Madsen v. Preferred Painting Contractors

• Decision Date: 25 September 1975
• Docket Number: No. 11387,11387
• Parties: Wesley MADSEN, Employee, Claimant and Appellant, v. PREFERRED PAINTING CONTRACTORS, Employer and Respondent, and Iowa Mutual Insurance Company of Dewitt, Iowa, Insurer and Respondent.
• Court: South Dakota Supreme Court

Page 575

233 N.W.2d 575

89 S.D. 397

Wesley MADSEN, Employee, Claimant and Appellant, v. PREFERRED PAINTING CONTRACTORS, Employer and Respondent, and Iowa Mutual Insurance Company of Dewitt, Iowa, Insurer and Respondent.

No. 11387.

Supreme Court of South Dakota.

Sept. 25, 1975.

Rehearing Denied Nov. 3, 1975.

Milton Buechler, Lennox, Gary Richter, Zimmer & Richter, Parker, for appellant.

Acie W. Matthews, Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for respondents.

WOLLMAN, Justice.

This is an appeal from an order of the circuit court dismissing appellant employee's attempted appeal from a decision of the deputy commissioner of labor and management relations denying employee's claim for workmen's compensation benefits. We affirm.

In February of 1972, the deputy commissioner entered findings of fact and conclusions of law and an award in favor of employee in his claim for workmen's compensation benefits arising out of an injury that he had allegedly suffered on October 18, 1967. This decision was appealed by the insurer and employer to the circuit court, which set aside the award and remanded the case to the commissioner for further proceedings. Following the remand, a rehearing was held before the deputy commissioner on August 18, 1972. On October 4, 1972, the deputy commissioner entered findings of fact and conclusions of law and an order denying employee's claim for benefits. Also on October 4, 1972, the deputy commissioner filed affidavits stating that on that date he had served the above described findings of fact, conclusions of law and denial of award, together with notice of decision, on counsel for employee and counsel for employer and insurer by depositing said copies in the United States mail at Pierre, South Dakota, in an envelope with first class, certified mail, postage prepaid, addressed to counsel at their respective mailing addresses. An affidavit sworn to by the deputy commissioner on January 3, 1973, states that the return receipts indicate that these papers were received by the parties (actually, their respective attorneys) on or about October 11, 1972.

On October 11, 1972, employee's counsel called the deputy commissioner and asked for an extension of time in which to file a petition for review of the deputy commissioner's decision. By letter addressed to employee's counsel dated October 11, 1972, the deputy commissioner stated that:

'This letter is to inform you that you are hereby granted a 10 day extension to file a petition pursuant to SDCL 62--7--16. This means an additional 10 days allowed beyond the normal 10 days allowed by 62--17--16.'

On October 30, 1972, employee's counsel served by mail a petition for review of the deputy commissioner's decision of October 4, 1972. On October 31, 1972, counsel for the employer and insurer filed objections to this petition for review on the ground, inter alia, that the petition was not timely filed. On November 7, 1972, the deputy commissioner denied the petition for review and ordered that the decision of October 4, 1972, be the final decision of the commissioner in the matter. Service of this denial of petition for review was made by certified mail on November 7, 1972. On November 15, 1972, counsel for employee served a notice of appeal from the denial of petition for review to the circuit court. Employer and insurer moved to dismiss the appeal. The order granting this motion and dismissing the appeal is the subject of the instant appeal.

SDCL 62--7--16 provides in part that:

'Any party to proceedings before the commissioner may within ten days after service upon him of a decision of the commissioner, as provided in § 62--7--13, file with the commissioner a petition for a review of such decision. * * * Notice of denial of such petition or any other order thereon shall be given as provided in § 62--7--13.' ¹

SDCL 62--7--13 provides in part that:

'* * * The commissioner shall file his decision, together with his findings of fact and conclusions of law and shall serve the same on the parties forthwith by dispatching a copy addressed to each or his attorney by registered or certified mail, postage prepaid.'

SDCL 62--7--30 provides that:

'All notices or orders provided for in this chapter may be served personally or by registered or certified mail. When served by registered or certified mail, proof by affidavit thereof must be accompanied by post-office return receipt. When, however, any party is represented by an attorney, such service must be made on such attorney, and may be made either in the manner provided in this section, or in the manner provided by § 15--6--5.'

SDCL 62--7--19 provides that: 'Any employer or employee may appeal to the circuit court from any final order or decision of the industrial commissioner which arises under the provisions of this title. * * * ' At all times material to this action, SDCL 62--7--24 provided that such an appeal had to be taken within twenty days after the filing in the office of the commissioner of proof of service of written notice of the order or decision from which the appeal was sought. ²

SDCL 15--6--5(b) provides in part that '* * * Service by mail shall be by first class mail and is complete upon mailing.' SDCL 15--6--6(e) provides that if notice is served by mail, three days shall be added to the prescribed period within which a party has the right or is required to do some act or take some proceedings after the service of a notice upon him.

Employer and insurer contend that service of the deputy commissioner's decision of October 4, 1972, was complete when the deputy commissioner mailed a copy of the decision, together with the notice of decision and related papers, upon employee's counsel on that date; consequently, the ten day period within which employee could file a petition for review of that decision ended on October 17, 1972, and thus even if the deputy commissioner's purported ten day extension of that periods was valid, that extension ended on October 27, 1972. Therefore, because employee did not file his petition for review of the decision of October 4, 1972, until October 31, 1972, the petition was not timely filed and thus the decision of October 4, 1972 became the final decision of the commissioner, from which an appeal to circuit court would have had to be taken within twenty days of the filing in the office of the commissioner of proof of service of written notice of the decision. SDCL 62--7--24.

We agree with the employer and insurer that service of the decision of October 4, 1972, was complete when the deputy commissioner mailed a copy of the decision, together with the notice of decision and accompanying papers, to employee's counsel on October 4, 1974. SDCL 15--6--5(b) unequivocally states that service by mail is complete upon mailing. The fact that the deputy commissioner utilized certified mail rather than merely first-class mail does not seem to be material. Although employee contends that the requirement imposed by SDCL 62--7--30 that registered or certified mail be used implies that service is not complete until notice is actually received by the addressee, the rule seems to be that where a statute authorizes service of notice by registered mail, service is effective when the notice is properly addressed, registered, and mailed. Johnson Service Co. v. Climate Control Contractors, Inc., Tex.Civ.App., 478 S.W.2d 643; 58 Am.Jur.2d, Notice, § 27.

Although our holding that the ten day period within which employee could have petitioned for review of the decision of October 4, 1972, expired on October 17, 1972, makes it unnecessary for us to decide whether the deputy commissioner's purported ten day extension of that period was valid, inasmuch as the extension expired on October 27, 1972, which was prior to the time that the petition...