Me. R. App. P. 23
Me. R. App. P. 23
Advisory Notes - January 1, 2001
Rule 23 relating to review of Workers' Compensation decisions is nearly identical to M.R. Civ. P. 73(i). The only significant differences are that the date for the appellant to file the record with the Law Court in paragraph 3(c)(1)(A) is changed from 40 to 35 days and the date for the Executive Director of the Workers' Compensation Board to file the record on appeal with the Clerk of the Law Court in paragraph 3(c)(2)(A) is changed from 10 to 14 days.
Rule 23. Advisory Committee Notes - July 2003
These amendments to M.R. App. P. 23 are designed to more clearly define the criteria and practices the Law Court will apply in its consideration of petitions for appellate review of Workers' Compensation Board decisions. Authority for this rulemaking is provided by 4 M.R.S. § 8 and 39-A M.R.S. §322(2). Section 322 gives only very general direction as to the nature of appeals that may be considered on petition, those being appeals that raise an "error or errors of law," § 322(1). The statute also directs that: "there may be no appeal upon findings of fact." § 322(3).
In spite of this statutory direction, many petitions for appellate review primarily seek review of fact-finding and many others seek to raise legal issues that are largely governed by precedent or statutory language. To save time and resources for parties contemplating appeals and the Court, these amendments more clearly identify the criteria for petitions for appellate review that may merit serious consideration of the case in the Court's discretionary decision to grant or deny appellate review on the merits. The amendments also clarify other practices that will be applied in considering appeals under M.R. App. P. 23.
The amendment to subdivision (a) specifies the appeal filing time limits directly in the Rule instead of referencing to the statute. The 20 days from notice limit for filing the notice of appeal and decision is taken from 39-A M.R.S. §322(1). The time limit is based on receipt of notice rather than docketing due to the less formal docketing practices of administrative agencies. Under current practice, a letter often accompanies the initial filing of the decision to be appealed. The rule change requires a notice of appeal, indicating the anticipated points on appeal, similar to the civil notice of appeal addressed in M.R. App. 2(a)(2) and 5(b)(2)(A). As presently, a copy of the decision sought to be appealed must be filed with the notice of appeal.
The amendments to subdivision (a) also create an explicit procedure for cross-appeals to recognize current practice where cross-appeals regularly occur. A party intending to petition for a cross-appeal must file a notice of appeal indicating intended points on a cross-appeal within the later of the initial filing period or 14 days after the date of the filing of the first notice of appeal. Where there is more than one notice of appeal filed, the party first filing a notice of appeal is deemed to be the petitioner.
A petition for appellate review is a memorandum addressing why the Law Court should consider the merits of an appeal.
Under subdivision (b)(1), the petitions for appellate review filed by any party must be filed within 20 days after the later of the first notice of appeal or any subsequent and timely notice of appeal. This change may have the effect of extending, by up to 14 days, the statutory time for filing petitions for review. However, such an adjustment is necessary to accommodate responsible cross-appeal practice and may be adopted by the court pursuant to 4 M.R.S. §8. Where possible, a party's petition in support of their appeal and response to any opposing appeal should be contained in a single 10-page document. The amendment to subdivision (b)(1) also adopts a minimum 12-point type size limit, similar to that applied to briefs, by M.R. App. P. 9(f).
By the amendments, subdivision (b) is divided into six numbered paragraphs.
Paragraph 1 discussed above, governs the basic form, content and timing for petitions for appellate review and indicates that such petitions should address the criteria stated in paragraph 2.
Paragraph 2 states the review criteria which the Law Court will consider important if a petition is to be granted. Thus a petition for appellate review may be granted under (A) when the case cleanly raises an important question of law that should be addressed because (i) the question of law is one that is likely to recur unless resolved, or (ii) there is a need to consider establishing, implementing or changing an interpretation of law. The emphasis in (A) is on important questions of interpretation of law or changes in interpretation of law that will have general significance in Workers' Compensation Law practice. The legal issue must be cleanly raised; meaning that procedural problems or fact-finding should not prevent reaching the legal issue directly.
Under (B) an appeal may be allowed when the decision on appeal indicates a significant error in application of a statute or precedent when the law as applied by the Board or a hearing officer is compared with the overall objectives and goals of the Workers' Compensation Law. Substantial prejudice to a party to the Board proceeding must also be demonstrated.
Subparagraph (C) looks to the procedures in a particular case. An appeal may be allowed under (C) if there has been a substantial and prejudicial violation of the statutory or due process rights of one or more of the parties. A showing of actual prejudice would be critical to support consideration of any appeal based on a claimed procedural violation.
Paragraph 3, which reflects the terms of the current rule, emphasizes that, pursuant to § 322(3), the Court may not consider appeals contesting findings of fact.
The amendment to paragraph (b)(4) emphasizes present requirements that copies of the challenged decision and other relevant decisions must be attached to the petition for appellate review. Despite these requirements, there has been a significant problem with petitions being filed without requisite decisions attached. This requirement may be enforced more vigorously in the future, resulting in summary dismissal of petitions that do not have the challenged decisions attached. Attached decisions must include the particular decision from which the appeal is sought and any earlier decisions which effect eligibility, benefit calculation, res judicata or timeliness issues in the decision to be appealed.
The new subdivision (c)(1) reflects current practice that where an error is clear, upon facial review of a petition for appellate review and any other materials including the Board Decision, the Law Court may, on some occasions, summarily modify or vacate and remand, saving the parties the time and expense of a complete appeal process.
Except for being renumbered, subdivisions (c)(2) and (c)(3) are unchanged from subdivisions (c)(1) and (c)(2) in the current rule.
The new subdivision (c)(4) states that the Law Court may later dismiss an appeal that was originally allowed if it appears after briefing that the criteria for granting an appeal are no longer served by reaching the merits of the appeal and that the appeal was improvidently allowed. This may occur when (i) closer review of the case indicates procedural, fact-finding or case organization problems that prevent the Court from directly addressing the anticipated legal issue, (ii) subsequent developments in the case or related to the case render the legal issue moot or of lesser consequence than when the appeal was allowed, or (iii) the quality of the parties briefing of the issues indicates insufficient preparation or attention to the important legal matters originally presented in the appeal.
Workers' Compensation Law is a highly specialized area of law. Quality briefing of issues is vital to adequate appellate review. Briefing of the legal issues after a petition for appellate review has been granted should address the procedural and factual history of the case, including any prior decisions or orders in the case that may have significance. The legal argument should consider, where relevant, several sources of authorities, including: (A) statutory language; (B) case law from Maine; (C) Board Rules; (D) legislative history of the statute at issue; (E) judicial opinions and statutes in other jurisdictions addressing the issue, if any; (F) workers' compensation law treatises; and (G) interpretations of similar statutory language by the former Workers' Compensation Commission Appellate Division, when particularly appropriate.
Advisory Notes - August 1, 2012
Effective September 1, 2012, the Workers' Compensation Act has been amended by P.L. 2011, ch. 647, §§ 19-21. The amendment creates an Appellate Division within the Workers' Compensation Board and requires that parties seeking to challenge a decision of a single Workers' Compensation Board Hearing Officer bring the appeal first to the Appellate Division. There is no longer the capacity to bring a direct, discretionary appeal to the Law Court from a decision of a single hearing officer. Appeals to the Law Court from the Appellate Division or the Workers' Compensation Board would continue to be brought as discretionary appeals according to the same discretionary review process as has existed in the recent past. The amendments to Rule 23 accommodate these statutory changes. It should also be noted that the last sentence in subdivision (a) of the present rule was duplicated in subdivision (b)(6). Accordingly, the sentence in subdivision (a) is eliminated.
The transition provision recognizes that there may be some appeals from hearing officer decisions published before September 1. The process that applied before adoption of these amendments would apply to appeals of such decisions. It would be anticipated that when a hearing officer issues a decision before September 1, but decides a motion to reconsider, a motion to amend, or a request for further findings after September 1, the new practice of appeal to the Appellate Division would govern appeals of such hearing officer decisions.
Restyling Notes - June 2017
Rule 23 is subject to editing for clarification and additional internal separation and numbering in the restyling process. It includes no substantive changes. The 20-day period for filing appeals in Rule 23 is set by statute, 39-A M.R.S. §322(1). Therefore, it is not changed to a time period measured in weekly increments, as is the practice with time limits in the Rules not controlled by statute. The transition provision adopted when the Appellate Division was created in 2012 is eliminated.
Advisory Note - May 2018
The restyled Maine Rules of Appellate Procedure changed the font size required by Rule 23(b)(1)(B) from 12-point to 14-point for petitions for appellate review. The change to a 12-page limit allows petitions for appellate review to have approximately the same amount of text as was allowed prior to the change in the font size requirement.
Advisory Note - September 2022
In May 2018, Rule 23(b)(1)(B) was changed to increase the page limit for petitions for appellate review and responses to petitions from 10 pages to 12 pages. The amendment, however, created an inconsistency with Rule 23(b)(5), which continues to limit responses to 10 pages. This amendment increases the page limit in Rule 23(b)(5) to match the limit in Rule 23(b)(1)(B).