MINH-PHUONG T. PHAN, Employee/Appellant, v. RADISSON HOTEL and AMERICAN COMPENSATION INS./RTW, INC., Employer-Insurer, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 14, 2000
APPEALS - NOTICE OF APPEAL; JURISDICTION - SUBJECT MATTER. The employee failed to serve her Notice of Appeal on the employer and insurer on or before November 15, 1999. This court therefore lacks subject matter jurisdiction to consider the employee=s appeal from the Findings and Order served and filed September 14, 1999, and the appeal must be dismissed.
Determined by: Johnson, J., Wheeler, C.J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that the employee=s notice of appeal from the Findings and Order filed September 14, 1999, was not served upon the adverse party within the 30-day period for taking an appeal. We affirm the findings of the compensation judge and dismiss the employee=s appeal.
Minh-Phuong T. Phan, the employee, sustained a personal injury on May 7, 1997, while working for the Radisson Hotel, the employer, insured by American Compensation Insurance/RTW, Inc. The employer and insurer admitted liability for the employee=s injury and commenced payment of workers= compensation benefits.
On September 29, 1997, the employee filed a claim petition seeking payment of temporary total disability benefits from and after August 14, 1997, together with rehabilitation benefits. In its answer, the employer and insurer denied liability for further benefits. Ultimately, the case was heard before Compensation Judge Peggy A. Brenden on July 27, 1999. The employee represented herself at the hearing. In a Findings and Order filed September 14, 1999, the compensation judge denied the employee=s claims for temporary total disability and rehabilitation benefits.
By Order served and filed October 12, 1999, this court extended the time for taking an appeal until November 15, 1999. On November 12, 1999, the employee filed a Notice of Appeal at the Office of Administrative Hearings. On February 23, 2000, the employer and insurer filed with the Workers= Compensation Court of Appeals a Motion to Dismiss the employee=s appeal. The respondents contended the employee failed to timely serve a copy of the Notice of Appeal on each adverse party as required by Minn. Stat. ' 176.421, subd. 4(1). By Order of Referral filed February 29, 2000, this court referred the case to the chief administrative law judge at the Office of Administrative Hearings to schedule a hearing before a compensation judge. The court directed the compensation judge to make findings of fact regarding whether the employee served a copy of the Notice of Appeal on counsel for the employer and insurer within the period of time for taking an appeal, as extended by this court.
The referred case was heard by a compensation judge at the Office of Administrative Hearings on April 27, 2000. In Findings filed May 8, 2000, the compensation judge found the exact date the Notice of Appeal was served on the employer/insurer by the employee was unclear. The judge found, however, the uncontradicted evidence was that the service occurred some time after November 15, 1999. The judge further found the Notice of Appeal was not served on the employer/ insurer within the 30-day period for taking an appeal. The employee appeals from the findings of the compensation judge.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee filed a claim for workers= compensation benefits which was heard by a compensation judge at the Office of Administrative Hearings on July 27, 1999. In a Findings and Order, served and filed on September 14, 1999, the compensation judge denied the employee=s claims. At the request of the employee, this court extended the time for taking an appeal to November 15, 1999. The employee filed a notice of appeal with the Office of Administrative Hearings on November 12, 1999. However, this notice did not include an Affidavit of Service on the employer and insurer.
Minn. Stat. ' 176.421 sets forth the requirements for appeals to this court. Subd. 4 provides that within the 30-day period for taking an appeal, the appellant shall: A(1) serve a copy of the notice of appeal on each adverse party; [and] (2) file the original notice with proof of service by admission or affidavit with the chief administrative law judge and file a copy with the commissioner.@ The sole issue on appeal is whether the employee served a copy of the notice of appeal on the employer/insurer by November 15, 1999.
At the hearing on April 27, 2000, the employee testified through an interpreter. The compensation judge asked the employee: ACan you tell me when you sent this notice [of appeal] to the employer-insurer?@ The employee responded: AI do not recall, but I do recall that my counselor did send to the Court of Appeal, but I do not recall exactly the day.@ (T. 8.) The compensation judge then asked the employee: AAnd you don=t know whether the day it was sent to the employer and insurer was before or after November 15.@ The employee replied: AI do recall that I send to employees later than November 15 because I did not know that I had to send to the employee. I did not know it.@ (T. 9; L. 6-9.) Janet Monson, the attorney for the employer and insurer, then asked: ATo send to who? I=m sorry; I didn=t understand that.@ The employee responded: ATo the employee.@ The judge questioned: AEmployer?@ and the employee responded: AThis lady.@ (T. 9; L. 10-14.)
The compensation judge later asked the employee: ASo my -- my question is, when did she -- was it before or after November 15?@ The employee responded: AI do send to the employees after November 15, >99. . . . But I don=t know why - - why do I have to send to employee? I only know that I send to employee. Why send to the employees? I don=t know.@ (T. 12, L. 23-25; T. 13, L. 1-2, 6-9.)
On September 7, 2000, the employee filed with the court a letter which stated, in part:
After reading the state of Minnesota workers= compensation section report prepared by the reporter Joseph J. Andert on April 27-1999 I found out that the following information is incorrect.
1. Page 9 line 7 and 8
Incorrect: Send to employee later than November 15 because I did not know that I had to send to the employee. I . . .
Correct: Send to lawyer of employer-insurer later than November 15 because I did not know that I had to send to the lawyer of employer-insurer. I . . .
2. Page 9 line 12
Incorrect: To the employee.
Correct: To the lawyer of employer-insurer.
3. Page 13 line 2
Incorrect: employees after November 15-1999
Correct: Lawyer of employer-insurer after November 15-1999.
Page 13 line 7 and 8
Incorrect: why do I have to send to employee I only know that I send to employee. Why send to the employees?
Correct: Why do I have to send to lawyer of employer-insurer? I only know that I sent to the court of appeals. Why send to the lawyer of employer-insurer?
Page 13 line 19, 20, 21, 22, 23, 24,25
Also contained in the file is the following letter dated August 14, 2000, directed to the Workers= Compensation Court of Appeals:
From: Minh-Phuong Phan
1492 Klainert St. #A
St. Paul, MN 55117
To Whom It May Concern:
Ms. Phan asked me write this letter for her regarding to copies of the notice of appeal. Therefore, this letter is to verify; After November 15, 1999, I had helped Ms. Phan make a few copies of the notice of appeal, she told me that she would have to send a copy of the notice of appeal to the employer-insurer. If I can be any further assistance, please calling me at 651-647-9693, thanks.
Human Services Counselor
In Kearns v. Julette Originals Dress Co., 126 N.W.2d 266, 23 W.C.D. 127 (Minn. 1964), the supreme court held that both the service and the filing of the notice of appeal are essential to jurisdiction. See also Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 39 W.C.D. 430 (Minn. 1987). Where subject matter jurisdiction is lacking, this court cannot reach the merits of a case. Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.C.D. 541 (Minn. 1983). The employee failed to serve the notice of appeal on the employer and insurer on or before November 15, 1999. This court therefore lacks jurisdiction to consider the employee=s appeal. Accordingly, the employee=s appeal from the Findings and Order of Judge Brenden, served and filed September 14, 1999, is dismissed.
 The transcript of the second hearing was prepared by Mary Ann Hintz.