BRUCE W. METTNER, Employee/Appellant, v. BRUSH MASTERS, INC., and MUTUAL INS. CORP. OF AM., Employer-Insurer, ANDERSON WINDOWS and GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and CHARLES CUDD CO. and STATE FUND MUT. INS. CO., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 1, 2002

 

HEADNOTES

 

APPEALS - RECORD; PRACTICE & PROCEDURE - DISMISSAL.  In cases where the judge=s order affects the merits of the case, it is incumbent upon the compensation judge to establish a record sufficient for appellate review.  Where the appellate court had been provided with no indication of the basis for the compensation judge=s order and so could not appropriately review the judge=s decision, the court vacated the compensation judge=s order dismissing one of the alleged employers and its insurer and remanded the matter to the compensation judge for reconsideration or for an evidentiary hearing on the merits of the employee=s claim.

 

Vacated and remanded.

 

Determined by Pederson, J., Rykken, J., and Johnson, J.

Compensation Judge:  Danny P. Kelly.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s order dismissing employer Charles Cudd Company and insurer State Fund Mutual Insurance Company.  We vacate the order and remand the case to the Office of Administrative Hearings.

 

BACKGROUND^[1]

 

On February 21, 2001, Bruce Mettner sustained an injury to his right arm and elbow when he slipped and fell on ice at a job site while employed as a wall painter for Brush Masters, Inc. [Brush Masters], purportedly a subcontractor of Charles Cudd Company.  According to a First Report of Injury completed the following day, Mr. Mettner [the employee] had just sat down for lunch at the job site when an agent of window contractor Andersen Windows [Andersen], unaffiliated with Brush Masters, asked for help carrying in a double-hung window.  The employee consented and was injured as he assisted the Andersen agent.

 

On March 2, 2001, Brush Masters and its workers= compensation insurer, Mutual Insurance Corporation of America [Mutual], filed a Notice of Insurer=s Primary Liability Determination, denying liability on the ground that the Aemployee=s injury did not arise out of or in the scope of employment with Brush Masters.@

 

On April 25, 2001, the employee filed a claim petition against Brush Masters and Mutual.  Four months later, on August 28, 2001, the employee filed an amended claim petition, adding Andersen and its insurer, Gallagher Bassett Services, Inc. [Gallagher], as parties to the case.  Andersen and Gallagher denied that the employee was employed by Andersen on the date of the injury, contending that the amended petition failed to provide support for the claimed employment relationship with Andersen.

 

The employee filed a second amended claim petition on February 8, 2002, in which he named Charles Cudd Company [Cudd] and State Fund Mutual Insurance Company [State Fund] as an additional employer and insurer.  In a letter accompanying service of the petition on February 5, 2002, the employee=s attorney advised Cudd and State Fund as follows:

 

I am representing Bruce W. Mettner for an injury which occurred on February 21, 2001, while working on a job site located at 6711 Point Lake Lucy Road in either Chanhasen or Eden Prairie.  My client was a painter for Brush Masters, Inc. on the date of injury.  The injury occurred while my client was taking his lunch break and an employee of Andersen Windows arrived to deliver a window that weighed much more than one individual could handle by himself.  He asked for assistance from the painters taking their break and while no one really wanted to help, my client did, in fact, assist this Andersen Window employee in bringing the window into the house.

 

Unfortunately, Mr. Mettner slipped on the property and sustained a severe fracture to his right elbow.  He has now missed time from work and incurred substantial medical bills for treatment to his elbow.  A workers= compensation claim has previously been filed against both Brush Masters, Inc. and Andersen Windows but neither company is willing to pay any benefits to my client.  I have added your company, as the general contractor, to the Claim Petition in order to proceed against any possible coverage that the various employers involved may have.  It certainly seems unfair to me that my client should have to bear the time loss and medical expenses associated with this injury since he was not acting on his own behalf but was, in fact, furthering the business of one or more of the employers that are now named on the Claim Petition.

 

On March 11, 2002, Cudd and State Fund answered the employee=s petition, asserting that the employee was not employed by Cudd on February 21, 2001, and was, in fact, employed by Brush Masters at the time of the injury.  Cudd and State Fund further alleged that any allegation of liability pursuant to Minn. Stat. ' 176.215^[2] is inapplicable as a matter of law because the employee=s employer, Brush Masters, was insured in accordance with Chapter 176.  On that same date, Cudd and State Fund also filed a Motion to Dismiss and Affidavit of Counsel.  In his affidavit, counsel for Cudd and State Fund asserted that the employee=s attorney, in his letter of February 5, 2002, admitted that the employee was employed by Brush Masters and that, as a matter of law, Cudd had no liability to the employee as a general contractor under Minn. Stat. ' 176.215.

 

The employee did not file a response to the Motion to Dismiss.  On March 22, 2002, without a hearing or conference on the motion, a compensation judge issued an Order Dismissing Charles Cudd Company and State Fund Mutual Insurance Company.  The judge=s order in its entirety reads:

 

Having reviewed the Motion to Dismiss of Charles Cudd Company and State Fund Mutual Insurance Company, and the Affidavit of Counsel filed March 11, 2002, and the files and records in this matter, the undersigned grants the Order Dismissing Charles Cudd Company and State Fund Mutual Insurance Company from the above-captioned matter.

 

On April 8, 2002, the employee filed with the compensation judge a Motion to Reconsider Dismissal of Charles Cudd Company.  The employee asserted that there are issues of fact and law regarding Cudd=s workers= compensation liability and to dismiss the employer without a hearing on all of the facts and circumstances is premature.  On April 17, 2002, the compensation judge denied the motion.  The employee appeals from the order for dismissal.

 

DECISION

 

The employee argues that the compensation judge dismissed Cudd on the ground that Cudd had no statutory liability pursuant to Minn. Stat. ' 176.215.  He argues that, because statutory liability under that section is not the sole basis upon which a general contractor may be held responsible for a workers= compensation injury, it was inappropriate for the judge to dismiss Cudd without a hearing on the factual issue of whether there existed an employer-employee relationship.  Cudd and State Fund contend that the employee has failed to establish a legal or factual basis upon which liability may be assessed against them and that therefore the order for dismissal should be affirmed.

 

On appeal, the role of this court is to determine whether the decision below is legally correct and whether the evidence supports any factual determination.  We recognize that there is no provision in either the statute or the rules mandating that hearings be held on motions in general or on motions to dismiss in particular.  However, as an appellate court, our review function is dependent on access to the factual and legal bases for a compensation judge=s decision.  In the present case, the judge apparently determined, without issuing any findings of fact or conclusions of law, that there was no genuine issue of material fact or law and that an order for dismissal was required as a matter of law.  In cases where the judge=s order affects the merits of the case, it is incumbent upon the compensation judge to establish a record sufficient for appellate review.  While in this case there may well be merit to the allegations of Cudd and State Fund, we have been provided with no indication of the basis for the judge=s order and so cannot appropriately review his decision.  Accordingly, we vacate the order dismissing Cudd and State Fund, and we remand the matter to the compensation judge for reconsideration of the motion to dismiss, pursuant to this opinion, or for an evidentiary hearing on the merits of the employee=s claim as appropriate.