The Consolidation Caution

A recent case from Kentucky reminded me of the intricacies of case consolidation. On October 30, 2020 the Board rendered Nordmeyer v. Rosa Mosaic & Tile, Claim 201801085. It is a reminder that it remains imperative for counsel to be persistently cognizant of a case status. Secondarily, it reminds of the importance of details. And, there is demonstration of some effort by the appellate authority (In Kentucky the first appellate opportunity is the Board, an executive-branch review) to provide a broader edification or illumination than is perhaps inherently required for its decision. 
When providing analysis, such an appellate body may provide the explanation that the parties to a particular need, but may also provide some broader analysis in which the greater community may find guidance and assistance for future cases. Reading appellate decisions is therefore a useful tool for those involved in litigation within a community such as workers' compensation.  
In this Kentucky instance the injured worker had two cases, claim number 2018-01085 filed July 24, 2018 (knees) and 2019-01095 filed July 26, 2018 (shoulder). For the purpose of litigation (trial), the two were "consolidated." That "consolidation" effectively merged the two cases. For the duration of the "consolidation" the two cases became one. Thus, a filing in either during that time was in fact a filing impacting or effecting each. This posture continued through the discovery phase and preparation, and even through trial. A trial order was entered deciding the issues. With the purpose of consolidation past (efficiency of process and for trial), the two cases were then "unconsolidated." Picture the two cases were married, lived together for a time, and then were divorced. 
Or, imagine a closet full of clothing, which includes two hangers; on one a pair of pants an on another a jacket. But, after a while the two are draped upon a single hanger, what one might colloquially refer to then as a “suit.“ Obviously each part of the suit has its distinct purpose. And, each may complement the other. So long as they are hung together, and referred to as “suit,“ then they can be discussed collectively ("please take that suit to the cleaners"). 
However, if we elect to thereafter again remove the jacket and drape it instead upon a separate hanger, we again now have merely “pants,“ on one and a “jacket“ on the other. Though the material and style might lead one through examination to conclude the two elements could go together, their physical separation might nonetheless frustrate any effort to refer to the (now) two items as some collective label ("a suit").
That distinction may hold little or even no difference in some circumstances. However, in this instance of consolidation it most certainly may. While the two are hanging together (“consolidated“), an instruction or request as regards that combined unit will be effective as to each (e.g. "please take that suit to the cleaners"). However, once you have placed the two items on separate hangers (unconsolidated), or if someone else has (the trial Judge), then the instruction ("take that to the cleaners“) may result in the appropriate action as to only one (the trousers perhaps), and in fact no action as regards the other (the jacket).
In the clothes example, the resulting harm is perhaps elusive. Upon discovery of that error, simply take the jacket to the cleaners and the issue is likely solved. Having expected a cleaned suit, it may be accomplished despite requiring two trips and perhaps some delay. But, in the realm of litigation, the implications may be more complicated and more lasting. 
That is essentially what occurred in Nordmeyer. Whether through inadvertence, or intent, counsel filed an appeal as regards half of the then unconsolidated litigation - one of the two cases. After these two cases were unconsolidated, counsel filed an appeal in one of those cases (the trousers). Counsel did not address the proverbial jacket - no notice of appeal was filed in that second case. Proceeding through the appellate process, counsel did make arguments as regards that second, unappealed case. That effort evidenced some intent to have appealed both outcomes. But, the Board explained that it had no authority to address those issues and assertions of error regarding the second case. 
The Board lacked authority, what the law refers to as having "jurisdiction," because no notice of appeal applicable to that second case had been filed. In the law, jurisdiction is created in the appellate court by the filing of that notice of appeal. The appellate body or court has no overall or automatic authority to oversee or be responsible for any and all litigation ongoing within its geographic area of responsibility. It is the act of one or all of the parties to a particular case, in timely seeking the appellate body's review, that creates the authority of the appellate body to act. And, that request is usually required within some set time period. 
If no timely notice of appeal is filed, then the appellate body lacks authority. This is true also in Florida, where the Supreme Court has held that the notice of appeal is "jurisdictional." Williams v. State, 324 So. 2d 74 (Fla. 1975). Furthermore, a notice filed after the time allowed for requesting that review, 30 days here, is not effective - does not create jurisdiction. Nelson v. State, 181 So. 2d 192 (Fla. 1st DCA 1965). Timing and process are critical in the seeking of appellate review. 
So, failure to deliver the jacket to the cleaners will result in the cleaners having no authority (or ability) to clean that jacket. Similarly, failure to appeal a decision in a timely manner will deprive an appellate board or court of the ability to consider those issues. 
The Kentucky Board explained this and that the error in this instance was likely harmless ("If that claim was properly before this Board, the ALJ’s decision would have been affirmed"). In that regard, it essentially analyzed issues over which it had no authority, and explained why it would likely have not found error had it been given the authority to decide them. 
It describes a review of that second case (unconsolidated), and explains that a timely appeal there would not have worked a different outcome - reversal of the trial judge's decision. This explanation perhaps is some balm for the attorney that did not file the second appeal. It is helpful to the parties in the case, but more so perhaps to the community of workers' compensation. Those who litigate would do well to learn from examples such as this, which illustrate the benefits of reviewing appellate decisions when they are rendered. 
The lesson is reasonably clear: verify twice what you are addressing in a pleading (whether motion, notice of appeal, or otherwise), and take the time to double check that what you are doing will accomplish what you have set out to do. When important steps or actions are missed, there may be significant impacts on the clients that you represent. And, those may not be as easily remedied as taking half a suit to the cleaners. 
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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