Planna Technology, Inc., through its sole owner, Susan Carol [“the petitioner,” corporate or personally], petitions to vacate the findings and order of Compensation Judge Bradley J. Behr served and filed June 12, 2006, on grounds that the petitioner was not served with notice of the hearing before Judge Behr or with the judge’s eventual findings and order.  We deny the petition.

This decision proceeds from our previous decision in this matter,^[1] in which we referred to the Office of Administrative Hearings several questions regarding the propriety of notice to the petitioner of the certain hearings and regarding service on the petitioner of the findings and order containing the award here at issue for vacation.  We are now in receipt of findings on the questions referred, and there has not been any appeal from those findings, as we clearly authorized in our previous decision, properly served on the petitioner at its acknowledged address of record.^[2]  Our decision here, therefore, incorporates these recent findings on referral into what is otherwise essentially a reiteration of the facts contained in our previous decision.

This matter arises from a dispute as to the employment status and the extent of the injury sustained by Sing Vang on January 21, 2005.  Mr. Vang alleges that he was employed by Planna Technology, Inc., as an assembler/machine operator when he sustained an injury to his right hand when he reached into a machine at the petitioner’s facility and was cut by a machine blade.  Mr. Vang thereafter obtained medical treatment in the emergency department at North Memorial Medical Center.  Four days later, surgery was performed by plastic surgeon Dr. Allen Van Beek.  The petitioner, which was not insured against workers’ compensation liability on January 21, 2005, evidently contended from the outset (1) that Mr. Vang was an independent contractor and not an employee, (2) that Mr. Vang was engaged in a prohibited act when he cut his finger, and (3) that the surgery performed by Dr. Van Beek was neither reasonable nor necessary.

On April 11, 2005, Mr. Vang’s attorney served on the petitioner a claim petition based on a work injury allegedly sustained on January 21, 2005, and that claim petition was filed with the Minnesota Department of Labor and Industry two days later.  The petitioner was served at 725 N. 2nd Avenue in Minneapolis, which was its address of record from April 11, 2005, through May 12, 2006.  In his claim petition, Mr. Vang named the petitioner as his employer and, because the petitioner was not insured at the time of his injury, he named also the Special Compensation Fund [the Fund] as a party to the claim as provided for by Minnesota Statutes section 176.183, subdivision 1.  Medical providers were subsequently provided with notice of their right to intervene in the proceeding, and the matter was evidently referred to the settlement division at the Office of Administrative Hearings [OAH] by June of 2005.  Susan Carol, sole owner of Planna Technology, Inc., evidently received the employee’s claim petition sometime before April 29, 2005.

On September 2, 2005, OAH served on the parties a Notice of Settlement Conference scheduled for November 16, 2005, relating to the employee's claim petition.  This Notice was served on the petitioner at the same address as that listed on the employee’s claim petition - - 725 North Second Avenue in Minneapolis - - and was received by Ms. Carol.  Ms. Carol subsequently called the employee’s attorney to reschedule the conference, and, at Ms. Carol’s request, the November 16, 2005, conference was cancelled.  A new Notice of Settlement Conference was served by an OAH employee on the petitioner on November 28, 2005, indicating that the conference had been rescheduled for January 18, 2006.  This notice, too, was served on the petitioner at 725 North Second Avenue in Minneapolis, and Ms. Carol received the notice and attended the January 18, 2006, Settlement Conference in person.  The parties were unable to reach a settlement, and two days later, on January 20, 2006, OAH served on the parties at their same addresses of record a Notice of Certification and Judge Assignment.  This was followed on February 9, 2006, by a Notice of Pretrial and Notice of Hearing on Claim Petition, indicating that a pretrial had been scheduled for April 10, 2006, and that the hearing had been scheduled for May 12, 2006.  This notice was again served on the petitioner at the address identified on the employee’s claim petition - - 725 North Second Avenue, still the petitioner’s address of record - - properly by mail by an employee of OAH.

The employee’s claim petition for benefits came on for hearing before Compensation Judge Bradley J. Behr on the date scheduled, May 12, 2006.  Mr. Vang was the only witness to appear at the hearing before Judge Behr and was represented by attorney Frances S.P. Li.  The Fund was represented by attorney Thaddeus Jude, and North Memorial Medical Center was represented by attorney Kris A. Wittwer.  There was no appearance on behalf of the petitioner or the other listed intervenors.  In findings and order issued June 12, 2006, Judge Behr found that Sing Vang was the petitioner’s employee on January 21, 2005, and was not an independent contractor.  He found also that the evidence failed to demonstrate that the employee was performing a prohibited act when he sustained his injury.  He awarded the benefits claimed by Mr. Vang as well as the reimbursement claimed by the intervenors.  The judge determined that the petitioner was liable for the workers’ compensation benefits awarded, but, because the petitioner was uninsured, the judge ordered that payments were to be made by the Fund.  He ordered further that the petitioner was to reimburse the Fund for all payments made to or on behalf of the employee and was to pay a penalty to the Fund in the amount of sixty-five percent of all benefits paid by the Fund to or on behalf of the employee.  For reasons that remain unclear, the petitioner was not served with a copy of Judge Behr’s findings and order, the proof of service accompanying that decision now listing the petitioner’s address as “undeliverable.”  It is evident, however, that Ms. Carol, on behalf of the petitioner, did come to possess, by means unknown, a copy of the judge’s findings and order no later than August 22, 2007, in light of the fact that she evidently consulted an attorney to seek a new hearing and Attorney Katherine Hipp Carlson filed a Notice of Withdrawal on that August 22, 2007, date.  During the period April 11, 2005, through June 12, 2006, the date of Judge’s Behr’s findings and order, the petitioner had not communicated any request for a change of address to the Fund, to the Workers’ Compensation Division at the Department of Labor and Industry [the Division], or to OAH, nor had she filed any documents with the Division or OAH.

Nearly two years later, on April 15, 2008, the petitioner filed with this court a petition to vacate the findings and order issued on June 12, 2006.  On April 21, 2008, this court advised the petitioner that, in order to initiate its petition to vacate, it must serve a copy of its petition also upon the employee and upon the Fund.  About five months later, on September 15, 2008, the petitioner resubmitted its petition to vacate to this court, along with an affidavit of service by mail upon the other parties.  By this time, the Fund had already filed a Response to the petition on May 27, 2008, and it filed it a second time on September 17, 2008.

The petitioner contended in its submissions that it was not served with notice of the May 2006 hearing on the employee’s claim petition before Judge Behr and that the judge erred, therefore, in proceeding with the hearing without the petitioner.  It contended also that Judge Behr’s subsequent findings and order were also never served on the petitioner, thus depriving it of an opportunity to appeal.  The petitioner contended further that the findings and order of the compensation judge were procured through various misrepresentations to the court by the Fund and its representatives and that those misrepresentations constituted “fraud” under Minnesota Statutes section 176.461, resulting in actual damages to the petitioner in the form of liability for worker’s compensation benefits, penalties, and costs.  The Fund objected to the petition to vacate, denied the allegations of fraud, and asserted that the judge's findings and order were appropriate given the evidence presented.  It asserted further that, if notice to the petitioner was deficient in this case, the cause was the petitioner’s failure to maintain the necessary contact with the court during the pendency of litigation.

On May 20, 2009, this court filed a decision denying the petitioner’s petition with regard to its fraud grounds, but we referred the matter to OAH for factual findings with regard to “all issues deemed relevant to the alleged service and nonreceipt of both the notice of hearing and the judge’s finding and order.”  We indicated that

Pretrial and hearing were scheduled on this referral for July 13, 2009, and July 28, 2009, respectively, and notice of those dates was properly served by an OAH employee by mail on Susan Carol and Planna Technology, Inc., on June 25, 2009, at 680 North 2nd Street, Suite 401, Minneapolis, MN  55401, which is, and has been since 1997, Ms. Carol’s home address.  This has also been the petitioner’s address of record in this matter since at least December 5, 2007, as evidenced in the letterhead addresses on all correspondence filed by Ms. Carol with OAH and this court beginning on that date, specifically correspondence contained in the judgment roll that is file-stamped December 5, 2007, and April 12, 2008.  Nor has the petitioner since that date ever advised the Fund, the Division, OAH, or this court that its address of record is anything other than that address.

A telephone pretrial in the matter was held on July 13, 2009, as scheduled, apparently before Compensation Judge Peggy A. Brenden.  Attorneys for both the employee and the Fund appeared at the conference, but despite efforts to include the petitioner in the conference, no appearance was made by or on behalf of the petitioner.  Hearing was held in the matter before Judge Brenden on July 28, 2009, as scheduled.  Attorney Jude appeared on behalf of the Fund; no one appeared on behalf of the employee or the uninsured employer/petitioner.  At the opening of the hearing, the judge made further effort to contact the petitioner, by telephone at three different numbers - - the number on the letterhead of the petitioner’s December 2007 letter in the judgment roll, a number provided by the Fund’s attorney, and a number on the letterhead of the petitioner’s April 2008 letter in the judgment roll identified as a “phone/fax” number.  The first two of these numbers were not operational, and the third did not ring but instead yielded only a constant busy signal.  The hearing evidently proceeded as scheduled, without the petitioner.  This court is now in receipt of Judge Brenden’s eventual findings and order, filed August 11, 2009, from which there has been no appeal.  Those unappealed findings have here been incorporated into our factual background above.

The petitioner contends that it was denied due process under the Minnesota and U.S. Constitutions when the hearing before Judge Behr was conducted without its knowledge and when Judge Behr’s decision was not served upon it in time to appeal.  This court lacks jurisdiction to determine constitutional questions, Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999), but basic fairness requires notice and reasonable opportunity to be heard before decisions as to benefit entitlement may be made.  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1990).  Minnesota Statutes section 176.341 provides that “the chief administrative law judge shall mail notice of the time and place of hearing to each interested party.”  Minn. Stat. § 176.341, subd. 3.  Minnesota Rules 1415.0700 provides that "[t]he division and the office must serve all notices, findings, orders, decisions, or awards upon the parties by first class mail at their addresses of record or by personal service."  Minn. R. 1415.0700, subp. 1.  Minnesota Statutes section 176.285 provides in part that, while it is presumed that proper service by mail reached the party to be served,

It is now our conclusion, after full and careful consideration of all materials submitted by the parties and all supplementary findings made by Judge Brenden upon our referral, that the Fund and the Minnesota Workers’ Compensation system in general have complied with the notice and service requirements of the Minnesota Statutes and Minnesota Rules.  To the extent that the petitioner may not have received exactly timely notice of the hearing before Judge Behr or exactly timely service of Judge Behr’s findings and order - - and we are not certain that it did not - - it was not the fault of any other element of the system but was instead more than likely the fault of the petitioner’s not keeping the Fund and other participating agents in its case properly advised of any changes, whether temporary or permanent, in the petitioner’s address.  Therefore, we deny the petitioner’s petition to vacate Judge Behr’s June 12, 2006, award to the employee on grounds that the petitioner was not served with proper notice of the May 12, 2006, hearing before the judge or with the judge’s subsequent findings and order.