GREGG S. KOVENSKY Employee, v. LARRY’S AUTOS UNLIMITED and AP CAPITAL GROUP/ASU RISK MGMT. SERVS., Employer-Insurer/Appellants, and MAIN MOTORS d/b/a CARLSON TOYOTA and MIDWEST FAMILY MUT. INS., Employer-Insurer, and MEDICAL ADVANCED PAIN SPECIALISTS, HEALTHPARTNERS, INC., CENTER FOR DIAGNOSTIC IMAGING, SUBURBAN RADIOLOGIC CONSULTANTS, and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 28, 2011
APPEALS - NOTICE OF APPEAL. Under the specific facts of this case, the appellants failed to prove that their notice of appeal was filed within the time specified by statute.
Determined by: Wilson, J., Stofferahn, J., and Johnson, J.
Compensation Judge: Jennifer Patterson
Attorneys: David M. Bialke, Fridley, MN, for the Respondent Employee. Matthew P. Bandt, Jardine, Logan & O’Brian, Lake Elmo, MN, for the Appellants. T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondent Employer/Insurer.
DEBRA A. WILSON, Judge
Larry’s Autos Unlimited and AP Capital/ASU Risk Management appeal from the compensation judge’s findings and order on referral from the Workers’ Compensation Court of Appeals [WCCA], arguing that the judge erred in concluding that their appeal in the underlying action was not timely filed. We affirm.
A compensation judge issued a findings and order in this matter on June 16, 2010. Larry’s Autos Unlimited and AP Capital/ASU Risk Management [Larry’s Autos] served their notice of appeal from that decision on Wednesday, July 14, 2010, by mailing it to all attorneys of record. On the same date, Larry’s Autos mailed a copy of the notice to the Office of Administrative Hearings [OAH] at P.O. Box 64620, St. Paul, MN. The notice of appeal was received by opposing counsel in their respective offices on Thursday, July 15, 2010.
Mail that is addressed to OAH at P.O. Box 64620 is delivered to a post office box leased by OAH at a United States Postal Service facility. Monday through Friday, a courier picks up the mail from the post office box sometime prior to 7:30 a.m. and delivers it to the loading dock of the Stassen Building, at 600 North Robert Street, where OAH is located. The mail is then picked up from there by an employee of OAH at approximately 7:45 a.m. and taken to the OAH office, where it is opened and date-stamped.
In the present case, the deadline for filing a notice of appeal from the compensation judge’s decision was Friday, July 16, 2010. Larry’s Autos’ notice of appeal was date-stamped at OAH on Monday, July 19, 2010. The cross-appeal of the employee was filed on July 23, 2010.
On October 6, 2010, Judge Thomas Johnson of the WCCA served and filed an order dismissing Larry’s Autos’ appeal as untimely. Several days later, on October 12, 2010, Larry’s Autos filed a motion for reinstatement, arguing that OAH did in fact receive the notice of appeal in a timely fashion. Judge Johnson then served and filed an order of referral to OAH for “assignment to a compensation judge to hear evidence relating to the factual question of whether the notice of appeal filed by Larry’s Autos Unlimited and AP Capital Group/ASU Risk Management Services was timely filed at the Office of Administrative Hearings.”
The matter proceeded to hearing, and, in findings and order on referral, served and filed on May 11, 2011, the compensation judge found that the notice of appeal was delivered to the OAH post office box sometime after the courier picked up the mail on Friday morning, July 16, 2010, and before the courier picked up the mail on Monday, July 19, 2010, and that the notice arrived by courier at OAH on July 19, 2010, and was date-stamped that morning. Based on these findings, the judge concluded that the notice of appeal was not timely filed. Larry’s Autos 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 (2010). 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. § 176.421, subd. 4, provides:
Subd. 4. Service and filing of notice; cost of transcript. Within the 30-day period for taking an appeal, the appellant shall:
(1) serve a copy of the notice of appeal on each adverse party;
(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.
According to Minn. Stat.§ 176.275, subd. 1,
If a document is required to be filed by this chapter or any rules adopted pursuant to authority granted by this chapter, the filing shall be completed by the receipt of the document at the division, department, office or the court of appeals.
Larry’s Autos contends that filing of its notice of appeal was complete when its notice was delivered to OAH’s U.S. post office box, which most likely occurred on July 16, 2010, making the filing timely. Under the circumstances of this case, we cannot agree.
We acknowledge, preliminarily, that the procedure in place for handling mail sent to OAH’s post office box is problematic. Mail sent by litigants to that address might well be time-sensitive, yet any mail arriving in the post office box after 7:30 a.m., weekdays, will not be picked up, opened, or date-stamped by OAH staff until the following day, at the earliest. Certainly Larry’s Autos could have avoided the risk of late filing by mailing the notice of appeal sooner or by hand delivering the notice to OAH. That, however, is not the point. If OAH has designated a post office box for receipt of mail, mail placed in that box during normal business hours should count as having been “received” by OAH on that day. We would also note, in this regard, that we are unaware of any notification by OAH to the practicing bar or other interested parties that mail sent to the post office box address will not be processed until the day after it arrives there. Still, our concerns about this issue not withstanding, we agree with the judge’s decision on timeliness here.
It is true, as Larry’s Autos maintains, that the notice of appeal might have been placed in the post office box that Friday, July 16, 2010. However, all that can be established with certainty is, as the compensation judge concluded, that the notice was placed in the box sometime after 7:30 a.m. that Friday and before 7:30 a.m. the following Monday. Moreover, even though placement of mail in the OAH post office box constitutes receipt of that mail “at” or by OAH, there must be at least some evidence to establish, in this case, that the notice was placed in the box prior to the end of the business day, 4:30 p.m., that Friday. Larry’s Autos introduced no evidence about practice or procedure by post office staff, meaning that, not only is there no evidence indicating with certainty that the notice of appeal was placed in the OAH post office box on or before the 30th day of the appeal period, there is no evidence whatsoever to indicate just when, in the course of a day - - or night - - incoming mail might be placed in the box.
Larry’s Autos asks this court to remand the matter to the compensation judge for a specific determination as to whether it was more likely than not that the notice of appeal was placed in the post office box on July 16, 2010. However, given the lack of evidence regarding postal processes, we conclude that the record best supports the conclusion that Larry’s Autos failed to meet its burden of proving timely filing. We therefore affirm the judge’s decision, and we dismiss the appeal of Larry’s Autos and its insurer, in the main action, file-stamped July 19, 2010, for lack of jurisdiction. See, e.g., Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 39 W.C.D. 430 (Minn. 1987) (the service and filing requirements of the statute are jurisdictional).
 Given our decision as to the lack of proof, we need not discuss the issue of whether or not OAH staff had access to the contents of the box during the work day following pick up by the courier service.