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IN THE COURT OF APPEALS 10/15/96 OF THE STATE OF MISSISSIPPI
NO. 93-CC-01041 COA

TERRI LEE BATTISE APPELLANT v. HOSPITAL HOUSEKEEPERS OF AMERICA, INC. AND CONTINENTAL CASUALTY COMPANY APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JERRY OWEN TERRY COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: FLOYD J. LOGAN SCOTT W. WEATHERLY, JR. ATTORNEY FOR APPELLEES: WILLIAM D. BLAKESLEE NATURE OF THE CASE: WORKERS COMPENSATION TRIAL COURT DISPOSITION: NOTICE OF APPEAL NOT TIMELY FILED AND APPEAL DISMISSED

BEFORE FRAISER, C.J., KING, AND PAYNE, JJ.

FRAISER, C.J., FOR THE COURT: Terri Lee Battise (Battise) failed to appeal the decision of her claim by the Workers' Compensation Commission (commission) within the statutory thirty day time limit. Battise filed her notice of appeal three days late and motioned to appeal out of time. The Harrison County Circuit Court sent the case back to the commission, which dismissed the appeal. The circuit court affirmed the commission's order. Battise appeals to this Court presenting the following issues: I. WHETHER THE EMPLOYER-CARRIER FAILED TO PROVIDE THAT THE NOTICE OF APPEAL WAS NOT TIMELY FILED IN SUPPORT OF ITS MOTION TO DOCKET AND DISMISS.

II. IF THE APPEAL PERIOD RUNS FROM THE DATE OF SIGNING THE COMMISSION ORDER, WHETHER RULE 4(g) OF THIS COURT APPLIES TO THIS APPEAL, AND IF SO, WHETHER CLAIMANT'S FAILURE TO TIMELY FILE A NOTICE OF APPEAL WAS DUE TO "EXCUSABLE NEGLECT."

Finding no error, we affirm. FACTS Battise was employed by Hospital Housekeepers of America (employer) when she fell on the job and injured herself. Continental Casualty Company (carrier) denied benefits and she filed her petition to controvert. The Administrative Law Judge (ALJ) found that Battise sustained a compensable work injury and incurred temporary total and permanent partial disabilities. The employer-carrier filed a Petition for Review before the Workers' Compensation Commission. The commission affirmed the ALJ's finding of temporary total disability, but reversed the finding of permanent partial disability. The commission order was dated December 2, 1992. Scott W. Weatherly, Jr. (Weatherly) was Battise's counsel of record at the time of the hearing before the ALJ. Weatherly's law firm was dissolved in December, 1991 and he moved to Birmingham, Alabama. It was during Weatherly's move out of state that the ALJ's decision regarding Battise was under review by the commission. Floyd J. Logan, Weatherly's former law partner received notice of the commission's decision in December 1992, and notified Weatherly by facsimile. Weatherly in turn contacted Logan and concluded that Battise would have to authorize the appeal. However, Battise was without a phone and it was not until January 6, 1993, that Battise apprised Logan of her desire to appeal the commission's decision. Weatherly attached an affidavit to Battise's notice of appeal and motion to appeal out of time. In his affidavit, Weatherly admits that the decision of the commission was "forwarded to the law offices of Logan & Keith and a copy of same was transmitted to [him] by way of facsimile transmittal" on or about December 2, 1992. He further states that "it was decided that Ms. Battise would have to be contacted and advised of the fact that she had the right to appeal the aforementioned decision within

thirty (30) days and/or January 2, 1993, and this was in fact communicated to her by Floyd J. Logan." Battise filed her notice of appeal to the circuit court with the commission on January 7, 1993, along with a motion to appeal out of time. The commission secretary forwarded Battise's appeal, and motion to appeal out of time along with the commission record to the Harrison County Circuit Court. The employer-carrier filed a motion to docket and dismiss appeal with the Harrison County Circuit Court. On May 7, 1993, the circuit court remanded the cause to the commission for determination of whether an out of time appeal should be granted. The commission denied Battise's motion to appeal out of time and granted the employercarrier's motion to dismiss the appeal. Battise appealed the commission's decision to the Harrison County Circuit Court. Again the employer-carrier filed a motion to docket and dismiss. The circuit court dismissed the appeal on August 16, 1993. Battise appeals contending the commission and circuit court erred in dismissing her appeal. I. WHETHER THE EMPLOYER-CARRIER FAILED TO PROVIDE THAT THE NOTICE OF APPEAL WAS NOT TIMELY FILED IN SUPPORT OF ITS MOTION TO DOCKET AND DISMISS.

Section 71-3-51 of the Mississippi Code provides the requirements for appealing a commission decision: The final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the circuit court of the county in which the injury occurred.

Miss. Code Ann.

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