The employee appeals from the compensation judge’s determination that his personal injury of August 24, 2007, was temporary in nature and from the judge’s denial of his claim for wage loss and medical benefits after November 24, 2007.  The Minnesota Department of Employment and Economic Development cross-appeals from the judge’s determination that one of its divisions, State Services for the Blind, is a general contractor liable for payment of compensation under Minnesota Statutes section 176.215.  We affirm the compensation judge’s determination that the employee sustained a temporary injury on August 24, 2007, and we reverse the judge’s finding that State Services for the Blind is a general contractor under Minnesota Statutes section 176.215.

On August 24, 2007, Mikel Hehn [the employee] sustained injuries to his back and neck as a result of a motor vehicle accident while working for John Petron, doing business as Petron Vending [the employer].  On that date, the employee was forty-nine years old and was earning a weekly wage of $300.27.^[1]  The employee had been hired in May 2007 as a driver and assistant to Mr. Petron, who is legally blind.  Petron Vending operated a vending route located on federal and state properties in the St. Cloud, Minnesota, area, under license granted by State Services for the Blind [SSB], a division within the Department of Employment and Economic Development [DEED] created “to provide and coordinate services to the blind.”^[2]  The accident occurred when the employee and Mr. Petron were stopped at a stoplight in the employer’s van and were rear-ended by another vehicle.  The employer was uninsured for workers’ compensation liability at the time.

The employee’s medical history is significant for neck and back complaints prior to the accident on August 24, 2007.  The employee testified that he had experienced intermittent low back complaints over a number of years and had obtained chiropractic treatment for these complaints.  In a history provided to chiropractor Dr. Jon Anderson on January 19, 2004, the employee reported a number of symptoms, including lower back symptoms that evidently began in 1981 and had “been occurring constantly”^[3] ever since.  At that visit, the employee complained of lower back pain with bilateral lower extremity symptoms.

On March 11, 2005, while working as a driver for DHL, a delivery service, a van that the employee was driving was struck on the driver’s side door by another vehicle that had failed to stop at a stop sign.  The employee experienced immediate pain throughout his entire body for about two months, and thereafter he treated chiefly for persisting neck and upper back pain with associated headaches.  The employee’s treatment during 2005 was extensive and included physical therapy, chiropractic treatment, diagnostic studies, and evaluation by a neurosurgeon and physiatrist.^[4]

In 2006, the employee came under the care of Dr. Jonathan Nelson at HealthPartners.  On November 7, 2006, now some twenty months following the 2005 accident, Dr. Nelson diagnosed neck strain and cervical disc injury with chronic pain and headaches.  The employee continued to relate his pain complaints to the auto accident, and Dr. Nelson recommended ongoing physical therapy, medication with carefully monitored “opioid therapy,” and work restrictions.

The employee continued to treat with HealthPartners into 2007, and he also commenced treatment at Hjort Chiropractic in St. Cloud, where he was seen by Drs. Paul Hjort and Sara Rowe on thirty occasions between January 22, 2007, and August 21, 2007.  The employee’s chief complaints during those visits were neck, upper back, and headache pain, but on more than half of those visits he also treated for lower back complaints, with occasional symptoms into the backs of his legs.  When the employee complained of lower back pain, the doctors directed their treatments to the L4 and L5 areas of his low back.

In May 2007, the employee began working for Petron Vending, after interviewing for the job with Mr. Petron and Mr. Petron’s direct contact at SSB, management coordinator Jerry Christensen.  By that time, the employee had been assigned a thirty-five-pound lifting limitation by Dr. Nelson, but the parties dispute whether that limitation was discussed at the interview.  Regardless of his restrictions, however, the employee testified that his duties for the employer were within his limitations.

On August 21, 2007, three days before the employee’s injury with Petron Vending, the employee was seen by Dr. Rowe, chiefly for upper back and neck stiffness that the employee reported had gotten worse for unknown reasons.  He reported also that his lower back and mid back symptoms were “doing really well since his last few visits.”  Two days later, on August 23, 2007, the employee returned to see Dr. Nelson regarding a number of issues, including his chronic pain syndrome and his medication usage.

On August 24, 2007, following the accident at work, the employee was seen by Dr. Rowe, to whom he reported having both moderate and significant neck, back, and headache pain.  He told her that prior to the accident that day he had been feeling good and had had minimal pain but that since the “crash” his pain was worse.  He noted also that his lower back symptoms now radiated into his hips bilaterally.  Dr. Rowe’s primary diagnosis was cervical sprain/strain with cervical segmental dysfunction and cephalgia.  She also diagnosed thoracic sprain/strain, sacroiliac sprain, and lumbar sprain/strain.

The employee continued working for the employer at his normal job and returned to see Dr. Nelson for a follow-up evaluation of his chronic pain on September 6, 2007.  He reported to the doctor that his neck had been getting worse and that “last week I was rear-ended at work again and now my neck and back are bugging me.”  The employee described predominantly neck pain but also pain radiating into his shoulders and into his low back.  The doctor noted that the employee had no problem moving his arms or legs, had no problem walking, and had no numbness, tingling, or weakness in his extremities.  The doctor continued to diagnose chronic pain syndrome and to provide medications.  About three weeks later, on September 28, 2007, the employee complained to Dr. Nelson that he continued to have neck pain since the rear-end accident the previous month.  At that visit the employee did not mention his low back, and Dr. Nelson again assessed chronic pain and cervicalgia.

About this same time, the employee entered into a stipulation for settlement with DHL and its workers’ compensation insurer relative to the motor vehicle accident on March 11, 2005.  In that stipulation, the employee contended that he had sustained injuries to his cervical and thoracic spine that had resulted in consequential headaches.  He contended that he continued to require ongoing medical treatment related to his injuries and that he was eligible for temporary partial disability benefits continuing since June 1, 2005.  DHL and its insurer contended that the employee sustained merely a temporary injury to his cervical spine on March 11, 2005, and that he was no longer entitled to workers’ compensation benefits as a result of that injury.  DHL and its insurer’s position were supported by the opinion of their independent medical examiner, Dr. Joel Gedan.  The parties agreed to a full, final, and complete settlement of all claims for workers’ compensation benefits, including future medical treatment, as a result of the injuries of March 11, 2005.  An award on stipulation was issued on October 26, 2007.  The following week, on October 31, 2007, the employee quit his job at United Family Dollar Store but remained working for the employer at increased hours.

At his next visit to Dr. Nelson on November 1, 2007, the employee’s complaints were again limited to neck pain and headaches, and he specifically reported that he was having no problem with his low back.  The following week, the employee saw Dr. Nelson again with regard to his chronic neck pain and headaches.  The office note for that visit does not reference any low back complaints, but it does indicate that the employee was having no problem moving his legs or walking.  Dr. Nelson commented that the employee’s pain stemmed from an old auto injury sustained at work a number of years ago, with a flare-up in that pain experienced after a second auto injury at work this fall.  The employee was fired by the employer on November 23, 2007.

The employee returned to see Dr. Nelson on December 6, 2007.  At that visit, the employee stated that his low back had now flared up, in addition to his neck.  He described constant neck pain and complained that his low back had been giving him a lot more problems.  He stated that, for the past week or so, it had been getting quite a bit worse.  He described pain in his lumbar region, without any radiation into his legs.  He denied any numbness or weakness in his legs, but he stated that walking made his back more painful.  He stated that he could not recall any injuries, any lifting, or anything else that might have caused his back to flare up.  Dr. Nelson continued to diagnose chronic pain syndrome and cervicalgia.  The doctor noted that he thought that “the low back pain may be just a muscle strain but certainly with his DDD [degenerative disc disease] there may be a component of that.”

About seven weeks later, on January 25, 2008, the employee again visited with Dr. Nelson, and his chief complaint at that time was left low back pain.  He reported that, for the past two and a half weeks, his low back had been very painful.  He described pain shooting from his left low back up into his upper back and down into his leg.  He also described a burning sensation radiating from his low back down into his foot.  Dr. Nelson continued the employee’s medications and referred him to NovaCare for physical therapy.

The employee was referred for an MRI scan of the cervical spine on February 19, 2008, and an MRI scan of the lumbar spine on April 3, 2008.  Dr. Nelson then referred the employee to neurosurgeon Dr. Jeffrey Gerdes for a surgical assessment on April 11, 2008.  Dr. Gerdes reported that the employee’s cervical MRI showed moderate neural foraminal narrowing with degenerative changes at C4-5, C5-6, and C6-7, with mild central foraminal narrowing.  The lumbar MRI showed degenerative changes most pronounced at L5-S1, with a left-side disc bulge, without significant impingement.  Dr. Gerdes advised the employee that he did not think that surgical intervention for his cervical or lumbar spine would be warranted.  He recommended instead a referral to Dr. Jason Wolff at the Center for Pain Management.

On April 15, 2008, the employee filed a claim petition seeking temporary total and temporary partial disability benefits and medical benefits as a result of his August 24, 2007, motor vehicle accident.  Because the employer was uninsured against workers’ compensation liability, the Special Compensation Fund was also named as a party, pursuant to Minnesota Statutes section 176.183, subdivision 1.

The employee requested a second opinion regarding his surgical options, and he was referred to Dr. Ensor Transfeldt at Twin Cities Spine Center for an evaluation on May 15, 2008.  The employee described his major symptoms to Dr. Transfeldt as low back pain and left leg pain aggravated by standing, walking, and prolonged sitting, and he related his symptoms to motor vehicle accidents on March 11, 2005, and August 24, 2007.  Dr. Transfeldt noted in the history obtained from the employee that the employee had developed a significant amount of neck and back pain following the accident in March of 2005.  The employee reported that he did improve, however, and that his pain plateaued and was manageable.  He reported that he then had a second motor vehicle accident, on August 24, 2007, when he was rear-ended.  The employee told Dr. Transfeldt that he experienced a significant increase in his pain following this accident, which had continued to get progressively worse since that time.  After reviewing both the cervical and the lumbar MRI, Dr. Transfeldt diagnosed cervical and lumbar spine degeneration without clear-cut signs of nerve root impingement or compression, and he recommended discogram studies to further assess the employee’s low back condition.

On June 9, 2008, the employee underwent a three level discography at the Center for Diagnostic Imaging.  The discogram showed concordant reproduction of the employee’s pain at the L4-5 and L5-S1 levels and non-concordant pressure at the L3-4 level.  Based on this discogram, Dr. Transfeldt recommended an anterior and posterior fusion from L4 to the sacrum.

On June 25, 2008, the employer filed a petition to join DEED/SSB, on grounds that it was either a joint employer of the employee or a general contractor liable for payment of compensation under the provisions of Minnesota Statutes section 176.215.

On August 21, 2008, the employee underwent anterior and posterior fusion of his lumbar spine, together with a posterolateral decompression at the L5-S1 level.  Dr. Transfeldt reported that the fusion was done primarily to relieve the employee’s back pain, which was his major symptom.  The decompression procedure at the L5-S1 level was done primarily to relieve  the employee’s leg or radicular pain.

On December 18, 2008, the employee was examined by neurosurgeon Dr. Charles Burton at the request of Allied Insurance, the insurer for the driver who rear-ended the employer’s van.  Dr. Burton obtained a history, performed a physical examination, and reviewed the employee’s medical records.  In a report dated December 31, 2008, Dr. Burton commented that, “[the employee’s] imaging studies have documented advanced and diffuse degenerative changes of the cervical and lumbar spine superimposed upon a congenitally small spinal canal.”  He went on to state, “It is now appreciated that the most common cause of degenerative disc disease is not acquired insult or injury but underlying genetic factors.  There is also no question but that [the employee’s] being a chronic smoker for 35 years has dramatically increased this genetic degenerative process.”  The employee’s medical records revealed that, prior to the August 24, 2007, automobile accident, the employee had had chronic headaches and neck, shoulder, arm, and low back pain, and it was Dr. Burton’s opinion that these were all secondary to advanced multilevel congenital degenerative disc disease of the cervical and lumbar spine.  Based on his evaluation, Dr. Burton found no real change in the employee’s clinical situation following the accident of August 24, 2007.  He therefore concluded that the employee had sustained only a temporary aggravation of his underlying problems as a result of the August 24, 2007, incident.  Dr. Burton opined that physical therapy and chiropractic treatment for a period of not more than twelve weeks following that accident would have been appropriate.

The employee was examined by orthopedist Dr. Paul Wicklund on behalf of the Special Compensation Fund on January 10, 2009.  Dr. Wicklund also obtained a history, performed a physical examination, and reviewed the employee’s medical records.  In a report issued January 16, 2009, the doctor diagnosed congenital cervical stenosis with multilevel degenerative disc disease, together with multilevel degenerative disc disease of the lumbar spine, status-post anterior and posterior fusion.  Dr. Wicklund concluded that the employee had sustained a cervical strain and low back strain in the motor vehicle accident of August 24, 2007.  He noted that, prior to this accident, the employee had been treating on a regular basis chiropractically for complaints of neck pain and low back pain and had also been treating with narcotic pain medication for a diagnosed chronic pain syndrome.  Because of these facts and because of the employee’s prior pain complaints, it was Dr. Wicklund’s opinion that the accident of August 24, 2007, was not a substantial contributing cause of any permanent injuries to the employee’s neck, mid back, or low back.  He believed that the employee had sustained only temporary injuries to the soft tissues and muscles of his neck, mid-back, and low back, which would have lasted only three months.

In a letter dated April 2, 2009, responding to inquiries from the employee’s attorney, Dr. Transfeldt reviewed the history that he had received from the employee, together with the medical records in his possession, and offered his opinions regarding causation.^[5]  Dr. Transfeldt noted that the employee’s physical examination on May 15, 2008, had been consistent with somebody having mechanical back pain associated with disc degeneration.  The employee’s lumbar MRI scan had revealed disc degeneration with posterior disc bulging and severe facet arthrosis at the L5-S1 level, together with mild degeneration at the L4-5 level.  The MRI scan of the cervical spine had revealed multiple levels of disc degeneration of the cervical spine.  Dr. Transfeldt diagnosed cervical and lumbar spine degeneration, with symptoms of nerve root irritation involving the lumbar spine but no clear-cut signs of nerve root impingement or compression.  It was Dr. Transfeldt’s opinion that the motor vehicle accident of August 24, 2007, was a substantial contributing factor in the employee’s disability and need for the surgery that was performed in August of 2008.  While he agreed that the employee had some underlying disc degeneration, he noted that the employee had not been requiring frequent visits or treatments in the year prior to the accident, whereas there had been a significant increase in the employee’s symptoms following the accident.  He stated, “There is a clear-cut temporal relationship between the onset of severe disabling symptoms and the accident itself.  Those symptoms persisted without any significant improvement, and, in fact, he actually had progression of his symptoms.”

The employee’s claims for benefits came on for hearing before a compensation judge at the Office of Administrative Hearings on August 11, 2009.  Issues for determination presented to the compensation judge included the following: (1) whether the employee’s injury of August 24, 2007, was permanent or temporary in nature; (2) whether the employee was temporarily partially disabled from October 31, 2007, to November 23, 2007; (3) whether the employee was entitled to temporary total disability benefits continuing from November 24, 2007, to the date of hearing; (4) whether medical expenses paid by the intervenors and out-of-pocket expenses paid by the employee were reasonable and necessary and causally related to the injury of August 24, 2007; and (5) whether SSB was a general contractor with liability for benefits under Minnesota Statutes section 176.215.  Witnesses at trial included the employee, John Petron, and Pamela Brown and Jerry Christensen from SSB.  Documentary evidence included portions of the employee’s voluminous medical records and the narrative reports issued by Drs. Transfeldt, Gedan, Burton, and Wicklund.  With regard to the alleged general contractor issue, the Special Compensation Fund introduced an agreement dated July 25, 2000, between SSB and John Petron, granting Mr. Petron the privilege to operate a St. Cloud Vending Route.  The Fund also introduced an undated and unsigned draft of an agreement between St. Cloud Technical College [SCTC] and SSB regarding the placement of vending machines at that location, together with a copy of dress code guidelines evidently issued by SSB.

The employee testified that following the motor vehicle accident of March 11, 2005, his entire body was sore, including his low back.  His low back pain subsided after about two months, he said, but he continued to obtain treatment for persisting neck and upper back pain and headaches.  He testified that he had experienced some intermittent low back pain from time to time but that he was not having any such problems at the time of the accident on August 24, 2007.  Following the accident, he testified, he continued to perform his regular job as a driver and assistant to Mr. Petron without modification and did not miss time from work.  In fact, he testified, he actually worked more hours than he had before the accident, due to the fact that school was in session during the fall and had not been during the summer.  The employee testified that his neck and upper back symptoms returned to their pre-accident level about two or three weeks following the August accident but that he eventually quit his job at United Family Dollar Store on October 31, 2007, because of low back and hip pain related to the August accident, which was making it increasingly difficult for him to be on his feet.  The employee testified that he considered John Petron, not SSB, to be his employer.  Although Jerry Christensen from SSB was present during the interview process, he testified, during the time that he worked for the employer he rarely had any contact with anyone from SSB, and it was John Petron who terminated his employment on November 23, 2007.

John Petron testified that he had been the owner of Petron Vending for the last nine years.  As a legally blind individual, he had been referred to SSB by his doctor and had decided to apply for the Business Enterprise Program [BEP] sponsored by SSB.  He testified that he had participated in a six-month training program that instructed qualified participants in how to maintain a vending stand or vending machine route and that in about 2000 he was awarded a license by SSB to operate a route in eight federal and state buildings in the St. Cloud area.  Mr. Petron testified that it was his decision to hire the employee in May 2007 and that it was his decision to terminate the employee on November 23, 2007.  He testified that he was a passenger in the van when the accident occurred on August 24, 2007, and that he felt a little bit of a jolt from the incident but experienced no injuries.  He testified that the employee claimed to be all right at the scene and that, during the remaining time that the employee worked for him, he had no conversations that would have alerted him to a claimed injury on August 24, 2007.  Nor had he, he said, been provided with any notes from the employee’s doctors restricting him in his work after the accident, although he was aware of the employee’s previous auto accident and the fact that he was receiving treatment and medications for problems related to that accident.

Pamela Brown, director of the workforce development program at SSB, also testified at trial.  She stated that SSB is a state agency that administers an employment program, both federal and state, for residents of the state of Minnesota who are blind.^[6]  Ms. Brown testified that the purpose of the program is to assist residents of Minnesota who are visually impaired to obtain independence in their daily living and in their employment.  She stated that a person may become involved in the vending program through the vocational rehabilitation program at SSB.  After testing to demonstrate skills necessary to operate a vending machine, she testified, the blind individual undergoes extensive training to learn what is necessary to operate a business.  Ms. Brown testified that, under law, SSB has the exclusive authority to establish and operate vending stands and vending machines on state and federal property within the state of Minnesota, overseeing the program in accordance with the requirements established by statute and rules promulgated pursuant to Minnesota Statutes section 248.07, subdivision 14A.^[7]  Ms. Brown testified that the program does assess an operational charge against the operator’s monthly net proceeds but that these charges, or set-aside funds, are strictly accounted for and are only used for the benefit of the program - - for maintenance of equipment, for the purchase of new equipment, and to provide certain fringe benefits for the blind operators.  The program itself does not earn a profit from its operations.  Ms. Brown testified that SSB does have occasion to write up agreements with administrating authorities at the various locations where vending operations exist but that such agreements address service and maintenance costs, not SSB’s authority to establish and operate the program on the property in question.

In a findings and order issued October 9, 2009, the compensation judge found that the employee sustained temporary injuries to his neck and low back as a result of the motor vehicle accident on August 24, 2007.  The temporary flare-up of the employee’s pre-existing neck condition lasted three weeks, and the aggravation of the employee’s low back condition lasted until November 24, 2007, or about three months.  The judge denied the employee’s claims for wage replacement benefits and awarded only medical expenses and out-of-pocket expenses for the periods coinciding with the temporary aggravations.  The judge found also that John Petron was not insured against workers’ compensation liability on the date of injury and that SSB was a general contractor as contemplated by Minnesota Statutes section 176.215.  As such, the judge found SSB liable for the payment of the compensation awarded by the decision.  The employee and SSB appeal.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1 (2008).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

The employee contends that the compensation judge’s finding that the employee only temporarily injured his low back as a result of the motor vehicle accident of August 24, 2007, is clearly erroneous and unsupported by substantial evidence in the record.^[8]  He contends that the opinions of Drs. Wicklund and Burton, upon whom the compensation judge relied, were based on factually inaccurate information.  Contrary to the IME opinions, the employee asserts, he rarely treated for low back problems prior to the work injury with the employer and had never been diagnosed with degenerative disc disease of the lumbar spine before August 24, 2007.  Nor had his treating doctors placed any restrictions on him relative to his low back or found that his back condition was severe enough to warrant an MRI scan.  The employee further asserts that, in his visits to Hjort Chiropractic prior to the work injury, his chief complaints were always related to neck, upper back, and headache pain.  It was not until after the accident of August 24, 2007, he argues, that the medical records reflect low back pain radiating into his hips.  The employee asserts that prior to the 2007 work injury his lower back complaints would always improve with some treatment.  After August 24, 2007, he contends, his symptoms did not improve but, in fact, progressively worsened.  We are not persuaded.

In a memorandum accompanying his findings and order, the compensation judge stated that he was persuaded by the opinions of Drs. Burton and Wicklund that the employee sustained no more than a temporary aggravation of his low back condition as a result of the August 24, 2007, motor vehicle accident.  Both doctors agreed that the temporary aggravation lasted no more than three months.  The major premise for their opinions was that the employee had significant pre-existing degenerative disc disease in his lower back.  Although the employee may never have been formally diagnosed with that condition prior to the injury, we note that his own examiner, Dr. Transfeldt, agreed that the employee had underlying disc degeneration and that his diagnosis was specifically lumbar spine degeneration.  The judge was also persuaded by Dr. Burton’s opinion that degenerative disc disease is related to underlying genetic factors and that the employee’s chronic smoking history had dramatically increased this genetic degenerative process.  Moreover, contrary to the employee’s contentions that the chiropractic records do not document low back pain and treatment in the months prior to August 24, 2007, the judge noted that the Hjort Chiropractic records do refer to treatment of the low back on a number of occasions prior to the work injury.  The judge was also persuaded by the fact that the employee was not disabled as a result of any increased symptoms that he experienced immediately following the accident.  No restrictions were issued with respect to his low back during the fall of 2007, and, in fact, the employee worked more hours after the accident then he did before it.  The judge acknowledged that the employee’s back eventually got worse and required an eventual fusion, but he did not accept Dr. Transfeldt’s opinion that the motor vehicle accident was a substantial contributing cause of the employee’s progressing symptoms.

We acknowledge that the record clearly contains expert opinion and other medical evidence that supports the employee’s claim.  The issue on appeal, however, is whether there is adequate evidence in the record to support the determination of the compensation judge, not whether there is evidence to support a contrary conclusion.  See, e.g., Land v. Washington Co. Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003).  Considering the entire record as submitted, we cannot conclude that the judge’s decision is so unsupported by the record as to justify reversal.  Nor do we find any foundational flaws in the opinions rendered by Drs. Wicklund and Burton.  Given the employee’s long history of intermittent low back complaints, his underlying degenerative disc disease, and the fact that the employee continued to work for the employer without restrictions and at increased hours, and given the expert opinions of Drs. Burton and Wicklund, we conclude that the record reasonably supports the judge’s determination that the employee’s 2007 low back injury was a temporary one ending November 24, 2007.  We therefore affirm the judge’s finding and his denial of the employee’s claims for wage loss benefits.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

Under the Minnesota Workers’ Compensation Act, “[w]hen any employee sustains an injury arising out of and in the course of employment while in the employ of an employer . . . not insured or self-insured as provided for in this chapter, the employee . . . shall nevertheless receive benefits as provided for in this chapter from the special compensation fund.”  Minn. Stat. §176.183, subd. 1.  An exception to this rule exists, however, when an employee is working for an uninsured subcontractor.  In such a case, “[t]here shall be no payment from the special compensation fund,” and the general contractor becomes liable under the provisions of Minnesota Statutes section 176.215.  Id.

“Most [workers’ compensation] statutes impose a special compensation liability upon an employer who gets part of its regular work done by the employee of a contractor under it, if the intermediate contractor’s compensation liability is uninsured.”  4 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 70 (2007).  “Although different states use different designations for the person being subjected to statutory employer liability, it is quite common to find such liability confined to ‘principal’ or ‘general’ contractors.”  Id. at § 70.03.  The Minnesota Workers’ Compensation Act provides, “Where a subcontractor fails to comply with this chapter, the general contractor . . . is liable for payment of all compensation due an employee of a subsequent subcontractor who is engaged in work upon the subject matter of the contract.”  Minn. Stat. § 176.215, subd. 1.  Thus, “contractor-under” statutes have generally been applied only to entities “of whom it could be said that they had first taken on contractual obligations with a third party, and had then subcontracted out all or part of these obligations.”  See Larson, supra § 70.03.  Whether an individual or entity is a general contractor for the purposes of Minnesota Statutes section 176.215 is a question of fact.  Weme v. Lastavica, 458 N.W.2d 404, 406, 43 W.C.D. 157, 161 (Minn. 1990).

The issue raised on appeal by SSB is whether a state agency, required statutorily to establish and to operate a vending machine service program with the objective of providing employment opportunities and income for blind persons, is a general contractor as contemplated by Minnesota Statutes section 176.215, subdivision 1.  Although the legislature has now addressed this very issue in a 2009 amendment to Minnesota Statutes section 248.07, subdivision 7, ^[9] arguably clarifying an earlier legislative intent, the issue technically appears to be one of first impression with regard to circumstances predating 2009, such as those here before us.  Therefore we will address it, as did the compensation judge, under case law applicable prior to the 2009 amendment of section 248.07, subdivision 7.

In addressing the general contractor issue, the compensation judge based his analysis on the following considerations, as established in case law:

“A ‘contractor’ is ordinarily understood to be the person who undertakes to supply labor and materials for specific improvements under a contract with an owner or principal.”  Moorhead v. Grassle, 254 Minn. 103, 107, 93 N.W.2d 678, 681, 20 W.C.D. 305, 310 (1958).  “It is ordinarily understood that a ‘subcontractor’ is one who is engaged with a contractor to perform under him some part of the original contract.”  Id.  We find it difficult to conceive of a circumstance in which SSB would ever be hired by a third party to supply labor and materials under a contract.  And, without such contractual obligations to a third party, there would be nothing for SSB to subcontract.  SSB is not a business entity in business to provide vending services.  Rather, it is a licensing agency charged with administering a state and federal program to allow those residents of Minnesota who are blind to obtain independence in their living and their employment.

In the present case, the compensation judge found that SSB had entered into a contract with SCTC regarding the details of establishing and operating vending machines on the college property and that, therefore, SSB had assumed obligations on a contract with a third party.  We distinguish, however, between contracts contemplated by Minnesota Statutes section 176.215, and contracts that are merely incidental to carrying out a government agency’s obligations under a statute.  The authority for SSB to establish and operate a vending operation at SCTC “for the rehabilitation of blind persons” was exclusive and not subject to negotiation.  Minn. Stat. § 248.07, subd. 7.  Ms. Brown testified that SSB will, on occasion, enter into agreements to address incidental issues of utility costs, expenses for storage, and perhaps some commission back to the location.  However, whatever contracts SSB may have entered into with regard to its vending program, those contracts are not the type of third party contracts contemplated by the statute.  Importantly, unlike general contractors, SSB does not exist to earn a profit; it was established only “to provide and coordinate services to the blind.”  SSB’s lack of a financial motivation and the reason for its creation are significant factors distinguishing its role from that of a general contractor as contemplated by the statute.

When SSB granted a vending license to John Petron in July of 2000, Mr. Petron had already completed the six-month course of instruction in the operation of vending equipment and the operation of a business.  Mr. Petron’s agreement with his state licensing agency, SSB, provided that he would conduct his business at all times in accordance with Minnesota Rules Chapter 3321.  Section 3321.1000, subpart 3.D., of those rules provides that “the operator will acquire liability and if necessary workers’ compensation insurance for the vending stand.”  Subpart 2.E. of that same rule provides also that the operator agrees to “indemnify and hold harmless the state of Minnesota, its officers, or agents, for any acts or omissions of said operator that may result in the operator’s liability to third parties . . . .”  Under the law, it was Mr. Petron’s responsibility to carry workers’ compensation insurance on behalf of his employees.  It may be true that the statute and rules pertaining to vending operations charge SSB with responsibility for providing operators with the supervision, assistance, and training necessary to insure a productive business, and such supervision should perhaps have addressed Mr. Petron’s need to carry workers’ compensation insurance.  Nevertheless, as a state agency charged with coordinating services to the blind, SSB simply cannot be characterized as a general contractor within the meaning of Minnesota Statutes section 176.215, and there exists no other basis for imposing workers’ compensation liability on that agency for the injury in question.  We therefore reverse the compensation judge’s decision on this issue.^[10]