APPEALS; PRACTICE & PROCEDURE – DISMISSAL. The compensation judge did not err by denying the employer and insurer’s motion to dismiss for lack of jurisdiction pursuant to Minn. Stat. § 176.041, subd. 4, where there was no evidence at the time of the motion that the employee had performed primary duties of employment outside of Minnesota.
Compensation Judge: Elisa M. Murillo
Attorneys: Jeremiah W. Sisk, Mottaz & Sisk Injury Law, Coon Rapids, Minnesota, for the Respondent. Natalie K. Lund and Bryan M. Wachter, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Appellants.
Modified in part and affirmed.
SEAN M. QUINN, Judge
The employer and insurer appeal from the compensation judge’s denial of a motion to dismiss for lack of jurisdiction. We modify Finding 9, Finding 12, and Order 2, and affirm.
The employee, Andrew Jordan, was drafted as a professional football player by the employer, the Minnesota Vikings Football Club, in the spring of 1994. With the exception of two seasons, the employee spent his career playing football for the employer.[1] While working for the employer, the employee lived in Minnesota. He appears to have otherwise lived in North Carolina, where he currently resides. The employee retired from playing football in January 2002.
During the course of his career, the employee suffered numerous injuries. The record is unclear whether these injuries occurred during games or practices, or whether these injuries occurred in Minnesota or elsewhere.
Sometime around 2009, the employee met with members or representatives of the football players union and was advised to contact a specific attorney regarding potential workers’ compensation claims. At that time, there was ongoing tort litigation related to head injuries and concussions suffered by professional athletes, which the employee joined as a co-claimant. The employee contacted the attorney who then commenced a workers’ compensation claim on the employee’s behalf against the Minnesota Vikings Football Club in California.[2]
As part of the California workers’ compensation claim, the employee underwent two “agreed medical evaluations” (AME). The first AME was conducted by Dr. Kenneth Nudleman, a neurologist and psychiatrist. Dr. Nudleman’s April 6, 2009, report identified specific injury dates of August 8, 1996, and August 5, 1997, that are also alleged in the current Minnesota workers’ compensation claim. He diagnosed the employee with post-traumatic head syndrome characterized by reduced attention, concentration, and ability to recall. He further diagnosed the employee with intermittent post-traumatic headaches and disorder of sleep and arousal. Dr. Nudleman did not address disability or causation.
The second AME was conducted by Dr. Michael Einbund, an orthopedic surgeon. Dr. Einbund issued his report on April 8, 2009, which referred to the employee’s football career with three teams, including the employer. Dr. Einbund also reviewed medical records, including treatment records from doctors in Minnesota. He specifically addressed injuries suffered by the employee while playing football for the employer on September 4 and December 3, 1995, August 8, 1996, and August 5 and September 3, 1997, all of which are alleged in the current Minnesota workers’ compensation claim. His report addressed injuries suffered by the employee to include the neck, arms, shoulders, elbows, wrists, hands, thumbs, fingers, mid and low back, legs, hips, knees, ankles, feet, and toes. He also diagnosed the employee with cephalgia, insomnia, depression, blurred vision, and dizziness. He opined that the employee had various impairment ratings under the AMA Guides to the Evaluation of Permanent Impairment (5th ed. 2000). As to causation, Dr. Einbund stated:
[I]t is my opinion that all of this patient’s current symptoms are secondary to continuous trauma which he sustained during the course of his career as a professional football player. Professional football is an extremely violent occupation. The patient sustained numerous injuries throughout his career as he played in games, practiced and worked out. As long as he was engaged in these activities, his entire body was continuously subjected to severe traumatic forces, all of which are part and parcel to his current condition. It would be impossible to apportion any of this patient’s current disability to any specific injurious event as there is no way of determining what, if any, disability he would currently have had he stopped playing football following any injurious event. . . . Therefore, 100 percent of this patient’s current disability is secondary to the continuous trauma he sustained throughout the entire course of his career as a professional football player.
(Ex. 2, attachment D.)
The employee’s California workers’ compensation claim did not allege a specific injury date, but rather, a “cumulative injury,” from May 15, 1994, through January 7, 2002, which encompassed the entirety of the employee’s professional football career. The claim included injuries to all of the body parts identified in the two AME reports, as well as gastritis and irritable bowel syndrome. In June 2010, a settlement agreement was reached and memorialized by a Stipulations with Request for Award. The agreement noted that the employee was entitled to future medical care per the AME reports and that the parties agreed there was a “need for medical treatment to cure or relieve from the effects” of the injuries. The parties further agreed that the employee had “permanent disability” of 81 percent payable at $120,865 and was entitled to a “life pension.” Finally, the employee would receive “temporary disability” from March 17, through May 2, 2010, in the amount of $3,604.48. (Ex. 5.)
Subsequently, the parties entered into a Compromise and Release in September 2011, providing the employee with an additional $60,000 in exchange for what appears to be a final settlement of the employee’s workers’ compensation claims, including future medical claims. The agreement was approved by a California workers’ compensation judge on September 23, 2011. (Ex. 6.)
In January 2023, the employee commenced a Minnesota workers’ compensation claim, alleging 12 specific dates of injury, as well as a Gillette[3] injury, with a culmination date different from the culmination date identified in his California “cumulative injury” claim. The employee claimed injuries to his right wrist, left thumb, right ring finger, right ankle, low back, neck, head, hips, knees, shoulders, and elbows, all body parts alleged in his California claim.
The employer and insurer filed a motion to dismiss the employee’s Minnesota workers’ compensation claim, alleging that under Minn. Stat. § 176.041, subd. 4, the employee had already pursued his claims in California and thus there is no jurisdiction in Minnesota.[4] In opposing the motion, the employee swore by affidavit that half of the games he played for the employer occurred in Minnesota, and that all practices, meetings, off-season camps, and workouts occurred in Minnesota. He expressed a lack of understanding of his California claims and settlement and stated that his current concern was his need for extensive medical care and insufficient medical insurance to pay for such care. The employee testified by deposition that he was not sure if his knee claims alleged in Minnesota were covered by the California settlement, but otherwise agreed that the rest of the injured body parts claimed in Minnesota were also claimed in California. Following submission of written arguments, the compensation judge issued a Findings and Order on November 9, 2023, denying the motion to dismiss. 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).
The employer and insurer appeal from the compensation judge’s denial of a motion to dismiss for lack of jurisdiction,[5] arguing that the employee’s claim is barred by Minn. Stat. § 176.041, subd. 4. The record on appeal fails to support the employer and insurer’s position.
It is a basic premise of Minnesota workers’ compensation law that when an employee of a Minnesota employer suffers a work injury in Minnesota arising out of and in the course of that employment, the injury is covered by the Minnesota Workers’ Compensation Act (WCA) and Minnesota courts have jurisdiction. Minn. Stat. § 176.021, subd. 1 (with some exceptions, all employers and employees are subject to the WCA for injuries arising out of and in the course of employment); Minn. Stat. § 176.041, subd. 5a (with exceptions as provided in Minn. Stat. § 176.041, subds. 2 and 3, injuries occurring outside of Minnesota are not subject to the WCA). Minnesota courts also have jurisdiction when an employee of a Minnesota employer suffers an injury outside of Minnesota. Minn. Stat. § 176.041, subd. 2 (when an employee who regularly performs the primary duties of employment within the state and sustains an injury while outside of this state in the employ of the same employer, the WCA applies to such injury).
In considering the employer and insurer’s motion to dismiss alleging lack of jurisdiction, the compensation judge addressed the employee’s testimony and affidavit. The compensation judge found that “[t]he employee testified that not all the injuries he had with the [employer] were included in the settlement in California.” (Finding 9.) This finding is not fully supported by the record. The employee testified in his deposition that he was not sure whether every injury with the employer was covered in the California settlement. (Ex. 4 at 58-59.) We therefore modify Finding 9 to read: “The employee testified that he was not sure all of his injuries with the employer were included in the settlement in California.”
The compensation judge further found that “the employee performed the primary duties of his employment” in Minnesota, a requirement for the applicability of Minn. Stat. § 176.041, subd. 2. (Finding 10.) The compensation judge concluded she had jurisdiction over the employee’s claimed injuries under that provision. (Order 2.) Minn. Stat. § 176.041, subd. 2, however, also requires the injuries to have occurred outside of Minnesota to invoke jurisdiction under that provision. There is no evidence in the record as to where the employee’s many claimed injuries occurred. Regardless of where the employee’s injuries occurred, however, Minnesota has jurisdiction under either the general rule for injuries occurring in Minnesota, or under the statutory expansion provided in Minn. Stat. § 176.041, subd. 2, for injuries occurring outside of Minnesota. Consequently, because there is no evidence in the record as to where the employee’s injuries occurred, we modify Order 2 to read: “Regardless of where the employee’s injuries occurred, this Court has jurisdiction over the employee’s November 14, 1994, January 2, May 6 and 26, September 4, November 18, and December 3, 1995, October 8, 1996, November 6, August 5 and 8, 1997, and January 7, and January 15, 2001, injuries pursuant to Minn. Stat. § 176.021, subd. 1, and Minn. Stat. § 176.041, subd. 5a, or pursuant to Minn. Stat. § 176.041, subd. 2.”
The employer and insurer assert that even if Minnesota had jurisdiction, the employee’s pursuit of a workers’ compensation claim in California, which he settled for approximately $200,000, divested Minnesota of jurisdiction under Minn. Stat. § 176.041, subd. 4, which reads:
If an employee who regularly performs 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 forego any worker’s compensation claim resulting from the injury that the employee may have a right to pursue in some other state . . . .
(Emphasis added.) Assuming Minn. Stat. § 176.041, subd. 4, applies to the employer,[6] the record does not support a determination that the elements of the statute have been met. There is no evidence in the record that the employee performed the primary duties of his employment outside of Minnesota as required by the statute. In fact, the compensation judge, in an unappealed finding, determined that the employee performed the primary duties of his employment in Minnesota.[7] In addition, there is no evidence in the record to establish whether any of the employee’s injuries occurred in Minnesota, which is required by the statute.
Thus, even if Minn. Stat. § 176.041, subd. 4, could divest Minnesota of jurisdiction over a workers’ compensation claim of an employee of a Minnesota employer, because the employer and insurer have not proven all of the statutory elements, the compensation judge properly denied the motion to dismiss. Given the procedural posture of this matter, we modify Finding 12, which stated: “The employee’s present claims are not precluded by Minn. Stat. § 176.041, subd. 4.” to read: “The employer and insurer have not proven the elements necessary to invoke Minn. Stat. § 176.041, subd. 4, at this time.”
Based upon the record before this court, Finding 9, Finding 12, and Order 2 are modified as indicated above, and the denial of the motion to dismiss is affirmed.
[1] The employee played football for the Tampa Bay Buccaneers in 1997 and for the Philadelphia Eagles in 1998 before returning to play for the employer for another two or three seasons at the end of his career. All of the claimed injuries in this case occurred while he played football for the employer.
[2] Neither of the other two teams for whom the employee played football, nor the National Football League, were parties to the California claim.
[3] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[4] The record is unclear as to whether the employer and insurer sought a credit for the payments made to the employee pursuant to the settlement of his California claims against his Minnesota claims. See Stolpa v. Swanson Heavy Moving Co., 315 N.W.2d 615, 618, 34 W.C.D. 423, 429 (Minn. 1982).
[5] Typically, this court does not hear appeals from interlocutory orders. Profit v. HRT Holding d/b/a Doubletree Suites, No. WC19-6319 (W.C.C.A. Feb. 10, 2020). An appeal from an order denying dismissal for lack of jurisdiction constitutes a “conspicuous exception” to this general rule. Kokesh v. City of Hopkins, 238 N.W.2d 882, 884 n.3 (Minn. 1976).
[6] Minn. Stat. § 176.041, subd. 4, expands jurisdiction to cover injuries sustained in Minnesota by employees who perform their primary duties outside of the state, but only if the employee foregoes workers’ compensation benefits from another state, presumably the home state of the employer. An issue that was not raised by the parties or addressed by the compensation judge is whether this subdivision applies to Minnesota employers.
[7] Finding 10. We note that a finding that primary duties were performed in Minnesota does not necessarily preclude a finding that primary duties could also have been performed outside of the state. See Smith v. Integrity Plus, Inc., 61 W.C.D. 192 (W.C.C.A. 2000) (multiple states could have jurisdiction over an employee’s claimed injuries), summarily aff’d (Minn. Apr. 27, 2001).