BYRON S. LUNSMAN, Employee/Petitioner, v. T-N-L REPAIR AND REMODELING and MINNESOTA WORKERS’ COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer, and MINNESOTA DEP’T OF VETERAN’S AFFAIRS, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 30, 2010
VACATION OF AWARD; STATUTES CONSTRUED - MINN. STAT. § 176.461. Pursuant to DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 30 W.C.D. 109 (Minn. 1977), an order for dismissal is not an “award” within the meaning of Minnesota Statutes § 176.461, and, where the employee’s claim petition had been dismissed and there was no appeal from that dismissal within the thirty-day time limit provided for by statute, the Workers’ Compensation Court of Appeals had no authority to vacate the dismissal order under a petition to vacate.
Petition to vacate order for dismissal denied.
Determined by: Pederson, J., Rykken, J., and Wilson, J.
Attorneys: Robert E. Wilson and Roger D. Poehls, Jr., Robert Wilson & Assocs., Minneapolis, MN, for the Petitioner. James K. Helling and Kris Huether, Brown & Carlson, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The alleged employee petitions to set aside an order dismissing stricken pleadings on grounds of a mistake of fact. We deny the petition.
On August 18, 2006, Byron Lunsman [Lunsman] filed a claim petition alleging that he had sustained a work-related injury on May 6, 2005, while working for T-N-L Repair and Remodeling [T-N-L]. On September 5, 2006, T-N-L and its insurer, Minnesota Workers’ Compensation Assigned Risk Plan, administered by Berkley Risk Administrators Company [Berkley], denied primary liability for the alleged injury. T-N-L/Berkley specifically alleged that Lunsman had not been an employee of T-N-L on the date of the claimed injury. Berkley had earlier filed with the Department of Labor and Industry on May 30, 2006, a First Report of Injury and on June 1, 2006, a Notice of Insurer’s Primary Liability Determination [NOPLD].
Discovery ensued, and on February 7, 2007, T-N-L/Berkley brought a motion to dismiss and/or strike the employee’s claim, based on Lunsman’s failure to respond to certain discovery requests. On July 18, 2007, Lunsman served a motion to sanction T-N-L/Berkley for the purported employer’s failure to attend three scheduled depositions. T-N-L/Berkley objected to the employee’s motion and the issues were addressed at a pre-trial conference before Compensation Judge Carol Eckersen on July 23, 2007. Following the conference, Judge Eckersen issued an Order Striking From Calendar. The Order, issued August 1, 2007, stated in part as follows:
The party seeking reinstatement must file a Motion to Reinstate advising the Court that the parties are ready to proceed to trial, that all necessary discovery has been completed, that all medical and vocational examinations have been completed and the report of the same received, that all known necessary parties have been properly joined, that the petitioning party has obtained and attached a calendar with dates the parties are available for hearing for six months after the date of the motion to reinstate, and that settlement discussions have been held but the case cannot be settled. A one sentence statement that the parties want the case reinstated will not be sufficient to place this case back on the trial calendar.
About nine months later, on May 7, 2008, Lunsman filed a second motion to sanction T-N-L/Berkley concerning discovery issues. No motion was brought to reinstate the case, but, in the letter accompanying the motion to sanction, Lunsman requested “that the matter be set on the active calendar.” T-N-L/Berkley filed an objection to the motion to sanction on May 14, 2008. Another pre-trial conference was held on August 4, 2008, to address Lunsman’s motion, but no order was filed.
Over a year later, on October 27, 2009, the Office of Administrative Hearings served the parties with a Notice of Pending Dismissal on Stricken Pleadings pursuant to Minnesota Statutes section 176.305, subdivision 4. The notice informed the parties that “if there is no request for reinstatement within the next 60 days, the Calendar Judge will presume that the parties have decided not to pursue the matter and the case will be dismissed.” On January 22, 2010, in an Order Dismissing Stricken Pleadings, Compensation Judge Paul Rieke ordered dismissal of the employee’s claim petition “without prejudice,” on grounds that the 60-day period identified in the Notice of Pending Dismissal had expired and no request for reinstatement had been received by the court. Lunsman did not appeal from Judge Rieke’s Order.
On June 16, 2010, Lunsman filed with this court a petition to vacate the Order Dismissing Stricken Pleadings served January 22, 2010. The stated ground for Lunsman’s petition was that Judge Rieke was “mistaken” when he stated in his Order that no action had been taken to reinstate the claim petition and that the parties had decided not to pursue the matter further. T-N-L/Berkley object to the petition to vacate.
This court’s authority to vacate a compensation judge’s award is found in Minnesota Statutes section 176.461. While this statute allows for the vacation of an “award” for cause at anytime, the Minnesota Supreme Court has held that “an order for dismissal is not an ‘award’ within the meaning of Minn. Stat. § 176.461.” DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 506, 30 W.C.D. 109, 117 (Minn. 1977); see also Becerra v. Pine Valley Meats, 54 W.C.D. 304 (W.C.C.A. 1996). There is no contention here that the compensation judge, in issuing the order here in question, failed to follow the procedures set forth in Minnesota Statutes section 176.305, subd. 4. Therefore, finding DeMars to be controlling law, we conclude that the Workers’ Compensation Court of Appeals has no authority to vacate the order for dismissal here at issue. Lunsman’s petition for relief must, accordingly, be denied.
 Background information here has been drawn from the submissions accompanying the affidavits filed by counsel for the employee and the employer and insurer.
 Lunsman had initially filed a claim petition on July 20, 2005. The Special Compensation Fund had been named as a party because insurance coverage could not be verified for T-N-L. The 2005 claim petition was subsequently dismissed.
 That statute reads in part as follows:
If a case has been stricken from the calendar for one year or more and no corrective action has been taken, the commissioner or compensation judge may, upon the commissioner’s or judge’s own motion or a motion of a party, which is properly served on all parties, dismiss the case.
 Lunsman’s remedy here was to appeal from the January 22, 2010, order of dismissal. The current petition was not filed within the statutory thirty-day time limit for appeal and so does not qualify for our review as an appeal. See Minn. Stat. § 176.421, subd. 1.