JERRY KELLISON, Employee, v. ANDERSON TRUCKING SERVS., INC., and ZURICH INS./CRAWFORD & CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 13, 2007
APPEALS - INTERLOCUTORY ORDER. The compensation judge=s orders denying a motion to dismiss a claim petition on grounds that the claim is barred by res judicata and denying an evidentiary motion are not appealable.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Gary M. Hall
Attorneys: Candice Hektner, Peterson & Hektner, Minneapolis, MN, for the Respondent. Eugene J. Flick and Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s findings that a workers= compensation decision from Iowa has res judicata effect on the employee=s claim for workers= compensation benefits in Minnesota for the period of time from November 29, 2001, through October 7, 2004, but has no res judicata effect for benefits claimed after that period of time, and also appeal the judge=s denial of the employer and insurer=s motion to dismiss the employee=s claim petition and his denial of the employer and insurer=s evidentiary motion. We dismiss the appeal.
On November 29, 2001, Jerry Kellison, the employee, sustained work-related injuries when he was involved in a motor vehicle accident while working as an over-the-road truck driver for Anderson Trucking Services, Inc., the employer, which was insured for workers= compensation liability by Zurich Insurance, the insurer. On the date of his injury the employee was a resident of Iowa; the accident occurred in Missouri. The employer has an office in St. Cloud, Minnesota; according to the employee, he was hired and was paid wages through the St. Cloud office.
Following his accident, the employee received treatment at a local hospital emergency room in Missouri. On December 3, 2001, the employee treated with his family physician, Dr. Lawrence Carlsson, for tenderness in his low back and leg and bruising in the left clavicle area. Dr. Carlsson restricted the employee from work for approximately one week and prescribed physical therapy.
The employee evidently had been advised by the employer that company employees were considered to be Indiana employees and that claims would be handled under the Indiana workers= compensation system. Based on that advice, the employee completed an Indiana first report of injury form. On December 12, 2001, the employee attempted to return to work and therefore traveled to the employer=s St. Cloud office by bus, a 16-hour trip, at the employer=s expense. The employer learned that the employee had been ticketed in Missouri for careless or reckless driving as a result of his November 29th motor vehicle accident, and informed the employee that, based on company policy, he was suspended pending resolution of that Missouri citation. The employee returned to his Iowa residence. He has not returned to work since December 12, 2001.
On December 14, 2001, the employee=s recorded statement was taken by telephone by a representative of Crawford and Company, the insurer=s administrator. According to a summary of the statement, the employee reported that he had severe bruising on the left shoulder, pain in middle of his back, pain in his left hip and a small contusion on his right leg. He also reported that he had finished his three prescribed physical therapy treatments and was no longer taking his prescribed medication, but that he still had discomfort and had experienced no real improvement.
On December 26, 2001, the employer denied the employee=s claim for Indiana workers= compensation benefits, according to an Indiana Workers= Compensation Board form entitled AReport of Claim Status/Request for Independent Medical Examination.@ That denial evidently was based on Dr. Carlsson=s office note which restricted the employee from work for one week, through December 12, 2001, and on his attempted return to work on December 12, 2001. The insurer listed the employee=s return to work as a basis for the denial, and specifically stated as follows: ARTW 12/12/01 at full duty - any claim beyond this date not work related.@ Based on a seven-day waiting period allowed before paying wage loss benefits, pursuant to the Indiana workers= compensation statute, the employer and insurer paid no wage loss benefits at that time.
The employee received follow-up medical treatment through the Veterans Administration Hospital in Omaha, Nebraska. On January 10, 2002, the employee filed an application for Social Security disability insurance benefits. His application initially was denied, and ultimately a hearing was held, following which an administrative law judge found that the employee had not worked since November 29, 2001, due to severe back pain with pain and numbness in his legs, and awarded disability benefits retroactive to November 29, 2001.
The employee consulted an attorney in Iowa, abandoned his claim for benefits in Indiana, and pursued a claim for workers= compensation benefits in Iowa, his state of residence. The employer denied the claim, and an arbitration hearing was held on October 7, 2004, before a deputy workers= compensation commissioner. At the arbitration hearing, the employee claimed payment of temporary or permanent disability benefits, medical expenses including a fee incurred for an independent medical consultation, and expenses incurred for a functional capacities evaluation (FCE). The issues addressed at that hearing included the causation between the work injury and the employee=s claimed disability. The arbitrator concluded that the employee had sustained no permanent impairment or disability as a result of his work injury, and awarded benefits between the date of injury, November 29, 2001, and December 12, 2001, the date Dr. Carlsson released the employee to return to work. The arbitrator denied claims for wage loss and any expenses claimed beyond December 12, 2001. The employee exhausted his appeals in Iowa, and later contacted a Minnesota attorney to pursue a claim in Minnesota.
On December 6, 2005, the employee filed a claim petition in Minnesota, claiming temporary total disability or permanent total disability since November 29, 2001, and payment of medical expenses. The employer denied the claim, and filed a motion to dismiss the employee=s claim petition on the grounds that it was barred by res judicata due to the Iowa decision issued in 2004. In the alternative, the employer and insurer also moved for an order requiring the employee to show a substantial change in condition to proceed with his claim. A hearing was held on November 29, 2006, to address the employer and insurer=s motions; the parties agreed to limit the issues, and asked the compensation judge to address the issues of whether full faith and credit must be given to the Iowa workers= compensation proceeding and/or a Social Security disability proceeding, and, if so, whether those decisions had res judicata effect on the employee=s claims. The parties agreed that the underlying merits of the employee=s claim would not be addressed at the hearing. The parties stipulated, for the purposes of the motion to dismiss and the hearing, that there was subject matter jurisdiction under Minn. Stat. § 176.041 for the employee to bring a claim in Minnesota.
In his findings and order issued on December 12, 2006, Compensation Judge Gary Hall found that the employee was provided due process in Iowa, and that he had exhausted his appeal rights in that state, after a Afull and fair adjudication of the issues.@ At Order No. 1, he ordered that Athe Iowa workers= compensation determination is res judicata regarding any benefit claims in Minnesota for the time period from November 29, 2001 to October 7, 2004, but not thereafter.@ At Order No. 2, he denied the employer/insurer=s motion to dismiss the claim petition. The employer and insurer appeal. The employee did not file a cross appeal.
STANDARD OF REVIEW
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).
The employer and insurer argue that the compensation judge erred by failing to hold that, based on the Iowa decision that the employee did not sustain any permanent impairment or disability after December 12, 2001, res judicata barred the employee=s claim for benefits after October 7, 2004, which was the date of the Iowa arbitration hearing. The employer and insurer also argue that the compensation judge erred by holding that the employee=s claim for benefits after October 7, 2004, does not require showing a substantial change in his condition.
We note that the only issues addressed at the hearing at the Office of Administrative Hearings in Minnesota involved the employer and insurer=s pre-trial motions. The employer and insurer had moved to dismiss the employee=s claim petition on grounds that it was barred by res judicata due to the Iowa decision in 2004 and, in the alternative, the employer and insurer also moved for an order requiring the employee to show a substantial change in condition in order to proceed with his claim in Minnesota. The parties agreed that the compensation judge need not address the merits of the employee=s claim at the hearing; the record was limited to evidence related to the motions.
Minn. Stat. § 176.421, subd. 1, provides that appeals to this court can be taken from Aan award or disallowance of compensation, or other order affecting the merits of the case.@ Orders which do not affect the merits of the case, or do not prevent a later determination of the case on the merits, are not appealable to this court. Mierau v. Alcon Indus., Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986). Generally, only an order which finally determines the rights of the parties and concludes the action is appealable. Zizak v. Despatch Indus., Inc., 427 N.W.2d 755, 756 (Minn. Ct. App. 1988). The policy behind the general rule is to prevent piecemeal appeals and protect the rights of all parties until all claims have been adjudicated in the trial court. Johnson v. Johnson, 363 N.W.2d 355, 357 (Minn. App. 1985) (citing Comment, Minn. R. Civ. App. P. 104.01), pet. for rev. denied (Minn. May 6, 1985).
An order denying a motion to dismiss a claim petition does not affect the merits of the case and is not appealable. The case is simply reserved for trial. Thompson v. AT & T, slip op. (W.C.C.A. Dec. 21, 2000); see also Kokesh v. City of Hopkins, 307 Minn. 159, 238 N.W.2d 882 (1976), cited in Lick v. State, Ah-Gwah-Ching Nursing Home, 40 W.C.D. 315, 316 (W.C.C.A. 1987) (holding denial of motion to dismiss is not appealable); but see Andor v. Buhler Mfg. Co., 56 W.C.D. 1 (W.C.C.A. 1996) (order denying motion to dismiss for lack of subject matter jurisdiction was an appealable order). See also Crump v. Control Data Corp., slip op., (W.C.C.A. May 11, 1995) (order denying a motion to dismiss a claim petition pursuant to Minn. R. 1415.1700 is not appealable). An order on an evidentiary motion also does not affect the merits of the case nor prevent a later determination of the case on the merits.
The only matters before us are the employer and insurer=s appeal of the order denying the motion to dismiss the employee=s claim petition and their appeal of the order denying an evidentiary motion, both of which are not appealable. The employee argues in his brief that the compensation judge erred by holding that res judicata barred the employee=s claim between his injury on November 29, 2001, and October 7, 2004. The employee did not appeal, however, and therefore we do not address that argument.
We therefore dismiss the employer and insurer=s appeal, and return the matter to the compensation judge for further proceedings.