JURISDICTION – SUBJECT MATTER. The compensation judge did not err in dismissing for lack of jurisdiction the employee’s claim for workers’ compensation benefits under Minnesota law against her employer, the Mille Lacs Band of Ojibwe Indians, whose sovereign immunity was not waived.
Compensation Judge: Kirsten M. Tate
Attorneys: Joshua E. Borken, Law Office of Joshua Borken, St. Paul, Minnesota, for the Appellant. Barbara E. Cole, Joseph F. Halloran, The Jacobson Group, St. Paul, Minnesota, for the Respondents.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employee appeals from the compensation judge’s dismissal of her claim for benefits under the Workers’ Compensation Act against her employer, a federally recognized Indian tribe, for lack of jurisdiction. We affirm.
The employee, Dawn Strohman, alleged a July 16, 2018, injury to her low back sustained while performing work activity for her employer, Grand Casino. Grand Casino is owned by the Mille Lacs Band of Ojibwe Indians (“the Band”), via Mille Lacs Corporate Ventures, which is self-insured for workers’ compensation claims. Those claims are covered under the Band’s own tribal Workers’ Compensation Plan and are administered by Berkley Risk Administrators, a third-party administrator.[1] Under the Plan, Berkley paid various wage loss and medical benefits to the employee.[2] On September 13, 2019, the employee filed a claim petition seeking benefits under the Minnesota Workers’ Compensation Act (WCA). Berkley then discontinued the employee’s benefits under the Plan as of October 24, 2019, citing the results of an independent medical evaluation (IME).[3] On October 31, 2019, the employee filed with the Office of Administrative Hearings (OAH) an amended claim petition, again seeking benefits under the WCA, including those benefits denied under the Plan.
On November 21, 2019, the Band filed a motion to dismiss the employee’s claim, asserting that the Office of Administrative Hearings lacked jurisdiction. A special term conference was held on the record before a compensation judge on January 10, 2020. Limited exhibits were offered and admitted, and no testimony was taken. By order dated January 24, 2020, the employee’s claims were dismissed with prejudice for lack of jurisdiction upon the compensation judge’s determination that the Band is a federally recognized Indian tribe and sovereign entity that did not waive its sovereign immunity. 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.”[4] 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.”[5] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[6] 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.”[7]
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.[8]
It is well-settled that a sovereign entity, such as the Band in the present case, enjoys immunity from suit unless Congress has authorized the suit or the sovereign entity has waived its immunity.[9] In Tibbetts v. Leech Lake Reservation Bus. Comm., the Minnesota Supreme Court held that a workers’ compensation claim brought against a sovereign tribal entity under the WCA must be dismissed for lack of jurisdiction where that entity’s sovereign immunity had not been waived.[10] In this case, the compensation judge concluded that the Band had not waived its immunity and was immune from the employee’s claim for workers’ compensation benefits under Minnesota law. The employee appeals the compensation judge’s dismissal of her claims for lack of jurisdiction on three separate grounds.
First, the employee argues that the Band failed to hear her claims in tribal court and that its failure to do so amounts to a waiver of its immunity. She alleges that Berkley admitted the injury and initially paid some benefits, but has since ignored her requests to be heard by the tribal court, which has left her with no remedy. On appeal, the employee cites evidence outside of the appellate record in an attempt to demonstrate Berkley’s lack of response.[11] To refute the employee’s argument and to support its assertion that the employee failed to avail herself to the Band’s claims process, the Band similarly submitted to this court and relied upon evidence not considered by the compensation judge.[12] This court’s review is limited to the evidence made part of the record before the compensation judge.[13] Evidentiary issues aside, we reject the employee’s assertion that an alleged failure of the Band to respond to the employee’s claim amounts to a waiver of its sovereign immunity. The employee has cited no authority to support this position.[14]
Second, the employee argues that because the third-party administrator has ignored the employee’s requests that her claim be heard, and that because she has been left without adequate remedy, state law should preempt the Band’s sovereignty. She further argues that she should be allowed to bring her claim before OAH because the state’s public policy interest in adjudicating claims and providing benefits to injured workers outweighs the Band’s interest in self-governance. Here, the compensation judge, while she considered the employee’s public policy argument as “not baseless,” deferred to the legislature and we agree. Furthermore, the preemption issue need not be reached given our conclusions on the issue of sovereign immunity.[15]
Third, the employee argues that as an alleged member of the Band, she as an individual can waive the Band’s sovereign immunity. She states that but for tribal members such as herself, the Band would not exist. This court considered whether an employee’s tribal membership status was relevant to the issue of sovereign immunity in Nugent v. Seven Clans Casino.[16] In Nugent, we concluded that the tribally-owned casino was immune from the employee’s suit, regardless of whether the employee was a tribal member, stating that “it is the identity of the employer, not the employee, that is dispositive.”[17] Only the Band or Congress can waive the Band’s sovereign immunity.[18] The employee cites no persuasive authority to support the proposition that she has the authority to waive the Band’s immunity so as to allow her own suit against the Band to proceed.
Because the compensation judge was correct to conclude that OAH lacked jurisdiction, we affirm the dismissal of the employee’s claims.
[2] Ex. A, Grand Casino Motion to Dismiss Employee Claim Petition.
[3] Id. The IME report was not made part of the record below and is not available for this court’s review.
[4] Minn. Stat. § 176.421, subd. 1(3).
[5] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[6] Id. at 60, 37 W.C.D. at 240.
[7] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[8] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
[9] See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).
[10] 397 N.W.2d 883, 39 W.C.D. 238 (Minn. 1986).
[11] In her brief, the employee states that she requested that she be allowed to bring her claims in tribal court at the special term conference. No cite to the record was provided and no such request can be located. The employee also alleges that a second request was made after the conference and attached correspondence as an exhibit to her appellate documents. (Appellant’s Brief at Ex. 2.) According to the employee, she did not receive a response from the Band upon filing of her September 2019 claim petition.
[12] The Band attached to its brief on appeal correspondence indicating that Berkley directed the employee’s counsel as to how to request an appeal hearing upon the discontinuation of her benefits in October 2019. (Response Brief at Ex. D.)
[13] See Minn. Stat. § 176.421, subd. 6; Land v. Washington Cty. Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003).
[14] See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (a waiver of sovereign immunity must be express and unequivocal).
[15] See Merrill v. Mille Lacs Band Family Svcs., No. WC20-6347 (W.C.C.A. Oct. 15, 2020).
[16] 74 W.C.D. 303 (W.C.C.A. 2014).
[17] Id. at 306.
[18] See Tibbetts, 397 N.W.2d at 886, 39 W.C.D. at 241.