Lankford v. Dreams Unlimited, Inc. ( 2007 )

* * * * * * * * * * * Upon review of the file and after reviewing the briefs and hearing oral arguments, the Full Commission enters the following Order:

On or about October 16, 2001, the Plaintiff sustained an admittedly compensable injury by accident arising out of his employment with Defendant-Employer. After a hearing in this matter and a very lengthy procedural history, Deputy Commissioner Kim Ledford entered an Opinion and Award on April 24, 2006. Plaintiff gave notice of appeal dated May 9, 2006, which was filed at the Industrial Commission on May 11, 2006. Defendants filed a motion to dismiss the appeal citing the expiration of the fifteen-day period for filing appeals. Chairman Lattimore entered an Order on June 12, 2006 dismissing Plaintiff's appeal to the Full Commission. The issue herein is when did Plaintiff receive the Opinion and Award of the Deputy Commissioner, which was transmitted by facsimile.

This matter is being determined without the benefit of an evidentiary hearing. Based on a review of the file, the Industrial Commission is unable to determine when Plaintiff's attorney received the faxed Opinion and Award. The absence of sufficient documentation in the Commission file, coupled with Plaintiff's letter in the file dated October 11, 2006 documenting problems with the facsimile purportedly sent on April 24, 2006 and Plaintiff's response to questions raised at the Full Commission review of this matter raise factual issues which need to be resolved. There is documentation in the Commission file indicating that the Industrial Commission re-faxed the Opinion and Award to Plaintiff's attorney on May 12, 2006, which arguably supports Plaintiff's position.

It is therefore ordered that this matter is remanded to the Deputy Commissioner level for an evidentiary hearing on whether Plaintiff's appeal was timely filed. The Deputy Commissioner shall submit the evidence to the Full Commission for decision.

No costs are assessed.

This the ___ day of February 2007.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/___________________ THOMAS BOLCH COMMISSIONER

S/___________________ CHRISTOPHER SCOTT COMMISSIONER