PEGGY R. EK, Employee/Appellant, v. VIRGINIA REG’L MED. CTR. and MINNESOTA ASSIGNED RISK PLAN/RTW, INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 29, 2010
PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS. Substantial evidence supported the compensation judge’s decision that the employee had not been incapacitated for purposes of extending the time for filing her claim petition, pursuant to Minn. Stat. § 176.151(3). As such, the judge properly dismissed the claim petition with prejudice.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Peggy R. Ek, Employee pro se. Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The pro se employee appeals from the compensation judge’s decision that she was not incapacitated for purposes of extending the applicable statute of limitations. We affirm.
The employee worked as a housekeeper for Virginia Regional Medical Center. She first filed a claim petition, through an attorney, on September 11, 1989, alleging that she had sustained a work-related injury on September 15, 1986, in the nature of “multiple symptom complex due to work-related stress.” The employer and insurer responded by filing a motion to dismiss based on the employee’s failure to attach adequate medical support for her claim. Following a settlement conference, a compensation judge dismissed the claim petition, concluding that the employee had failed to state a claim and had provided no medical evidence indicating that she had sustained an injury entitling her to workers’ compensation benefits.
The employee, then representing herself, appealed from the judge’s order of dismissal but subsequently asked this court to dismiss the appeal, indicating that she intended to file a new claim petition. The employee’s request was granted and the appeal was dismissed on May 23, 1990.
On July 31, 1992, the employee, still proceeding pro se, served the employer with another claim petition, again alleging an injury in the nature of “multiple symptom complex due to work related stress.” Once again, the alleged date of injury was September 15, 1986. The employer and insurer again denied liability and again moved for dismissal. On December 28, 1992, after the parties were informed by a compensation judge that this claim petition had never been filed, the employer and insurer sent a copy of the claim petition to the Department of Labor & Industry, and the employee filed the claim petition on January 12, 1993. A few months later, a compensation judge issued an order striking the claim petition from the active trial calendar for lack of adequate medical support.
No further action was apparently taken on the employee’s claim until 2007, when the employee, now represented by counsel, filed a motion to reinstate. At a settlement conference held in May of 2008, the employer and insurer again moved for dismissal, alleging not only that the employee’s claim lacked adequate medical support but also that the claim petition had not been filed within the applicable statute of limitations. By order dated May 16, 2008, the matter was referred for a special term hearing to address these motions. A week later, the employee’s counsel withdrew from representation.
The hearing on the dismissal motions was held on July 30, 2008. In a decision issued on October 2, 2008, a compensation judge concluded that the employee’s latest claim petition had not been filed within the limitations period specified by statute, and he therefore granted the employer and insurer’s motion to dismiss. The employee, again proceeding pro se, filed a timely appeal to this court. However, the record transmitted to this court was incomplete, in that it did not include the exhibits that the employee had submitted to the compensation judge, and the Office of Administrative Hearings was unable to locate those documents. For that reason, and because this court could not determine whether the employee had raised the issue of incapacity to the compensation judge, we remanded the matter for “a full evidentiary hearing on the issue of the statute of limitations, including the employee’s claim of incapacity.”
The hearing on remand was held on September 22, 2009. The employee, still unrepresented by counsel, submitted certain medical records and reports into evidence and testified regarding her activities, symptoms, and treatment since the date of her claimed work injury.
In a decision issued on October 15, 2009, the compensation judge concluded that the employee had not established that she had been physically or mentally incapacitated so as to extend the filing period, pursuant to Minn. Stat. § 176.151(3). The judge therefore concluded that the claim was barred by the statute of limitations, and he dismissed the employee’s claim petition, with prejudice. The employee appeals.
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 (2008). 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 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).
Minn. Stat. § 176.151, provides in relevant part as follows:
176. 151. Time limitations
The time within which the following acts shall be performed shall be limited to the following periods, respectively:
(1) Actions or proceedings by an injured employee to determine or recover compensation, three years after the employer has made written report of the injury to the commissioner of the department of labor and industry, but not to exceed six years from the date of the accident.
* * *
(3) In case of physical or mental incapacity, other than minority, of the injured person or dependents to perform or cause to be performed any act required within the time specified in this section, the period of limitation in any such case shall be extended for three years from the date when the incapacity ceases.
In the present case, the employer did not file a first report of injury, so the six-year limitations period applies. The employee served her claim petition on the employer on July 31, 1992, within six years of the alleged September 15, 1986, injury. However, it is essentially undisputed that the claim petition was not filed until either December 28, 1992, when the employer provided a copy to the Department of Labor & Industry, or January 12, 1993, when the employee filed a copy with that agency. As such, the claim petition was not filed within the six-year period specified by statute. The employee contends, however, that her late filing was the result of her incapacity. If so, the limitations period for filing would be extended pursuant to Minn. Stat. § 176.151(3).
The employee’s medical records document a long history of physical complaints and diagnoses over the years. Symptoms noted in those records include back and neck pain, abdominal and pelvic pain, anxiety, dizziness, shortness of breath, fatigue, fever, and stiffness in the hands and feet. Diagnoses have included polyperipheral neuropathy, restless leg syndrome, hypothyroidism, sinusitis, allergies, inner ear infections, cystitis, asthma, functional bowel syndrome, seizure disorder, carpal tunnel syndrome, neuritis, and fibromyalgia, among others. The employee has also been diagnosed, at various times, with various psychological or psychiatric conditions, including dysthymic disorder, somatization disorder, passive aggressive personality disorder with paranoid trends, histrionic personality, and chronic pain syndrome.
Several narrative reports in the current record support the conclusion that the employee has been disabled as a result of some of these conditions. For example, in a July 7, 1992, report, Dr. Robert Nesheim indicated that the employee had been “partially to totally disabled over the past two years because of an admixture of both significant, psychiatric and physical symptomology.” More recently, in July of 2006, physician assistant Michelle Adams wrote that the employee had been “considered disabled,” since about 2002, due to “fibromyalgia and other respiratory problems,” and she noted that the employee had not been able to work for 20 years due to those conditions and “chronic pain syndrome of the cervical and lumbar spine area.” However, the issue before us in not whether the employee has been disabled but rather whether the employee was incapacitated so as to excuse her failure to file her claim petition within six years of the date of her claimed injury. See Sammarco v. Ford Motor Co., slip op. (W.C.C.A. Dec. 10, 1996) (the statute requires a functional rather than diagnostic approach to the issue of incapacity, and, while the employee clearly experienced both mental and physical problems over the years, it was clear that she had not been incapacitated to the degree necessary to toll the statute of limitations).
The compensation judge concluded that the employee had not been incapacitated within the meaning of the statute. In support of his decision, the judge explained that the employee had been capable of moving herself and her young daughter from Minnesota to Arkansas in the summer of 1992. She was able to drive and performed her own shopping, housekeeping, and child care responsibilities. She was not subject to a guardianship and did not have anyone else who looked after her needs. She paid her rent and her other bills and was able to complete her claim petition in July of 1992, using the prior claim petition prepared by her attorney several years before. She also served the claim petition on the employer in late July 1992, a month and a half prior to the running of the limitations period. She sought medical care when she felt ill and was able to provide her treating physicians with an accurate history of her health problems. The judge acknowledged that Dr. John Kipp indicated in a 2009 report that the employee’s condition was “consistent with physical incapacity during the period from August 15th 1992 through January 12th 1993.” However, the judge found Dr. Kipp’s opinion unpersuasive, in part because the doctor did not explain what he meant by “incapacity.” Furthermore, according to the judge, it appeared likely that Dr. Kipp was referring only to a general inability to work or perform physical tasks. Dr. Kipp’s report reasonably supports the conclusion that the employee was disabled. Again, however, disability is not the same as incapacity for purposes of Minn. Stat. § 176.151.
The compensation judge went on to conclude that the employee’s failure to file her claim petition in a timely manner was apparently “not the result of a physical or mental incapacity, but [rather] her lack of knowledge regarding the statutory filing requirement.” The judge’s conclusion to this effect was not unreasonable. As the judge noted, the employee has consistently and repeatedly indicated that she did not know what was required of her because she is not an attorney and has been representing herself. When questioned at hearing about why she failed to file the claim petition, she testified variously that she thought she had filed it, that she was “positive” she had filed it, that she was unable to file it because she did not have the address of the Department of Labor & Industry, and that she did not know “how to do it.” She also testified that she had never heard of the statute of limitations before this proceeding.
Given the record as a whole, substantial evidence supports the judge’s decision that the employee was not physically or mentally incapacitated within the meaning of Minn. Stat. § 176.151(3). Therefore, because the employee’s claim petition was not filed within six years of the date of her alleged injury, the judge had no option but to dismiss the claim, with prejudice. See Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964) (the statutory service and filing requirements are jurisdictional). Workers’ compensation courts have no authority to address claims for injuries if the service and filing requirements of the statute have not been satisfied. See id. We therefore affirm the judge’s decision.
 Some of this background information was taken from this court’s prior decision in this matter, Ek v. Virginia Reg’l Med. Ctr., No. WC08-235 (W.C.C.A. May 12, 2009).
 In response to an October 2007 order indicating that the claim petition would be dismissed if the employee took no action to reinstate within 60 days.
 Unfortunately, the exhibits submitted to the compensation judge were accidentally destroyed by the Office of Administrative Hearings after the judge issued his decision. The employer and insurer resubmitted copies of their exhibits for purposes of our review; the employee also resubmitted exhibits but indicated that she did not have copies of two of those exhibits. We have no option but to consider the appeal on the record now before us.
 As such, the employer’s failure to file the first report works to the employee’s benefit. Had the report been filed, the employee would have been subject to a three-year limitations period for filing her claim.