FARIBA PARNIANI, Employee/Appellant, v. CARDINAL HEALTH 414, INC., and XL INS. CO./SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer, and INSTITUTE FOR ATHLETIC MED./FAIRVIEW, FRANK Y. WEI, M.D., TWIN CITIES ORTHOPEDICS, and THE MINNEAPOLIS CLINIC OF NEUROLOGY, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 14, 2009

No. WC09-4996

HEADNOTES

APPEALS - NOTICE OF APPEAL.  There is no statutory provision for waiver of the filing fee on appeal.  The $25.00 filing fee must be paid within the 30-day appeal period to perfect an appeal.  The employee failed to timely remit the filing fee and this court lacks jurisdiction to consider the merits of the appeal.

Appeal dismissed.

Determined by: Johnson, C.J., Stofferahn, J., and Rykken, J.
Compensation Judge: Gary P. Mesna

Attorneys: Fariba Parniani, Pro Se Employee.  Robin C. Merritt, Hanft Fride, Duluth, MN, for the Respondents.

 

OPINION

THOMAS L. JOHNSON, Judge

The employee filed a notice of appeal from a findings and order of a compensation judge.  The court concludes the employee failed to timely remit the filing fee and the appeal is dismissed.

BACKGROUND

Fariba Parniani, the employee, was employed on September 2, 2005 by Cardinal Health 414, Inc., the employer, then insured by XL Insurance Company with claims administered by Sedgwick Claims Management Services, Inc.  On that date, the employee claimed she sustained a personal injury.  The employer and insurer denied liability for the claimed personal injury.

The employee filed a claim petition seeking wage loss benefits, rehabilitation benefits, and payment of medical expenses.  Following a hearing, the compensation judge found the employee sustained a personal injury on September 2, 2005, involving the employee’s low back, upper back, right hand, and right arm.  The compensation judge found the personal injury was temporary in nature and fully resolved by May 31, 2006, and awarded a limited period of temporary total disability benefits and certain medical expenses.  The balance of the employee’s claims were denied.  The compensation judge’s findings and order was served and filed on August 14, 2009.

On September 10, 2009, the employee filed with the Office of Administrative Hearings a Notice of Appeal to the Workers’ Compensation Court of Appeals.  Attached to the Notice of Appeal was a letter from the employee which stated, in part:

A $25 filing fee is not included because I am indigent; ergo, my financial hardship affidavit (with attachments) petitioning for a waiver of any and all of my costs, fees, etc.

The employee also attached an Affidavit of Significant Financial Hardship.  By letter dated September 15, 2009, LeeAnn M. Shymanski, the assistant to the Chief Judge/Scheduling Supervisor, wrote the employee advising her that her Notice of Appeal was filed on September 10, 2009, along with her Affidavit of Financial Hardship.  Ms. Shymanski advised the employee that she did not include a $25.00 filing fee as required by Minn. Stat. § 176.421, subd. 4, and stated that the official record in the matter was certified to the Workers’ Compensation Court of Appeals on September 18, 2009.  By letter dated September 21, 2009, the employee wrote to Ms. Shymanski stating in part:

You advised me in your 15 September letter that the official record in this matter was certified to the Workers’ Compensation Court of Appeals on 18 September, 2009 and you made reference to an apparent need to include a $25 filing fee pursuant to the provisions of Minn. Stat. § 176.421 subdivision 4.  You were advised on my 8 September letter that a $25 filing fee was not included because I am indigent, as evidenced by my financial hardship affidavit (with attachments) petitioning for a waiver of any and all of my costs, fees, etc. (affidavit is re-attached FYI)
Minn. Stat. § 176.421 subdivision 4 further states (see yellow highlighted text in the attached statute) that upon a showing of cause, the chief administrative law judge may direct that a transcript be prepared without expenses to the party requesting its preparation, in which case the cost of the transcript shall be paid by the Office of Administrative Hearings.  The affidavit in support of a finding of significant financial hardship as filed at the inception of this case, and refiled at the time of this appeal, show that that there is not only cause but good cause for the chief administrative law judge to waive the costs of the transcript to which you have alluded in your 15 September letter.  May I therefore respectfully request that you direct this letter and evidence of my indigence to the administrative law judge so that this matter may go to appeal without costs to me as the aggrieved and indigent appellant?

DECISION

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 she 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 request.

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:

All fees received by the Office of Administrative Hearings for the preparation of the record for submission to the Workers’ Compensation Court of Appeals or for the cost of transcripts prepared by the office shall be deposited in the Office of Administrative Hearings account in the state treasury and shall be used solely for the purpose of keeping the record of hearings conducted under this chapter and the preparation of transcripts of those hearings.

The $25.00 fee is to defray the costs of the preparation of the record.  The cost for the preparation of the transcript is a separate charge payable to the person who prepares the  transcript.[1]  The statute does not define the phrase “the record of the proceedings appealed from.”  In workers’ compensation practice, however, the record of the proceedings may include exhibits, orders, findings, letters, motions and other documents in the file certified to the Workers’ Compensation Court of Appeals by the chief administrative law judge.  While the transcript may be considered a part of the record of the proceedings, the two are not synonymous.  We do not read Minn. Stat. § 176.421, subd. 4, as granting the chief administrative law judge the authority to waive the payment to the commissioner of finance of the $25.00 fee.  Had the legislature wished to grant the chief administrative law judge that authority, it could so provide in the statute.  We further note that the $25.00 filing fee may be taxed as a cost under Minn. Stat. § 176.511.

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.


[1] The Office of Administrative Hearings (OAH) no longer employs court reporters.  Most hearings at OAH are digitally recorded.  In the event of an appeal, OAH contracts with a third person or firm to transcribe the hearing from the digital tapes.  In certain cases, a private court reporter is hired by OAH to record the testimony and the court reporter will transcribe the proceeding in the event of an appeal.