                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0726

Workers’ Compensation Court of Appeals                                        Stras, J.
                                                                Concurring, Dietzen, J.

Yer Sumner,

                     Respondent,


vs.                                                                 Filed: July 8, 2015
                                                             Office of Appellate Courts
Jim Lupient Infiniti and
SFM Risk Solutions,

                     Respondents,

North Memorial Health Care and
Mercy Hospital,

                     Relators,

and

Fairview Health Services et al.,

                     Intervenors.

                                 ________________________


Paul W. Schroepfer and Bernard J. Robichaud, Robichaud, Anderson & Alcántara, P.A.,
Minneapolis, Minnesota, for respondent Yer Sumner.

Gregg A. Johnson and Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff &
Johnson, P.A., Saint Paul, Minnesota, for respondents Jim Lupient Infiniti and SFM Risk
Solutions.




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Kris A. Wittwer, Wittwer Syverson, P.A., Roseville, Minnesota, for relators North
Memorial Health Care and Mercy Hospital.

Patricia A. Sonnenberg, Assistant Attorney General, Saint Paul, Minnesota, for amicus
curiae Minnesota Department of Human Services.

Sean M. Quinn, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota, for
amicus curiae Minnesota Association for Justice.

                              ________________________

                                     SYLLABUS

       Minnesota Statutes § 176.361, subd. 4 (2014), requires an intervenor in a workers’

compensation case to appear at conferences and hearings.

       Affirmed.

                                      OPINION

STRAS, Justice.

       The question presented in this case is whether a party who intervenes in a workers’

compensation matter must appear at the hearing at which a compensation judge resolves

the intervenor’s claim for reimbursement. In this case, the intervenors are two health-

care providers that provided treatment to an employee, but had their claims for

reimbursement denied when they failed to attend a hearing before a compensation judge.

In a divided decision, the Workers’ Compensation Court of Appeals affirmed the denial

of their claims. For the reasons set forth below, we also affirm.

                                             I.

       In January 2012, Yer Sumner was injured when she fell while working for Jim

Lupient Infiniti (“Lupient”), a car dealership located in Golden Valley. Sumner received



                                             2
treatment over the course of the following year, and filed a claim petition for workers’

compensation benefits based on the injury.            Lupient, which is self-insured, denied

primary liability.

       Eleven entities (collectively, “the Intervenors”), including North Memorial Health

Care and Mercy Hospital (collectively, “the Relators”), moved to intervene as of right

after Sumner filed her claim petition. Lupient objected to the motions of nine of the

eleven Intervenors, including those filed by the Relators, on the ground that the services

they provided were not reasonable, necessary, or causally related to the injury. After they

filed their motions, the Intervenors did not actively participate in the proceedings before

the compensation judge. None personally appeared at the hearing, received permission to

be absent from the hearing, or filed a stipulation.

       Following a 1-day hearing, the compensation judge issued an order in which he

denied reimbursement to the Intervenors because they did not attend the hearing. The

judge relied on Minn. Stat. § 176.361, subd. 4 (2014), which states that intervenors “shall

attend all settlement or pretrial conferences, administrative conferences, and the hearing,”

and that the “[f]ailure [of an intervenor] to appear shall result in the denial of the claim

for reimbursement.”

       The Relators and Sumner appealed the compensation judge’s order to the

Workers’ Compensation Court of Appeals, which, as relevant here, affirmed the denial of

the Relators’ reimbursement claims in a 2-1 decision. Sumner v. Jim Lupient Infiniti,

2014 WL 1671224, at *5-8 (Minn. WCCA Apr. 3, 2013). The panel majority reasoned

that “unless an intervenor’s right to reimbursement has ‘otherwise been established,’ ”


                                              3
only a compensation judge may excuse an intervenor’s personal attendance at a hearing

or conference.    Id. at *7 (quoting Minn. Stat. § 176.361, subd. 4).          Because the

compensation judge never waived the “attendance requirement,” the majority concluded,

he properly exercised his authority to deny the intervenors’ claims. Id. The dissenting

judge disagreed, and instead would have interpreted “the statutory requirement [to]

attend . . . as a guarantee that the intervenor will be available for settlement negotiations

should they occur during a scheduled proceeding.” Id. at *10 (Hall, J., concurring in part

and dissenting in part) (internal quotation marks omitted). In other words, the dissent

offered an interpretation of the statute that “impose[s] the sanction of extinguishment [of

a reimbursement claim] only where the failure to participate result[s] in substantial

prejudice to the other parties.” Id.

                                             II.

       We review questions of statutory interpretation de novo. See, e.g., Larson v. State,

790 N.W.2d 700, 703 (Minn. 2010). “The first step in statutory interpretation is to

‘determine whether the statute’s language, on its face, is ambiguous.’ If a statute is

unambiguous, then we must apply the statute’s plain meaning.” Id. (quoting Am. Tower,

L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001)). If, however, a statute has

more than one reasonable interpretation, then it is ambiguous and we may use the canons

of construction to determine its meaning. See Billion v. Comm’r of Revenue, 827 N.W.2d

773, 777-778 (Minn. 2013).




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                                           A.

      The questions presented in this case are whether intervenors are required to attend

proceedings before a compensation judge and, if so, whether the statutory penalty for

nonattendance is the denial of their claims for reimbursement. The plain language of

Minn. Stat. § 176.361, subd. 4, answers both questions:

      Unless a stipulation has been signed and filed or the intervenor’s right to
      reimbursement has otherwise been established, the intervenor shall attend all
      settlement or pretrial conferences, administrative conferences, and the hearing.
      Failure to appear shall result in the denial of the claim for reimbursement.

Minn. Stat. § 176.361, subd. 4 (emphasis added). The first sentence of the statute, by

using the word “shall” to describe the attendance requirement, creates a mandatory duty

for intervenors to “attend all settlement or pretrial conferences, administrative

conferences, and the hearing.” Id.; see also Dukowitz v. Hannon Sec. Servs., 841 N.W.2d

147, 155 (Minn. 2014) (stating that the use of the word “shall” denotes a mandatory

duty). The mandatory duty, to “attend,” is “to be present at.” The American Heritage

Dictionary of the English Language 115 (5th ed. 2011) (defining “attend”). Thus, the

first sentence of subdivision 4 requires intervenors “to be present at” conferences and

hearings.

      The second sentence of subdivision 4 prescribes a penalty for an intervenor’s

failure to comply with the mandatory duty to attend conferences and hearings. Although

the second sentence uses the word “appear” rather than “attend,” the words “appear” and

“attend” are synonymous and refer to the same act. See Eclipse Architectural Grp., Inc.

v. Lam, 814 N.W.2d 692, 702 (Minn. 2012) (rejecting an argument that the use of two



                                            5
different terms in a statute created an ambiguity because the two terms were consistently

used as synonyms). The legal definition of “appear” is to come “into court as a party or

interested person, or as a lawyer on behalf of a party or interested person.” Black’s Law

Dictionary 118 (10th ed. 2014) (defining “appearance”) (emphasis added); see also

American Heritage Dictionary at 85 (defining “appear” as “[t]o present oneself formally

before a court as defendant, plaintiff, or counsel”). Similarly, the commonly understood

meaning of the word “appear” is “to come before the public or into public view.”

Webster’s Third New International Dictionary 103 (1976). In both legal and common

usage, the word “appear,” as used in the statute, describes the condition of being

present—that is, attending. See Roget’s International Thesaurus 181 (7th ed. 2010)

(listing “attend” and “appear” as synonyms).

       Relying on the textual canon that different words used in the same context in a

statute ordinarily carry different meanings, the Relators argue that the words “appear”

and “attend” necessarily refer to different acts. See, e.g., State v. Nelson, 842 N.W.2d

433, 439 (Minn. 2014) (“Generally, ‘when different words are used in the same context,

we assume that the words have different meanings.’ ” (quoting Dereje v. State, 837

N.W.2d 714, 720 (Minn. 2013))). In the Relators’ view, because the second sentence of

the statute makes the penalty contingent on a “failure to appear” rather than a failure “to

attend,” it must mean that a compensation judge may only deny a reimbursement claim if

an intervenor files no papers at all. We disagree.

       Adopting the Relators’ interpretation would violate our “obligation” to read the

statute as a whole and to ensure “that all of the statute’s terms are effective.” Nelson v.


                                             6
Schlener, 859 N.W.2d 288, 294 (Minn. 2015); see also Kollodge v. F. & L. Appliances,

Inc., 248 Minn. 357, 360, 80 N.W.2d 62, 64 (1956) (“It is a cardinal rule of statutory

construction that a particular provision of a statute cannot be read out of context but must

be taken together with other related provisions to determine its meaning.”). Specifically,

the subdivision requiring intervenors to attend conferences and hearings is part of a larger

statute that delineates various procedural rules related to intervenors, including the filing

requirements for intervenors.      Subdivision 1, for example, provides that putative

intervenors must file “an application or motion in writing” in order to become a party to a

workers’ compensation action. Minn. Stat. § 176.361, subd. 1 (2014) (allowing a party to

intervene “by filing an application or motion in writing stating the facts which show the

interest”).   Without such a filing, a putative intervenor may not make a claim for

reimbursement.     See Minn. Stat. § 176.361, subd. 2(b) (2014) (“The application or

motion must be accompanied by the following: (1) an itemization of disability payments

showing the period during which the payments were or are being made; the weekly or

monthly rate of the payments; and the amount of reimbursement claimed . . . .” (emphasis

added)).

       The Relators’ interpretation, which would require a compensation judge to deny a

claim for reimbursement only if an intervenor never files anything at all, is inconsistent

with these other provisions. After all, if an intervenor is required to file a motion to

intervene, accompanied by a statement of the amount claimed, in order to be eligible for

reimbursement, then there is nothing for a compensation judge to deny when the

intervenors have never brought a motion to intervene in the first place. See Minn. Stat.


                                             7
§ 176.361, subd. 2 (2014).      In other words, under the Relators’ interpretation, the

compensation judge’s obligation under subdivision 4 would be to deny reimbursement

claims that have not been filed on behalf of entities that are not parties to the case. To

give effect to the word “denial” in the second sentence of subdivision 4, the “failure to

appear” cannot logically refer to the mere filing of intervention papers.1

       Indeed, another subdivision of the statute, which governs intervention motions by

government agencies, confirms that serving and filing intervention papers is not the same

as making an appearance.       Specifically, Minn. Stat. § 176.361, subd. 1, allows the

Department of Human Services or the Department of Employment and Economic

Development to intervene in a workers’ compensation matter by having a “nonattorney

employee . . . prepare, sign, serve and file motions for intervention and related

documents, appear at prehearing conferences, and participate in matters before a

compensation judge.”     In other words, the statute describes two types of actions that a


1
        The concurrence accurately observes that the word “appear” can have multiple
meanings. See, e.g., Black’s Law Dictionary at 118-19 (describing different uses of the
word “appearance”); American Heritage Dictionary at 85 (giving eight different
definitions for the word “appear”). However, “the meaning of a word cannot be
determined in isolation, but must be drawn from the context in which it is used.” Deal v.
United States, 508 U.S. 129, 132 (1993). Viewed in context, the only reasonable
definition of the word “appear” in Minn. Stat. § 176.361 is that it denotes an affirmative
duty to be present. See State v. Nelson, 842 N.W.2d at 437 n.2 (“[T]he relevant definition
of a term depends on the context in which the term is used.”). The concurrence’s
proposed alternative definition, which would allow a compensation judge to penalize an
intervenor only when it fails to file any documents at all in a workers’ compensation
proceeding, is unreasonable in light of the bedrock principle that we must read and
interpret a statute as a whole. See Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273,
277 (Minn. 2000) (requiring courts to interpret a statute as a whole “in light of”
surrounding provisions).


                                             8
nonattorney employee can take when a department seeks to intervene in a workers’

compensation matter: (1) preparing, signing, serving, and filing the motions for

intervention and related documents; and (2) appearing at prehearing conferences and

participating in matters before the compensation judge.           If preparing and filing

intervention papers were the same thing as the duty to “appear,” as the Relators argue,

then these tasks would be duplicative of one another. In short, Relators’ reading would

violate our obligation to read the statute as a whole so that all of its terms are effective.

See Nelson v. Schlener, 859 N.W.2d at 294.

       Accordingly, we conclude that Minn. Stat. § 176.361, subd. 4, is unambiguous,

and that its first sentence requires intervenors to attend “all settlement or pretrial

conferences, administrative conferences, and the hearing.”2 The second sentence of the

statute then prescribes the penalty—the denial of claims for reimbursement—when an

intervenor violates its mandatory duty to attend a conference or hearing.




2
       The Relators observe that penalizing intervenors for their failure to appear at
hearings is contrary to current practice. According to the Relators, many intervenors
have little to add to the consideration of an employee’s claim in a workers’ compensation
matter, and it may be more burdensome for everyone involved, including the
compensation judge, to require intervenors to attend every conference and hearing.
Whatever the merits of the Relator’s policy arguments, they are immaterial in light of our
conclusion that Minn. Stat. § 176.361, subd. 4, unambiguously requires the attendance of
intervenors at conferences and hearings. See Axelberg v. Comm’r of Pub. Safety, 848
N.W.2d 206, 213 (Minn. 2014) (stating that, when an unambiguous statute “needs
revision in order to make it embody a more sound public policy, the Legislature, not the
judiciary, must be the reviser”).


                                             9
                                           B.

       Applying the statute to the facts of this case, we must now determine whether the

compensation judge erred when he denied the Relators’ claims based on their failure to

appear at the hearing. There are only two circumstances in which Minn. Stat. § 176.361,

subd. 4, relieves intervenors of the obligation to appear at conferences and hearings, but

neither is present here. First, attendance is unnecessary when the parties have signed and

filed a stipulation establishing the intervenor’s right to reimbursement. See Minn. Stat.

§ 176.361, subd. 3 (addressing stipulations); id., subd. 4 (discussing the attendance

requirement). Here, however, it is undisputed that the parties in this case neither signed

nor filed a stipulation.

       Second, when an insurer or self-insured employer fails to return a signed

stipulation or to object to the claim within 30 days, the intervenor’s right to

reimbursement “is deemed established,” which relieves the intervenor of its obligation to

appear at conferences and hearings. Id., subds. 3, 4. In this case, however, Lupient

objected to the compensability of the services for which the Relators sought

reimbursement, arguing that they were not reasonable, necessary, or causally related to

Sumner’s injury. Thus, the Relators failed to “establish” their right to reimbursement

prior to the hearing. Id., subd. 4. Because it is undisputed that the Relators were absent

from the hearing and that neither of the two exceptions to the attendance requirement was




                                           10
met,3 the compensation judge did not err when he denied the Relators’ claims for

reimbursement.

                                           III.

      For the foregoing reasons, we affirm the decision of the Workers’ Compensation

Court of Appeals.

      Affirmed.




3
       Because the Relators were completely absent from the hearing, we express no
opinion on whether an intervenor may appear telephonically or by some other medium, or
on the validity of the standing order of the Office of Administrative Hearings that allows
intervenors to provide a contact person who must be available during settlement
conferences. See Standing Order Granting Attendance at Settlement Conference Via
Telephone, OAH (June 19, 2014).


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                                 CONCURRENCE

DIETZEN, Justice (concurring).

       I concur in the result reached by the majority, but disagree with its underlying

analysis that the word “appear” in Minn. Stat. § 176.361, subd. 4 (2014), is not

ambiguous.

       Minnesota Statutes § 176.361, subdivision 4, provides:

       Unless a stipulation has been signed and filed or the intervenor’s right to
       reimbursement has otherwise been established, the intervenor shall attend
       all settlement or pretrial conferences, administrative conferences, and the
       hearing. Failure to appear shall result in the denial of the claim for
       reimbursement.

       In my view, the word “appear” is susceptible to two reasonable interpretations,

and therefore is ambiguous.       The first reasonable interpretation of “appear” is the

intervenor must be present at “all settlement or pretrial conferences, administrative

conferences, and the hearing” to satisfy the requirements of the statute, and avoid a

default. This interpretation aligns with the literal meaning of the word “appear.” See The

American Heritage Dictionary of the English Language 85 (5th ed. 2011) (“To present

oneself formally before a court as defendant, plaintiff, or counsel.”).

       The second reasonable interpretation of “appear” is that the intervenor must either

be present at all conferences and the hearing, or serve or file a pleading in the proceeding.

The word “appear” is not defined in the rules governing workers’ compensation

proceedings. See Minn. R. 1415.0300 (2013); Minn. R. 1420.0200 (2013). But the

Minnesota Rules of Civil Procedure provide that “[a] party appears when that party

serves or files any document in the proceeding.”           Minn. R. Civ. P. 5.01.       This


                                            C-1
interpretation aligns with the legal definition of “appearance” as “a defendant’s act of

taking part in a lawsuit, whether by formally participating in it or by an answer,

demurrer, or motion.” Black’s Law Dictionary 118 (10th ed. 2014) (emphasis added).

Under this interpretation, the word “appear” has a different meaning than the word

“attend” as used in Minn. Stat. § 176.361, subd. 4, thus honoring the textual canon that

“when different words are used in the same context, we assume that the words have

different meanings.” Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013).

       Thus, “appear” as it is used in Minn. Stat. § 176.361, subd. 4, could be interpreted

as requiring the intervenor to (1) be present at all conferences or hearings, or (2) serve

and file a pleading in the case proceeding. Both of these interpretations are reasonable,

and therefore I would conclude that Minn. Stat. § 176.361, subd. 4, is ambiguous.

Nonetheless, for the reasons advanced by the majority, I believe the most reasonable

interpretation of the word “appear” as it is used in Minn. Stat. § 176.361, subd. 4, is that

the intervenor must be present at all conferences and hearings. Consequently, I concur in

the result that the Relators’ claims for reimbursement were properly denied.




                                            C-2
