Appeal Dismissed for Procedural Errors

By Tara Muller

When appealing a workers’ compensation case, beware of hidden procedural traps. Workers’ compensation rules and appellate rules are two very different animals, according to the North Carolina Court of Appeals in Bradley v. Cumberland County (Zachary, J., November 20, 2018). Although the workers’ compensation rules of the Industrial Commission allow service by email when filing a document via its electronic data filing portal (EDFP), not so once the case is elevated to the appellate level. In Bradley, plaintiff filed his Notice of Appeal through the EDFP we all know and love. Understandably, (since nearly all workers’ compensation filings may be served electronically now), the plaintiff then served opposing counsel with the Notice of Appeal via email. However, according to the Court of Appeals, because the appellate rules – not the workers’ compensation rules – apply to appeals, service of the Notice of Appeal by email, and without a proper certificate of service or proof of receipt, was fatal. Appeal dismissed.

Unlike the workers’ compensation rules, the appellate rules require service by regular mail unless the document is filed through the appellate court’s e-filing system. No provision permits electronic service when a document is filed electronically through any other site, such as the Industrial Commission’s e-filing system. In Bradley, therefore, the Court dismissed the plaintiff’s entire appeal based on the improper Notice of Appeal, even without evidence that the defendants did not receive notice. Although the appellate courts generally do not dismiss cases based on procedural errors, in this case, plaintiff also failed to include in the record the Commission’s letter acknowledging the appeal or other evidence proving the date of service of the Notice of Appeal. The combination of procedural errors – all related to the Notice of Appeal – led to the dismissal.     

In my experience, service of the Notice of Appeal by email has become commonplace in workers’ compensation matters, which makes this outcome especially troublesome for practitioners. Because the practice of electronic service is so ubiquitous in workers’ compensation matters, this ruling probably comes as a surprise even to experienced workers’ compensation and appellate attorneys. In truth, in Bradley, aggravating factors played a part in the dismissal, and the Court of Appeals probably would not have dismissed the appeal based solely on the email service issue. However, because this case exposes error in customary practice, I believe Bradley illuminates the need for revision of the appellate rules to allow for electronic service when filing is accomplished electronically in any court or tribunal, not just in the appellate system. (Hint-hint to the North Carolina Bar Association Appellate Rules Committee.) In the meantime, it seems we all need to start ignoring technology and, instead, go kill some trees.