CHRISTOPHER A. EDEOGU, Employee/Petitioner-Appellant, v. BAUERLY BROS., INC., SELF-INSURED, adm=d by BERKLEY RISK ADM=RS, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 30, 2005

 

No. WC05-202

 

HEADNOTES

 

APPEALS - NOTICE OF APPEAL.  The employee=s appeal must be dismissed where not filed within the 30-day statutory limit for perfecting an appeal.

 

VACATION OF AWARD; JURISDICTION - SUBJECT MATTER.  Pursuant to Minn. Stat. ' 176.461 and DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 30 W.C.D. 109 (Minn. 1977), the Workers= Compensation Court of Appeals lacks authority to vacate or set aside the October 1999 order dismissing the employee=s claim petition.

 

Appeal dismissed; petition for relief denied.

 

Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge: James F. Cannon

 

Attorneys: Christopher Edeogu, St. Cloud, MN, pro se Employee.  Louis R. Tilton and Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist,  Minneapolis, MN, for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The pro se employee filed an appeal and petition for relief from the order of October 26, 1999, dismissing the employee=s claim petition.  This court lacks jurisdiction to consider either the employee=s appeal or his petition for relief from the order of dismissal, and the employee=s request for relief is denied.

 

BACKGROUND

 

On January 28, 1999, Christopher A. Edeogu, the employee, filed a claim petition alleging he sustained work-related injuries on July 19, 1996, and in July 1997, while working as a laborer for Bauerly Brothers, Inc., the self-insured employer.  The employee was represented by attorney Carl J. Sommerer.  The employer and its claims administrator, Berkley Risk Administrators, filed an answer denying primary liability and affirmatively alleging untimely notice.

 

A settlement conference was set for June 11, 1999.  This conference was rescheduled to permit the employer to obtain an independent medical examination (IME) of the employee.  The IME was scheduled for July 14, 1999.  The employee failed to attend the IME.  Notice of a second settlement conference, scheduled for August 25, 1999, was mailed to the employee and his attorney on June 18, 1999.  The employee left for Topeka, Kansas, on about August 10, 1999, to attend law school orientation.  He did not return to Minnesota for the settlement conference, although counsel for the employee did make an appearance.

 

On August 31, 1999, the employee=s attorney mailed a letter to the Department of Labor and Industry withdrawing as the employee=s attorney.  A copy of the letter was served on all parties, including the employee.  On September 13, 1999, the self-insured employer served and filed a motion to dismiss for failure to attend the IME and failure to attend the settlement conference.  On October 26, 1999, Compensation Judge James F. Cannon issued an Order Dismissing Claim Petition, without prejudice.  The order was served on the employee at his last known address in St. Cloud, Minnesota.  The employee acknowledges he received a copy of the judge=s order dismissing his claim petition in October 1999.  (Employee=s brief, pp. 13, 23.)

 

On January 18, 2005, the employee filed, at the Office of Administrative Hearings, a Motion to Reopen his workers= compensation claim.  Compensation Judge Cannon, on February 16, 2005, filed an order denying the motion to reopen.  On March 21, 2005, the employee filed with this court an application for extension of time to file an appeal of the compensation judge=s order of February 16, 2005.  By order served and filed April 4, 2005, the court denied the employee=s request as untimely.^[1]

 

The employee then filed with this court, on June 3, 2005, a notice of appeal from the October 26, 1999, dismissal order of Compensation Judge Cannon and a ARule 60.02 Independent Action for Relief from Dismissal.@

 

DECISION

 

1.  Appeal

 

Minn. Stat. ' 176.421, subd. 1, provides an appeal may be filed with the Workers= Compensation Court of Appeals within 30 days after service on the party of an order affecting the merits of the case.  The order of dismissal the employee seeks to appeal was served and filed on October 26, 1999.  The employee did not serve and file a notice of appeal until June 3, 2005.  The timely service and filing of a notice of appeal are jurisdictional requirements.  Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 728, 39 W.C.D. 430, 432 (Minn. 1987) (citing Kearns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964)).  If the appellant fails to serve and file a notice of appeal within the statutory time for perfecting an appeal, this court lacks subject matter jurisdiction to consider the merits of the appeal.  Hemmesch v. Molitor, 328 N.W.2d 445, 447, 35 W.C.D. 541, 544 (Minn. 1983).  The employee=s appeal must, therefore, be dismissed.

 

2.  Petition for Relief

 

The employee also filed a brief in support of a ARule 60.02 Independent Action for Relief from Dismissal of Employee=s Workers= Compensation Claim.@  The Workers= Compensation Court of Appeals is an executive branch court of limited jurisdiction.  Minn. Stat. ' 175A.01.  While the court may refer to the Rules of Civil Procedure as guidelines in certain cases,  this court can act only within the parameters of the authority granted under the Workers= Compensation Act.  See, e.g., Kline v. Berg Drywall, Inc., slip op. (W.C.C.A. Mar. 31, 2003).

 

This court=s authority to vacate or set aside a determination of a compensation judge is set forth in Minn. Stat. 176.461 and Minn. R. 9800.1100.  We consider the employee=s request for relief as a petition to vacate and set aside the order for dismissal.  While Minn. Stat. ' 176.461 allows for the vacation of an Aaward@ for cause at any time, the Supreme Court has held that Aan order for dismissal is not an ‘award’ within the meaning of Minn. Stat. ' 176.461.@  DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 506, 30 W.C.D. 109, 117 (Minn. 1977); Yang v. Caterair Int=l, slip. op. (W.C.C.A. Sept. 4, 1998); see also Becerra v. Pine Valley Meats, 54 W.C.D. 304 (W.C.C.A. 1996).  Although the employee contends the compensation judge, in issuing the order, failed to follow procedures set forth in the workers= compensation act and rules, DeMars is controlling, and the Workers= Compensation Court of Appeals has no authority to vacate the order for dismissal.  The employee=s petition for relief must, accordingly, be denied.^[2]

 

3.  Constitutional Claims and Equitable Remedies

 

The employee asserts entitlement to equitable remedies and a denial of due process and equal protection under the laws.  This court lacks jurisdiction to determine constitutional questions or fashion an equitable remedy outside the parameters of the Workers= Compensation Act.  Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999); Cooper v. Younkin, 339 N.W.2d 552, 554, 36 W.C.D. 277, 279 (Minn. 1983).  We take no position on the merits of the employee=s equitable and constitutional arguments.