TIMOTHY J. DEMARAIS Employee/Appellant, v. UNITED PARCEL SERVS., INC., and LIBERTY MUT. INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 3, 2013
PENALTIES - SUBSTANTIAL EVIDENCE. Substantial evidence, including credible witnesses’ testimony, supported the compensation judge’s determination that the employer and insurer did not unreasonably or vexatiously delay payment of benefits due under an Award on Stipulation, and were not liable for a penalty under Minn. Stat. § 176.225.
Determined by: Johnson, J., Wilson, J., and Stofferahn, J.
Compensation Judge: James F. Cannon
Attorneys: Thomas A. Atkinson, Atkinson Law Office, Vadnais Heights, MN, for the Appellant. John T. Thul, Cousineau McGuire, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that he is not entitled to a penalty for a late payment of benefits. We affirm.
Timothy J. DeMarais, the employee, sustained a personal injury on September 24, 2009, arising out of his employment with United Parcel Services, Inc., the employer. On that date, the employer was insured by Liberty Mutual Insurance Company, with claims administered by Gallagher Bassett Services, Inc.
In June 2011, the employee entered into a settlement with the employer and insurer that provided for certain payments, including a lump sum payment of $200,000 to the employee and $13,000 to Thomas A. Atkinson, his attorney. An Award on Stipulation filed by the Office of Administrative Hearings (OAH) on June 30, 2011, ordered that payment be made within 14 days of the filing of the award. The proof of service attached to the award states that on June 30, 2011, an employee of the OAH mailed a copy of the award to Timothy J. DeMarais, Thomas A. Atkinson, Gallagher Bassett Services, Inc., United Parcel Services, Inc., and John T. Thul, the employer and insurer’s attorney.
The employer and insurer did not make the payments ordered by the award by July 14, 2011, the date payment was due. On July 18, 2011, a person in Mr. Atkinson’s office sent an e-mail to Gallagher Bassett inquiring about the payments. On July 19, 2011, Mr. Thul received from Mr. Atkinson’s office a copy of the award which he sent to the employer and insurer. The insurer then prepared and mailed settlement checks which were received by the employee and his attorney on July 21, 2011.
The employee filed a claim petition seeking penalties for a late payment of benefits. Following a hearing, the compensation judge found that the employer, the insurer, and the employer and insurer’s attorney did not receive the Award on Stipulation until July 19, 2011. The compensation judge found the employer and insurer did not unreasonably or vexatiously delay payment and did not neglect or refuse to pay compensation. Accordingly, the compensation judge concluded the employer and insurer were not liable for a penalty under Minn. Stat. § 176.225. The employee appeals.
The employee first argues that the compensation judge’s finding that the employer, the insurer, and their attorney did not receive the Award on Stipulation until July 19, 2011, is contrary to the evidence. Specifically, the employee points to the testimony of Catherine Quintero, a support staff supervisor at OAH, who testified that June 30, 2011, was the last day that the State of Minnesota operated prior to a government shut-down on July 1, 2011. Despite the fact that OAH staff were very busy that day, Ms. Quintero testified that it was not likely that an important document like an award was not mailed. The employee also cites his testimony and that of Mr. Atkinson that they each received the award on July 5, 2011, evidencing that it was, in fact, mailed by OAH. While there was testimony from the employer, the insurer’s claims supervisor, and Mr. Thul that they did not receive the award until July 19, 2011, the employee argues there was no direct testimony from the persons actually responsible for receiving and distributing the mail for any party. For these reasons, the employee contends the judge’s finding that the employer, the insurer, and their attorney did not receive the award until July 19, 2011, is unsupported by the evidence. We disagree.
When the Office of Administrative Hearings renders an award, Minn. Stat. § 176.281 requires that it be served upon every party in interest. According to the proof of service, all parties were served with a copy of the award on June 30, 2011. Minn. Stat. § 176.285 provides, in part:
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 that 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.
We can only conclude that the intent of Minn. Stat. § 176.285 is to allow a party additional time to comply with an order when an award is not received by the party. The issue then is whether the compensation judge’s finding that the employer, the insurer, and their attorney did not receive the award until July 19, 2011, is supported by substantial evidence.
Karen Lewis testified at the hearing that in July 2011, she was a workers’ compensation supervisor for Gallagher Bassett dedicated to the Minnesota United Parcel Services workers’ compensation account. Ms. Lewis testified about the specific procedures at Gallagher Bassett for receiving and routing mail, and stated that an Award on Stipulation, when received, would have been routed directly to her. Ms. Lewis testified that she did not receive a copy of the award from the Office of Administrative Hearings. She stated she first received the award from Mr. Thul on July 19, 2011. Matthew Sayfer, a supervisor in the United Parcel Services risk management department, testified that he handled the employee’s case for the employer. He stated he did not receive a copy of the award from the Office of Administrative Hearings. The address on the proof of service for the employer was a United Parcel Services store in Roseville, Minnesota, and was not the correct address for the employer. Randy Jessup, the owner of the Roseville United Parcel Services store, testified that he received a copy of the award in the mail. Upon receipt, he checked his records and determined he had no employee named Timothy DeMarais. Mr. Jessup then called Mr. Atkinson’s office and, following some discussion, Mr. Jessup was advised to discard the award, which he did. Mr. Thul testified that he first received a copy of the award from Mr. Atkinson on July 19, 2011.
The compensation judge found the testimony of Mr. Sayfer, Ms. Lewis, and Mr. Thul was credible. Assessment of a witness’s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1985). Based upon this testimony, the judge concluded that the employer, the insurer, and Mr. Thul did not receive a copy of the award until July 19, 2011. On appeal, this court’s function is to determine whether the findings and conclusions reached by the compensation judge “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). Because the compensation judge’s finding is supported by substantial evidence it must be affirmed.
The employee next contends that Ms. Lewis, Mr. Sayfer, and Mr. Thul all recognized that the employee’s case was significant in that it involved a large dollar settlement and each was aware of the impending state government shutdown on July 1, 2011. The employee argues that despite these facts, the employer and insurer neglected to take reasonable steps to ascertain whether an award had been filed. That the respondents were unaware the award was filed, the employee argues, was a result of their own negligence in failing to make reasonable inquiry about the status of the award. Accordingly, the employee asserts the employer and insurer neglected and unreasonably denied making payment under the award which justifies imposition of penalties under Minn. Stat. § 176.225. We are not persuaded.
The employee cites no authority for his contention that the employer, the insurer, or its counsel had an affirmative obligation to inquire about the status of the award. The obligation to make payment under an award is triggered by the filing of the award. However, neither the employer, the insurer, nor their counsel were served with the award as is statutorily required. Whether in some case the facts might warrant the imposition of a duty upon a party to inquire about the status of an award, we need not decide here. Essentially, the only fact supporting the employee’s argument is the length of time elapsed. Mr. Thul testified that he mailed the settlement documents to the Office of Administrative Hearings on June 28, 2011, and stated he was unaware whether the award had been filed and served prior to the government shutdown on July 1, 2011. On these facts, we find no basis to impose a duty of inquiry on the employer, the insurer, or its counsel. The compensation judge’s decision is affirmed.
 The Roseville United Parcel Services address was stated as the employer’s address in a claim petition signed by the employee in April 2010. A subsequent claim petition stated the correct address for the employer.