MARLIN (MIKE) ROY, Employee, v. GAS SUPPLY, INC., and OLD REPUBLIC INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 29, 2000

 

HEADNOTES

 

JURISDICTION; STATUTES CONSTRUED - MINN. STAT. § 176.445.  Under Minn. Stat. ' 176.445, the Commissioner of the Department of Labor and Industry may only designate a compensation judge from the Office of Administrative Hearings to hold administrative conferences under Minn. Stat. ' 176.106 (medical requests).  A decision under Minn. Stat. ' 176.106 by a mediator/arbitrator designated by the Commissioner is void.

 

Vacated, reversed and remanded.        

 

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

Compensation Judge:  Catherine A. Dallner

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employer and insurer appeal from the compensation judge=s order dismissing a request for formal hearing.  We reverse the order and refer the matter to the Office of Administrative Hearings for a hearing.

 

BACKGROUND

 

The employee, Marlin (Mike) Roy, sustained an admitted low back injury in 1994.  On October 27, 1999, the employee filed a medical request with the Department of Labor and Industry, requesting payment for a TENS unit and epidural steroid injections.  The employer and insurer filed a medical response opposing the request on November 26, 1999.

 

A notice of administrative conference under Minn. Stat. ' 176.106 was mailed to the parties, and a conference was held on January 20, 2000.  At the conference, the employee, his wife,  his attorney and the attorney for the employer and insurer met with a mediator/arbitrator employed by the Department of Labor and Industry and designated by the Commissioner to hold the conference.  As a result of the discussions held at the conference, the mediator/arbitrator issued his Decision and Order Pursuant to Minn. Stat. ' 176.106 on February 8, 2000.  In the decision the mediator/arbitrator found that the Aepidural steroid injections and the TENS unit recommended on 8/13/99, by Thomas V. Rieser, M.D. are reasonably required to cure and relieve the effects of the Employee=s 11/16/94, back injury.@  He ordered the insurer to pay for the costs of the injections and the TENS unit and to reimburse the employee for his expenses, with interest.  The decision also indicated that, AAny party aggrieved by this decision may request a commissioner review under Minn. Stat. '176.106, subd. 7, in writing.@  The mediator stated that, AThe  written request must be received at the Workers= Compensation Division within 30 days of the date this decision is served and filed.@  The decision was signed on behalf of the Workers= Compensation Division by AMark McCrea, Mediator/Arbitrator for Gretchen B. Maglich, Commissioner, Department of Labor and Industry.@^[1]  By letter dated March 8, 2000, the employer and insurer=s attorney mailed a request for formal hearing to the Minnesota Department of Labor and Industry, with copies to the employee, employee=s counsel, the insurer and the employer.  The official copy of the request for formal hearing contained on the judgment roll bears a received date stamp of March 10, 2000.  The secretary for the employer and insurer=s attorney, Brook Harrison, by affidavit dated May 25, 2000, states that on March 8, 2000, she

 

prepared and mailed to all parties and counsel of record true and correct copies of the Employer and Insurer=s Request for Formal Hearing pursuant to Minn. Stat. '176.106, subd. 7 (1992) with exhibits attached and a proof of service by mail; further, that on March 8, 2000, she forwarded to the Minnesota Department of Labor and Industry the original of said Request for Formal Hearing and together with the original proof of service and a letter of transmittal dated March 8, 2000 and signed by attorney Michael I. Cohen, via UPS Next Day Air letterpack for guaranteed next-day delivery . . . .

 

(Emphasis in original.)  She further stated that,

 

On May 22, 2000, at Attorney Cohen=s request, she called UPS Customer Service and asked for verification of the date and time of delivery of said UPS Next Day Air letterpack; she was informed that UPS records showed that on March 9, 2000 at 9:17 AM, UPS delivered the Next Day Air letterpack bearing Tracking Number NO64 1304 55 0 containing the said original Request for Formal Hearing and Proof of Service to the Minnesota Department of Labor and Industry, 443 Lafayette Rd. N., St. Paul, MN 55101, and further that the UPS delivery person obtained a signed receipt therefor as proof of said delivery . . . .

 

Ms. Harrison attached to her affidavit a copy of the receipt from UPS concerning the request for hearing, which indicates that the package was delivered to the Department of Labor and Industry at 9:17 a.m., on March 9, 2000.  The signature on the delivery notification response appears to be ADOCK.@  (Harrison Affidavit Ex. B.)

 

On May 18, 2000, Compensation Judge Catherine A. Dallner issued an Order Dismissing Request for Formal Hearing on the basis that Athe Request for Formal Hearing was received on March 10, 2000 by the Department of Labor and Industry,@ which was Agreater than 30 days from the date of the Decision and Order and is untimely.@  In her memorandum, the compensation judge based her decision on this court=s decision in Pawlenty v. Cub Foods, slip op. (W.C.C.A. June 4, 1991).  The employer and insurer appeal from the judge=s order dismissing their request for a formal hearing at the Office of Administrative Hearings.

 

STANDARD OF REVIEW

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

At oral argument of this matter, which was attended only by counsel for the employer and insurer, several issues attacking the dismissal were raised:  (1) whether the original decision by Mediator/Arbitrator McCrea was void because he did not have jurisdiction to issue a decision on behalf of the Commissioner of the Department of Labor and Industry, and (2) whether the employer and insurer=s request for formal hearing was filed with the Department of Labor and Industry on the 30th day after the issuance of the mediator/arbitrator=s decision.  It is unnecessary to resolve the question of whether the request was filed in a timely fashion because we find that the original order by the mediator/arbitrator was void.

 

Pursuant to Minn. Stat. ' 176.445, the Commissioner of the Department of Labor and Industry may delegate authority to make determinations under Minn. Stat. ' 176.106 to compensation judges only.  Minn. Stat. ' 176.445 provides, in part:

 

Notwithstanding section 176.011, subdivision 27, any provision in chapter 176 setting out general power of the commissioner, or any other law to the contrary:

* * *

(2) The commissioner may delegate authority only to compensation judges to make determinations under the procedure in sections 176.106, 176.238, and 176.239 and to approve settlements of claims under section 176.521.  A compensation judge must preside at all workers= compensation settlement conferences conducted at the department.

 

A compensation judge is defined in Minn. Stat. ' 176.011, subd. 7a, as either (1) Aa workers= compensation judge at the office of administrative hearings@ or  (2) Aa compensation judge at the department of labor and industry.@  With respect to compensation judges at the Department of Labor and Industry, subdivision 7(a) states that they

 

may conduct settlement conferences, issue summary decisions, approve settlements and issue awards thereon, determine petitions for attorney fees and costs, and make other determinations, decisions, orders, and awards as may be delegated to them by the commissioner.  Compensation judges must be learned in the law.

 

In 1998, the legislature enacted legislation which transferred all compensation judges at the Department of Labor and Industry to the Office of Administrative Hearings, along with all their duties and responsibilities.  Act of Apr. 2, 1998, ch. 366, ' 80, 81, 1998 Minn. Laws 622, 662-63; see our discussion in Stillson v. Holiday Co. slip op. (W.C.C.A. Aug. 11, 2000).  The effect of Minn. Stat. ' 176.445 (2) and the transfer of positions and duties is that the Commissioner can only designate one of the compensation judges at OAH to hold conferences under Minn. Stat. ' 176.106.  The Commissioner=s designation of a mediator/arbitrator exceeded the authority granted under Minn. Stat. ' 176.445.  The mediator/arbitrator did not have jurisdiction to conduct the January 2, 2000 administrative conference or issue the February 8, 2000 determination.  As a result, the mediator/arbitrator=s decision of February 8, 2000, is void as a matter of law and is hereby vacated.

 

In the interests of permitting the parties to resolve this matter as efficiently as possible, we refer the dispute as contained in the employer and insurer=s request for formal hearing filed in early March 2000 to the Office of Administrative Hearings for a hearing de novo on the issues raised therein.