Devos v. Rhino Contracting, Inc., et al., No. WC17-6075 (W.C.C.A., January 8, 2018).
John Devos, Employee, was a construction worker hired by Rhino Contracting, Inc., a Grand Forks, North Dakota company. Devos worked for Rhino Contracting in the 2011 and 2012 construction seasons.
He was “rehired” or “recalled” for work in 2012. The issue was whether he was “rehired” in North Dakota or in Minnesota, where he lived. Rhino Contracting did not have workers’ compensation coverage in Minnesota. Minn. Stat. §176.041, Subd. 5b, relates to jurisdiction between Minnesota and North Dakota. An employee hired in North Dakota by a North Dakota employer maintains North Dakota jurisdiction arising out of employee’s “temporary work” in Minnesota. “Temporary work” in Minnesota is defined as not exceeding fifteen (15) consecutive calendar days or a maximum of 240 hours worked by the employee in a calendar year in Minnesota.
Employee Devos was rehired in the spring of 2012 and came to North Dakota for completion of his paperwork. The Special Compensation Fund appeared on behalf of Rhino Contracting. It was undisputed that the Employee did not work for fifteen consecutive days in Minnesota, nor that he worked for 240 hours in Minnesota.
The Employee sustained an injury on September 24, 2012, while working in Minnesota. The Special Compensation Fund moved to dismiss the claim brought in Minnesota for lack of jurisdiction. At the Employee’s request the claim was stricken from the calendar for approximately two years. Upon reinstatement the Special Compensation Fund renewed their Motion for Dismissal. A special term hearing was held, at which Employee’s counsel claimed to have understood the hearing was designed as a pretrial rather than addressing the Motion to Dismiss. A request was made and granted to leave the record open to allow for additional submissions by the Employee. The Employee did not submit additional evidence or testimony, but rather submitted a formal Objection to the Motion to Dismiss. The Employee’s Objection alleged that there was ambiguity about the interpretation of “calendar year”, and stated simply that there were factual disputes regarding the Employee’s hiring.
The Compensation Judge dismissed the Employee’s claim in Minnesota noting that the Employee was provided an opportunity to present additional evidence following the motion hearing and did not do so.
The Workers’ Compensation Court of Appeals was persuaded that there were sufficient questions to conclude that a factual disputed existed regarding the jurisdictional issues. The W.C.C.A. vacated the Order and remanded the case for an evidentiary hearing on the jurisdiction issue.
In a dissenting opinion, Judge Milun noted that the evidence of record in the Motion to Dismiss supported a conclusion that the Employee had temporary work in Minnesota as defined in the statute. The dissent noted that the Employee’s failure to submit any additional evidence after keeping the record open for nearly two years was essentially a waiver of the right to submit contradictory evidence to the Motion to Dismiss. The dissent concluded the Compensation Judge followed appropriate procedure in addressing the jurisdictional issues and would have upheld the dismissal.