SHARON SABA, Employee, v. INDEPENDENT SCH. DIST. #279, and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 28, 2006

 

No. WC06-126

 

HEADNOTES

 

PRACTICE & PROCEDURE - SERVICE.  Where a notice of hearing was sent by the Office of Administrative Hearings to the insurer at an incorrect address and the insurer did not receive the notice and failed to appear at the hearing, the Findings and Order of the compensation judge are vacated and the case remanded to the compensation judge for a hearing on the merits of the employee=s medical request.

 

Vacated and remanded.

 

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

Compensation Judge: Danny P. Kelly

 

Attorneys: Scott H. Soderberg, Soderberg & Vail, Minneapolis, MN, for the Respondent.  Susan K.H. Conley, Law Offices of Bakken & Robinson, St. Paul, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

Sharon Saba, the employee, sustained a personal injury on March 2, 2000, while working for Independent School District #279, then insured by Liberty Mutual Insurance Company.  The employer and insurer admitted liability for the employee=s personal injury and made payment of medical benefits.

 

On November 18, 2005, the employee filed a medical request asking approval of recommended surgery.  The medical request was properly served upon the employer by U.S. mail but was sent to the wrong address for the insurer.  Liberty Mutual did receive the medical request on or about December 13, 2005, and a medical response was filed by Amie Brandtjen, a claims manager for the insurer.  The correct address for Liberty Mutual Insurance Company was listed in the medical response.

 

The Office of Administrative Hearings mailed a notice of hearing on December 19, 2005, to the correct address of the employer but the incorrect address of the insurer.  The hearing was set for January 31, 2006, at 1:00 p.m.  By affidavit, Ms. Brandtjen stated Liberty Mutual did not receive the notice of hearing.

 

The hearing was held as scheduled on January 31, 2006, before Compensation Judge Kelly, attended by the employee and her attorney.  There was no appearance by the employer or insurer.  Ms. Brandtjen stated in her affidavit that she received a phone message from the Office of Administrative Hearings on the morning of January 31, 2006, stating a conference had been set for later in the week on the case, and asking if she had assigned an attorney to handle the matter.  Ms. Brandtjen stated she called the individual back stating she did not get a notice of the conference.  Later in the day, Ms. Brandtjen stated she received a second phone message from the Office of Administrative Hearings stating she had missed the hearing on the case.

 

In a Findings and Order, the compensation judge found the left foot surgery performed by Dr. Damrow  on October 20, 2005, was reasonable and necessary to cure or relieve the employee from the effects of the March 2, 2000, personal injury.  The employer and insurer appeal.

 

DECISION

 

Liberty Mutual Insurance Company contends the Office of Administrative Hearings failed to properly serve them with notice of the hearing.  Accordingly, the appellant contends the compensation judge=s decision should be vacated.

 

Minn. Stat. ' 176.341, subd. 3, provides that the Achief administrative law judge shall mail a notice of the time and place of hearing to each interested party.@  Minn. R. 1415.0700, subp. 1, states:

 

Service by state.  The division and the office must serve all notices, findings, orders, decision, or awards upon the parties by first class mail at their addresses of record or by personal service.

 

ABasic fairness requires that the parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.@  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988).  There is no evidence Liberty Mutual received reasonable notice of the hearing or was afforded an opportunity to be heard.  Under these particular circumstances, the employer and insurer are entitled to a new hearing.  The findings and order of the compensation judge are vacated and the case is remanded to the compensation judge for another hearing on the merits of the medical request.