JOHNNY W. HALE, Employee, v. VIKING TRUCKING CO. and CRUM & FORSTER INS. GROUP.,  Employer-Insurer, and PRIMARY BEHAVIORAL HEALTH CLINICS, INC., Intervenor, and PINNACOL ASSURANCE CO., Intervenor/Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

FEBRUARY 7, 2002

                       

HEADNOTES

 

JURISDICTION - SUBJECT MATTER; INTERVENORS.  Neither a compensation judge nor this court has subject matter jurisdiction to determine or impose a Minnesota remedy where resolution of such a reimbursement claim involves determining whether an employee was entitled to workers= compensation benefits in another state or whether those benefits were mistakenly or improperly paid.

 

Affirmed.

 

Determined by: Johnson, J., Wilson, J., and Rykken, J.

Compensation Judge: Gary M. Hall

 

OPINION

 

MIRIAM P. RYKKEN,  Judge

 

Pinnacol Assurance (Pinnacol) appeals from the compensation judge=s order dismissing the intervenor for want of subject matter jurisdiction over Pinnacol=s claims.  We affirm.

 

BACKGROUND

 

The order below was issued after a pre-trial conference on the motion of the employer and insurer, without any formal record of the proceedings and with no factual findings.  The parties have, however, extensively discussed the factual setting of the case in their briefs on appeal and have also submitted by attachment various medical records and other materials.  This court is not a finder of fact, and it is not our role to resolve any aspect of the case involving a dispute of fact.  Our narrative of the factual background in this case, and our consideration of the appeal, is based here solely upon such facts as appear to us from the parties= respective briefs to be undisputed, which provide here an adequate basis to reach the solely legal issue presented by the appellant^[1]. 

 

The employee, Johnny W. Hale, is a Minnesota resident residing in Inver Grove Heights, Minnesota.  He sustained a non-work injury to the left ankle in Los Angeles, California in 1986, which was treated surgically with open reduction with internal fixation.  On or about January 13, 1998, the employee was in California working for BFT Bookkeeping for Truckers, Inc. (ABFT@), a Colorado corporation, when he dropped a heavy steel plate on his left foot.  He was treated briefly at the emergency room at the Corona, California, Regional Medical Center.  On returning to Minnesota the employee began treating with Dr. Dennis J. Callahan, an orthopedic surgeon in St. Louis Park, Minnesota.   There was some concern that the recent injury might have loosened the internal fixation hardware previously placed in the employee=s ankle after his 1986 injury.     X-rays showed intact hardware and no fractures and revealed degenerative arthritis of the ankle joint.   On January 19, 1998, Dr. Callahan performed surgery to remove the hardware.  The employee contracted a post-operative infection which healed after a course of antibiotics.

 

Liability for the employee=s 1998 work injury was accepted by BFT and its Colorado workers= compensation insurance carrier, Colorado Compensation Insurance Authority, d/b/a/Pinnacol Assurance (Pinnacol), which paid for the employee=s surgery and thereafter continued to pay for the employee=s medical treatment for his left ankle condition.

 

On March 4, 1998, the employee saw Dr. Callahan and was noted to be healing well but continued to have discomfort, swelling and pain in the left ankle.  Dr. Callahan advised the employee that the degenerative condition of his ankle would be a chronic problem.  He suggested various treatment options including an ankle fusion.  The employee was also seen by Dr. Douglas A. Becker, M.D., of the Minneapolis Orthopaedic & Arthritis Institute on March 9, 1998.  Dr. Becker advised the employee that, due to the severity of his symptoms, an ankle fusion, or arthrodesis, was required.  The employee underwent the fusion, with placement of an external fixator, on April 17, 1998. 

 

On May 27, 1998, the employee was seen by Dr. Becker who noted that the fusion was well-positioned and that the x-rays showed early fusion.  The external fixation was removed on June 30, 1998 and the employee was provided with a short walking cast boot.  The employee was again seen by Dr. Becker on July 13, 1998.  He was in a partial weight bearing status with crutches.  Dr. Becker thought the employee was healing well but noted that if the ankle did not go to full union, further intervention might be needed. 

 

The employee began another job as a truck driver for the Minnesota employer, Viking Trucking Company, on the following day, July 14, 1998.  On July 20, 1998, the employee=s truck was involved in a motor vehicle accident which was fatal to the driver of the other vehicle.  As a result of the fatality, the employee was taken to a hospital for drug testing.  No report of any ankle injury was made at that time and the emergency room records record only a scratch to the employee=s knee.

 

According to the factual recitals of the appellant, the employee did not inform the

BFT or Pinnacol, the Colorado employer and insurer, about this employment or the motor vehicle accident, and Pinnacol  continued to pay for medical treatment to the employee=s left ankle on the assumption that all of the costs were causally related to the employee=s January 1998 work injury.

 

On about July 25, 1998, the employee called Dr. Becker to report that he had experienced a significant increase in pain.  As this was during a weekend, Dr. Becker referred the employee  to the emergency room, where the employee=s ankle was noted to exhibit some swelling and bruising.  An x-ray study showed no evidence of any definite fracture or acute lesion.  Subsequently, however, on August 1, 1998, the employee was admitted to the hospital where he was diagnosed with failed arthrodesis of the left ankle.  On that date he underwent debridement of the left ankle arthrodesis site.  Gross sepsis was noted throughout the arthrodesis site with complete failure of the arthrodesis.  The fusion was revised surgically on August 4, 1998, and a fixator was again applied. 

 

The employee once again presented to the hospital on August 13, 1998, with what was diagnosed as a possible recurrent infection of the left ankle.  Another operation was performed in the form of a deep debridement of the left ankle arthrodesis site with adjustment of the external fixator.  On October 27, 1998, the external fixator frame and pins were removed and the employee underwent debridement of the pin sites. 

 

In a narrative report dated February 11, 1999, and a letter report dated February 17, 1999, Dr. Becker offered the opinion that the employee had been doing well following the April 1998 fusion surgery until he was involved in the July 1998 motor vehicle accident.  He considered the employee=s current symptoms to be related to that accident, and opined that the employee would have permanent partial disability to his left ankle to which the January 1998 and July 1998 injuries likely contributed equally. 

 

The employee filed a claim petition in Minnesota on April 23, 1999, seeking temporary total disability compensation, rehabilitation services and continuing medical expenses resulting from the claimed injury of July 20, 1998, that occurred while the employee was in the employ of Viking Trucking Company.  The claim petition listed AColorado Compensation@ as a third party that had paid disability or medical benefits.  As a result, a notification of the pending claim was subsequently provided to Pinnacol.

 

According to the parties= briefs and supporting materials, BFT and Pinnacol petitioned to discontinue workers= compensation benefits in Colorado on about June 9, 1999.  The employee objected, and the Colorado Department of Labor and Employment denied the petition to terminate, after which BFT and Pinnacol filed an appeal of the administrative decision in Colorado.  Pending formal hearing, BFT, Pinnacol and the employee reached a full, final and complete settlement of the employee=s Colorado workers= compensation claim. 

 

Pinnacol filed a motion to intervene in the employee=s Minnesota workers= compensation action on April 9, 2001; the compensation judge issued an Order Granting Intervention on April 23, 2001.  From the briefs, it appears that Pinnacol=s interest in the Minnesota case arises from its allegation that the Colorado workers= compensation payments it made following the July 1998 work injury, comprising $70,774.47 in medical benefits and $22,903.67 in Aindemnity benefits@, were made in error and that it should be entitled to reimbursement from the Minnesota employer, Viking Trucking Company. On May 7, 2001, the Minnesota employer and insurer filed an Objection to the Motion to Intervene and a Motion to Vacate the Order Granting Intervention.  The matter was heard by the compensation judge at a pretrial conference on July 2, 2001, and on July 20, 2001, the compensation judge issued an Order Dismissing Intervenor on the grounds that he lacked subject matter jurisdiction over Pinnacol=s claim for reimbursement.  Pinnacol appeals.

 

STANDARD OF REVIEW

 

While this court may not disturb a compensation judge's findings of fact unless clearly erroneous and unsupported by substantial evidence in the record as a whole, Minn. Stat. ' 176.421, subd. 1(3) (1992), a decision which rests upon the application of the law to undisputed facts involves a question of law which this court may consider de novo.

 

DECISION

 

The sole issue presented in this appeal is whether the compensation judge erred in dismissing Pinnacol=s intervention, and thus its reimbursement claim, for want of subject matter jurisdiction.  Minn. Stat. ' 176.421, subd. 1, provides that appeals to this court can be taken from "an award or disallowance of compensation, or other order affecting the merits of the case."  See generally Mierau v. Alcon Indus., Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986) (discussing appealable orders).  As a general rule, an order which finally determines rights of a party and concludes that party=s action is appealable.  Zisak v. Despatch Indus., Inc., 427 N.W.2d 755, 756 (Minn. App. 1988).

 

In several prior cases, this court has considered the question of whether an out-of-state workers= compensation insurer may intervene seeking reimbursement for benefits paid under another state=s workers= compensation laws.  In all such cases, we have held that neither a compensation judge nor this court has subject matter jurisdiction to determine or impose a Minnesota remedy where resolution of such a reimbursement claim involves determining whether an employee was entitled to workers= compensation benefits in another state or whether those benefits were mistakenly or improperly paid.  As noted in those cases, the jurisdiction of the Minnesota workers= compensation courts is limited by statute solely to interpreting and applying the workers= compensation laws of this state.  Boothe v. TFE, 55 W.C.D. 353 (W.C.C.A. 1996);Rhoades, v. K&C Distr., 51 W.C.D. 503 (W.C.C.A. 1994); Petterson v. K&C Distr., 51 W.C.D. 295 (W.C.C.A. 1994);  Rundberg v. Hirschback Motor Lines, 51 W.C.D. 193 (W.C.C.A. 1994); Johnson v. Young & Davis Drywall, Inc., slip op. (W.C.C.A. Aug. 8, 2001); Erickson v. Otness Mgmt, slip op. (W.C.C.A. April 10, 1997); Solem v. Ballard Int= l Corp., slip op. (W.C.C.A. July 28, 1995); Evans v. Dave Evans Transp., Inc., slip op. (W.C.C.A. Aug. 24, 1994).

 

Pinnacol argues, however, that the present case must be distinguished from these prior cases, because this court=s prior cases involved a single injury potentially compensable in both Minnesota and another state, while this case involves two injuries with different employers, one compensable in Colorado but not in Minnesota, and the other compensable in Minnesota but not in Colorado.   Pinnacol, which provides Colorado coverage solely for the first of these injuries, asserts that  its reimbursement claim, which involves only payments made following the second, Minnesota, injury, presents no issues of out-of-state workers= compensation law.  We disagree.

 

Regardless of the specific facts of this case, and regardless of whether the two injuries were clearly distinct, the issue on which Pinnacol seeks determination is whether it is entitled to reimbursement for benefits it allegedly overpaid or paid under mistake of fact under the workers= compensation laws of the state of Colorado.  The Minnesota workers= compensation courts have no jurisdiction to order Viking Trucking Company and its insurer to repay or reimburse Pinnacol for benefits paid under Colorado law.  As the jurisdiction of this court is limited by statute solely to interpreting and applying the workers= compensation laws of this state, we affirm the compensation judge=s order dismissing Pinnacol.

 

Pinnacol also argues that the employer and insurer=s objection to its intervention was untimely.  Lack of subject matter jurisdiction may be raised at any time, and a court may also raise and determine jurisdiction on its own motion, even though none of the parties has raised the issue.  See, e.g., Davidner v. Davidner, 304 Minn. 491, 493, 232 N.W.2d 5, 7 (Minn. 1975).  Subject matter jurisdiction, where absent, is not conferred by the failure of a party to comply with procedural rules.  We thus need not reach this question as we have already determined that subject matter jurisdiction is absent for the determination of Pinnacol=s proposed claim in intervention. 

 

Finally, Pinnacol argues that the denial of intervention in this case violates the doctrines of equal protection and due process.  These issues are beyond our jurisdiction and may be decided only by further appeal to the Minnesota Supreme Court.  See, e.g., Minn. Stat. ' 176.421, subds. 1 and 6; Veith v. Knudsen Trucking, Inc., 30 W.C.D. 159 (Minn. 1977).

 

We accordingly affirm the dismissal of the intervenor, Pinnacol.