The employer and insurer appeal from the assistant chief administrative law judge’s order denying their motion to disqualify and remove the compensation judge assigned to hear this case.  We dismiss the appeal for lack of jurisdiction.

The employee suffered a work injury in March 2010, while employed by Midwest Precision Machining.  The employer and insurer admitted liability and paid benefits, including temporary total disability.  On August 17, 2010, the employer and insurer filed a Notice of Intention to Discontinue Workers’ Compensation Benefits (NOID), asserting the employee’s injury was temporary and had resolved fully based on the opinion of Dr. Richard Strand, the independent medical examiner.

The employee requested an administrative conference pursuant to Minn. Stat. § 176.239.  On September 1, 2010, the parties were notified by the Office of Administrative Hearings (OAH) that the conference was scheduled for September 15, 2010, and that the case had been assigned to Compensation Judge John Ellefson.

Following the administrative conference, Judge Ellefson issued an Order on Discontinuance on September 21, 2010, finding no reasonable grounds to discontinue the employee’s temporary total disability benefits.  The judge explained his decision, stating “Dr. Strand’s opinions are inconsistent with the employee’s ongoing symptoms.  Therefore, his opinions are rejected and the treating doctor’s opinions regarding the need for restrictions are found to be more persuasive.”

On or about October 14, 2010, the employer and insurer served and filed a petition to discontinue workers’ compensation benefits pursuant to Minn. Stat. § 176.238, subd. 5, asserting the employee had suffered a temporary aggravation that had resolved fully with no work restrictions or permanent disability, again relying on the opinion of Dr. Strand.  On November 16, 2010, OAH issued a Notice of Hearing on the petition along with a Request for Rehabilitation Assistance addressing the same temporary aggravation defense.  The hearing was scheduled to be heard before Judge Ellefson.  On November 23, 2010, the employer and insurer filed a Motion to Disqualify, for cause, requesting reassignment of the case to a different compensation judge.  The employer and insurer argued that Judge Ellefson was prejudiced in that he had “literally” prejudged the specific facts and issues on which the employer and insurer were entitled to a de novo hearing under Minn. Stat. § 176.238, subd. 5.  An Order Denying Petition for Disqualification was served and filed on December 6, 2010.  The employer and insurer appealed.

The Workers’ Compensation Court of Appeals (WCCA) is a court of limited jurisdiction, the scope of which is governed by statute.  Pursuant to Minn. Stat. § 176.421, subd. 1, appeals to this court may be taken from “an award or disallowance of compensation or other order affecting the merits of the case” (emphasis added).  The preliminary question in this case is whether the compensation judge’s Order Denying Petition for Disqualification is presently appealable.

Minnesota appellate courts do not favor interlocutory appeals,^[1] and, as a general rule, an appeal may not be taken from an order or proceeding in the trial court that does not finally determine the action.  Carter v. Cole, 526 N.W.2d 209, 213 (Minn. App. 1995); Village of Roseville v. Sunset Mem’l Park Ass’n, Inc., 262 Minn. 108, 113 N.W.2d 857 (1962).  In construing the phrase “an order involving the merits of the action,” the Minnesota Supreme Court has held that an order is not appealable unless, in effect, it finally determines the action or finally determines some substantive legal right of a party.  Wallace T. Bruce, Inc. v. Najarian, 249 Minn. 99, 81 N.W.2d 282 (1957) (an interlocutory order is not appealable unless the order operates as an adjudication on the merits); Chapman v. Dorsey, 230 Minn. 279, 41 N.W.2d 438, 441 (1950) (an order which is finally determinative of the action relates to, and is decisive of, the fundamental issues upon which the pending suit is based); Zizak v. Despatch Indus., Inc., 427 N.W.2d 755, 756 (Minn. App. 1988) (as a general rule, only an order which finally determines the rights of the parties and concludes the action is appealable).  The court of appeals explained that,

The supreme court specifically addressed the appellate jurisdiction of the WCCA in Mierau v. Alcon Indus., Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986).  In a majority opinion, judges of this court agreed the order appealed was an intermediate or interlocutory order, and that such orders are generally not reviewable until a determination on the merits has been made.  The majority determined, however, to “exercise [their] discretion” and to hear and decide the appeal because of the significance of the procedural issue involved. Mierau v. Alcon Indus., Inc., 38 W.C.D. 112 (W.C.C.A. 1985).^[2]  The supreme court reversed, emphasizing that “the extent of the WCCA’s jurisdiction is governed by statute,” and holding that the order at issue was “not an ‘order affecting the merits of the case,’ nor . . . an order preventing a later determination on the merits.  Thus, the order was not appealable under this statute, and the WCCA lacked subject matter jurisdiction over the appeal.”  Mireau at 742, 38 W.C.D. at 653.  In applying and interpreting Mireau, this court has held that an order “affecting the merits of the case” is one that finally determines the rights of the parties or concludes the action, preventing a later determination on the merits.”  Herbst v. Jones Truck Lines, 59 W.C.D. 442 (W.C.C.A. 1999); Duran v. Bongards’ Creameries, slip op. (W.C.C.A. Oct. 12, 1999); Hagen v. Hoffman Aseptic Packaging, slip op. (W.C.C.A. May 8, 1997); compare Andor v. Buhler Mfg. Co, slip op. (W.C.C.A. Aug. 9, 1996) (an order denying a motion to dismiss for lack of jurisdiction is an appealable order).

More specifically, appellate courts have generally held that an order denying a motion to remove or disqualify a judge is a nonappealable interlocutory order.  See, e.g., State v. Lindgren, 306 Minn. 133, 235 N.W.2d 379 (1975) (appeal to district court from denial of motion to disqualify a judge not “learned in the law” dismissed on the basis the order was a nonappealable order); Luedtke v. Luedtke, 30 Wis.2d 69, 139 N.W.2d (1966) (an order refusing to honor an affidavit of prejudice is not appealable); Traynor/North Dakota Workers Compensation Bureau v. LeClerc, 561 N.W.2d 644 (N.D. 1997) (although reviewable on appeal from a final judgment, an order denying a demand for a change of judge is not appealable); Ziebarth v. Farm Credit Bank of St. Paul, 494 N.W.2d 145 (N.D. 1992) (citing Adolph Rub Trust v. Rub, 473 N.W.2d 442 (N.D. 1991)) (an order denying an objection to the assignment of a judge is not appealable prior to an entry of judgment); see also Village of Roseville, 113 N.W.2d at 858 (an order appointing commissioners in a condemnation proceeding is not appealable but may be reviewed on appeal from a final judgment).

This court has previously held that an order denying a petition for reassignment is not an appealable order.  In Johnson v. Eberhardt Property Mgmt., slip op. (W.C.C.A. Feb. 28, 1992), the employer and insurer appealed from an “Order Denying Petition for Reassignment Because of Prejudice.”  The appellants argued that assignment of the compensation judge has a greater impact on the outcome of the case on the merits than any other single factor, and that the supposed remedy of preserving the issue for post-hearing appeal was no remedy at all.  This court dismissed the appeal, concluding an order denying a petition for reassignment is not an order affecting the merits of the case, nor is it an order preventing a later determination on the merits.  See also, Shimon v. Flour City Brush Co., slip op. (W.C.C.A. Jan. 15, 1999); Gesche-Hage v. HealthEast Transp., slip op. (W.C.C.A. Sept. 8, 1992); Letourneau v. North Suburban Fence, Inc., slip op. (W.C.C.A. Sept. 3, 1992).

Both the employee and the employer and insurer cite Van Milligan v. Northwest Airlines Corp., slip op. (W.C.C.A. Oct. 11, 2001), asserting a refusal by OAH to assign a different compensation judge is an order subject to review by the WCCA.  We disagree.  In Van Milligan, the employee appealed from the denial of her petition for reassignment of the original block assigned judge.  Pending at the same time was a separate appeal by the employer and insurer from a findings and order on the employee’s objection to discontinuance.  Concluding the judge misapplied the law in that proceeding, the court issued an order vacating and remanding the case for redetermination.  The court concluded the appeal from the denial of the petition for reassignment was moot as a result of the remand, and dismissed the appeal.  The court did not consider the merits of the employee’s appeal from the order.

The employer and insurer argue that allowing Judge Ellefson to conduct the hearing “predetermines” the outcome of the case on the merits and deprives them of their right to a de novo hearing, required by Minn. Stat. § 176.238, subd. 5.  The employee joins the employer and insurer’s arguments on appeal, arguing the issues presented by the appeal are so significant as to require a decision by the Workers’ Compensation Court of Appeals.  The fact that the parties would prefer resolution of the issue before the judge hears the case does not operate to confer jurisdiction upon this court.  Jurisdiction cannot be enlarged or conferred by the consent or agreement of the parties.  Mierau at 742, 38 W.C.D. at 653 ; Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.CD. 541 (Minn. 1983); Village of Roseville at 858.

Pre-trial orders arguably always have the potential to affect the outcome of the litigation.  Should the assignment of Judge Ellefson remain an issue in this case, the employer and insurer are entitled to have the order considered on appeal from the judge’s decision on the merits.  Herbst at 444; Duran at 3.  In the alternative, the employer and insurer may apply to the supreme court for a writ of prohibition.  Mierau at 742 n.1; see, e.g., Lindgren, 235 N.W.2d at 380.

The Order Denying Petition to Disqualify carries with it no finality, in that the order is subject to correction upon an appeal from the decision on the merits.  There is nothing in the order that finally determines the merits of the action, and we see no reason to distinguish this case from this court’s previous decisions holding that an interlocutory order denying a motion to disqualify or remove a compensation judge is not appealable.  We conclude this court lacks jurisdiction, and therefore dismiss the employer and insurer’s appeal.