JOHN DEVOS, Employee/Appellant,
v.
RHINO CONTRACTING, INC./SELF-INSURED, Employer/Respondent,
and
RTVERVIEW HEALTH, BLUE CROSS BLUE SHIELD MINN./BLUE PLUS, and ALTRU HEALTH SYS., Intervenors, and SPECIAL COMP. FUND.
No. WC18-6240
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
June 12, 2019
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.
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.
Determined by: Deborah K. Sundquist, Judge, Patricia J.
Milun, Chief Judge, David A. Stofferahn, Judge.
Compensation Judge: Jerome G. Arnold
Affirmed.
OPINION
DEBORAH K. SUNDQUIST, Judge.
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.
BACKGROUND
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...
