TIMOTHY DAVIS, Employee,
v.
CBI NA-CON, INC., and INSURANCE CO. OF THE STATE OF PENN., adm'd by CRAWFORD & CO., Employer-Insurer/Appellants,
and
SPECIAL COMPENSATION FUND.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 16, 1999
HEADNOTES
JURISDICTION
- NON-RESIDENT; JURISDICTION - OUT-OF-STATE INJURY; STATUTES
CONSTRUED - MINN. Stat. § 176.041, SUBDS. 2 and 4. For
Minnesota jurisdiction to exist, the employee must have been
regularly performing the primary duties of his employment in
Minnesota about the time he was injured outside the
state. Determination of jurisdiction under subdivision 2
of the statute may entail analysis of complexities in the
unique circumstances of each case that normally may be more
directly relevant to application of subdivisions 3 and 4 of
the statute. Where, under stipulated facts, the employee
had been a resident of Kentucky at the time of his hiring and
was living in Louisiana on the date of his diagnosis and
hospitalization for work-related silicosis, where he had
never been a resident of Minnesota, where his employer
was a Texas corporation that had never maintained a Minnesota
facility from which it conducted any permanent operations,
where the employee's job assignments and paycheck
originated from Texas, and where the employee last worked
under Minnesota exposure to silica two years prior to the
effective date of his work injury by silicosis and had worked
with exposure to silica in four other states for nearly two
years thereafter, Minnesota jurisdiction for the
employee's work-related silicosis condition did not
exist, notwithstanding the fact that the total number of work
assignment days involving exposure to silica, over the course
of seventeen years prior to the employee's work injury,
was greater in Minnesota than in any other state.
Reversed.
Determined by Pederson, J., Hefte, J., and Johnson, J.
Compensation Judge: David S. Barnett.
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from the compensation judge's
determination of subject matter jurisdiction pursuant to
Minn. Stat. § 176.041, subd. 2 (1993), and from the
judge's consequent award of workers' compensation
benefits. We reverse.
BACKGROUND
This
claim was submitted to the compensation judge based on
stipulated facts, without any live or deposition
testimony. The parties have agreed to the following
pertinent facts. The employee, Timothy Davis, was hired
by Chicago Bridge and Iron Company [CBI] in March
1976. CBI is an Illinois corporation with its principal
place of business in Illinois. CBI built water towers
and other large storage tanks like those in oil
refineries. On or about May 27, 1985, the employee left
CBI and became an employee of CBI Na-Con, Inc.
[Na-Con]. Na-Con is a Texas corporation with its
principal place of business in Texas. Na-Con also built
water towers and other large storage tanks.
From
March 1976 until approximately June 1993, the employee's
principal place of residence was Harned,
Kentucky. In about June 1993, the employee
purchased a travel trailer/mobile home. Since that time,
the employee and his family have lived about ten months each
year in their mobile home which has been kept in Reserve,
Louisiana, and have lived about two months each year (during
the summer) in a home they continue to own in Harned,
Kentucky. The employee's children have attended
school in Louisiana since the fall of 1993. In 1991,
1992, and 1993, the employee filed income tax returns in the
state of Kentucky, listing his residence as Harned,
Kentucky. In 1994, the employee filed income tax returns
in the state of Louisiana, listing his address as Reserve,
Louisiana.
Attached
as Exhibit A to the Stipulated Facts submitted to the
compensation judge is a chart which depicts the job sites the
employee worked at for CBI and Na-Con between March 23, 1976,
and August 15, 1993, setting forth certain information with
respect to each job site. The exhibit includes the dates
of the employee's assignment to each job site, a brief
description of the job performed by the employee at each
site, and whether silica-containing materials were used at
the job site. The parties agreed that the exhibit was
not to be construed as indicating silica exposure during the
entire period of each assignment, as the periods of
assignment included days off as well as days when, due to the
tasks performed, the employee was not being exposed to
silica.
The
employee's initial position with CBI was as a painter and
laborer/sandblaster helper. The employee held this
position throughout 1976 and early 1977. During this
time, the employee helped the sandblasters, tended pot (which
included filling "pots" with silica sand for use by
the sandblasters), worked inside tanks or vessels which were
being sandblasted, and did cleanup work. From early 1977
through 1985, the employee performed interior and exterior
sandblasting (primarily on water towers and occasionally on
other types of vessels, tanks, or structures), tended pot,
performed interior work in vessels during sandblasting
operations, and did cleanup work inside tanks or vessels
after sandblasting had taken place.
From
1986 through 1993, the employee's position with Na-Con
was that of paint foreman. During this time, generally,
the employee did interior and exterior sandblasting,
supervised interior and exterior sandblasting and painting by
others, tended pot, filled sand cans (occasionally), and did
occasional interior work in vessels during or after
sandblasting operations. In 1994 and 1995, the employee
worked for Na-Con in a field office in a sedentary capacity,
with no exposure to silica-containing materials.
Between
March 1976 and November 1993, the employee performed work for
CBI and Na-Con in Arizona, Arkansas, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan,
Minnesota, Mississippi, Missouri, Nebraska, North Dakota,
Ohio, South Dakota, Tennessee, Texas and
Wisconsin. While working in these states, the employee
would temporarily reside near his current job site, in a
hotel or motel or other temporary accommodation. In the
course of this employment between March 23, 1976, and August
15, 1993, the employee was exposed to silica-containing
materials on those job sites where silica sand was
utilized. The employee's last job in Minnesota ended
on September 21, 1991. Thereafter the employee was
exposed to silica-containing materials at seven different job
sites in four states, his last exposure being at a job site
in Pascagoula, Mississippi, between August 1 and August...
