TROY FAUGHN, Employee/Respondent, v. N. IMPROVEMENT CO. and TRAVELERS INDEM. CO. OF AM., Employer-Insurer/Appellants, and SANFORD HEALTH, Intervenor.

The employer and insurer appeal the compensation judge’s determination that, pursuant to Minn. Stat. § 176.041, subd. 3, the employee’s injury is compensable under the Minnesota Workers’ Compensation Act.  We affirm.

Troy Faughn, the employee, sustained an admitted work-related injury to his left lower extremity on October 3, 2019.  On that date, he was employed by Northern Improvement Company, the employer.  The employer has several locations in the state of North Dakota, including Fargo, Bismarck, Dickinson, Williston, and McKenzie.  The employer does not have an office in the state of Minnesota, but does lease two gravel pits in Sabin and Felton, Minnesota, to supply material for the employer’s operations in eastern North Dakota.  The employer also has locations in the state of Wyoming.  At all times relevant to this proceeding, the employer had workers’ compensation liability coverage in North Dakota, Minnesota, and Wyoming.

On May 2, 2019, the employee applied for a position as a wash plant operator at the employer’s Bismarck Mackenzie Wash Plant, through Indeed.com, an employment website for job listings.  At some point after he submitted his online application, Robert Cournoyer, superintendent of the employer’s Dickinson, North Dakota division, contacted the employee to discuss his qualifications and his experience working with asphalt.  At the time of this phone call, the employee was physically located at his brother’s farm in Bemidji, Minnesota.  The employee then received a phone call from Corey Mohl, the general superintendent of the employer’s Dickinson, North Dakota division.^[1]  During that phone call, the employee and Mr. Mohl discussed a pre-employment drug screen, wage rates, and the employee was also asked to provide additional paperwork to the employer, including Northern Improvement Company’s own application for employment because Indeed.com did not utilize the application specific to the employer.  The employee stated that he needed a couple of days to submit the additional paperwork as he was traveling out of state visiting family.  He testified at a deposition that he was at the farm in Bemidji, Minnesota when he received that call.  The employer received the additional documents two days later.  The employee passed the required drug test in Minnesota. He then prepared to travel to Newcastle, North Dakota, to report to the job site.  The employee and his fiancée drove approximately ten hours and found a campsite in Custer, South Dakota, about 30 minutes from the jobsite.  On May 21, 2019, while at the campsite in Custer, South Dakota, the employee met Joshua Davis, the employer’s foreman for the Dickinson division.  At that meeting the employee signed various employment documents, including a W-4 and an acknowledgement and receipt of the drug policy, and received the company safety manual and a safety vest.

Between May 21 and October 3, 2019, the employee worked at various job sites in North Dakota and Wyoming.  On October 3, 2019, while working at the Casper, Wyoming, job site, the employee sustained an admitted left lower extremity injury.  He was taken to an emergency room for medical treatment.  He has not worked for the employer since the date of injury.

On the date of the injury, the employer was insured by Travelers Insurance in North Dakota, Wyoming, and Minnesota.  There is also a reciprocity agreement between North Dakota General Contractors and Union Local 49 Operators which provides, in part, that any North Dakota employees that are injured while temporarily working in the state of Wyoming are covered under the North Dakota workers’ compensation liability policy.

Prior to working for the employer, the employee had worked five seasons at Knife River, also an asphalt company.  The type of work he was doing for the employer, as well as Knife River, was seasonal.  Generally, the season would run from the spring through the fall.  He had not been given an offer to work the next season with the employer, but he was under the impression that the employer liked his work and would have re-employed him the following season.

The employee filed a claim petition on July 7, 2022, through the Minnesota Department of Labor and Industry (DLI).  The parties agreed to a bifurcated hearing to first determine whether the October 3, 2019, work injury is compensable under the Minnesota Workers’ Compensation Act, specifically Minn. Stat. § 176.041, subd. 3.  The nature and extent of the employee’s injuries were also in dispute, but not addressed at the May 5, 2023, hearing.

Following the hearing, the compensation judge served and filed her Findings and Order on June 29, 2023.  She found that the employee was hired in Minnesota, by a Minnesota employer, and that the employee was injured while temporarily employed outside of Minnesota, and therefore his injury is compensable under the Minnesota Workers’ Compensation Act pursuant to Minn. Stat. § 176.041, subd. 3.  The employer and insurer appeal.

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).

Appellants argue that the compensation judge erred in finding that the employee’s injury is covered under the Minnesota Workers’ Compensation Act.  They dispute the compensation judge’s findings on all three elements of Minn. Stat. § 176.041, subd. 3, arguing that the employee was not hired in Minnesota, was not hired by a Minnesota employer, and was not injured while temporarily employed outside of Minnesota.  They argue that the employee must file a workers’ compensation claim through the state of North Dakota.^[2]

Generally, injuries which occur outside of the state of Minnesota are not subject to the Minnesota Workers’ Compensation Act.  Minn. Stat. § 176.041, subd. 5a.  Minn. Stat. § 176.041, subd. 3 (1988), provides an exception to the general rule:

Appellants argue that the compensation judge erred when she found that the employee accepted the job offer with the employer in the state of Minnesota.  They also argue that even if the employee accepted the job in Minnesota, the employer did not “accept” until the employee completed paperwork near the jobsite in North Dakota.  We disagree.

Where an offer of employment is made to an employee in Minnesota by telephone, and the offer is accepted during that phone call, the employee is deemed to be hired in Minnesota. Summers v. N. Indus. Erectors, Inc., 70 W.C.D. 605 (W.C.C.A. 2010).  An oral contract consummated over the telephone is deemed made where the offeree utters the words of acceptance. Pierce v. Foley Bros., Inc., 283 Minn. 360, 168 N.W.2d 346 (Minn. 1969).

In this case, it is undisputed that the job offer was made to the employee by Corey Mohl, the general superintendent of the Dickinson division of the employer, by telephone, and that Mr. Mohl was not in Minnesota at the time of that phone call.  The employee testified in a deposition that he was at his brother’s farm in Bemidji, Minnesota, when Mr. Mohl called.  (Ex. D at 36.)  The appellants provided no evidence or testimony to the contrary, other than to claim the employee’s testimony is not credible.  There is no evidence in the record to counter the employee’s testimony, and the compensation judge found the employee to be credible.  The employer’s witness at hearing, Amber Schoebern, conceded that she did not know where the employee was at the time of the job offer.  Determination of issues of credibility is the unique function of the finder of fact, and such findings are given deference by this court.  Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).  Since the only evidence on the matter is the testimony of the employee, and the employee was found to be credible, substantial evidence of record supports the compensation judge’s finding that the employee was hired in Minnesota.

Appellants assert that they are not a Minnesota employer.  They claim that their only presence in the state of Minnesota is the two gravel pits which they lease and do not own, and these pits have nothing to do with the work that was done by the employee for the employer.  Appellants also argue that since the employer has more significant contacts with North Dakota, that North Dakota and not Minnesota is the proper jurisdiction.  However, the relevant question is whether the employer has sufficient activity within Minnesota to confer jurisdiction.  The employer’s presence in Minnesota does not have to be directly related to the employee’s duties, nor does the employer need to have a home office in or be incorporated in Minnesota for a company to be a Minnesota employer under Minn. Stat. § 176.041, subd. 3.  Instead, the inquiry is about the nature and degree of the employer’s activities in the state.  See Rundberg v. Hirschbach Motor Lines, 51 W.C.D. 193, 201 (W.C.C.A. 1994), aff’d by order with mem., 51 W.C.D. 208 (Minn. Aug. 18, 1994).

The employer in this case leased two gravel pits in Minnesota to supply materials for the employer's projects.  These leases have been in place for over twenty years.  The employer has employees that work at these pits.  The employer maintains workers’ compensation liability coverage in Minnesota, as well as in North Dakota.  The compensation judge found these facts sufficient to establish that the appellant is a Minnesota employer for purposes of Minn. Stat. § 176.041, subd. 3.  We conclude that the compensation judge’s finding on this element is supported by substantial evidence of record.

Appellants argue that Minn. Stat. § 176.041, subd. 3, clearly contemplates coverage for a worker who has been hired to work primarily in Minnesota, who happens to be working temporarily outside of Minnesota at the time of the injury.  We do not agree with this interpretation of the statue.

In this case, the employee was temporarily employed out of Minnesota since he had no permanent work site and because he was a seasonal employee.  First, it is undisputed that the employee had no permanent work site.  After he completed one project, he moved to the next project site.  While employed less than six months with the employer, the employee worked at six different job sites in North Dakota and Wyoming.  As noted in Vaughn v. Nelson Bros. Constr., 520 N.W.2d 395, 397, 51 W.C.D. 159,161-62 (Minn. 1994):

Second, not only was the employee temporarily employed outside of Minnesota by virtue of the fact that he had no permanent work site, he was also a seasonal employee.  The undisputed evidence is that the work being performed by the employee was generally performed from the spring through the fall and was weather dependent.  In Fischer v. Malleable Iron Range Co., 301 Minn. 1, 5, 225 N.W.2d 542, 545, 27 W.C.D. 773, 777 (1975), the supreme court stated that “(t)he word ‘temporarily’ is used in its most natural and ordinary sense, as meaning not of long duration, not permanent but for a short time.”  Seasonal work is temporary, unless “it is intended that seasonal duties continue indefinitely during successive seasons.”  Stenberg, 44 W.C.D. at 275.  The employee testified that he would have liked to have returned to work for the employer after the 2019 season, and that it was his impression that the employer would have made him an offer.  Nonetheless, the evidence shows that the employee was hired for one season only, and that any future employment was only speculative.  Since the employee was a seasonal employee, he was in fact temporarily employed out of the state.  It is not certain that the employee would have continued his employment with the employer for successive seasons.  The compensation judge’s finding that the employee was injured while temporarily employed outside of Minnesota is supported by substantial evidence of record.  As the three elements required for compensability under Minn. Stat. § 176.041, subd. 3, are present, we affirm.