JUNE 12, 2019

No. WC18-6240

EXCLUSIONS FROM COVERAGE – SUBSTANTIAL EVIDENCE. Substantial evidence supported the finding that the employee was hired in North Dakota by a North Dakota employer, for the purposes of applying Minn. Stat. § 176.041, subd. 5(b), which provides an exclusion from Minnesota jurisdiction where an employee so employed and hired was injured during temporary work in Minnesota.

STATUTES CONSTRUED – MINN. STAT. § 176.041, subd. 5(b). To determine whether work in Minnesota was “temporary” within the meaning of this provision, the extent of work performed for the employer in Minnesota during a single calendar year, from January 1 to December 31, must be reviewed. For an injury arising out of work performed on a specific date, the calendar year in which the date of injury falls is the calendar year that must be used pursuant to the statutory requirements.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: Jerome G. Arnold

Attorneys: Mark L. Rodgers, Kristen M. Rodgers, and James H. Perkett, Rodgers Law Office, P.L.L.C., Bemidji, Minnesota, for the Appellant. Michael Garbow, Garbow Law Office, Bemidji, Minnesota, for the Respondent.




The employee appeals a Findings and Order on Remand in which the compensation judge found that he lacked extraterritorial jurisdiction pursuant to Minn. Stat. § 176.041, subd. 5(b) which grants North Dakota, not Minnesota, jurisdiction where the employee lives in Minnesota, is injured in Minnesota, yet was hired in North Dakota by a North Dakota employer, and the injury arose out of temporary work in Minnesota. We affirm.


John Devos, the employee, has lived in the Crookston, Minnesota, area for most of his life. On April 7, 2011, while in Grand Forks, North Dakota, the employee applied for and was offered a seasonal job as a laborer for Rhino Construction (Rhino), a North Dakota employer.[1] Rhino provides underground utility construction and digging of lines for fiber optics, cable, telephone, gas, water, and sewer lines. During the winter months, when the ground is frozen, Rhino lays off all but about five permanent employees.

During the 2011 season, the employee worked for Rhino in both North Dakota and Minnesota, working more than 240 hours in Minnesota.[2] In December 2011, at the end of a shift, Rhino co-owner, Andrew Lamoureux, asked the employee and his co-workers which of them wanted to “go home,” i.e., stop work for the season. The employee raised his hand and then left work. The employee testified that Mr. Lamoureux simply said, “all right, we’ll see you guys later.” (T. 22-23.) Thereafter, the employee applied for North Dakota unemployment benefits and indicated that his unemployment was temporary in nature. He hoped that Rhino would call him back to work for the 2012 season. From December 2011 to March 2012, the employee did not look for work.

In March 2012, at his home in Crookston, Minnesota, the employee took a call from Steve Abbey, also a co-owner of Rhino. The employee recalled that Abbey told the employee to “get back into the shop on Monday with your bags packed” and join a work crew about to leave for a job site. (T. 26.) The employee did not complete a new job application or undergo another interview. Unlike 2011, in 2012, the employee worked mostly in North Dakota and worked less than 240 hours in Minnesota.

On September 24, 2012, while at work for Rhino in East Grand Forks, Minnesota, the employee suffered a work-related injury to his femoral artery.[3] The employee was transported to the hospital and underwent surgery. During recovery, the employee received workers’ compensation benefits through North Dakota’s Workforce Safety and Insurance (ND WSI).

The employee did not return to work with the employer. After April 17, 2014, ND WSI discontinued the employee’s disability and rehabilitation benefits, explaining that the employee had completed rehabilitation. The employee then sought benefits under the Minnesota Workers’ Compensation Act, naming the Special Compensation Fund (Fund) as insurer. Thereafter, ND WSI suspended all benefits as the employee had filed for Minnesota benefits.

The Fund filed a motion to dismiss, asserting that the employee’s claim was barred by Minn. Stat. § 176.041, subd. 5b. The Fund argued that the employee was not entitled to benefits under the Minnesota Workers’ Compensation Act because he was hired in North Dakota by a North Dakota employer and his alleged injury arose out of temporary work in Minnesota. The matter was stricken from the calendar at the request of the employee. Upon reinstatement, the Fund renewed its motion to dismiss. The matter was considered without an evidentiary hearing at a special term conference. The compensation judge issued a Findings and Order on Motion to Dismiss granting the Fund’s motion to dismiss the employee’s claim petition. The employee appealed the dismissal to this court.

On appeal, we concluded that the complex legal issue of jurisdiction in this case required an evidentiary hearing as the parties had not agreed to a stipulated set of facts under Minn. Stat. § 176.322. We vacated the order of dismissal and remanded for factfinding on the issues of when and where the employee was hired in 2012 and whether Rhino is a North Dakota employer. We declined at the time to address arguments which had been raised by the employee on appeal regarding the ambiguity in interpreting the term “calendar year” and the constitutionality of the statutory exclusion provision.

The matter went to hearing on remand, and in Findings and Order on Remand filed November 16, 2018, the compensation judge found that the employee was hired in 2011 in North Dakota by a North Dakota employer. He found that the 2012 work injury occurred at a jobsite in East Grand Forks, Minnesota and the employee was at that time a Minnesota resident. It was stipulated that the employee worked more than 240 hours in Minnesota in 2011, but less than 240 hours in Minnesota in the 2012, the year he was injured. The judge also found that the March 2012 phone call from Steve Abbey to the employee was a recall to ongoing seasonal work for the employer, rather than a new hiring event by the employer. The compensation judge dismissed the employee’s claim petition finding that the employee’s exclusive remedy was under the workers’ compensation system in North Dakota pursuant to Minn. Stat. § 176.041, subd. 5(b). The employee appeals.


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.” 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).

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).


Minn. Stat. § 176.041, subd. 4, provides that, as a general principle, an employee of an out-of-state employer injured while temporarily performing duties in Minnesota may seek workers’ compensation benefits under Minnesota law so long as that employee elects to forego benefits under another jurisdiction.[4]

Minn. Stat. § 176.041, subd. 5(b), however, provides a limited exception to this general rule. That subdivision reads as follows:

Subd. 5b. North Dakota employers. Notwithstanding the provisions of subdivision 4, workers' compensation benefits for an employee hired in North Dakota by a North Dakota employer, arising out of that employee's temporary work in Minnesota, shall not be payable under this chapter. North Dakota workers' compensation law provides the exclusive remedy available to the injured worker. For purposes of this subdivision, temporary work means work in Minnesota for a period of time not to exceed 15 consecutive calendar days or a maximum of 240 total hours worked by that employee in a calendar year.

The case before us hinges on the interpretation and application of the language of this statutory exclusion from Minnesota jurisdiction.

In his Findings and Order on Remand, the compensation judge found that the employee was hired in North Dakota and that he failed to work more than 15 consecutive calendar days or 240 total hours in Minnesota during the calendar year in which he sustained the injury. In applying the statute to these factual findings, the judge concluded that the employee’s injury was excluded from Minnesota jurisdiction.

On appeal from the Findings and Order on Remand, the employee argues that the judge erred in reaching the factual finding that the employee was hired in North Dakota. The employee also argues that the definition of temporary work in Minn. Stat. § 176.041, subd. 5(b) should, under the facts of the present case, most appropriately be read as referring not to the calendar year in which the employee was injured, but to the preceding year of employment. Finally, the employee argues that Minn. Stat. § 176.041, subd. 5b violates the equal protection, due process, and commerce clauses under the Minnesota and United States constitutions.

1.   Rehire or Recall

The judge found that the employee’s return to Rhino in March 2012 was a recall to his previous position, and not a rehire. In arguing that the return to work was a rehire, the employee bases his argument on collective bargaining agreements and that at the time of the lay off in December 2011 no agreement or contract existed regarding his continued employment. Without an agreement regarding a return to work, the employee argues that he would need to be rehired. The Fund disagrees, maintaining that there was only one date of hire, April 7, 2011, in Grand Forks, North Dakota; that the employee’s employment did not end in December 2011 at the end of the season; that the employee was seasonally and temporarily laid off; and that the employee was not rehired by the employee in 2012 because his employment in 2011 was never terminated.

Within the issue of jurisdiction, we note that there is no definition of “hire,” “rehire,” or “recall” in the Minnesota Workers’ Compensation Act. This court has analyzed questions regarding the situs of hire by applying common law contract principles. McCoy v. Ingersoll Rand, 40 W.C.D. 1027 (W.C.C.A. 1987), aff’d 423 N.W.2d 685 (Minn. 1988); Pauley v. Donco, 46 W.C.D. 14 (W.C.C.A. 1991), aff’d 478 N.W.2d 763 (Minn. 1992). Within the context of a hire or rehire in a seasonal position as here, we note as instructive Larson’s Workers’ Compensation Law 143.04(2)(b) which states:

The making of a contract for hire or employment within the state is usually deemed to create the relation within the state. The relation, having thus achieved a situs, retains that situs until something happens that shows clearly a transference of the relation to another state. This transfer is usually held to occur when either a new contract is made in the foreign state or the employee acquires in the foreign state a fixed and non-temporary employment situs.

Here, the parties agree that in April 2011, the employee was hired by a North Dakota employer in Grand Forks, North Dakota. North Dakota was the situs of the contract for hire and continued to be the situs until another event happened that showed a clear transference of the employment relation to another state. The compensation judge here reasonably concluded that did not happen. The employee volunteered to be laid off in December 2011. The judge concluded that the form of his application for unemployment benefits through North Dakota showed an apparent expectation that his unemployment with Rhino was temporary and that he would be returning to work there. The employee conducted no job search from December 2011 to March 2012. When the employee took the phone call from Steve Abbey, he did not complete a new application, did not undergo drug testing, nor interview with Rhino before beginning work in March 2012. No new paperwork was completed by the employee in March 2012.

The issue of where this employee was hired is a question of fact rather than one of law.[5] See, e.g., Morrisette v. Harrison Intern. Corp., 486 N.W.2d 424 (Minn. 1992). Based on the record, the judge reasonably concluded that the employment relationship did not end during the employee’s layoff, but was temporarily on hold for the winter months until the employer was ready to resume operations in the spring. We affirm.

2.   Temporary Work in a Calendar Year

The compensation judge found that the determination whether the employee’s work in Minnesota was temporary was based on the hours he worked in the calendar year in which the injury occurred. (Finding 7.) The employee argues that the term “calendar year” referenced in Minn. Stat. § 176.041, subd. 5(b) is ambiguous. He maintains that it could mean the calendar year before the injury, the calendar year of the date of injury, or the 52 weeks preceding the date of injury. If the former, then the employee’s work in Minnesota was more than “temporary” under this subdivision and therefore jurisdiction rests in Minnesota.

When reading a statute, words and phrases are to be interpreted “according to rules of grammar and according to their common and approved usage.” See, e.g., Ekdahl v. Independent Sch. Dist. #213, 851 N.W.2d 874, 74 W.C.D. 463 (Minn. 2014), citing Minn. Stat. § 645.08(1) (2012). The term “calendar year” has a well-established meaning both in common parlance and as a legal term of art. Black’s Law Dictionary defines a calendar year as “the period between January 1 to December 31 inclusive.” Accordingly, we think it is clear that as to whether the work in Minnesota was temporary under this provision is to be determined based on work done during a specific January to December calendar year rather than during the one-year interval extending back from the date of injury, or the previous calendar year in 2011.[6]

Minn. Stat. § 176.041, subd. 5(b) expressly applies only to an injury “arising out of that employee’s temporary work in Minnesota.” Where, as here, the injury “arises out of” the work performed on the date of injury, the calendar year reviewed must be the year during which that work occurred, i.e., the calendar year of the date of injury.

The compensation judge’s interpretation is consistent with the statutory language and rules of statutory construction. We therefore affirm.

3.   Constitutional Arguments

Finally, the employee raises the issue of the constitutionality of Minn. Stat. § 176.041, subd. 5(b) and whether it violates the equal protection clause of the United States and Minnesota constitutions. He also raises the issue that Minn. Stat. § 176.041, subd. 5(b) violates the employee’s procedural and substantive due process rights, and the commerce clause of the United States Constitution. These are issues preserved for the Minnesota Supreme Court, and not to be addressed by this court. Quam v. State of Minn., Minn. Zoological Garden, 391 N.W.2d 803, 39 W.CD. 32 (Minn. 1986).

[1] While Rhino had a separate Minnesota business, Rhino Minnesota, the employee was not hired by Rhino Minnesota. Rhino Minnesota and Rhino ND merged in February 5, 2014, to form Rhino Construction, the employer. (Ex. 17.)

[2] Stipulation 9, Findings and Order on Remand, November 16, 2018. The number of hours worked in Minnesota defines the term “temporary work.” Minn. Stat. § 176.041, subd. 5(b).

[3] Stipulation 3.

[4] Subdivision 4 provides as follows:

Subd. 4. Out-of-state employment. If an employee who regularly performs the primary duties of employment outside of this state or is hired to perform the primary duties of employment outside of this state receives an injury within this state in the employ of the same employer, such injury shall be covered within the provisions of this chapter if the employee chooses to forgo any workers' compensation claim resulting from the injury that the employee may have a right to pursue in some other state, provided that the special compensation fund is not liable for payment of benefits pursuant to section 176.183 if the employer is not insured against workers' compensation liability pursuant to this chapter and the employee is a nonresident of Minnesota on the date of the personal injury.

[5] The employee cites case law for the principle that the employer was not obligated to bring him back to work from a layoff in the absence of a written contract of employment or collective bargaining agreement. He argues that we must, therefore, consider the telephone conversation asking him to return to work after layoff as the equivalent of a new offer of employment. We do not find this argument persuasive, as the fact that an employment was at will does not preclude a finding that the employment relationship nonetheless continued in effect during a seasonal layoff by implicit agreement of the parties.

[6] Although it is possible that the employee worked more than 240 hours during the 52 weeks preceding the date of injury, we note, also, that the record contains no itemization of the total hours worked in Minnesota between September 24, 2011, and September 24, 2012.