No. 28678 - Betty J. Plummer v. Workers' Compensation
Division and B.F. Goodrich Company
Davis, J., dissenting:
This case presented a straight forward issue concerning whether the appellant, Betty J. Plummer, established good cause for introducing evidence in her workers' compensation case after the expiration of a time frame order entered by an administrative law judge. The majority opinion has ruled that good cause was shown. In rendering this decision, the majority opinion has effectively reduced the meaning of good cause to any explanation proffered. I do not subscribe to this de minimis standard. I, therefore, dissent from the majority opinion in this case.
The majority opinion correctly
points out that under the applicable administrative rules, the parties had to
request an extension of the time frame order thirty days before the time frame
expired. Ms. Plummer and the employer, B. F. Goodrich Company, did in fact make
a joint motion for an extension of the initial time frame order within the thirty
day limit. Thus, the administrative law judge appropriately granted the first
Thereafter, Ms. Plummer sought
a second extension of the time frame order, for the purpose of submitting additional
evidence. Unlike the first request for an extension of the time frame order, however,
Ms. Plummer's second request was made after the time frame order had expired.
Under this scenario, the administrative rule required Ms. Plummer to show good
cause for failing to timely request an extension of the time frame order. The
administrative law judge and the Workers's Compensation Appeal Board found that
Ms. Plummer did not show good cause. The majority opinion in this case disagreed
with the lower tribunals. I believe the majority opinion is wrong for two reasons:
(1) good cause was not shown by Ms. Plummer, and (2) the wrong standard of review
Good cause is necessarily
fact specific. Consequently, no rigid rule should be crafted to determine good
cause. I do believe, however, that a threshold exists for what may be considered
good cause. The 'good cause' requirement . . . 'is not a mere formality.' State ex rel. Letts by Letts v. Zakaib, 189 W. Va.
616, 618, 433 S.E.2d 554, 556 (1993) (quoting Schlagenhauf v. Holder,
379 U.S. 104, 118, 85 S. Ct. 234, 242, 13 L. Ed. 2d 152 (1964)). Establishing
good cause puts the burden on the party seeking relief to show some plainly
adequate reason therefor[,] not merely any reason. AT&T
Communications of West Virginia, Inc. v. Public Serv. Comm'n of West Virginia,
188 W. Va. 250, 253, 423 S.E.2d 859, 862 (1992) (emphasis added). Our jurisprudence
has long held that . . . 'good cause can only appear by showing . . .
some . . . circumstance beyond the control of the party, and free from neglect
on his part.' Winona Nat'l. Bank v. Fridley, 122 W. Va. 479, 481,
10 S.E.2d 907, 908 (1940) (quoting Syl. pt. 1, Post v. Carr, 42 W. Va.
72, 24 S.E. 583 (1896)). By permitting an attorney's failure to comply with
a time frame order to constitute good cause, the majority opinion has effectively
rendered good cause meaningless. See Dimon v. Mansy, 198 W. Va.
40, 47, 479 S.E.2d 339, 346 (1996) (The plaintiff's proffer of good cause
establishes a standard that would do away with this requirement.).
As we said in Taylor v.
Smith, 171 W. Va. 665, 667, 301 S.E.2d 621, 624 (1983), [t]he law
aids those who are diligent, not those who sleep upon their rights. Ms.
Plummer slept on her rights. This new and intolerable standard will make it
impossible for administrative law judges to control their dockets and render
timely decisions, because litigants will be able to indefinitely introduce additional
evidence and extend litigation by simply saying I was busy doing something else.
The clearly wrongSee
footnote 1 1 standard of review is applicable to findings of
fact. In this case, there was no dispute as to any of the relevant facts. That
is, there was no dispute that Ms. Plummer failed to timely file a request for an extension
of the time frame order. The contestable issue in this case concerned whether
or not Ms. Plummer established good cause in failing to make a timely request
for an extension of the time frame order. The lower tribunals found that the
reason proffered did not constitute good cause, and therefore denied submission
and consideration of the late evidence. The majority opinion applied the clearly
wrong standard of review to this disposition in order to impose the result it
sought to reach. Our cases have made clear that [w]here the law commits
a determination to a [lower tribunal] and [its] discretion is exercised with
judicial balance, the decision should not be overruled unless the reviewing
court is actuated, not by a desire to reach a different result, but by a firm
conviction that an abuse of discretion has been committed. Intercity
Realty Co. v. Gibson, 154 W. Va. 369, 377, 175 S.E.2d 452, 457 (1970) (citation
and internal quotations omitted). Nothing in the majority opinion points to
an abuse of discretion by the lower tribunals. There was no abuse of discretion.
For the reasons stated, I respectfully dissent. I am authorized to state that Justice Maynard joins me in this dissenting opinion.