New Law: The time for filing a Worker’s Compensation Board appeal petition for review may be enlarged pursuant to a motion filed before it expires.

Nickell v. Diversicare Mgmt. Servs. (Ky., 2012) February 17, 2012

Following the amendment of KRS 342.290, the Supreme Court adopted SCR 1.03(3), which provides that final decisions of the Board are subject to review by the Court of Appeals under procedures set forth in the Rules of Civil Procedure. CR 76.25 provides, in pertinent part, as follows:

(1) General.
Pursuant to Section 111 (2) of the Kentucky Constitution and SCR 1.030(3), decisions of the Workers’ Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule.
(2) Time for Petition.
Within 30 days of the date upon which the Board enters its final decision pursuant to KRS 342.285(3) any party aggrieved by that decision may file a petition for review by the Court of Appeals and pay the filing fee required by CR 76.42(2)(a)(xi). Failure to file the petition within the time allowed shall require dismissal of the petition.

This appeal concerns whether the 30-day period set forth in CR 76.25(2) may be enlarged before it expires pursuant to a motion by the appellant under CR 6.02, which states as follows:

When by statute or by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion,
(a) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or
(b) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50.02, 52.02, 59.02, 59.04, 59.05, 60.02, 72.02, 73.02 and 74 except to the extent and under the conditions stated in them.

The Court of Appeals relied on dictum from Hutchins to conclude that “CR 76.25, like CR 73.02, embodies a policy choice that a tardy petition for review is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance.” The statement from Hutchins is correct but does not control the present facts.

CR 76.25 contains no explicit provision that prohibits the time for filing a petition for review from being enlarged. Mindful of the similarities between a petition for review and a motion for discretionary review, we conclude that the use of the phrase “within the time allowed” in the second sentence of CR 76.25(2) rather than the words “30 days” has significance and implies that the time for filing a petition for review may be enlarged pursuant to a motion filed before it expires. The Court of Appeals erred in the present case by denying the claimant’s motion without considering the merits of her request for what amounted to an enlargement of time in which to file a brief.
The decision of the Court of Appeals is reversed and this matter is remanded for the court to consider the merits of the motion for an extension of time and proceed accordingly.

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