DONALD FINLEY, Employee, v. TAYSTEE BAKING CO. and AMERICAN MUT. INS. CO./MINNESOTA INS. GUAR. ASSOC., Employer-Insurer/MIGA, and TAYSTEE BAKING CO. and AMERICAN POLICYHOLDERS INS. CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 7, 2004

 

HEADNOTES

 

APPEALS - NOTICE OF APPEAL; STATUTES CONSTRUED - MINN. STAT. ' 176.285.  Service by mail is not effective if the original mailing is incorrectly addressed.  Where service by mail was attempted, but the original mailing was addressed to the incorrect suite, was returned to the sender, and remailed three days after the time for an appeal had expired, this court lacks jurisdiction and has no authority to hear the appeal.

 

Motion to dismiss appeal granted.

 

Determined by Thomas L. Johnson, C.J.

Compensation Judge Gary M. Hall

 

Attorneys: Thomas D. Mottaz, Attorney at Law, Anoka, MN, for the Employee. Ted A. Johnson, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Employer-Insurer/MIGA.  Attorneys Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Employer-Insurer.

 

ORDER OF DISMISSAL

 

On March 3, 2004, a Findings and Order in this case was issued by a compensation judge at the Office of Administrative Hearings.

 

On March 31, 2004, the employer and American Mutual/Minnesota Insurance Guaranty Association (MIGA) filed at the Office of Administrative Hearings a Notice of Appeal to the Workers= Compensation Court of Appeals.  An Affidavit of Service by Mail indicated that service was made on all adverse parties by mail on March 30, 2004.

 

The notice of appeal served on counsel for the employer and insurer, American Policyholders Insurance Company (API), was misaddressed and returned to the sender.  American Mutual/MIGA placed the notice in a new envelope, properly addressed, and remailed the notice on April 5, 2004.

 

On April 14, 2004, the employer and API filed with this court a Motion to Dismiss Appeal of MIGA for failure to timely serve the notice of appeal on counsel for the employer and API.

 

Minn. Stat. ' 176.421, subd. 4, provides, A[w]ithin the  30-day period for taking an appeal, the appellant shall: (1) serve a copy of the notice of appeal on each adverse party[.]@  Proper and timely service of the notice of appeal is a jurisdictional requirement.

 

This court lacks jurisdiction to hear the appeal of the employer and American Mutual/MIGA.  It is, therefore, ORDERED that the appeal of American Mutual/MIGA is DISMISSED.

 

MEMORANDUM

 

THOMAS L. JOHNSON, Chief Judge

 

The pertinent facts are largely undisputed.  A Findings and Order was served and filed in this case on March 3, 2004.  A copy of the decision was received by counsel for MIGA on March 4, 2004.  A notice of appeal from MIGA was received and filed at the Office of Administrative Hearings on March 31, 2004, along with an Affidavit of Service by Mail indicating that service had been made on all adverse parties by mail on March 30, 2004.  In fact, the notice mailed to counsel for API was misaddressed, listing 150 South Fifth Street, ASte. 310" instead of ASte. 3100.@  The envelope containing the notice was returned to the office of counsel for MIGA.  The notice was placed in a new envelope and was remailed, correctly addressed, on April 5, 2004.

 

An appeal to this court must be taken Awithin 30 days after a  party . . . has been served with notice of an award or disallowance of compensation.@ Minn. Stat. ' 176.421, subd. 1.  Subdivision  4 provides, A[w]ithin the 30-day period for taking an appeal, the appellant shall: (1) serve a copy of the notice of appeal on each adverse party @ and (2) file the original notice, with proof of service, at the Office of Administrative Hearings.  Timely service and filing of the notice are jurisdictional and are an indispensable prerequisite to this court=s authority to hear an appeal.  Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964).

 

Service on an adverse party may be made by mail, and Ais effected at the time mailed if properly addressed and stamped.@  Minn. Stat. ' 176.285 (emphasis added).  The moving party, API, argues that, because the original mailing to counsel for API was incorrectly addressed, service of the notice of appeal on API was not effective until the second mailing on April 5, 2004, three days after the time for an appeal had expired.  In Minnesota, service by mail has long been held to be complete when papers are Aproperly@ mailed.  If a mailing contains even minor addressing defects, is returned to the sender and then remailed, service is not effective at the time of the initial mailing.  Town Board of Marshan v. City Council of the City of Hastings, 298 N.W.2d 353 (Minn. 1980); Wise v. Bix, 434 N.W.2d 502 (Ct. App. 1989).

 

MIGA contends the cases cited by API and the employee are distinguishable as they interpret the Minnesota Rules of Civil Appellate Procedure, and these rules are not applicable to procedures under chapter 176.  We disagree.  The civil appellate rules provide only that A[s]ervice by mail is complete on mailing.@  Minn.R.Civ.App.P. 125.03.  Case law has added a gloss requiring Aproper@ mailing.  The workers= compensation statute, on the other hand, explicitly adopts the requirement that a mailing must be Aproperly addressed@ to be effective service.

 

MIGA further argues that properly applied, Minn. Stat. ' 176.285 requires a remand and consideration of whether an allowance should be made for delayed receipt of the notice, rather than dismissal of the appeal.  The pertinent language in ' 176.285 provides:

 

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.

 

This section of ' 176.285 is intended to provide relief to a recipient of a notice or papers, properly addressed and stamped when mailed, but never received or received after an unusual or unreasonable delay in transit, resulting in the recipient=sfailure to timely assert a right.  See, e.g., Fuller v. Farmer=s Coop. Oil Ass=n, 322 N.W.2d 359, 35 W.C.D. 133 (Minn. 1982);^[1] Bradford v. U.S. Pipeline, Inc., 61 W.C.D. 394 (W.C.C.A. 2001); Anderson v. Apple Valley Medical Ctr. (W.C.C.A. Sept. 2., 1994); Hull v. Catco Co. (W.C.C.A. May 25, 1993).  This language does not excuse or absolve the party serving the notice from the requirement that it deposit a properly addressed notice in the mail on or before the 30-day period for an appeal has run.

 

MIGA additionally argues the cited cases can be distinguished on the facts, asserting there is a significant difference between a mailing sent to an incorrect street address and one mailed to the correct street address but with an incorrect suite number.  We are not persuaded.  The error made in addressing the original mailing to API resulted in the return of the papers to the sender.  Counsel for API did not receive the misdirected mail.  In a multi-office building or office complex, a suite number may be as significant as the street number.  The result is the same: delivery to, and service on, the intended recipient is impeded.

 

Finally, MIGA argues in the alternative that the 30-day period for service expired on April 5 rather than April 2, 2004, and was properly effected as of that date.  MIGA concedes that 30 days from the date of service of the Findings and Order is April 2, 2004, but argues that a 1995 amendment to '176.285, should be construed to allow an additional two calendar days when service is made by mail.  The amendment provides:

 

When the electronic filing of a legal document with the department marks the beginning of a prescribed time for another party to assert a right, . . . the prescribed time [to assert that right] shall be lengthened by two calendar days when it can be shown that service to the other party was by mail (emphasis added).

 

There is no claim that any document was filed with the department by electronic means in this case.  The additional two days to assert a right, by the other party served by mail, has no conceivable application in this case.

 

Although in construing a statute granting a right of appeal courts should seek to avoid a forfeiture of the right, the time limit for perfecting an appeal is mandatory and jurisdictional.  Kearns at 269, 23 W.C.D. at 129.  In the absence of timely, effective service of the notice of appeal, this court has no subject matter jurisdiction and lacks any authority to hear MIGA=s appeal.  Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.C.D. 541 (Minn. 1983).  Accordingly, the appeal of MIGA from the Findings and Order, served and filed March 3, 2004, is DISMISSED.