John Devos v. Rhino Contracting, et. al, No. WC18-6240 (W.C.C.A. June 2019).
The Employee appealed a Findings and Order from the compensation judge, finding the Employee was not entitled to benefits under the Minnesota Workers’ Compensation Act when the Employee was living in Minnesota and injured in Minnesota, but was hired and working for a North Dakota Employer, when the injury arose out of temporary work in Minnesota.
The Employee, who lived in Minnesota, was hired by a North Dakota employer in 2011. The Employee worked over 240 hours in 2011. The Employee was then laid off for the winter. The Employee got a call to go back to work in early 2012 by Employer. In 2012, the Employee worked less than 240 hours in Minnesota before sustaining an injury while working in Minnesota. Applying Minn. Stat. 176.041, subd. 5(b), the compensation judge dismissed the Employee’s claim, finding the Employee’s work in Minnesota was only temporary.
Minn. Stat. 176.041, subd. 5(b) reads:
“…workers’ compensation benefits for an employee hired in North Dakota by a North Dakota employer, arising out of that employee’s temporary work in Minnesota, shall not be payable under this chapter. North Dakota workers’ compensation law provides the exclusive remedy available to the injured worker. For purposes of this subdivision, temporary work means work in Minnesota for a period of time not to exceed 15 consecutive calendar days or a maximum of 240 total hours worked by that employee in a calendar year.”
On appeal, the Employee argued that the employment was not temporary because “calendar year” refers to the year preceding the injury, that the Employee was “rehired” in 2012, and that the exclusion violates the Minnesota and U.S constitutions.
The WCCA held that the Employee was not rehired by Employer, but instead continued to work for Employer, reasoning the Employee volunteered to be laid off for the winter, his application for unemployment benefits through North Dakota showed an expectation to return to work with Employer, no job search was done, and no new application process was completed with Employer. As for the issue of temporary employment, the WCCA held that a “calendar year” refers to January 1st to December 31st of the year of the injury, not the 52 weeks preceding the date of injury. The Employee worked less than 240 hours in Minnesota in 2012, falling under temporary employment.
Pursuant to the statutory exclusion for North Dakota, an employee is not entitled to benefits under the Minnesota Workers’ Compensation Act when the Employee was hired by a North Dakota employer and the injury arose out of temporary work in Minnesota. Further, a calendar year refers to January 1st through December 31st of the year the injured occurred.