Opinion
No. 43026
July 31, 1973.
Petition for review from the Industrial Relations Commission.
Monroe E. McDonald, of Sanders, McEwan, Mims McDonald, Orlando, for petitioners.
George J. Adler, of Meyers Mooney, Orlando, for respondents.
This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission.
On March 17, 1972, the Judge of Industrial Claims entered an order awarding benefits to the claimant, respondent herein. Petitioners herein filed an application for review by the Full Commission and, due to an inadequate recording of the proceedings, the Full Commission dismissed the application for review and remanded to the Judge of Industrial Claims for the purpose of holding a hearing de novo, and entering a new order on the evidence and facts found at the new trial. Such a hearing was held, and the Judge of Industrial Claims awarded benefits in his order dated September 15, 1972, which was mailed the same day, and received by petitioners on September 18, 1972.
Petitioners herein (the employer-carrier) again filed application for review, which, they asserted, was mailed on October 4, 1972. It was not filed in the office of the Industrial Relations Commission until October 6, 1972, some twenty-one days after the order of the Judge of Industrial Claims.
The Full Commission dismissed the application for review, citing § 440.25(4)(a), Florida Statutes, F.S.A., and Rule 4, I.R.C. Rules of Procedure. Section 440.25(4)(a), Florida Statutes, F.S.A., provides, in pertinent part:
"The compensation order rendered by the judge of industrial claims shall become final twenty days after the date copies of same are mailed to the parties at the last known address of each, unless within said time any interested party shall make and file with the commission or a judge of industrial claims an application for a review thereof by the full commission in accordance with the provisions of this subsection. . . ." (Emphasis supplied.)
Rule 4(a) provides, in pertinent part:
"Application for review of an order of a Judge of Industrial Claims must be filed with the Industrial Relations Commission or a judge within twenty days after the date copies of the judge's order are mailed to the parties at the last known address of each." (Emphasis supplied.)
Petitioners contend that they must be allowed three additional days to file their application for review, however, in view of Florida Appellate Rule 3.4, subd. b(3), 32 F.S.A., which states:
"Service by mail shall be deemed complete upon mailing; but service by mail shall add three days to the time allowed to do any act required to be done within a certain time after service of a notice or paper."
Our careful consideration and analysis of the petition, the record, and briefs of counsel, sustains the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its order, respondent Commission met the essential requirements of law. Contrary to the contentions of petitioners, the foregoing statute and rule clearly have already taken into account the act of mailing, and have established a time limit which assumes a mailing. Further, again contrary to the contentions of petitioners, the Florida Appellate Rules clearly do not apply to appeals taken from the Judge of Industrial Claims to the Industrial Relations Commission.
See Florida Appellate Rules 1.1.
Accordingly, the petition for writ of certiorari is denied.
It is so ordered.
ROBERTS, ADKINS and McCAIN, JJ., concur.
CARLTON, C.J., concurs specially with opinion in which ROBERTS, J., concurs.
DEKLE, J., dissents with opinion and ERVIN, J., dissents and concurs with DEKLE, J.
I concur in Mr. Justice Boyd's opinion because the statute and rule which we are here asked to "misinterpret" are clear and specific and leave no room for judicial revision. The Legislature has said that the time limit for filing an application for review of an order of a Judge of Industrial Claims shall be twenty days from the date the order is mailed, not twenty-three days.
In support of their request that we add three days to this time limit, petitioners cite Florida Appellate Rule 3.4, subd. b(3), which clearly does not govern appeals to the Industrial Relations Commission. In addition, the Rule refers only to acts which are required within a certain time after service or notice. The time limit we are here concerned with does not run from "service" or "notice", it runs from date of mailing.
Petitioners also cite New York Life Ins. Co. v. Kurz, 174 So.2d 537 (Fla. 1965), Dubin v. Dept. of Business Regulation, 252 So.2d 290 (1st Fla.App. 1971), and Martorano v. Fla. Industrial Commission, 160 So.2d 744 (3d Fla.App. 1963). These cases are also inapplicable because they did involve time limits which ran from some "notice" or "notification" or "service", and because they were not concerned with appeals to any administrative board or commission. They involved appeals from such a board or commission to a court governed by Fla. Appellate Rules.
Petitioners' attorney in this case mailed the application for review on the nineteenth day of their twenty-day period. They argue that, "normally, our experience has been that a letter mailed from Orlando on one day will be delivered in Tallahassee the following day, since there are only about 250 miles involved." They concede that their attorney "erred in assuming that the United States Post Office would act with reasonable dispatch in handling the mail." I think the attorney erred in taking a chance with his client's case by waiting until the last possible day before mailing the application for review. With so much at stake, it is unreasonable to rely on an unfailing one-day mail service. Almost every week we are confronted with evidence of such misplaced reliance, in the form of untimely applications for review, petitions for writ of certiorari, etc. Adding three days to the twenty-day time limit of Fla. Stat. § 440.25(4)(a), F.S.A., will do nothing to cure this situation; the same attorneys will simply take the same chance by waiting until the twenty-second day to mail their applications for review.
A prudent and careful attorney who relies on the mails will give himself a few days leeway so that he can check on the morning of the last day to see if his application has been filed. If not, he then has time to have one filed personally, particularly if the distance to where it must be filed is "only about 250 miles."
ROBERTS, J., concurs.
IRC Rule 4, in making express reference to copies of orders being "mailed", necessarily contemplates the recognized 3-day rule to complete such mailing. Without it the IRC rule is really 17 and not 20 days as contemplated and intended to conform to similar periods for appeal.
There is no "notice" to the recipient until receipt, and due process requires notice.
In Dubin v. Department of Business Regulation, 252 So.2d 290 (Fla.App.1st 1971), a case involving a proceeding on a petition for writ of certiorari to review the order of the Department of Business Regulation the district court held that the filing on April 19 of a petition for writ of certiorari, to review the order of the Department, which was mailed to petitioner on March 15, satisfied the 30-day filing requirement, in light of the fact that notice of the order was not deemed complete until three days after mailing and that April 17 fell on a Saturday. In so holding, the district court stated: (p. 292)
"Allowance of three days from the date of mailing of an administrative order to ascertain the date on which the person affected thereby was served or `promptly notified' as required by 120.26(7) is consistent with the holding in Martorano v. Florida Industrial Commission, 160 So.2d 744 (Fla.App. 1963), wherein the court held that actual notice of a decision was required to begin the running of the period for filing a petition for writ of certiorari. There the court added three days to such period in order to provide a reasonable period during which mail notice could be received."
Martorano v. Florida Industrial Commission, 160 So.2d 744 (Fla.App.3d 1963) cited by the First District in Dubin, involved a proceeding on petition for certiorari to review the decision of the Board of Review entered in an unemployment compensation proceeding. The District Court held that, under the rule requiring petition for certiorari to be filed within [there] sixty days from the rendition of the decision sought to be reviewed, notice of the order denying the application for appeal occurs on the day of actual notice, where actual notice is provided. But when such notice is given by mail, the sixty day period for certiorari begins three days after the date of mailing. In reaching this decision, the district court relied on the predecessor of the present Rule 3.4, requiring three days be added to the time allowed to do any act where service by mail is involved, and stated: (p. 746)
"Consistent with the foregoing rules, we conclude in the case presented that notice of the order, which under the statute marks the commencement of the 60 day period for review, is the day of actual notice where actual notice is provided, but that when such notice is given by mailing, three days should be allowed, making the date of notice, and therefore the beginning of the 60 days period for certiorari, three days after the date of mailing."
Although neither the Dubin nor the Martorano cases involve a workmen's compensation order, it is difficult to see how they can be distinguished. The different result here results in unequal protection of the law in the same circumstances.
Accordingly, the petition for writ of certiorari should be granted in my judgment, the order of the Full Commission quashed, and the cause should be remanded with directions to reinstate the petitioners' application for review as timely, and to render a decision upon the merits thereof.
I respectfully dissent from the majority's denial of certiorari.
ERVIN, J., concurs.