APPEALS – NOTICE OF APPEAL; JURISDICTION – SUBJECT MATTER. Substantial evidence supports the compensation judge’s finding that the employee did not timely serve the notice of appeal on the employer and insurers. Where a notice of appeal is not timely served on the opposing parties, this court lacks jurisdiction to consider the appeal.
Compensation Judge: Adam S. Wolkoff
Attorneys: Pro se employee, Minneapolis, Minnesota, for the Appellant. Stephen P. Ward, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for Respondents Parasole Restaurant Holdings and Great American Insurance Group. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for Respondents Parasole Restaurant Holdings and Employers Preferred Insurance Group.
Findings and Order on Referral affirmed and the employee’s 2019 appeal dismissed.
THOMAS J. CHRISTENSON, Judge
The employee appeals from a 2022 finding on referral that he failed to perfect a 2019 appeal otherwise pending before this court. Substantial evidence supports the finding, and we affirm. Because the failure to perfect the 2019 appeal is jurisdictional, that appeal is dismissed.
Harley D. Gayle, the employee, brought a claim petition asserting various work-related injuries arising out of and in the course of his employment with Parasole Restaurant Holdings, Inc., d/b/a The Living Room/Manny’s Steakhouse, the employer. The employee’s claims involved seven dates of injury, spanning from December 15, 2011, to February 25, 2013. For some of these dates of injury, the employer was insured for workers’ compensation liability by Great American Insurance Companies, and for the others, by Employers Preferred Insurance Company. The claim petition came on for hearing before a compensation judge on September 24, 2018. The hearing record closed with the submission of post-hearing briefs on December 14, 2018. On January 25, 2019, the compensation judge issued his Findings and Order.
Pursuant to statute, the employee had 30 days to properly file a Notice of Appeal (NOA) and to serve the notice on the parties and their counsel. The employee timely filed his NOA at the Office of Administrative Hearings (OAH) on February 22, 2019. The NOA was accompanied by proofs of service signed by the employee and alleging service was made by U.S. mail on February 20, 2019, on opposing parties and counsel. On April 15, 2019, the employer and Great American Insurance Companies, and on April 16, 2019, the employer and Employers Preferred Insurance Company, filed motions and briefs to this court seeking dismissal of the employee’s appeal, alleging that they were not timely served with the NOA and that the employee thereby failed to comply with the service requirements of Minn. Stat. § 176.421, subd. 4. On June 8, 2019, the employee filed a response to the motions, requesting that the appeal not be dismissed.
Because the motions of the parties raised contested issues of fact, we referred the matter to OAH for assignment to a compensation judge to take evidence and make findings on the sole issue of whether the employee timely served his NOA on the other parties as required by Minn. Stat. § 176.421, subd. 4(1). On June 7, 2022, a hearing was held before the compensation judge on this issue.
At the hearing, the employee testified that after filing his NOA at OAH, he had received a copy with the date-filed stamp on it. Either the same day or sometime over the next two days, he went to a copy shop to make copies to serve on the parties on the service list. He testified that he took these home and subsequently prepared them for service by mail using envelopes and stamps provided by his wife, after which he took the envelopes to a nearby post office and mailed them. The employee’s wife testified that she had no recollection whether she had gone with him to the post office, but she had seen her husband preparing envelopes, that they were no longer at the home, and that no envelopes were returned by the post office to their home address as undeliverable. The only exhibits the employee offered were a copy of the date-stamped notice of appeal that he had timely filed with OAH, a copy of his affidavit of service with check marks next to each party name, and illustrative re-creations of the kind and contents of the envelopes he testified to have mailed. The employee acknowledged that he kept no copies of the actual materials he allegedly served, had no postal receipts or other documentation showing mailing, and had no receipts or other documentation to show the purchase of copies or other supplies used to prepare the NOA.
The employee also testified that, several months after the respondents raised the issue of failure of service to this court on appeal, he personally visited several intervenors’ offices to inquire whether they had received service, and that while no one could provide him with any record of having received the NOA, he testified that some of the people he spoke with at intervenors’ offices speculated that the absence from their records of any copy of or reference to his NOA might simply mean that their office had failed to create a file or retain the NOA. He did not provide any affidavits or call any intervenor representatives as witnesses to corroborate this testimony.
Attorneys for the employer and insurers who had worked on the employee’s case during the initial appeal testified that their firms had not received any mail from the employee serving his NOA, whether during the appeal period or otherwise, and that they first learned of the appeal when an acknowledgment of appeal form was sent to them after the expiration of the appeal period. The respondents also offered deposition testimony from several of the intervenors in the case who testified they did not find a record of service of any NOA on them by the employee within the time provided for an appeal.
The compensation judge issued a Findings and Order on Referral on August 12, 2022, determining that the evidence failed to show that the NOA was timely served on the employer, the insurers, or their counsel. The employee appeals the Findings and Order on Referral.
This court consolidated the employee’s appeal from the Findings and Order on Referral with his appeal from the Findings and Order of January 25, 2019.
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).
Workers’ compensation law provides that “within 30 days after a party in interest has been served with notice of an award or disallowance of compensation . . . the party may appeal.” Minn. Stat. § 176.421, subd. 1. The appellant must follow the requirements of Minn. Stat. § 176.421, subd. 4, which provides in pertinent part:
Service and filing of notice; cost of transcript. Within the 30-day period for taking an appeal, the appellant shall:
(1) serve a copy of the notice of appeal on each adverse party; and (2) file the original notice, with proof of service by admission or affidavit, with the chief administrative law judge and file a copy with the commissioner.
Both 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) (citing Kearns v. Julette Originals Dress Co., 267 Minn. 278, 282, 126 W.C.D. 266, 269, 23 W.C.D. 127, 131-32 (1964)). Absent a timely appeal, the WCCA does “not have discretion to consider the merits of the claim.” Hemmesch v. Molitor, 328 N.W.2d 445, 447, 35 W.C.D. 541, 545 (Minn. 1983).
On referral, the compensation judge found that the evidence did not support a finding that the employee had timely served the NOA on the other parties. The employee has appealed this finding. Since this court has no authority to consider the merits of an appeal in the absence of proper and timely service on the opposing parties, we first must consider the employee’s appeal from the August 12, 2022, Findings and Order on Referral, to determine whether jurisdiction is present for this court to reach the employee’s appeal from the January 25, 2019, Findings and Order.
Following the initial hearing, the compensation judge’s Findings and Order was served via U.S. mail on January 25, 2019. Accordingly, the 30-day period to file the NOA ran on February 25, 2019. It is undisputed that the employee timely filed his NOA at OAH on February 22, 2019. The employee testified that he served the NOA on the other parties by U.S. mail sometime after filing it at OAH, and that he mailed it on or before February 25, 2019.
Minn. Stat. § 176.285, subd. 1, states that where service of papers is done by mail, properly addressed and stamped, service is presumed to have reached the served party. The statute goes on to state, however, that a party may challenge service by providing evidence that it did not receive the served document. The burden of proving lack of receipt is on the party challenging service. Vang v. Planna Tech., Inc., 69 W.C.D. 11, 16 (W.C.C.A. 2009).
The employer and insurers placed into evidence depositions from a legal assistant, the employer’s human resources director, a senior claims adjuster, and from the employee’s prior counsel, all stating either that the NOA had not been received or was only provided by the employee long after the appeals period had run. The attorneys representing the employer and insurers at the time of the 2019 appeal testified under oath that the NOA had not been served on them or on their clients by the employee until after their motions to dismiss were filed to this court.
The compensation judge could reasonably find that this evidence was sufficient to shift the burden of proof of service to the employee. On appeal, the employee asserts that the compensation judge should have accepted his testimony and the “re-created” illustrative copies of his service of the NOA as sufficient proof to establish timely service.
In essence, the employee’s case rested on his own testimony that he timely mailed the NOA. In finding 39, the compensation judge expressly found the employee’s testimony not credible. The assessment of a witness’s credibility is the function of the trier of fact. This court must give due weight to the compensation judge’s opportunity to observe the witness and may not ordinarily substitute a different credibility assessment. Toltzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 425 (Minn. 1989); Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). The judge’s finding that the employee had failed to timely serve the 2019 notice of appeal is supported by substantial evidence in the record, and we must affirm.
Having affirmed the finding that the employee failed to timely perfect an appeal from the 2019 findings and order, we have no jurisdiction to consider that appeal, and therefore, we dismiss the employee’s appeal of that findings and order.