This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Kimberly M. Westervelt,


Paper Magic Group, Inc.,

Commissioner of Economic Security,



Filed January 8, 2002


Crippen, Judge


Department of Economic Security

File No. 230601



Kimberly M. Westervelt, 2211 Polk Street N.E., Apartment Four, Minneapolis, MN 55418-3358 (pro se relator)


Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N




            Relator disputes the commissioner’s conclusion that her appeal from a department decision disqualifying her from benefits was not made within 30 days.  Because the commissioner properly analyzed relator’s case under the rules governing the time for appeals, we affirm.



            Respondent Paper Magic Group fired relator Kimberly Westervelt after one-half day of work followed by three days of unexcused absence.  On January 16, 2001, the Department of Economic Security mailed a disqualification determination letter to relator’s last known address.  On February 22, relator filed a late appeal with the department.

On June 15, 2001, the commissioner’s representative affirmed the law judge’s dismissal of relator’s late appeal, finding that (1) the department mailed to relator’s last known address a disqualification determination on January 16; (2) relator never received it; (3) relator moved on January 5 and promptly filed a change-of-address form at the post office but did not tell the department until February 20; and (4) relator faxed a medical statement to the department on February 16 and filed an appeal on February 22, more than 30 days after the disqualification determination was mailed.



            Decisions of the commissioner’s representative are accorded particular deference, and our scope of review is very narrow.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and will not be disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

            A disqualification determination shall be final unless the applicant files an appeal within 30 calendar days after the determination was mailed.  Minn. Stat. § 268.101, subd. 2(f) (2000).  The time limit for filing an appeal is “absolute and unambiguous.”  Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976).  The time limit begins running on the date the determination is mailed to the applicant’s last known address and expires at the time provided by statute, regardless of whether the applicant actually receives the determination.  Smith v. Masterson Pers., Inc., 483 N.W.2d 111, 112 (Minn. App. 1992).  The time limit for appeal should be strictly construed, regardless of mitigating circumstances, and an untimely appeal must be dismissed for lack of jurisdiction.  King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).

            Relator primarily argues that changing her address at the post office was adequate and that she “took every action a reasonably prudent person would take.”  The court in Smith squarely addressed relator’s argument.  483 N.W.2d at 112.  Relator Smith argued that the commissioner erred by failing to consider the delay in his receipt of the determination caused by the United States Postal Service when forwarding his mail.  Id.  In Smith, the court pointed out that the 15-day appeal period prescribed in Minn. Stat. §268.10, subd. 2(3) (1990),[1] was unambiguous and without exceptions or extensions.  Id.  The court explained that (1) the department properly mailed the determination to Smith’s last known address; (2) receipt of the mailing was not determinative for purposes of the statute; and (3) the date of mailing begins the time for appeal.  Id.  Thus, merely filing a change-of-address form at the post office will not insure delivery of a department notice and any forwarding delay will not toll the appeal period.  And when the department informed relator of an audit and requested a medical report, the statute put on relator the duty to tell the department her new address. 

Relator argues other errors.  She claims that the department never mailed her the disqualification determination on January 16, 2001.  There is ample evidence showing that the department mailed the letter to relator on that date.  While relator points out examples of department error,[2] this evidence fails to demonstrate clear error in the commissioner’s finding that the mailing occurred on January 16.

Relator also claims that her medical statement, faxed to the department on February 15, contained a cover page indicating her new address.  Thus, relator argues, the department should have known her new address before the 30-day appeal deadline.  But the department had no notice that relator had not received the disqualification letter or intended to appeal, and the department had no duty to change its records or to send a new disqualification letter. 

Further, relator claims that she filed her appeal on February 15, not February 22.  She urges that the fax cover page, stating “Medical Questionnaire for Appeal,” constitutes an intent to appeal, and thus she appealed her disqualification on February 15.  But we are not convinced that relator’s fax cover page constitutes a valid notice of appeal.   

            Finally, relator argues that the commissioner’s disqualification and appeal procedures violated her due-process right to notice.  Relator did not raise this issue with either the law judge or the commissioner’s representative.  And neither the law judge nor the commissioner’s representative reached the merits of relator’s appeal, because both found that they lacked jurisdiction due to the late appeal.  Because this court will not consider matters not argued or considered in the court below, we will not address the merits of appellant’s due-process claims.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); Minn. R. Civ. App. P. 103.04. 

The commissioner argues that certain documents relied on by relator are not part of the record and thus not properly before the court.  We find no merit in this contention because those documents were part of the “papers filed in the trial court, the exhibits, and the transcript of the proceedings” and are thus part of the record on appeal.  Minn. R. Civ. App. P. 110.01. 



[1] Repealed and recodified as Minn. Stat. § 268.101, subd. 2(f) (2000).

[2] On March 7, 2001, the department sent relator a determination of overpayment, separate from the determination of disqualification, which stated that the department erroneously failed to send relator the overpayment determination on January 16, 2001.  And the department’s “Certificate of Mailing/Mailing Procedure” form associated with relator’s claim states that the department mailed relator the disqualification notice on “1/16/00” instead of “1/16/01.”