YUAN C. LIU, Employee, v. SI MING CAI d/b/a ASIAN AM. REMODELING, UNINSURED, Employer/Appellant, and ST. PAUL RADIOLOGY and REGIONS HOSP., Intervenors, and SPECIAL COMP. FUND.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 3, 2009
PRACTICE & PROCEDURE - NOTICE OF HEARING. Where the alleged employer argued that he did not receive notice of the hearing on the Special Compensation Fund’s claim for reimbursement, and the record on this issue was inconclusive, a remand for resolution of the notice issue was necessary.
Vacated in part and remanded.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Gary P. Mesna
Attorneys: Delin Qu, St. Paul, MN, for the Appellant. Sara J. Stoltman, St. Paul, MN, for the Respondent/Special Compensation Fund.
DEBRA A. WILSON, Judge
Si Ming Cai appeals from the judge’s decision that he was given notice of hearing and that he was the employer of Yuan Liu. We vacate in part and remand for hearing on the issue of notice.
Yuan Liu sustained work-related injuries on December 31, 2004, while allegedly employed by Si Ming Cai d/b/a Asian American Remodeling. Mr. Cai, who was not insured for workers’ compensation purposes, denied that he was Mr. Liu’s employer, alleging that Mr. Liu was an independent contractor. The Special Compensation Fund [SCF] paid benefits to Mr. Liu pursuant to Minn. Stat. § 176.183 and filed a petition for reimbursement from Mr. Cai. The petition for reimbursement was served on Mr. Cai at his last known business and personal addresses on November 6, 2007. The notice of hearing on the SCF’s reimbursement claim was originally not served on Mr. Cai but was then sent to him at 3516 West 84th in Bloomington, Minnesota.
Mr. Cai did not appear at the scheduled January 29, 2009, hearing. Sara Stoltman, appearing on behalf of the SCF, represented to the court that
[w]hat I had noticed was, on the previous Hearing Notice, the employer’s address wasn’t on there because one address your office had must have come back undeliverable. A paralegal at my office found a new address in Westlaw. And that’s the Bloomington address, the address that you had the Hearing Notice served on, and we re-served our Petition for Reimbursement at that address, and it didn’t come back.
The hearing then proceeded on the petition for reimbursement, and Ms. Stoltman offered exhibits and the testimony of Mr. Liu. In findings and order filed on February 11, 2009, the compensation judge found that Mr. Cai was given proper notice of the proceeding but failed to appear, that Mr. Liu was an employee of Mr. Cai, and that Mr. Cai was liable for the claimed reimbursement together with a statutory 65% penalty. Mr. Cai appeals.
On appeal, Mr. Cai makes several arguments with regard to notice of hearing, claiming, in part, that service was insufficient and ineffective because the notice was not served on a registered agent of the corporation, and because there was no acknowledgment of receipt of the notice from Mr. Cai. These arguments are without merit. Minn. Stat. § 302A.901 (2008) and Minn. R. Civ. Pro. §§ 4.03(c) and 4.05 (2008) are not applicable to workers’ compensation matters.
Minn. Stat. § 176.285, entitled Service of papers and notices, governs service of notices in workers’ compensation cases. That provision reads, in relevant part:
Service of papers and notices shall be by mail or otherwise as the commissioner or the chief administrative law judge may by rule direct. Where service is by mail, service is effected at the time mailed if properly addressed and stamped. If it is so mailed, it is presumed the paper or notice reached the party to be served. However, a party may show by competent evidence that the party did not receive it or that it had been delayed in transit for an unusual or unreasonable period of time. In case of nonreceipt or delay, an allowance shall be made for the party’s failure to assert a right within the prescribed time.
Minn. R. 1415.0700, the relevant rule concerning service and filing, reads, in relevant part:
Subpart 1. Service by state. The division and the office must serve all notices, findings, orders, decisions, or awards upon the parties by first class mail at their addresses of record, by personal service, or, if authorized by the recipient, by facsimile or electronic mail.
In the instant case, Mr. Cai contends that he did not receive the notice of hearing, suggesting that the notice of hearing was not properly addressed. Exhibits received into evidence at hearing are inconclusive on the notice issue. As provided by statute, “a party may show by competent evidence that the party did not receive” notice, Minn. Stat. § 176.285, and it is not the function of this court to make findings of fact. The judge’s finding regarding notice is therefore vacated, and the matter is remanded for hearing on the notice issue. As Mr. Cai is now represented by counsel, notice of hearing on remand should also be served on attorney Delin Qu. Mr. Cai has the burden of proving nonreceipt. Vang v. Planna Tech., Inc., No. WC08-137 (W.C.C.A. May 20, 2009). In the event that Mr. Cai ultimately prevails on the notice issue, retrial on the question of Mr. Cai’s liability will be required. Enforcement of the compensation judge’s current order for reimbursement and penalties remains stayed pending final resolution of the issue of whether Mr. Cai received notice of hearing.
 The listed home address was 10529 Johnson Rd., Bloomington, MN 55437, the same address listed on the claim petition as the address of the employer.
 According to the judge’s comments at the hearing.