DARYL CLARK, Employee/Appellant, v. LAKE SUPERIOR PAPER, and ST. PAUL TRAVELERS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 29, 2006
APPEALS. Because the issue of the employee=s entitlement to reimbursement of the claimed costs related to a previous hearing has been adjudicated and affirmed by the Minnesota Supreme Court, the employee is precluded from claiming costs related to that same hearing.
VACATION OF AWARD. Finding no grounds under the statute for which the previous findings and order can be vacated, we deny the employee=s petition to vacate those findings and order.
Petition to vacate dismissed.
Determined by Rykken, J., Pederson, J., and Wilson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Barbara L. Heck, John G. Ness & Associates, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s Order Denying Petition for Taxation of Costs related to a hearing held on August 31, 2004, and also petitions to vacate the compensation judge=s Findings and Order which were served and filed on September 13, 2004. We affirm the compensation judge=s order and dismiss the petition to vacate.
On November 15, 1986, Mr. Daryl F. Clark, the employee, sustained an admitted injury to his right knee while employed by Lake Superior Paper, the employer. On that date, the employer was insured by St. Paul Fire and Marine Insurance Company, the insurer. Following that injury, the employer and insurer have paid temporary total, permanent partial and permanent total disability benefits to the employee as well as medical and rehabilitation expenses on his behalf.
This matter was the subject of earlier litigation, including a hearing held in 2002 concerning the employee=s claims for temporary total disability benefits. In his findings and order served and filed on March 3, 2003, Compensation Judge Gregory Bonovetz awarded payment of certain temporary total disability benefits. On May 15, 2003, the employee filed a claim petition seeking the imposition of various penalties for failure to pay pursuant to the compensation judge=s order of March 6, 2003, for failure to pay ongoing attorney fees, and for partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7a.
The employee=s claim for penalties was scheduled for a hearing on August 31, 2004. During the course of litigation, the employer and insurer conceded that certain penalties were payable and issued payment to the employee. Counsel for the employer and insurer sent a letter to the employee=s counsel, outlining their calculations and basis for payment of penalties. Based on a continuing dispute over the amount of penalties that were due, the matter proceeded to a hearing on August 31, 2004, again before Judge Bonovetz.
In his findings and order served and filed September 13, 2004, the compensation judge analyzed the various penalties and attorney fees claimed by the employee, and denied those claims in their entirety. Incident to his decision, the compensation judge denied reimbursement of costs to either party. The employee appealed from the denial of penalties and attorney fees, as well as from the denial of costs. In his appellate brief related to that matter, however, the employee did not address his appeal from the denial of costs, and therefore waived his appeal of that issue. By decision issued on March 11, 2005, this court affirmed the findings and order of the compensation judge in their entirety, and by order served and filed on July 5, 2005, the Minnesota Supreme Court summarily affirmed this court=s decision. Clark v. Lake Superior Paper, 65 W.C.D. 510 (W.C.C.A. 2005), summarily aff=d, (Minn. July 5, 2005).
On March 17, 2006, approximately eight months after the supreme court=s decision on the earlier appeal, the employee filed a petition for taxation of actual and necessary disbursements, related to the same litigation in which costs were denied. In his petition, the employee claimed reimbursement of $181.00, for legal process server fees and for the court reporter=s fee related to the deposition taken of an insurance claims representative in July 2004. The employer and insurer filed an objection to this petition for taxation of costs, arguing that because the employee did not prevail at the hearing held on August 31, 2004, he was not entitled to reimbursement of costs related to that hearing and that the compensation judge=s order had already denied costs to either party.
The employee=s petition for taxation of costs was addressed at a hearing held by telephone on May 15, 2006, before Compensation Judge Bonovetz. Before the hearing, the employee filed a trial memorandum with the compensation judge, in which he outlined, in detail, the basis for his claim for reimbursement of costs. Arguments were presented by counsel for both parties, but no testimony was taken at that hearing. In an order served and filed on May 16, 2006, the compensation judge denied the petition for taxation. In his order, the compensation judge outlined the chronology of the employee=s underlying claim related to the petition. He referred to his earlier order in which neither party was awarded costs or disbursements, and held that because both the Workers= Compensation Court of Appeals and the Minnesota Supreme Court had affirmed the denial of costs, a final determination had been made on that issue.
The employee appeals from the compensation judge=s order.
This matter comes before this court on two bases. First, the employee appeals from the compensation judge=s order of May 16, 2006, in which the judge denied his claim for costs. The employee also petitions to vacate that portion of the compensation judge=s findings and order of September 13, 2004, in which the judge denied reimbursement of costs or disbursements to either party.
At issue in both the employee=s appeal and his petition to vacate is whether the employee is entitled to reimbursement of costs related to the August 31, 2004, hearing, and whether the compensation judge=s order denying costs related to that hearing was erroneous and therefore must be vacated. The compensation judge concluded that, as a matter of law, the employee was precluded from claiming payment of costs earlier denied in the findings and order of September 13, 2004. We agree. The issue as to the employee=s entitlement to reimbursement of the claimed costs has been adjudicated and affirmed by the Minnesota Supreme Court.
As to the employee=s alternative pleading, his petition to vacate, we see no basis for vacating the judge=s earlier decision. Whereas a compensation judge=s findings and order may be vacated Afor cause,@ Minn. Stat. ' 176.461, the employee has not articulated any grounds under the statute for which the previous findings and order could be vacated. Although the employee argues that the compensation judge erred by not recording the hearing so that a record of the hearing could be reviewed on appeal, we find no error. Although generally a judge is well-advised to create a record in every case, a record of the arguments presented at this hearing was not necessary, in view of the facts of the case and the issue addressed at the hearing. The compensation judge, who had presided at the original hearing related to the employee=s petition for costs, had available for his review pleadings and related exhibits submitted by the parties, as well as a written trial memorandum submitted by the employee.
We therefore affirm the compensation judge=s order denying the employee=s petition for taxation, and dismiss the employee=s petition to vacate the compensation judge=s Findings and Order of September 13, 2004.
 In Order No. 3 of the findings and order issued on September 13, 2004, the compensation judge stated: ANeither party is awarded costs or disbursements.@
 See Minn. R. 9800.0900, subp. 1, AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@