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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.

________________________

S Y L L A B U S

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

compensation case to appear at conferences and hearings.

Affirmed.

O P I N I O N

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 healthcare 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 
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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,’ ” 
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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 
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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. 
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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. 
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§ 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).
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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”).
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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
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met,

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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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C O N C U R R E N C E

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-2

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.