The employee filed a notice of appeal from an Order Dismissing Claim Petition.  The court concludes the employee failed to timely remit the filing fee and the appeal is dismissed.

Clarence Johnson, the appellant, performed work activities for A Touch of Class Painting, Inc., the employer, in late 2003.  In September 2005, the appellant filed a claim petition alleging he was an employee of the employer on October 15 and November 13, 2003, and that, on these dates, he sustained work-related injuries to both shoulders.  The appellant claimed entitlement to temporary total disability from October 16, 2003, through March 15, 2004, temporary partial benefits from March 16, 2004, to date, and rehabilitation assistance.  The employer denied the appellant’s claims and asserted the appellant was an independent contractor on the dates of the claimed injuries and that the injuries to his shoulders were temporary.

In August 2006, the parties entered into a settlement in which the employer and insurer agreed to pay to the appellant the sum of $6,000.00 in exchange for a full and complete settlement of any and all claims, including medical expenses, arising out of the personal injuries of October 15 and November 13, 2003.  An Award on Stipulation was filed on September 19, 2006.

On October 17, 2007, the appellant filed a petition to vacate the September 2006 Award on Stipulation on the grounds of mistake and newly discovered evidence.  Thereafter, the appellant filed an amendment to the petition to vacate, adding fraud and a substantial change in condition as bases for his petition.  In March 2008, a panel of this court denied the employee’s petition to vacate.  Johnson v. A Touch of Class Painting, Inc., No. WC08-113 (W.C.C.A Mar. 31, 2008).

On May 6, 2009, the appellant filed an amended claim petition alleging that he sustained a personal injury on October 6, 2003, arising out of and in the course of his employment with the employer.  The appellant claimed entitlement to temporary total disability benefits from November 13, 2003, through September 27, 2004, permanent partial disability of both shoulders, and rehabilitation benefits.  On June 1, 2009, the employer and insurer filed a Motion to Dismiss the claim petition.  Following a review of the employer’s Motion to Dismiss and certain imaged records, a compensation judge at the Office of Administrative Hearings issued an Order Dismissing Claim Petition on July 10, 2009.

On July 15, 2009, the appellant filed a notice of appeal to the Workers’ Compensation Court of Appeals from the compensation judge’s Order Dismissing Claim Petition.  By letter dated August 3, 2009, Ms. LeeAnn Shymanski, the Assistant to Chief Judge/Scheduling Supervisor at the Minnesota Office of Administrative Hearings, acknowledged receipt of the employee’s Notice of Appeal.  Ms. Shymanski’s letter also stated the appellant’s Notice of Appeal did not include the $25.00 filing fee required by Minn. Stat. § 176.421, subd. 4.  By letter dated August 4, 2009, the appellant replied to Ms. Shymanski’s letter as follows:

On August 7, 2009, the official record was certified to the Workers’ Compensation Court of Appeals.  By letter dated August 14, 2009, Mark A. Wagner, counsel for the employer and insurer, wrote the court seeking a dismissal of the employee’s appeal asserting it was not perfected under the statute because the appellant failed to pay the $25.00 filing fee.  The appellant did not respond to the motion.

Minn. Stat. § 176.421, subd. 4, provides, in part, that “[w]ithin the 30-day period for taking an appeal, the appellant shall: . . . (3) in order to defray the costs of the preparation of the record of the proceedings appealed from, pay to the commissioner of finance, Office of Administrative Hearings account the sum of $25.00.”

There is no dispute the appellant failed to pay the $25.00 fee within the 30-day period for taking an appeal.  The employee did, however, send a letter to Ms. Shymanski at the Office of Administrative Hearings stating he could not afford to pay the $25.00 fee and requesting to have the fee waived.  No judge from the Office of Administrative Hearings ruled on the employee’s motion.

Whether a judge at the Office of Administrative Hearings has statutory authority to waive the $25.00 fee is a question of first impression.  Minn. Stat. § 176.421, subd. 4, provides that upon “a showing of cause, the chief administrative law judge may direct that a transcript be prepared without expense to the party requesting its preparation in which case the cost of the transcript shall be paid by the Office of Administrative Hearings.”  The statute does not specifically state that the chief administrative law judge may waive the $25.00 fee.

Minn. Stat. § 176.421, subd. 4, further provides:

The appellant failed to pay the $25.00 fee to the commissioner of finance within the 30-day period for taking an appeal.  The $25.00 filing fee must be paid within the 30-day appeal period in order perfect an appeal.  Ferguson v. Ford Motor Co., 61 W.C.D. 54 (W.C.C.A. 2001) (and cases cited therein).  The service and filing requirements for a notice of appeal are jurisdictional.  Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 39 W.C.D. 430 (Minn. 1997); Kerns v. Julette Originals Dress Co., 267 Minn. 278, 126 N.W.2d 266, 23 W.C.D. 127 (1964).  Where subject matter jurisdiction is lacking, this court cannot reach the merits of the case.  Hammesch v. Molitor, 328 N.W.2d 455, 35 W.C.D. 541 (Minn. 1983).

The appellant failed to timely remit the filing fee.  Accordingly, this court lacks jurisdiction to consider the merits of the appeal.  The appellant’s appeal is, therefore, dismissed.