREME JUDICIAL COURT                                                            Reporter of Decisions

Decision:       2003 ME 32

Docket:         Ken-02-144

Argued:         October 9, 2002 

Decided:        March 10, 2003

Panel:           SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

LINDA LINGLEY et al.

v.

MAINE WORKERS' COMPENSATION BOARD

RUDMAN,  J.

         [¶1]  Linda Lingley, Anita Ingersoll, Nancy Hine, Carolyn Bourgeois, and Maine AFL‑CIO appeal from a judgment of the Superior Court (Kennebec County, Studstrup, J.), dismissing their claim as untimely under the Maine Administrative Procedure Act (APA). [1]   5 M.R.S.A. § 11002(3) (2002). [2]   The Board asserts that the Superior Court erred by granting Appellants an extension of time to file their notice of appeal based on a finding of excusable neglect.  The Appellants contend that the Superior Court correctly found excusable neglect, but assert that the Superior Court erred by finding that the Workers' Compensation Board's "4-0-3 vote" to extend benefits under 39‑A M.R.S.A. § 213(4) (2001) [3] was "final agency action" pursuant to 5 M.R.S.A. § 8002(4) (2002). [4]   The Appellants assert that they were entitled to six months in which to file a petition for review of the Workers' Compensation Board's failure to act pursuant to its obligations under 39‑A M.R.S.A. § 213(4), and their petition was therefore timely.  See 5 M.R.S.A. § 11002(3) (2002).  We affirm the judgment of the Superior Court.

I.

         [¶2] The Superior Court dismissed Appellants' M.R. Civ. P. 80C petition on January 30, 2002.  The Appellants filed their notice of appeal from the Superior Court's dismissal to us on February 26, 2002, after the appeal period had lapsed.  Appellants petitioned the Superior Court for an enlargement of time to appeal pursuant to M.R. App. P. 2(b)(5), explaining that their counsel missed the filing deadline because he was unaware that M.R. App. P. 2(b)(3) was amended to shorten the appeal period from 30 days to 21 days effective January 1, 2002.  The Superior Court found excusable neglect and granted the motion, stating that the change was recent, the delay was short and within the prior appeal period, and the right involved was very important. 

[¶3] Whether excusable neglect exists is left to the sound discretion of the trial court.  Caron v. City of Auburn, 567 A.2d 66, 67 (Me. 1989).  The trial court is in a superior position to evaluate the credibility and good faith of the party claiming excusable neglect.  Gregory v. City of Calais, 2001 ME 82, ¶ 9, 771 A.2d 383, 386 (citations omitted) (finding excusable neglect when attorney relied on previously trustworthy and reliable paralegal who missed appeal filing deadline due to her illness).  The standard for finding excusable neglect is strict, and can only be met when extraordinary circumstances that work an injustice exist.  Id. ¶ 7.  The trial court nevertheless has a range of discretion to grant or deny a motion for enlargement of time by finding excusable neglect.  See Solomon's Rock Trust v. Davis, 675 A.2d 506, 509 (Me. 1996) (finding excusable neglect due to litigant's extenuating circumstances of spouse's sudden death and need for alternate counsel).

[¶4] When the Appellants filed their appeal, the amendment to M.R. App. P. 2(b)(3) that reduced the appeal period from 30 days to 21 days had recently become effective.  The Superior Court found that the Appellants' notice of appeal was filed within the prior appeal period, the delay was very short, and the issue was significant and affected a large number of people.  We note that M.R. App. P. 2(b)(5) authorizes the trial court "before or after the time has expired, with or without motion and notice, extend the time for filing those appeals otherwise allowed for a period not to exceed 21 days from the expiration of the original time prescribed by this subdivision."  After being made aware of the change in the rule,[5] Appellants sought and obtained the extension of time, and filed their notice of appeal within 42 days of the entry of judgment.  Under these unique circumstances, the Superior Court acted within its discretionary range.  See Solomon's Rock Trust, 675 A.2d at 509.

II.

         [¶5] The Worker's Compensation Board, in 2001 as in the previous years, treated its obligation under 39-A M.R.S.A. § 213(4) as rulemaking.  It proposed a rule extending incapacity benefits beyond the 260-week limitation period, which contained a finding that the frequency of cases involving benefit payments in Maine was no greater than the national average.  The proposed rule fits within the definition of "proposed rule" in the Maine Administrative Procedure Act.  See 5 M.R.S.A. § 8002(8