Sharon M. Lankford v. Labor and Industry Review Commission

No. 96-2799
STATE OF WISCONSIN	IN COURT OF APPEALS DISTRICT IV
Sharon M. Lankford, Plaintiff-Appellant, v. Labor and Industry Review Commission, Wickes Lumber Company and National Union Fire Insurance, Defendants-Respondents.

APPEAL from an order of the circuit court for Waupaca County: philip m. kirk, Judge. Affirmed.

Before Vergeront, Roggensack and Deininger, JJ.

PER CURIAM. Sharon M. Lankford appeals from an order dismissing her action for judicial review of a decision of the Labor and Industry Review Commission (LIRC). The issue is whether Lankford’s failure to timely serve LIRC deprived the circuit court of jurisdiction to review the denial of her worker’s compensation claim. We conclude that failure to strictly comply with the service requirements is a jurisdictional defect. Therefore, we affirm.

Lankford applied for her deceased husband’s death benefits from the Department of Industry, Labor and Human Relations (DILHR). The Administrative Law Judge dismissed her application and LIRC affirmed that dismissal on March 20, 1996. On April 16, 1996, Lankford filed a summons and complaint seeking judicial review of LIRC’s decision. On April 18, 1996, Lankford served DILHR in error and DILHR delivered the summons and complaint to LIRC on April 23, 1996. LIRC moved to dismiss the circuit court action because it was not served within thirty days of its decision. The circuit court ruled that Lankford’s failure to timely serve LIRC was a jurisdictional defect and dismissed the action. Lankford appeals.

To commence an action for judicial review of a LIRC decision, the plaintiff must file and serve the summons and complaint within thirty days. Section 102.23(1)(a) and (b), Stats., and Wis. Adm. Code § LIRC 3.06. The plaintiff also must serve LIRC within thirty days at its Madison office. See Wis. Adm. Code § LIRC 3.06. Service by mail is effectuated upon actual receipt of the summons and complaint. Id.

Whether failure to timely serve LIRC is jurisdictional, is a question of law which we review de novo. See Gomez v. LIRC, 153 Wis.2d 686, 689, 451 N.W.2d 475, 476 (Ct. App. 1989).

Lankford urges reversal because she claims she substantially complied with the service requirements.[1] However, substantial compliance with service requirements has been expressly rejected. See Gomez, 153 Wis.2d at 693, 451 N.W.2d at 478. In Gomez, the plaintiff mistakenly served DILHR instead of LIRC. See id. at 688-89, 451 N.W.2d at 476. This court held that “Gomez’s failure to serve the commission [LIRC] cannot be excused as a mere ‘technical error.’ It was jurisdictional, and the trial court correctly dismissed the action.” Id. at 693, 451 N.W.2d at 478. We conclude that Gomez is dispositive of this appeal.

Lankford relies on Nigbor v. DILHR, 120 Wis.2d 375, 355 N.W.2d 532 (1984), for the proposition that her appeal rights should not be lost because of a technical, non-prejudicial error in securing the service of the summons and complaint. However, in Nigbor, LIRC was timely served. See Nigbor, 120 Wis.2d at 382, 355 N.W.2d at 536. Nigbor failed to name LIRC in the caption of the complaint. See id. Nigbor characterized this omission as a technical, non-jurisdictional error, in reliance on Lees v. DILHR, 49 Wis.2d 491, 496, 182 N.W.2d 245, 248 (1971) (“a caption is not a part of a pleading and that the nature of an action must be determined from the allegations of a pleading rather than its caption”). See Nigbor, 120 Wis.2d at 381-82, 355 N.W.2d at 536. Unlike Nigbor, Lankford’s error was her failure to timely serve LIRC, an indispensable party.

We conclude that serving the wrong entity is jurisdictional and is governed by Gomez, in which this court rejected many of the arguments which Lankford raises.[2] It is not comparable to Nigbor, in which the correct party was timely served with a pleading which contained an omission. See Nigbor, 120 Wis.2d at 381-82, 355 N.W.2d at 536. We conclude that Gomez is dispositive and warrants dismissal of Lankford’s action because LIRC was not timely served. See § 102.23(1)(a) and (b), Stats.; Wis. Adm. Code § LIRC 3.06; Gomez, 153 Wis.2d at 693, 451 N.W.2d at 478.

By the Court.—Order affirmed.

This opinion will not be published. See Rule 809.23(1)(b)5, Stats.

[1] Lankford argues that these factors show substantial compliance: (1) the Worker’s Compensation Act is construed liberally to favor the employe; (2) many applicants in worker’s compensation cases pursue their claims pro se; (3) although she served the wrong entity (DILHR rather than LIRC), both entities are in the same building and the summons and complaint were timely delivered to LIRC’s building (albeit to DILHR which did not forward them to LIRC until five days later); and (4) the delay in serving LIRC was not prejudicial.

[2] Gomez contended that service (by his non-lawyer wife) on DILHR was merely a technical defect since DILHR is an agency closely related to LIRC.

Lankford attempts to distinguish her situation from Gomez on the basis of her covering correspondence, which expressly stated that a summons was included, and because she served DILHR before expiration of the thirty-day deadline. Lankford continues that “[t]he only incorrect indication on this letter was the five letters ‘DILHR’ instead of four letters ‘LIRC.’ Other than that, the two parties have the same street address, with different room numbers.” We are not persuaded that these distinctions exempt Lankford from Gomez’s holding. Gomez requires strict compliance with service requirements. See Gomez v. LIRC, 153 Wis.2d 686, 690, 451 N.W.2d 475, 477 (Ct. App. 1989). Lankford’s service on the wrong entity does not toll the thirty days, nor can service on the wrong entity be imputed to the correct entity simply because the entities are related. In fact, Gomez characterized the same error and described DILHR and LIRC as “related, but very different agenc[ies].” See id. at 692, 451 N.W.2d at 478.