GLORIA TUELL, Employee/Appellant, v. NORTHWEST AIRLINES CORP. and LIBERTY MUT. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 11, 2007
PRACTICE & PROCEDURE - DISMISSAL; JURISDICTION; STATUTES CONSTRUED - MINN. STAT. ' 176.041, SUBD. 4. Where the employee was injured in Michigan, the compensation judge erred in relying on Minn. Stat. ' 176.041, subd. 4, and Pauli v. Pneumatic Systems, Inc., 328 N.W.2d 743, 35 W.C.D. 551 (Minn. 1983), in dismissing the employee=s claims in Minnesota.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: John J. Horvei, New Brighton , MN, for the Appellant. Mary M. Hager and Brad Delger, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s order dismissing with prejudice the employee=s claims for a June 22, 2001, work injury. We reverse.
The employee filed a claim petition against Northwest Airlines Corporation [the employer] on June 16, 2005, listing eighteen dates of injury, plus a Gillette injury culminating on June 22, 2001. The employee alleged that she had sustained injuries to the cervical, thoracic, and lumbar spine and to the right and left shoulders as well as a consequential emotional reaction to the injuries. The employer and Liberty Mutual Insurance Company, the employer=s insurer for a March 5, 1988, injury and for the alleged June 22, 2001, Gillette injury, filed a motion to dismiss on January 17, 2006, alleging that the claim should be dismissed with prejudice because the employee had a pending claim in Michigan for the June 22, 2001, work injury.
The employee filed an amended claim petition on March 1, 2006, alleging entitlement to permanent partial disability benefits and medical expenses as a result of the March 5, 1988, injury to the low back and an alleged Gillette injury of June 22, 2001, to the cervical, thoracic, and lumbar spine. The employer and insurer filed another motion to dismiss with prejudice on November 13, 2006, again alleging, in relevant part, that the employee was actively pursuing a claim in Michigan for the same injury (June 22, 2001) for which she was seeking benefits in Minnesota.
The employee responded to the motion with a fax indicating that there had been a Minnesota contract of hire; that Michigan law made no provision for permanent partial disability benefits, which were the major part of the employee=s claim; that it was impossible to split the employee=s claims; that the employee had not made any claim for a back injury in Michigan; and that the employee=s testimony and the employer=s records and insurance claims records were necessary to address the motion to dismiss.
A hearing notice was sent, setting a pre-trial on the motion to dismiss for January 10, 2007, and the hearing on the claim petition for January 19, 2007. Attorneys for both parties attended the pretrial, which was recorded on tape. At the pre-trial, the employer and insurer alleged, in relevant part, that the employee had a claim pending in Michigan for the June 22, 2001 injury, that the claim had been pending for several years, and that the employee had not withdrawn it. Therefore, the employer and insurer argued, the employee had chosen Michigan as the forum for her workers= compensation claim, and, pursuant to Pauli v. Pneumatic Systems, Inc., 328 N.W.2d 743, 35 W.C.D. 551 (Minn. 1983), the employee=s alleged June 22, 2001, injury was not covered by the Minnesota Workers= Compensation Act.
The employee=s attorney made a variety of claims during the pre-trial. He originally contended, for example, that June 22, 2001, was not the correct date for the low back injury and that June 22, 2001, Ahas nothing to do with my claim. It is irrelevant.@ He also stated near the beginning of the pre-trial (T.11) that it was his understanding that the employee had a claim for a June 22, 2001, injury pending in Michigan but that that claim was for bilateral shoulder injury and depression, asserting, Athere=s never been a claim in Michigan for any orthopedics with the back.@ The employee=s attorney later asked to make a record on the issue of jurisdiction (T.22) and yet later in the pre-trial stated, AI don=t know that there is any claim pending yet in Michigan@ (T.24). At the end of the pre-trial, the compensation judge gave the parties until noon on January 12, 2007, for the employer and insurer to submit documentation concerning the alleged pending Michigan claim and for the employee to submit Asome sort of affidavit@ indicating that she had withdrawn the claim in Michigan.
On January 11, 2007, the employer and insurer sent a fax to the compensation judge. That fax included documents from the Michigan Workers= Compensation Agency regarding an injury that the employee had sustained in the course of her employment with the employer on June 22, 2001, in Detroit, Michigan. The documents did not specify the nature of the alleged injury but included two Applications for Mediation or Hearing, including one dated March 2, 2005.
The employee did not submit any documentation to the compensation judge by the January 12, 2007, noon deadline.
On January 17, 2007, the compensation judge filed an Order Dismissing Claims for June 22, 2001, Work Injury. In that decision, the judge indicated that the employer and insurer had submitted documents establishing that the employee had a pending claim for a June 22, 2001, work injury in Michigan. The judge also stated that the employee had failed to file any additional documents, including the specifically requested affidavit indicating that the employee had chosen to forego any workers= compensation claims in Michigan related to the June 22, 2001, injury. The order indicated that the employee had made a choice of forum in another state and that the claims for injury and disability listed on the amended claim petition for the June 22, 2001, work injury were dismissed with prejudice. In her memorandum, the compensation judge cited Pauli as support for her decision. The employee appeals.
The employee makes three arguments on appeal: that the two affidavits attached to the employee=s appeal brief are the only evidence in the matter; that the compensation judge erred by not permitting a record to be made; and that, because the employee has dropped her Michigan claim, there is no reason to deny her Minnesota jurisdiction. These arguments do not address the dispositive issue, that is, that the judge=s reliance on Pauli was misplaced.
Pauli involved application of Minn. Stat. ' 176.041, subd. 4, a jurisdictional statute that provides in pertinent part as follows:
If an employee who regularly performs the primary duties of employment outside of this state or is hired to perform the primary duties of employment outside of this state, receives an injury within this state in the employ of the same employer, such injury shall be covered within the provisions of this chapter if the employee chooses to forego any workers= compensation claim resulting from the injury that the employee may have a right to pursue in some other state.
(Emphasis added). In Pauli, the employee was an Oregon resident, employed by an Oregon employer and injured in the state of Minnesota.
In the instant case, there are no findings, but the transcript suggests that the parties were in agreement that the employee resided in Washington, D.C., and that the June 22, 2001, injury occurred in Michigan. The parties are also apparently in agreement that the employer is a Minnesota corporation. Under these circumstances, Minn. Stat. ' 176.041, subd. 4, and the Pauli case are not controlling.
Because the employer and insurer=s sole argument at the pre-trial was that Pauli was Adirectly on point@ and was Avirtually identical to our situation,@ the compensation judge did not consider other jurisdictional arguments. And, because Pauli and Minn. Stat. ' 176.041, subd. 4, are not applicable, we must reverse. Nothing in our decision should be read to preclude the employer and insurer from asserting other defenses.
 Including an injury date of March 5, 1988.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (Minn. 1960).
 The employer and insurer also alleged that the claim was not subject to the jurisdiction of the Minnesota workers= compensation courts because the employee worked out of Michigan.
 The imaged file contains a fax sent by the employee=s attorney at 2:28 p.m. on January 12, 2007, to the settlement division of the Office of Administrative Hearings. The fax did not contain any affidavit stating that the employee had withdrawn her claim in Michigan but did include an unsworn assertion by the employee=s attorney that AEe gives up her Michigan for a Minnesota claim.@ This fax was not forwarded to the compensation judge until January 16, 2007.
 The affidavit of the employee=s attorney is dated April 5, 2007, and alleges again that June 22, 2001, is not the correct date of injury for the alleged Gillette injury to the back, that Ait is absurd to try and resolve the issue of her unpaid spinal medical bills in multiple jurisdictions,@ and that the employee had discharged her Michigan counsel and dropped any and all claims to Michigan workers= compensation. The affidavit of the employee is dated April 3, 2007, and alleges that the employee=s last date of work with the employer was June 23, 2001, that she was relinquishing any and all Michigan workers= compensation claims, and that she had terminated representation by any attorney other than Mr. Horvei.
 For this reason and others, we have not awarded fees on appeal.
 This is also confirmed by the applications for mediation or hearing.