APPEALS – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee had not shown that the required $25.00 filing fee was paid for his notice of appeal.
APPEALS – NOTICE OF APPEAL. The $25.00 filing fee for a notice of appeal must be paid within the statutory period under Minn. Stat. § 176.421, subd. 4, in order to perfect an appeal. Where the employee failed to timely remit the filing fee, this court lacks jurisdiction to consider the merits of the appeal.
Compensation Judge: Jeffrey W. Jacobs
Attorneys: Employee Appellant pro se. Nathaniel A. Dahl, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Respondents.
Affirmed.
Appeal dismissed.
DEBORAH K. SUNDQUIST, Judge
The pro se employee appeals the compensation judge’s finding that the employee had not shown that the $25.00 filing fee was paid for his April 2016 notice of appeal from the Findings and Order on Remand, served and filed March 21, 2016. We affirm that finding and dismiss the employee’s April 2016 appeal of the Findings and Order on Remand.
Alejandro Cruz, the pro se employee, began working for Express Employment Professionals, the employer, in September 2010. The employee retained an attorney and filed a claim petition on December 20, 2013, for temporary total disability benefits and medical benefits, claiming injuries to his head, neck, right shoulder, upper back, and eye. The employer and insurer denied primary liability. A hearing was held on September 12, 2014. In Findings and Order served and filed November 6, 2014, Compensation Judge Stacy P. Bouman found that the employee had not met his burden of proof that he had sustained Gillette-type injuries while working for the employer. The employee’s attorney withdrew his representation and the pro se employee appealed to this court.
In a decision served and filed August 31, 2015, this court affirmed the compensation judge’s denial of the employee’s claimed Gillette-type injuries in the form of headaches or head pain, head, neck, right shoulder, upper back and/or eye culminating on or about August 20, 2013. The court vacated the judge’s finding that the employee had significant pre-existing allergies and remanded for determination of whether the preponderance of the evidence established that the employee sustained an allergic reaction to his work environment and whether medical treatment for an allergic reaction was reasonable and necessary. Cruz v. Express Servs., Inc., 75 W.C.D. 503 (W.C.C.A. 2015).[1]
A hearing was held on this court’s remand on January 20, 2016, before Compensation Judge Bouman. The employee appeared pro se. The compensation judge found that the employee had not shown that he had developed an allergic reaction from work place exposure in August 2013. See Findings and Order on Remand of Compensation Judge Stacy P. Bouman, served and filed March 21, 2016. In April 2016, the employee filed an informal letter indicating he was appealing the findings and order on remand and a notice of appeal form at the Office of Administrative Hearings (OAH). On April 28, 2016, an acknowledgment letter sent from OAH to the employee indicated that his notice of appeal had been filed on April 7, 2016, but also stated that the employee had not filed the $25.00 filing fee required by Minn. Stat. § 176.421, subd. 4, for his appeal. This court dismissed the appeal by order dated May 17, 2016.
On June 16, 2016, the employee filed a document at OAH challenging the order of dismissal and asserting he had paid the $25.00 filing fee. The document was forwarded to this court on June 17, 2016, and was considered as a request for reconsideration of the order. This court referred the matter to OAH for an evidentiary hearing on the issue of whether the employee had paid the filing fee for his notice of appeal.
A hearing was held on the filing fee issue on September 8, 2016. The employee appeared pro se with an interpreter present. In Findings and Order on Issue of Payment of Filing Fee for Appeal, served and filed September 14, 2016, Compensation Judge Jeffrey W. Jacobs found that the employee had not shown that the $25.00 filing fee was paid for the employee’s notice of appeal in April 2016. The judge ordered that the employee’s claims and his appeal were denied and dismissed with prejudice.[2] On October 11, 2016, the employee appealed.[3]
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The issue on appeal is whether substantial evidence supports the compensation judge’s finding that the employee did not pay the $25.00 filing fee for his appeal of the Findings and Order on Remand, served and filed March 21, 2016. In the statement of the case, the judge stated that the employee testified that he had placed the $25.00 filing fee, in cash, in the envelope with the notice of appeal. The employee speculated that there must have been a mistake in processing the appeal or that the money was lost, but offered no direct evidence of how that occurred. LeeAnn Cary from OAH testified that she handles all appeals from OAH to this court and outlined the process used to document appeals and filing fees. She further testified that she had searched but found no record of the filing fee for the employee’s April 2016 appeal at OAH and that she had contacted the Minnesota Department of Labor and Industry, but the fee was not documented as paid there.
The employee asserts that after he received the acknowledgment letter from OAH stating that he had not paid the $25.00 filing fee, he returned to OAH to ask if he should pay the fee again, and was told that if he had paid, he did not need to pay again. The employee also asserts that there was no evidence he was untruthful or that the money was not paid. The employee further argues that technical issues can result in injustice and that equity requires that he should be compensated for his work injury since he has not recovered.
The compensation judge acknowledged that the employee believed in good faith that he had paid the fee. The judge concluded, however, that the employee bore the burden of proof and that the record did not establish that the filing fee was paid, relying on Ms. Cary’s testimony that the proper procedures had been followed and that no payment of the filing fee had been verified. It is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge. See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 261 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence supports the compensation judge’s finding that the employee had not shown that the $25.00 filing fee was paid for his April 2016 notice of appeal.
The $25.00 filing fee for a notice of appeal must be paid within the statutory period under Minn. Stat. § 176.421, subd. 4, in order to perfect an appeal. See Ferguson v. Ford Motor Co., 61 W.C.D. 54 (W.C.C.A. 2001). The service and filing requirements for a notice of appeal are jurisdictional. Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 728, 39 W.C.D. 430, 432 (Minn. 1987); Kearns 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. Hemmesch v. Molitor, 328 N.W.2d 445, 447, 35 W.C.D. 541, 544-45 (Minn. 1983). Since we have affirmed the compensation judge’s finding that the filing fee was not paid for the employee’s appeal of the Findings and Order on Remand, served and filed March 21, 2016, this court lacks jurisdiction to consider the merits of the appeal. Accordingly, the employee’s appeal of the Findings and Order on Remand, served and filed March 21, 2016, is dismissed.[4]
[1] The employee submitted a writ of certiorari with attachments to the Office of the Clerk of Appellate Courts on September 28, 2015. The office declined the documents for filing due to failure to conform to the Minnesota Rules of Civil Appellate Procedure and failure to file a cost bond. There was apparently no writ properly filed by the employee received at the Office of the Clerk of Appellate Courts.
[2] There is no transcript of the September 8, 2016, hearing, due to erasure of the hard drive on the computer used to record the hearing. Because there was no record of the proceeding to transcribe, the parties were asked to submit a statement of the proceedings within 30 days of the acknowledgment of appeal for the compensation judge’s review. A Statement of the Case by Presiding Trial Judge was served and filed on all parties on December 2, 2016. See Moulzolf v. Pierz Marine, Inc., 51 W.C.D. 397, 399 (W.C.C.A. 1994) (where a transcript is unavailable, a statement by a compensation judge may be adequate for appellate review); see also Franson v. Special Sch. Dist. No. 1, 62 W.C.D. 561, 566-67 (W.C.C.A. 2002), summarily aff’d (Minn. Sept. 18, 2002). Neither party objected to the statement after it was served and filed.
[3] On March 15, 2017, the employer and insurer filed a motion to dismiss the employee’s appeal of the Findings and Order on Issue of Payment of Filing Fee for Appeal, served and filed September 14, 2016, for failure to file a brief. The employee had filed a document at OAH that addressed the filing fee issue on December 1, 2016, along with a proof of service. Given our affirmance of the Findings and Order on Issue of Payment of Filing Fee for Appeal, we need not address this issue further. To that extent, the motion to dismiss the employee’s appeal of the Findings and Order on Issue of Payment of Filing Fee for Appeal, served and filed September 14, 2016, is denied.
[4] The compensation judge ordered the employee’s appeal dismissed. Since this matter was referred to the Office of Administrative Hearings by this court, it should have been sent back to this court for further proceedings after the evidentiary hearing. See Order of Referral, served and filed June 24, 2016.