GUY A. PLUNG, Employee/Respondent, v. TAG AVIATION and OLD REPUBLIC INS. CO./GALLAGHER BASSETT, Employer-Insurer/Appellants.

AUGUST 14, 2018

No. WC18-6159

RULES CONSTRUED – MINN. R. 1420.3700. Substantial evidence in the record supports the compensation judge’s conclusion that the stipulation for settlement was not timely filed due to delay of the employer and insurer’s attorney, and ordering sanctions against the attorney was not an abuse of discretion.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Gary M. Hall, Judge
  3. Sean M. Quinn, Judge

Compensation Judge: Kirsten M. Tate

Attorneys: Jennifer L. Yackley, Meuser Law Office, P.A., Eden Prairie, Minnesota, for the Respondent. Kyle T. Kustermann, Erstad & Riemer, P.A., Minneapolis, Minnesota, for the Appellants.




The employer and insurer appeal from the compensation judge’s Order for Sanctions for failure to timely file a stipulation for settlement as required by Minn. R. 1420.2050. We affirm.


The employee, represented by counsel, initiated a claim for workers’ compensation benefits arising out of a 2007 claimed work injury. The employer and insurer retained Kyle Kustermann as counsel to defend the claim.

On September 25, 2017, the parties advised the Office of Administrative Hearings (OAH) that an agreement had been reached on the dispute. Minn. R. 1420.2050, subp. 2, provides that a stipulation “must be filed within 45 days of the date the parties reached an agreement.” On or about the same day it was notified of the settlement, OAH scheduled a stipulation status conference for November 30, 2017. At the stipulation status conference, the compensation judge was advised that the stipulation had been provided to the employee’s attorney by Mr. Kustermann on November 29. When asked the reason for the delay, another attorney appearing on behalf of Mr. Kustermann had no explanation. The compensation judge issued an Order to Show Cause on December 1, 2017. An evidentiary hearing was scheduled “to determine whether sanctions should be imposed against Attorney Kustermann for his conduct in connection with the finalization of the Stipulation for Settlement.”

The hearing on sanctions was heard before a compensation judge on January 8, 2018. The hearing was attended by the attorney for the employee and Mr. Kustermann. Mr. Kustermann was the only witness. In her Order for Sanctions, the compensation judge characterized Mr. Kustermann’s testimony as being that he did not finalize the stipulation for settlement until November 29, 2017, because he was busy with other matters. Mr. Kustermann was ordered to pay $250.00 to the employee’s attorney for fees related to attending the stipulation settlement conference.

The employer and insurer have appealed the Order for Sanctions.


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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The appellants argue that the compensation judge abused her discretion in ordering sanctions. While the appellants admit that sanctions may be imposed under the authority of Minn. R. 1420.3700, they contend that those sanctions may be imposed only for a “willful failure to comply with the applicable provisions of [chapter 176].” Appellants further contend that willful in the context of the rule requires a “deliberate, intentional decision to violate Rule 1420.2050.” This argument is contrary to the plain meaning and purpose of the rule.

The cited rule states that a stipulation for settlement must be filed within 45 days of the settlement, and if the stipulation is not timely filed and if “good cause for the delay is not shown,” further action by the compensation judge is mandated. Minn. R. 1420.2050, subp. 2. The compensation judge in the present case considered whether the reason for the delay provided by counsel constituted good cause and concluded good cause for the delay was not shown.

As stated previously, the reason provided by appellants’ attorney for his failure to comply with the rule was that he busy with other matters. (T. 5–8.) Deciding how to prioritize tasks is part of the practice of law. In the present case, it is apparent that the appellants’ attorney decided to prioritize other tasks over the timely completion of the stipulation. That decision can only be described as intentional, or in the wording of the rule, willful. See Minn. R. 1420.3700, subp. 1.

Appellants also contend that they should not bear sole responsibility for a joint obligation and that there was “no explicit agreement” as to who would prepare the stipulation. This claim goes to the question of whether good cause existed for the delay. At the hearing, appellants presented no argument that the employee’s attorney contributed to the delay in some manner. No evidence was presented that there was any question as to which party would draft the stipulation. We also note that in the extensive experience of the members of this court, it is customary that the attorney for the employer and insurer prepare the stipulation. In the absence of evidence that appellants’ attorney did not circulate the stipulation until November 29 because he was waiting for the employee’s attorney to draft the agreement, appellants’ argument is rejected.

Substantial evidence supports the compensation judge’s conclusion that the stipulation for settlement was not timely filed due to the delay of appellants’ attorney. The compensation judge’s Order for Sanctions is allowable pursuant to Minn. Stat. § 176.081, subd. 12, and Minn. R. 1420.3700 and was not an abuse of discretion.

The Order for Sanctions is affirmed.