PENNY PORTER, Employee, v. MERCY MEDICAL CTR., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer/Appellant, and MEDICA CHOICE by HRI, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 14, 2000

 

HEADNOTES

 

APPEALS - NOTICE OF APPEAL; JURISDICTION - SUBJECT MATTER.  Where the employer=s notice of appeal was not timely filed within 30 days of the service and filing of the compensation judge=s findings and order, the Workers= Compensation Court of Appeals lacked subject matter jurisdiction over the appeal, despite the fact that the notice of appeal had apparently been mislaid by the post office, through no fault on the part of the employer.

 

Appeal dismissed.

 

Determined by Wilson, J., Rykken, J., and Wheeler, C.J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee moves to dismiss the appeal of the self-insured employer on grounds that it was not timely filed.  We grant the motion to dismiss.

 

BACKGROUND

 

The employee=s claim petition came on for hearing before a compensation judge at the Office of Administrative Hearings in October of 1999.  The judge served and filed his findings and order on December 13, 1999.  The attorney for the self-insured employer sent a notice of appeal to the Office of Administrative Hearings [OAH] for filing, via United States mail, on December 17, 1999.^[1]  That notice of appeal was not received by OAH until January 14, 2000, 32 days after service and filing of the findings and order.

 

On January 24, 2000, the employee filed a motion to dismiss the employer=s appeal,  contending it was untimely filed.  The employer filed a memorandum in opposition to the employee=s motion.

 

DECISION

 

Minn. Stat. '176.421, subd. 1, provides that a party may appeal from findings and order of a compensation judge to the Workers= Compensation Court of Appeals within 30 days of service of that findings and order.  Within the 30-day appeal period, Athe appellant shall :  . . . (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.@  Minn. Stat. '176.421, subd. 4.  Minn. Stat. '176.285 specifies that, A[w]here service is by mail, service is effected at the time mailed if properly addressed and stamped.@  However, pursuant to Minn. Stat. '176.275, Athe filing shall be completed by the receipt of the document at the division, department, office, or the court of appeals.@  (Emphasis added).  In the absence of timely filing, the Workers= Compensation Court of Appeals lacks jurisdiction over the appeal.  Bjerga v. Maislin Transp., 400 N.W.2d 99, 39 W.C.D. 309 (Minn. 1987); Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D.127 (1964); Bostrom v. Minnesota Fabrics, slip op. (W.C.C.A. Mar. 20, 1992).

 

The employer contends that its notice of appeal was mailed four days after service and filing of the findings and order but was Alost@ by the U.S. Postal Service for twenty-seven days.^[2]  Noting that, prior to being notified by OAH, it had no reason to believe that the notice of appeal was not delivered in a timely fashion, the employer alleges that A[j]ustice would not be served if the Employer/Insurer were barred from having their appeal considered under these unique circumstances.@

 

It is certainly regrettable that the employer=s notice of appeal was apparently misplaced at the post office, but the fact remains that the appeal was untimely.  Because we have no authority to create an exception to the jurisdictional statutory filing requirements, we are compelled to dismiss the employer=s appeal.