This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Michelle M. LaBeau,


Department of Employment and Economic Development,


Filed September 19, 2006


Minge, Judge


Department of Employment and Economic Development

File No. 843105



Karl F. von Reuter, 800 Marquette Avenue, 900 Midwest Plaza, Minneapolis, MN 55402 (for relator)


Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.


U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Relator challenges the ULJ’s decision requiring her to repay unemployment benefits.  Because the ULJ properly exercised jurisdiction and because relator entered into a stipulation without permitting the intervenor to participate, we affirm. 


            In 1994, relator Michelle LaBeau sustained a work-related injury during her employment as a dentist with the City of St. Paul.  Despite the injury, she continued working until December 28, 2000, when she was laid off.  Because of the layoff, relator applied for and received unemployment benefits totaling $1,456 for the period between January and August 2001. 

            Relator filed a claim for workers’ compensation benefits in March 2003, and in September 2003 relator sent a notice of potential intervention rights to respondent Minnesota Department of Employment and Economic Development (the department).  The notice stated that relator had filed a workers’ compensation claim for “temporary partial disability from December 28, 2000 to the present and continuing.”  The department then filed a motion to intervene, including with its motion a proposed stipulation that the department be added as an intervenor and be reimbursed for unemployment benefits paid during time periods for which relator was also awarded loss-of-wage workers’ compensation benefits.  Neither relator nor her employer responded to the proposed stipulation.  The parties were notified that on September 11, 2003, the department’s motion to intervene was granted. 

            On February 23, 2005, relator entered into a stipulation for settlement of her workers’ compensation claim with her employer and its insurer.  The department was not notified of the settlement.  The stipulation states that it is the intention of the parties “to fully, finally and completely settle . . . any and all claims, past, present and future which the Employee has or may have, both known and unknown, against the City of St. Paul, Self-Insured, arising out of the alleged injury of August 30, 1994.”  The stipulation did not acknowledge or provide for the intervention interest of the department.

            Relator sent the department a copy of the stipulation on March 10, 2005.  The next day, relator’s attorney sent an e-mail to the department, stating, “I notice you were circumvented out of settlement.  For my part, this was an honest error.  I apologize.  We settled this case in mediation in February 2004. . . .  It is the employee’s position that the City should reimburse your intervention claim.”   

            On May 2, 2005, the department issued relator a notice of overpayment of $1,456.  Relator appealed this determination.  An unemployment law judge (ULJ) concluded that relator had been overpaid benefits and was obligated to repay the full amount based on the department’s exclusion from the settlement negotiations.  The ULJ affirmed this decision upon relator’s request for reconsideration.  Relator filed a petition in the Workers’ Compensation Court of Appeals to set aside the award on the stipulation.  The petition was denied.  This certiorari appeal of the ULJ’s decision follows.



            The first issue is whether the ULJ properly exercised jurisdiction over the department’s claim for reimbursement.  Although relator did not raise this argument in her brief, relator asserted at oral argument that the workers’ compensation system has exclusive jurisdiction over this matter, including the department’s claim that relator was overpaid unemployment benefits.[1]  In support of her claim, relator cited several cases where an intervenor’s claim, after being excluded from the employee’s stipulation, was heard by a workers’ compensation judge.  See, e.g., Parker/Lindberg v. Friendship Vill., 395 N.W.2d 713, 715-16 (Minn. 1986); Brooks v. A.M.F., Inc., 278 N.W.2d 310, 312 (Minn. 1979).  Nothing in these cases indicates that the department is precluded from seeking reimbursement for overpaid unemployment benefits outside of the workers’ compensation system.  Moreover, the Workers’ Compensation Court of Appeals recognized in its order denying relator’s request to vacate the stipulation that the department has the ability to utilize “the administrative procedures” of the unemployment statutes to recover overpaid unemployment benefits.  We therefore find that the ULJ properly exercised jurisdiction over the department’s reimbursement claim.      


            The second issue is whether the ULJ erred in concluding that, because relator did not include the department in her stipulation with her employer regarding her workers’ compensation claim, relator was obligated to fully reimburse the department on its intervention claim.  This court may reverse the decision of the ULJ if an applicant’s rights may have been prejudiced because the decision was not supported by substantial evidence or was affected by an error of law.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005). 

            If an applicant receives unemployment benefits to which the applicant is not entitled, whether due to the applicant’s own mistake or to an error by the department, the applicant must repay the benefits to the department.  Minn. Stat. § 268.18, subd. 1(a) (Supp. 2005).  A party receiving loss-of-wages compensation under the workers’ compensation statutes may not receive unemployment benefits for the same time period:

An applicant is not eligible to receive unemployment benefits for any week in which the applicant is receiving or has received compensation for loss of wages equal to or in excess of the applicant’s weekly unemployment benefit amount under:

(1) the workers’ compensation law of this state; . . .


Minn. Stat. § 268.085, subd. 3a(a) (2004).  But the workers’ compensation benefits received must be identifiable as compensation for loss of wages.  See In re Claim of Gjerdahl, 411 N.W.2d 283, 286-87 (Minn. App. 1987) (holding that where a settlement states that it intends to settle all claims, including claims for rehabilitation, retraining and disability benefits, there is no proof that unemployment benefits were overpaid as a result of the settlement); see also State, Dep’t of Employment Sec. v. Zroker, 280 Minn. 286, 288, 291, 159 N.W.2d 190, 191, 193 (1968) (finding no evidence that workers’ compensation and unemployment benefits overlapped because stipulation for workers’ compensation benefits referred to “any and all claims, past, present or future” and it was impossible to tell what percentage of the award applied to the period relator received unemployment benefits).

            Relator argues that any workers’ compensation benefits she received for the period from January to August 2001, when she also received unemployment benefits, were not loss-of-wages benefits.  Relator notes that her physician did not impose any work restrictions until May 2003 and prior to that time, her physician had only recommended an ergonomic dental chair.  Moreover, the stipulation between relator and her employer does not specify how it addresses specific types of benefits.  Relator’s workers’ compensation claim requested medical benefits, rehabilitation benefits, and temporary partial disability benefits from December 28, 2000, to the present and continuing.  And the stipulation states that the parties intended to settle “any and all claims” based on her alleged injuries, including permanent partial or total disability, temporary partial or total disability, retraining benefits, rehabilitation benefits, attorney fees, and medical benefits.  Thus, it is unclear whether the stipulation awarded relator loss-of-wage benefits for the period of time from January to August 2001 when she also received unemployment benefits.  See Gjerdahl, 411 N.W.2d at 286.   

            The department argues that it is not required to show that the benefits overlapped because the department was excluded from the settlement conference where relator and her employer agreed to the stipulation.  See Brooks, 278 N.W.2d at 315.  In Brooks, the Minnesota Supreme Court held that “an intervenor who is excluded from participating in negotiations resulting in a final settlement and who is not a party to the settlement stipulation should, on principles of equity and public policy, be awarded full reimbursement.”  Id.  The court stated that requiring an intervenor to prove its entitlement to reimbursement after the employee has already entered into a stipulation with his employer “is not the type of protection which strikes a proper balance of the interests of all parties.”  Id. The court noted that an employee will be unjustly enriched if he is permitted to recover twice for the same expense, and that the employee will have no incentive to cooperate with the intervenor subsequent to the settlement.  Id.; see also Parker/Lindberg, 395 N.W.2d at 714, 718 (applying Brooks to a claim by the Department of Human Services for reimbursement for general assistance benefits paid by DHS).

            Here the Office of Administrative Hearings sent a notice on February 17, 2004, to all parties, including the department, of a workers’ compensation hearing on April 29, 2004.  Relator and her employer conducted a private settlement conference on February 19, 2004 and a year later, on February 23, 2005, relator signed the stipulation.  The stipulation states that relator is not aware of any intervention interests other than those specifically described in the stipulation.  The only intervenor identified in the stipulation is a dental supply company; the department is not mentioned.  Notice of the award on the stipulation was served on the department in March 2005, and the overpayment determination followed.  The department-intervenor was excluded from the settlement and is thus entitled to full reimbursement regardless of whether it can show that relator was overpaid. 

            Relator argues that Brooks is distinguishable because relator did not file a workers’ compensation claim until after her unemployment benefits ceased, whereas the intervenors in Brooks paid benefits after the employee filed a workers’ compensation claim.  278 N.W.2d at 311.  This distinction is not relevant. 

            Relator also argues that Brooks does not apply because the department did not follow the statutory requirements for an intervenor’s participation in the proceedings.  Intervenors must participate in conferences and hearings, unless certain exceptions apply:

Unless a stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pretrial conferences, administrative conferences, and the hearing.  Failure to appear shall result in the denial of the claim for reimbursement.


Minn. Stat. § 176.361, subd. 4 (2004).  But an intervenor’s right to reimbursement is deemed established, as long as the petitioner’s workers’ compensation is compensable, if “the person submitting the application or motion for intervention has included a proposed stipulation” and “a party has not returned the signed stipulation or filed objections within 30 days of service of the application or motion.”  Id., subd. 3 (2004). 

            Here, although the department failed to attend a stipulation status conference, it submitted a proposed stipulation along with its motion to intervene.  The stipulation was not signed and no objections were filed.  Therefore, the department was not required to attend conferences and hearings in order to protect its right to reimbursement.[2]  See id., subds. 3, 4. 


[1] We note that generally arguments not briefed on appeal are waived and may not be raised for the first time at oral arguments.  See Peterson v. BASF Corp., 711 N.W.2d 470, 482 (Minn. 2006).  In most cases we would decline to address an issue not properly raised.  However, here relator claimed that the department and this court lacked jurisdiction.  Since subject matter jurisdiction can be challenged at any time, Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995), we have addressed the issue.

[2] The department also contends that the statutory scheme of section 176.361 provides an alternate basis for affirming the ULJ’s decision: because the parties did not respond to the department’s proposed stipulation, the department argues that its right to reimbursement was deemed established, without application of Brooks.  There do not appear to be any cases interpreting these provisions, but the plain language of the statute supports the department’s argument.