JEFFREY A. LARSON, Employee/Appellant, v. VIKING AUTOMATIC SPRINKLER CO. and TRAVELERS GROUP, Employer-Insurer, and ATREX, INC., and AMERICAN COMPENSATION INS. CO./RTW Group, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 9, 2012
APPEALS - NOTICE OF APPEAL; JURISDICTION - SUBJECT MATTER. The pro se employee’s document, acknowledged as an appeal of the compensation judge’s orders for dismissal, is dismissed as untimely filed under Minn. Stat. § 176.421, since it was filed more than 30 days from the orders and no request for an extension of time for filing an appeal was made within that interval. The compensation judge’s later order for dismissal was not properly appealed and this court does not have jurisdiction to review the order on appeal.
Determined by: Milun, C.J., Johnson, J. and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Jeffrey A. Larson, pro se Appellant. Jay T. Hartman and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for Respondents Viking/Travelers. Thomas J. Peterson, McCollum, Crowley, Moschet, Miller & Laak, Bloomington, MN, for Respondents Atrex/RTW.
PATRICIA J. MILUN, Judge
The employee appeals the compensation judge’s orders for dismissal. The employers and insurers move for dismissal of the appeal. We conclude that the employee failed to timely file the notice of appeal for the two orders for dismissal served and filed September 14, 2011, and also conclude that the order served and filed November 9, 2011, was not appealed and therefore this court has no jurisdiction to review that order. The motions to dismiss are granted and the employee’s appeal is dismissed.
On May 3, 1996, Jeffrey A. Larson, the employee, sustained a temporary injury while working for Viking Automatic Sprinkler Company, which was insured for workers’ compensation liability by St. Paul Fire & Marine Insurance Company, now known as Travelers Group (hereinafter Viking and Travelers). On March 13 and March 29, 1997, the employee also sustained work-related injuries to his neck and right shoulder while working for Atrex, Inc., which was insured for workers’ compensation liability by American Compensation Insurance Company, with claims administered by RTW, Inc. (hereinafter Atrex and RTW).
The employee settled with both employers and insurers, including retraining and rehabilitation benefits and except for certain medical expenses, for claims through February 3, 1998. An award on stipulation was served and filed June 3, 1998. In January 2000, the employee filed another claim against both employers and insurers, including claims for temporary partial disability benefits, retraining and rehabilitation benefits. Viking and Travelers were dismissed by order of a compensation judge on October 3, 2000. The employee did not appeal that order for dismissal. Atrex and RTW settled this claim including wage loss, retraining and rehabilitation on a full, final, and complete basis leaving open certain medical expenses. An award on stipulation was served and filed December 7, 2000.
On April 14, 2011, the employee filed a rehabilitation request seeking vocational rehabilitation services against both employers and insurers. An administrative conference was held at the Department of Labor and Industry on May 26, 2011. The employee’s request was denied in a decision and order by a Commissioner’s designee and was served and filed May 27, 2011. The employee filed a request for formal hearing with the Office of Administrative Hearings (hereinafter OAH) on June 22, 2011. OAH scheduled a settlement conference for September 1, 2011, before a compensation judge. Prior to the settlement conference, the employers and insurers filed motions to dismiss the employee’s claims against them. The issues raised in the motion to dismiss were addressed by the compensation judge at the settlement conference. The judge allowed the employee until September 12, 2011, to file a response to the motions seeking dismissal. The employee submitted a response and the judge subsequently dismissed the claims under two separate orders for dismissal. The compensation judge dismissed the employee’s claims against Atrex and RTW with prejudice on the basis that the employee’s claim was closed out by the terms of the 2000 settlement. The compensation judge dismissed the claim against Viking and Travelers without prejudice based on lack of evidentiary support for the claim. Both orders for dismissal were served and filed on September 14, 2011.
On November 4, 2011, OAH received an eleven page document from the employee that was considered a pleading by the compensation judge. The document did not reflect service upon any party. In a subsequent order for dismissal served and filed November 9, 2011, the compensation judge indicated that the employee had filed an eleven page document at OAH on November 4, 2011, and found that the document did not set out a cause of action upon which relief could be granted. The judge therefore dismissed the pleading. On December 16, 2011, OAH received another document from the employee referring to his November 4 document as an appeal and questioning the propriety of the November 9, 2011, order for dismissal. On January 6, 2012, OAH responded to the December 16, 2011, document and acknowledged the November 4, 2011, document as a notice of appeal on the compensation judge’s September 14, 2011, orders for dismissal. This matter was then certified to the Workers’ Compensation Court of Appeals. Respondents Viking and Travelers filed a motion to dismiss the employee’s appeal on January 30, 2012. Respondents Atrex and RTW filed a motion to dismiss the appeal on February 3, 2012.
The pro se employee claims that the compensation judge erred by dismissing his claims. The employers and insurers, in motions filed to dismiss the appeal, argue that the appeal does not meet the statutory requirements. The employers and insurers maintain that if the motions are granted, this court cannot consider the substantive issues raised by the employee’s appeal. We agree. For that reason, we first address whether the employee properly appealed the compensation judge’s orders for dismissal.
September 14, 2011, Orders
The employee disputes the compensation judge’s order for dismissal without prejudice of Viking and Travelers served and filed September 14, 2011, and the judge’s order for dismissal with prejudice of Atrex and RTW served and filed September 14, 2011. The respondents contend there are procedural deficiencies in the employee’s appeal which prevent this court from reaching the merits of the appeal. They argue that the employee’s appeal was not timely filed with OAH within the appeal period and that the employee did not meet the procedural requirements that govern the filing of an appeal since he did not serve the document on respondents Atrex and RTW or their attorney or on the attorney for Viking and Travelers. The respondents also maintain that if the employee’s appeal is not dismissed on procedural grounds and is considered on the merits, then the compensation judge’s orders must be affirmed in its entirety.
Minn. Stat. 176.421, subd. 1, provides, in part, that
within 30 days after a party in interest has been served with . . . [an] order affecting the merits of the case, the party may appeal to the Workers’ Compensation Court of Appeals on any of the following grounds:
(1) the order does not conform with this chapter; or
(2) the compensation judge committed an error of law; or
(3) the findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted; or
(4) the findings of fact and order were procured by fraud, or coercion, or other improper conduct of a party in interest.
No appeal from an order shall be received or considered at the Workers’ Compensation Court of Appeals unless a written notice of appeal is served and filed within 30 days after the service and filing of the order. The court may, however, grant an extension of time to file an appeal if cause is shown within the 30 day period.
Both the order for dismissal without prejudice and the order for dismissal with prejudice were dated September 13, 2011, and served and filed September 14, 2011. By law, the notice of appeal for either order was due at OAH on or before October 14, 2011. The employee’s correspondence that was acknowledged as the notice of appeal by OAH was not filed with OAH until November 4, 2011, and the employee did not make a request for an extension within the 30 day period. The statutory service and filing requirements for appeals to the Workers’ Compensation Court of Appeals are jurisdictional. An extension may be requested but only within that 30 day interval. The Workers’ Compensation Court of Appeals does not have discretion outside that 30 day interval to extend the time for filing an appeal. Having examined the documents and materials closely, we find no legal basis to deviate from the jurisdictional and statutory requirements. We conclude that the employee’s appeal from the orders for dismissal served and filed September 14, 2011, was not timely filed. Since the Workers’ Compensation Court of Appeals lacks jurisdiction to hear this appeal, the issues set forth in the notice of appeal are not properly before us.
November 9, 2011, Order
Before the employee’s November 4, 2011, document was acknowledged as an appeal, the document was considered by the compensation judge as a claim for benefits. The compensation judge accepted the document as a pleading and found the request by the employee, “to ‘see what the Plaintiff would qualify for with a 11% permanent partial disability on file’ . . . [did not] set out a cause of action upon which relief can be granted.” The judge dismissed the pleading by order for dismissal served and filed November 9, 2011. On December 16, 2011, the employee filed a three page document questioning the compensation judge’s November 9, 2011, dismissal. However, there is no acknowledgement of this document by OAH as an appeal of the order. Since the order is not properly before this court, we lack jurisdiction to review this order on appeal.
In conclusion, we have no jurisdiction to receive or consider the issues in this matter and we find no legal basis for allowing the appeal to be heard by this court. The respondents’ motions to dismiss are granted and the employee’s appeal is dismissed.
 Order for Dismissal with Prejudice of Compensation Judge Peggy A. Brenden, served and filed September 14, 2011.
 Order for Dismissal without Prejudice of Compensation Judge Peggy A. Brenden, served and filed September 14, 2011.
 Minn. Stat. § 176.421, subd. 4.
 Minn. Stat. § 176.421, subd. 2.
 See Zanmiller v. Montgomery Ward, 361 N.W.2d 59, 37 W.C.D. 391 (Minn. 1985) (citing Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964); Juutilainen v. Ben Sundland Co., 37 W.C.D. 374 (W.C.C.A. 1985), Glasgow v. Sheehy Constr. Co., 34 W.C.D. 615 (W.C.C.A. 1981), summarily aff’d (Minn. May 10, 1982).
 Order for Dismissal by Compensation Judge Peggy A. Brenden, served and filed Nov. 9, 2011.
 If the November 4, 2011, document had been acknowledged as an appeal on the date it was filed, the compensation judge would not have had jurisdiction for the November 9, 2011, order and we would have vacated the order on that basis. However, since the document was not acknowledged as an appeal until January 6, 2012, the compensation judge retained jurisdiction of the file until that time.
 We note that even if the December 16, 2011, document had been considered a notice of appeal and acknowledged as an appeal of the November 9, 2011, order, the appeal would have also been untimely filed, since it was received at OAH more than 30 days after the order was served and filed. See Minn. Stat. § 176.421, subd. 4.