JOHN DEVOS, Employee/Appellant, v. RHINO CONTRACTING, INC./UNINSURED, Employer/Respondent, and ALTRU HEALTH SYS., RIVERVIEW HEALTH, and BLUE CROSS BLUE SHIELD OF MINN. & BLUE PLUS, Intervenors, and SPECIAL COMP. FUND, Respondent.

The employee appeals from the compensation judge’s order granting the Special Compensation Fund’s motion to dismiss his amended claim petition. We vacate the order.

On September 24, 2012, John Devos suffered an alleged work-related injury while working in Minnesota. The employee was working for Rhino Contracting, Inc., which was based in Grand Forks, North Dakota. The employee had worked for the employer during both the 2011 and 2012 construction seasons. The parties do not dispute that in 2012, the employee did not work fifteen consecutive days in Minnesota, nor did he work more than two-hundred forty hours in Minnesota. However, a dispute does exist as to whether the employee was recalled or rehired in 2012, and whether that occurred in North Dakota where the employer is based, or in Minnesota where the employee lived.

In December 2014, the employee filed an amended claim petition, seeking wage loss, medical, and vocational rehabilitation benefits, and naming the Special Compensation Fund as insurer. The Special Compensation Fund then filed a motion to dismiss, asserting that the employee’s claim was barred by Minn. Stat. § 176.041, subd. 5b, and arguing that the employee was not entitled to benefits under the Minnesota Workers’ Compensation Act because he was an employee hired in North Dakota by a North Dakota employer and his alleged injury arose out of his temporary work in Minnesota. For nearly two years, the matter was stricken from the calendar at the request of the employee. Upon reinstatement, a special term conference was scheduled to consider the Special Compensation Fund’s motion to dismiss.

On March 27, 2017, Compensation Judge Jerome Arnold held a special term conference via telephone. No witness testimony was received, though exhibits were submitted and appearances were noted on behalf of both the employee and the Special Compensation Fund. At the outset of the conference, counsel for the employee indicated his misunderstanding regarding the proceeding, stating “I thought this was more in the nature of a pretrial.”^[1] Arguments were presented. However, upon request of the employee’s counsel, the record remained open for the submission of additional evidence on the issue of whether the employee was hired in Minnesota or North Dakota in 2012. Before closure of the record, the employee did not submit any additional evidence or testimony. Rather, the employee submitted a formal objection to the motion to dismiss. Therein, he argued that dismissal was not appropriate because factual disputes existed. The employee asserted the Special Compensation Fund bore the burden to prove, and failed to prove, that the employee was recalled in 2012, that he was hired in North Dakota, and that the employer was a North Dakota employer.

The compensation judge issued a Findings and Order on Motion to Dismiss dated May 11, 2017, granting the Special Compensation Fund’s motion to dismiss the amended claim petition. He found that the employee had been recalled in 2012, that he had been hired in North Dakota and by a North Dakota employer, and because the work performed in Minnesota was temporary, the employee’s claim is barred under Minn. Stat. § 176.041, subd. 5b. The employee appealed, citing as error the judge’s factual determinations made to support his conclusion that the employee’s claim for benefits in Minnesota was barred and his dismissal of the claim without an evidentiary hearing in the absence of a set of stipulated facts. In addition, the employee also asserts the provision at issue is unconstitutional and appeals on that basis, as well.

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(3). 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.”^[2] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[3] 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.”^[4]

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.^[5]

The employee appeals from the dismissal of his claim, arguing that the Special Compensation Fund failed to establish the requirements under Minn. Stat. § 176.041, subd. 5b, that would bar his claim. This provision bars claims by employees who are (1) hired in North Dakota, (2) by a North Dakota employer, and (3) whose injuries arise out of that employee’s temporary work in Minnesota.^[6] The employee’s appeal challenges all three components of this provision.

The employee argues that because factual disputes exist as to the circumstances of his hiring and where it occurred, as well as to whether the employer is a North Dakota employer, the compensation judge’s dismissal of the matter without a full evidentiary hearing on these factual disputes was inappropriate. In his Findings and Order, the compensation judge detailed the circumstances of the employee’s hire in the spring of 2011, and how it had occurred in North Dakota. The compensation judge then made a factual determination that the employee had been “recalled” in the spring of 2012, and returned to work after a meeting and testing in North Dakota. He relied upon this factual determination in concluding that, for purposes of Minn. Stat. § 176.041, subd. 5b, the employee was hired in North Dakota. Without explanation or identification of evidence relied upon, the compensation judge described the employer in his findings as a North Dakota employer.

The telephone special term conference was on the record, however, the transcript of the proceeding is minimal. Documentary evidence was submitted by the parties, though there was initial confusion as to which exhibits were before the compensation judge. Based upon a review of the transcript, it is clear that counsel for the employee misunderstood the nature of the conference and was not prepared to present evidence to refute the motion to dismiss. That said, however, counsel for the employee was clear about his position that a factual dispute existed as to where the employee was hired. The employee was given an opportunity following the hearing to provide evidence on this issue, and did not do so.^[7]

The compensation judge made factual determinations for which there is either no evidence or it is unclear what evidence he had considered. Based upon those factual determinations, the compensation judge went on to make legal conclusions with regard to the complex legal issue of jurisdiction. Legal issues may be decided without an evidentiary hearing, but only if the parties agree to a stipulated set of facts pursuant to Minn. Stat. § 176.322.^[8] No stipulated facts were committed to the record in this case, nor does it seem that would have been plausible given employee’s counsel’s indication that a factual dispute existed. Under the circumstances, the dismissal is vacated and the matter remanded for fact finding on the issues of when and where the employee was hired in 2012, and whether the employer is a North Dakota employer.

The employee also contends there is ambiguity in the language of Minn. Stat. § 176.041, subd. 5b, that reasonably allows for more than one interpretation of the term “calendar year” used to specify time periods of temporary work. Because the matter is vacated and remanded to the compensation judge for further fact finding, we decline to address the employee’s arguments in this regard. The employee also raises the question of the constitutionality of this provision. This is a question for the Minnesota Supreme Court, and not one to be addressed by this court.^[9]

The majority’s remand requires the compensation judge to conduct a second hearing on the same issues in this proceeding, when the employee has failed to show, over a two year period, that jurisdiction exists. For this reason, I respectfully dissent.

The majority has determined that genuine issues of fact exist as to whether the employee’s claim is compensable under Minn. Chap. 176. Based on the exhibits in the record before the compensation judge, the employee completed an application in the employer’s Grand Forks, North Dakota office and was hired that same day.^[10] The employer is a North Dakota corporation.^[11] The employee worked 44.5 hours in Minnesota in the calendar year 2012, and those hours did not fall over fifteen consecutive days.^[12] The foregoing facts are undisputed. If the determinative statute at issue is Minn. Stat. § 176.041, subd. 5b, the employee does not qualify for benefits under the Minnesota Workers’ Compensation Act.

The employee advanced an alternative theory to qualify for Minnesota benefits, that the manner in which the employee was recalled to work in 2012 by the North Dakota employer renders the employee hired in Minnesota. In cases where such recall has occurred with the employee located in Minnesota and the recall constitutes the final assent to resuming work, the employee was hired in Minnesota, thereby taking the matter out of Minn. Stat. § 176.041, subd. 5b.^[13]

Here, the factual record is silent on the manner in which the employee was recalled. The only description of any recall process is made in the argument advanced by the employee’s counsel. The argument of counsel is not evidence.^[14] The absence of evidence supporting the employee’s theory is reflected in the procedural posture of this case.^[15] The employee has had over 18 months to present the factual basis for this theory. Without actual evidence supporting the employee’s alternative theory of hiring, there is no basis for finding the employee to be hired in Minnesota, and thus this court must find that the compensation judge’s decision is supported by the substantial evidence in the record that the employee was hired in North Dakota. The mere absence of evidence to the contrary is not enough to contradict this conclusion.

I am concerned that the majority remands this matter for a full evidentiary hearing on the issue of jurisdiction. The long-standing practice for questions of jurisdiction is to resolve that issue separately from any other issue presented.^[16] This was accomplished on the date of the last hearing on the motion for dismissal. This court has historically affirmed similar determinations regarding jurisdiction on the same procedural footing as the instant case.^[17] I find that the compensation judge followed the appropriate procedure for addressing jurisdictional issues. For the above stated reasons, I respectfully dissent.