text:
    MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Respondent, v. LEAGUE OF MINNESOTA CITIES INSURANCE TRUST, Petitioner, Appellant.
    No. CX-01-1929.
    Supreme Court of Minnesota.
    April 24, 2003.

      Charles E. Gillin, Stephen F. Buterin, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for League of Minnesota Cities Insurance Trust.
    Jack D. Moore, Moore, Warner & Kruger, St. Paul, MN, for Mutual Service Casualty Insurance Company.
    Michael C. Snyder, Pamela J. Spaulding, Meshbesher & Spence, Ltd., Minneapolis, MN, for Minnesota Trial Lawyers Association (Amicus Curiae).
   OPINION

HANSON, Justice.

A City of Rochester police officer driving a marked patrol car struck a pedestrian, who sustained injuries that resulted in $83,340.92 in medical expenses. The pedestrian’s insurer brought a declaratory judgment action against the city’s insurer to require it to pay the first $20,000 of the pedestrian’s basic economic loss benefits on the grounds that the city’s insurer has first priority coverage under Minnesota’s No-Fault Automobile Insurance Act (“the Act”). Minn.Stat. §§ 65B.41-65B.71 (2002). The district court granted summary judgment for the city’s insurer, based on its conclusion that a marked patrol car is not a “motor vehicle” and thus the city’s insurer had no liability for economic loss benefits under the Act. The court of appeals reversed, holding that the plain meaning of the definition of a “motor vehicle” would lead to an absurd and unreasonable result that departed from the stated purpose of the Act. We reverse the court of appeals and hold that a marked patrol car is not a “motor vehicle” and therefore that an injured pedestrian does not have the right to recover basic economic loss benefits from the city under the Act.

The parties do not dispute the facts. On March 17, 2000, a marked patrol ear owned by the City of Rochester struck a pedestrian, Christopher Paul Kruger, at or near the intersection of Third Avenue and 10½ Street in Rochester. Officer Timothy Lutzke of the Rochester Police Department was driving the patrol car and was acting within the scope of his duties at the time of the accident.

Under the Act, a person has the right to claim basic-economic loss benefits if he or she has been injured by the “maintenance or use of a motor vehicle.” Minn.Stat. § 65B.46, subd. 1 (2002) (emphasis added). The Act defines a “motor vehicle” as

every vehicle, other than a motorcycle or other vehicle with fewer than four wheels, which (a) is required to be registered pursuant to chapter 168, and (b) is designed to be self-propelled by an engine or motor for use primarily upon public roads, highways or streets in the transportation of persons or property, and includes a trailer with one or more wheels, when the trailer is connected to or being towed by a motor vehicle.

Minn.Stat. § 65B.43, subd. 2 (2002) (emphasis added). Under Minn.Stat. § 168.012, subd. 1(b), “[vjehicles owned by the federal government, municipal fire apparatuses including fire suppression support vehicles, police patrols, and ambulances, the general appearance of which is unmistakable, are not required to register or display number plates.” Minn.Stat. § 168.012, subd. 1(b) (2002) (emphasis added).

Appellant League of Minnesota Cities Insurance Trust (“LMCIT”) is the automobile insurance carrier for the City of Rochester. Its policy provides basic economic loss benefits coverage for the city’s qualified vehicles, including $20,000 for medical expenses. Kruger is insured under his grandfather’s automobile insurance policy with respondent Mutual Services Casualty Insurance Company (“MSI”). The MSI policy likewise provides basic economic loss benefits coverage, including $20,000 for medical expenses. It also provides an additional $60,000 in optional coverage. To date, MSI has paid $13,340.92 toward Kruger’s medical expenses from this optional coverage. MSI refuses to pay the first (or additional) $20,000 in medical expenses incurred because it believes that, under the Act, LMCIT has a higher priority of payment.

In order to determine priority of payment, MSI commenced a declaratory judgment action against LMCIT and petitioned the court to declare that LMCIT has priority to pay the first $20,000 of Kruger’s medical expenses. Both parties filed cross-motions for summary judgment. The district court granted LMCIT’s motion and found that the marked patrol car involved in the accident was not a “motor vehicle” as defined in Minn.Stat. § 65B.43, subd. 2. The court therefore concluded that the priority provision of Minn.Stat. § 65B.47, subd. 3 did not apply to LMCIT.

MSI appealed, and the court of appeals reversed. The court acknowledged that, on its face, the statutory definition of a “motor vehicle” does not include marked patrol cars. Mutual Service Casualty Ins. Co. v. League of Minnesota Cities Ins. Trust, 646 N.W.2d 546, 549 (Minn.App.2002). It concluded, however, that “applying the plain meaning of the statutory definition of ‘motor vehicle’ to deny an injured person the right to basic economic loss benefits produces an absurd and unreasonable result that plainly departs from the first stated purpose of the Minnesota No-Fault Automobile Insurance Act.” Id. at 550. The court held that the patrol car was a “motor vehicle” and remanded to the district court to determine priority of payment between the two insurers. Id. We granted review.

I.

LMCIT argues that the plain language of the statute is clear: first, the Act permits recovery of basic economic loss benefits only when the injury results from the maintenance or use of a “motor vehicle” and, second, a marked patrol car is not within the definition of a “motor vehicle” because it is not required to be registered under Minn.Stat. § 168.012, subd. 1(b). Statutory interpretation is a question of law which we review de novo. Nelson v. Am. Family Ins. Group, 651 N.W.2d 499, 503 (Minn.2002). When a district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion that we similarly review de novo. Id.

We agree with the court of appeals that the plain meaning of the statutory definition of a “motor vehicle” does not include marked patrol cars. The cases cited by MSI and amicus Minnesota Trial Lawyers Association in support of their argument that a marked patrol car is a motor vehicle within the Act do not actually address that question and cannot overcome the plain words of the Act. See, e.g., Loven v. City of Minneapolis, 639 N.W.2d 869-70 (Minn.2002) (holding that the city was liable for basic economic loss benefits in an accident involving - a city police van where there was no argument that the van was marked); Fryer v. Nat’l Union Fire Ins. Co., 365 N.W.2d 249, 253 (Minn.1985) (stating that a police officer “would have promptly received no-fault benefits” as a result of the accident if he had been ineligible for worker’s compensation benefits, but providing no indication that any party argued or that this court considered the definition of a “motor vehicle”).

MSI suggests that the only purpose for the exemption of marked patrol cars, from registration under- MinmStat. § 168.012, subd. 1(b) was to relieve governmental bodies from the cost of registration and that the exclusion of marked patrol cars from the No-Fault Act goes beyond that pm-pose. Although the purpose for the exemption from registration provided in Chapter 168 may have been to avoid the cost, the legislature expanded that purpose when it incorporated the exemptions from registration into the No-Fault Act’s definition of “motor vehicle.”

MSI argues that the plain meaning of the statutory definition of motor vehicle contained in Minn.Stat. § 65B.43, subd. 2 should not be viewed in isolation and asserts that the plain meaning is actually contradicted by the compulsory insurance section of the Act. The premise of MSI’s argument is that the definition of motor vehicle is subject to an important qualification contained in subdivision 1 of Minn. Stat. § 65B.43: “The following words and phrases shall, for the purpose of sections 65B.41 to 65B.71, have the meanings ascribed to them, except where the context clearly indicates a different meaning.” MSI then urges that this qualification is triggered by the compulsory insurance section, which, in MSI’s view, requires the owner of a marked patrol car to obtain basic economic loss benefits coverage for the vehicle.

The compulsory insurance section provides:

Every owner of a motor vehicle of a type which is required to be registered or licensed or is principally garaged in this state shall maintain * * * a plan of reparation security * * insuring against loss resulting from liability imposed by law for injury and property damage * * *. The plan of reparation security shall provide for basic economic loss benefits and residual liability coverage ⅜ * *.

Minn.Stat. § 65B.48, subd. 1 (2002) (emphasis added). MSI interprets this language to mean that a marked patrol car that is not required to be registered or licensed must still be insured for basic economic loss benefits under the Act if it is principally garaged in Minnesota. MSI suggests that it is unreasonable to conclude that the legislature intended the term “motor vehicle,” as used in the compulsory insurance section, to incorporate the registration requirement contained in the definition section because (1) it followed the term “motor vehicle” with a specific reference to that very registration requirement, which would be superfluous if the definition already incorporated it, and (2) it made registration only one of two alternative requirements for compulsory insurance, which would be rendered a nullity by the incorporation of the registration requirement in the definition of “motor vehicle.”

We agree with MSI that these two provisions are neither well coordinated nor artfully drawn. We are not persuaded, however, that this supports the conclusion that the legislature did not intend to use the plain meaning of the definition of “motor vehicle.”

First, the compulsory insurance section provides only indirect evidence of the legislature’s intent regarding the definition of “motor vehicle,” whereas the definition section is a direct expression of that intent. To the extent there might be a conflict between that definition and the compulsory insurance requirement, the definition should prevail. Moreover, we must leave it to the legislature to correct any inconsistency that might be created by a subsidiary provision.

We also agree with the court of appeals that the compulsory insurance provision only applies to vehicles that first meet the definition of “motor vehicle.” Thus, the compulsory insurance provision merely begs the question of what is the proper interpretation of the definition of “motor vehicle.” As the court of appeals observed, “no matter where a vehicle is garaged, it is not within the statutory definition of ‘motor vehicle’ unless it is required to be registered under chapter 168.” MSI, 646 N.W.2d at 549.

Finally, we are not convinced that this application of the plain meaning of the definition of “motor vehicle” renders superfluous the inclusion of the registration requirement in the compulsory insurance section. Although the legislature does not explain the reason for that inclusion, LMCIT suggests a plausible explanation that would not make the requirement superfluous. LMCIT suggests that the purpose of the registration requirement in the compulsory insurance section was to fill the gap that would exist for a new resident who is not required to register a vehicle with a foreign registration during the first 60 days of residence. See MinmStat. § 168.012, subd. 8 (2002). LMCIT distinguishes this purpose from any purpose to require compulsory insurance for a marked patrol car because the limiting phrase — “Every owner of a motor vehicle of a type which is required to be registered or licensed”' — -applies to the new resident, whose vehicle is of a type that ultimately must be registered, but not to a marked patrol car, which is not “of a type” because it will never be required to be registered. See Minn.Stat. § 65B.48, subd. 1 (2002).

We conclude that the term “motor vehicle” under the Act does not include a marked patrol car.

II.

If the plain meaning of a “motor vehicle” does not include a marked patrol car, we must then proceed to the second step of our analysis and determine whether there are any overriding reasons to disregard that plain meaning. In doing so, we are mindful of the statutory directive that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2002). Thus, where the intention of the legislature is clearly manifested by plain and unambiguous language, we have neither the need nor the permission to engage in statutory interpretation. Ed Herman & Sons v. Russell, 585 N.W.2d 803, 806 (Minn.1995).

The court of appeals stated that it would disregard the plain meaning of “motor vehicle” because the “[a]pplieation of the plain meaning of the statutory definition of ‘motor vehicle’ produces an absurd and unreasonable result” that an injured person’s right to basic economic loss benefits depends solely on the appearance of a police vehicle. MSI, 646 N.W.2d at 549-50. The court noted that, unlike marked patrol cars, unmarked vehicles used in general police work are required to register under chapter 168. Id. at 549 (citing Minn.Stat. § 168.012, subd. 1(b), 1(c)). The court relied upon two cases where this court was asked to disregard the plain meaning of a statute. Those cases do not support the court of appeals’ conclusions here.

In Olson v. Ford Motor Company, a motorist injured in an automobile accident sued the automobile manufacturer and claimed that the car’s seat belts were defective. 568 N.W.2d 491, 493 (Minn.1997). The manufacturer moved for summary judgment, arguing that Minn.Stat. § 169.685, subd. 4 (1996), known as the “seat belt gag rule,” precluded the introduction of any evidence pertaining to whether the plaintiff was wearing his seat belt at the time of the accident. Olson, 558 N.W.2d at 493. The plaintiff challenged the plain meaning of the statute, arguing that its sole purpose was to protect plaintiffs who failed to wear a seat belt from contributory negligence claims, not to preclude proof of a defect in a seat belt. Id. at 495. We refused to depart from the plain meaning of the statute. Id. Although we recognized the concept that the plain meaning of a statute might properly be disregarded in a rare case where that meaning “utterly confounds a clear legislative purpose,” we concluded that the legislative purpose was not that clear. Id. We said: “Because it simply is not clear that the legislature intended to benefit motorists alone in enacting the seat belt gag rule, we cannot say that applying the plain language of the statute to crashworthiness cases produces an absurd result that utterly confounds a clear legislative purpose.” Id. See also Anker v. Little, 541 N.W.2d 333, 338 (Minn.App.1996), rev. denied (Minn. Feb. 9, 1995) (stating seat belt gag rule did not produce an absurd result and the court was not required to look beyond the plain language of the statute).

Similarly, in Wegener v. Commissioner of Revenue, we considered whether the plain meaning of a property tax refund statute would lead to an absurd and unreasonable result. 505 N.W.2d 612, 617 (Minn.1993). The taxpayers claimed that they were entitled to a special property tax refund pursuant to a literal reading of Minn.Stat. § 290A.04, subd. 2h(a) (1990), which limited annual property tax increases to ten percent unless the property was sold. Wegener, 505 N.W.2d at 614. We concluded that the statute was not applicable to a property tax increase that resulted from the taxpayers’ construction of a new residence on what had previously been unimproved land. Id. at 615.

We did discuss in Wegener the concept that the plain meaning of a statute might be disregarded in rare cases, stating: “Since in this case, the literal language meaning ascribed to this statute by the [taxpayers] leads to the utterly absurd result that the assessor must ignore the existence of the admittedly valued $464,635 structure on the [taxpayers’] land and estimate its market value as if it were unimproved land until such time as the [taxpayers] sell the property, it is necessary to look to the purpose for which the statute was enacted and recognize that it is inapplicable under the circumstances presented here.” Id. at 617. But we ultimately determined that the literal meaning of the statute did not preclude the assessment of a tax on the value of the new residence. Id. at 615, 617. Further, to the extent the statute presented any ambiguity, we construed it by reference to a legislative history that presented a clear legislative purpose to only limit tax increases resulting from inflation or mill-rate increases, not those resulting from “hitherto omitted buildings or other improvement.” Id. at 615.

Thus both Olson and Wegener recognized that the court could disregard the plain language of a statute only where the legislative purpose was clear and the plain meaning would utterly confound that purpose. We declined to disregard the plain meaning in Olson because the legislative purpose was not clear, and we were willing to consider disregarding the plain meaning in Wegener, only because we concluded that the legislative purpose was clear. We conclude that the present case is more akin to Olson because we cannot say that the legislative purpose so clearly contradicts the plain meaning of “motor vehicle.”

[T]he legislative purpose relied upon by MSI and the court of appeals is a very general one:

To relieve the severe economic distress of uncompensated victims of automobile accidents within this state by requiring automobile insurers to offer and automobile owners to maintain automobile insurance policies * * * which will provide prompt payment of specified basic economic loss benefits to victims of automobile accidents without regard to whose fault caused the accidenta

Minn.Stat. § 65B.42(1) (2002). That purpose does not express an intent that no-fault benefits be universally provided, with no exceptions. In fact, the Act does not provide universal no-fault benefits but recognizes that there will be several classes of uncompensated victims of accidents with vehicles that might otherwise have been considered to be “automobiles,” such as motorcycles, school buses, farm tractors and all-terrain vehicles. See MinnStat. § 65B.43, subd. 2 (2002) (limiting the definition of “motor vehicle” to exclude motorcycles and vehicles not “required to be registered pursuant to chapter 168”).

Moreover, unlike Wegener, where the legislative purpose dealt with the specific issue presented — to limit tax increases resulting only from inflation or mill-rate increases — the legislative purpose of the Act cannot be said to be specifically directed at the circumstances presented by a marked patrol car.

Finally, the legislative purpose must be viewed in the context of other remedies available to victims, before and after passage of the Act. Prior to the adoption of the Act in 1974, pedestrians injured by an automobile had no statutory right to basic economic loss benefits but had only the rights at common law to bring an action for negligence. The use of the plain meaning of the definition of “motor vehicle,” therefore, does not reduce any right that a pedestrian previously enjoyed under the law. Instead, it acts as a limit on the new statutory rights created by the Act. This court did not have authority to create those rights and, likewise, it does not have authority to extend them beyond those provided by the legislature.

We recognize that the use of the plain meaning of “motor vehicle” will result in a class of accident victims being uncompensated under the Act, including pedestrians or passengers who happen to be injured by any of the vehicles that are not required to be registered under Chapter 168. But, based on the words that the legislature used to define the classes of persons who would be compensated under the Act, we must conclude that the legislature intended that this class of victims would not be compensated under the Act.

Reversed and remanded.

GILBERT, J., took no part in the consideration or decision of this case.

      . Minnesota Statutes § 65B.47, subd. 3 (2002) provides as follows:
      In the case of any other person whose injury arises from the maintenance or use of a motor vehicle described in subdivision 1 or 2 [injury resulting from business use or from use of vehicle provided by employer] who is not a driver or occupant of another involved motor vehicle, the security for the payment of basic economic loss benefits is the security covering the vehicle, or if none, the security under which the injured person is an insured.

      . In 1996, Minn.Stat. § 169.685, subd. 4 read, in pertinent part: "Proof of the use or failure to use seat belts * * * shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.” Minn.Stat. § 169.685, subd. 4 (1996).


source: Caselaw Access Project

author: GILBERT, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. B.Y., Petitioner, Appellant.
    No. C7-01-897.
    Supreme Court of Minnesota.
    April 24, 2003.

      Mary M. McMahon, McMahon & Associates, Roseville, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

GILBERT, Justice.

Appellant, B.Y., was on Extended Jurisdiction Juvenile (EJJ) probation with a stayed 108-month sentence pursuant to a plea agreement under which he pleaded guilty to kidnapping and committing a crime for the benefit of a criminal gang. In a hearing on February 22, 2001, the district court revoked appellant’s EJJ designation for violating probation and, finding no mitigating factors, executed the 108-month sentence. Appellant appealed to the Minnesota Court of Appeals arguing that the EJJ statute, Minn.Stat. § 260B.130, subd. 5 (2002), controls and does not require the execution of appellant’s stayed sentence. Therefore, appellant argued that the EJJ statute conflicts with Minn. R. Juv. P. 19.09, subd. 3, which the district court relied upon when appellant’s sentence was executed, and that the statute should control. The court of appeals affirmed the district court and concluded that the EJJ statute, absent written findings of mitigating factors, requires the execution of appellant’s sentence. The court of appeals did not reach the second issue raised by appellant as to whether the rule or the statute controls.

In this appeal, appellant argues that the EJJ statute requires that the age of the offender at the time of the offense and the severity of the offense be considered in determining the appropriate sanction for a violation of a condition of probation; and that the language of Minn.Stat. § 260B.130, subd. 5, controls over Minn. R. Juv. P. 19.09, subd. 3. We reverse the court of appeals and remand to the district court for further proceedings consistent with our ruling.

On February 9, 1998, appellant pleaded guilty to kidnapping and committing a crime for the benefit of a criminal gang for his part in the gang rape of a 12-year-old girl occurring December 14, 1997, when he was 15 years old. Under the terms of the plea agreement, appellant agreed to plead guilty to kidnapping and committing a crime for the benefit of a criminal gang and to testify truthfully at the trials of the other individuals involved in the crime. Minn.Stat. § 609.25, subd. 1(2); Minn.Stat. § 609.229, subd. 2. The kidnapping charge was a Level VII offense and had a presumptive prison sentence of 48 months. Appellant’s plea agreement called for a double durational departure from that sentence, resulting in a 96-month prison term. The crime for the benefit of a criminal gang charge had a presumptive sentence of 12 months consecutive to the underlying charge. Pursuant to the plea agreement, 12 months were added to the 96 months for the kidnapping charge, amounting to a total of 108 months.

In accordance with the plea agreement, appellant was sentenced to the custody of the Commissioner of Corrections of the State of Minnesota, the execution of the adult sentence was stayed, and appellant was designated an Extended Jurisdiction Juvenile until the age of 21. See Minn. Stat. § 260B.130, subd. 4(a) (2002). At the conclusion of the sentencing hearing, the district court notified appellant that if he violated the “terms and conditions” of probation, the prison sentence of 108 months would be executed. The plea agreement included the conditions that appellant testify truthfully if subpoenaed in the trials of the others involved in the crime, complete a juvenile rehabilitation program, not associate with any known gang members and have no contact with the victim. No other specific terms of probation were discussed in the hearing where the plea agreement was accepted nor apparently set forth in the disposition order where the terms of the agreement were imposed.

Over a year later, in June of 1999, after successfully completing the juvenile rehabilitation program at Woodland Hills, appellant appeared for a hearing in district court. The court approved the favorable recommendation of Woodland Hills and appellant was returned to his home. Again, at this hearing, the court reminded appellant that the 108-month sentence remained, and a violation of probation before he turned 21 would result in the execution of that sentence. The court in reference to the EJJ probationary period stated, “So while it seems like a long time, it’s not a long time when we are not asking a lot of you except don’t commit any new crimes and keep in touch.”

After another year and a half had passed, on February 9, 2001, appellant admitted, in a probation violation hearing, that he had violated his 9 p.m. curfew. The record before us does not include a transcript of that February 9, 2001 hearing. However, appellant’s brief states that the probation violation hearing was in front of a different judge than the subsequent disposition hearing and that appellant admitted to the violation in the probation violation hearing. This was the first time the appellant had been brought to court for a probation violation hearing. On February 22, 2001, a disposition hearing was held in district court on that probation violation. A Ramsey County juvenile probation officer appeared for the probation department. He informed the court that the probation department and staffing committee recommended that appellant’s EJJ designation be revoked. At the hearing, the state argued that it would not be seeking revocation of probation for a mere curfew violation had there not been multiple violations and had appellant not shown that he was unamenable to supervision.

The probation officer testified that appellant had been transferred to enhanced probation (“stricter level of supervision”), because he was not following the conditions of regular probation supervision, including coming into the office once a week to check in with his probation officer. According to the probation officer the transfer to enhanced probation occurred because there was a 1 to 2 month period where appellant did not check in with his probation officer, and there was concern that he was failing to attend school and not residing at his parents’ home full-time.

The state asserted that prior to the curfew violation at issue, appellant had been placed at the Juvenile Detention Center on a 24-hour waiver (hold) for breaking curfew on a previous occasion. For yet another violation, appellant was given 16 hours on a work crew to be served on a Saturday and Sunday. Appellant was present on Saturday but did not show up the next day for the remaining 8 hours of work. Appellant was told to make up the 8 hours the following week, but he refused to do so. Following that incident, appellant was placed in the Adult Detention Center for curfew and school attendance violations. After being placed for 48 hours in the Adult Detention Center, at 7 p.m. an officer took appellant home. At 9:20 p.m., his probation officer and another officer returned to appellant’s home. According to his probation officer, appellant was not at home even though his curfew was 9 p.m. and had been since November. The district court found that appellant knew of this curfew. It is this curfew violation, which the court believed was flagrant, that resulted in the execution of his entire 108-month sentence.

Complying with a curfew was not mentioned in appellant’s original plea agreement, nor does it appear that it was provided for in the disposition order, nor stated as a condition of the stayed sentence. Rather, it was apparently implemented by the probation officer and more strictly enforced as time passed. Appellant argued that this curfew violation was at most a technical violation.

The district court found that the appellant, in his February 9, 2001 probátion violation hearing, had admitted that he had failed to be home by his 9 p.m. curfew, and that missing curfew amounted to a violation of probation. Although a curfew was not part of the original plea agreement, pursuant to Minn. R. Juv. P. 19.09, subd. 3(C)(2), the court used the one admitted curfew violation to execute the previously imposed sentences for kidnapping and committing a crime for the benefit of a criminal gang. The court stated that while not necessarily agreeing with the state’s position that appellant’s violation showed that he was likely to start committing crimes, appellant was not doing the things he needed to insure public safety. The court stated there were no mitigating factors, but made no indication of what would be considered mitigating factors in this situation. The court then stated, “As I understand the rules and the law as it relates to the EJJ status, if there are no mitigating factors, there is no way that I can legally continue you on EJJ status.” Appellant’s EJJ status was revoked and the 108-month sentenced was executed.

I.

The district court ruled that there were no mitigating factors present; thus pursuant to Minn. R. Juv. P. 19.09, subd. 3(C)(2), EJJ status must be revoked and the previously stayed sentence must be executed. Appellant argues that Minn. Stat. § 260B.130, subd. 5 requires that the age of the offender at the time of the underlying offense be considered in determining the sanction for violating EJJ probation. Appellant further argues that Minn.Stat. § 260B.13Q, subd. 5, conflicts with Minn. R. Juv. P. 19.09, subd. 3(C)(2), and the statute controls.

Statutory interpretation is a question of law, which we review de novo. State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002). When interpreting a penal statute the rule of strict construction applies and all reasonable doubts concerning legislative intent are resolved in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982).

Minnesota Statutes § 260B.130, subd. 5, states in relevant part:

After the hearing, if the court finds that reasons exist to revoke the stay of execution of sentence, the court shall treat the offender as an adult and order any of the adult, sanctions authorized by section 609.14, subdivision 3, except that no credit shall be given for time-served in juvenile facility custody prior to a summary hearing. If the offender was convicted of an offense described in subdivision 1, clause (2), and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.

The above referenced subdivision 1, clause (2) is found at Minn.Stat. § 260B.130, subd. 1(2) (2002), and provides as follows:

the child was 16 or 17 years old at the time of the alleged offense; the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or to have committed any felony in which the child allegedly used, á firearm; and the prosecutor designated in the delinquency petition that the proceeding is an extended jurisdiction juvenile proSecution[.]

Minnesota Statutes § 260B.130, subd. 1(2), first appears in the statute to articulate a particular set of circumstances that would result in designating the proceeding an extended jurisdiction juvenile prosecution. It consists of three separate clauses, which together with the rest of subdivision 1, form one complete sentence. The first of the three clauses within subd. 1(2) articulates the age of the child for purposes of designation. The second clause describes the type of offense. The third articulates what action the prosecutor must take to have the proceeding designated EJJ.

The language in Minn.Stat. § 260B.130, subd. 5, refers to “an offense described in subdivision 1, clause (2).” Only the second clause in subd. 1(2) describes an offense. A plain reading of the statute reveals that the legislature referred to subd. 1(2) rather than repeating the language describing offenses listed under that subdivision, and was not attempting to limit its application to those persons designated under subd. 1(2). As such, the plain language of the statute requires the court to look only to the second clause within Minn.Stat. § 260B.130, subd. 1(2). Since the offense described in that clause makes no mention of the age of the offender, Minn.Stat. § 260B.130, subd. 5 is properly read to require the execution of the adult sentence, absent written mitigating factors, regardless of the age of the defendant at the time of the original offense.

We interpret statutes so as to effectuate the intent of the legislature and when the words of the law are “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2002). The language of Minn.Stat. § 260B.130, subd. 5, is not ambiguous. The sanction in Minn.Stat. § 260B.130, subd. 5, is not limited to offenders who were 16 or 17 at the time of the underlying offense.

Thus, Minnesota Statutes § 260B.130, subd. 5, does not conflict with the rule relied on by the district court as it relates to whether the section applies to EJJ offenders who were 15 at the time of the underlying offense. Minnesota Rules of Juvenile Procedure 19.09, subd. 3(C)(2), provides:

If the court finds upon clear and convincing evidence that any provisions of the disposition order were violated, or if the probationer admits the violation, and the extended jurisdiction juvenile conviction was for an offense with a presumptive prison sentence or the probationer used a firearm, the court shall order the execution of the sentence or make written findings indicating the mitigating factors that justify continuing the stay.

Both the rule and the statute apply to an EJJ offender regardless of the age of the offender at the time of the offense. Id.; Minn.Stat. § 260B.130, subd. 5.

II.

We next address the applicability of State v. Austin, 295 N.W.2d 246 (Minn.1980), in the EJJ probation revocation context. Although the appellant did not explicitly request that the Austin factors be considered, a review of whether EJJ revocation was proper in this case requires that we consider the issue. The state recognized as much, and devoted considerable attention to the issue in its brief to this court.

In Austin, we adopted “a three-step analysis which requires that before probation be revoked, the court must 1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that the need for confinement outweighs the policies favoring probation.” Id. at 250. The applicability of the Austin factors directly relates to the interpretation of Minn.Stat. § 260B.130, subd. 5, and this court has yet to address whether the Austin factors must be considered in the EJJ probation revocation context.

The statute at issue here provides, “If the offender was convicted of an offense described in subdivision 1, clause (2), and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.” Minn.Stat. § 260B.130, subd. 5 (emphasis added). In the EJJ context, we hold that all three of the Austin factors must be considered when a court is determining whether “reasons exist to revoke the stay.”

In Austin we stated, “There must be a balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.” 295 N.W.2d at 250. The same balancing must occur under the facts here, where revocation of EJJ probation may result in the execution of an adult sentence.

In this case, the district court based its decision on Minn. R. Juv. P. 19.09, subd. 3(C)(2), not Minn.Stat. § 260B.130, subd. 5. In doing so, the court interpreted Minn. R. Juv. P. 19.09, subd. 3(C)(2), as requiring an almost reflexive execution of the adult sentence upon the appellant’s admission to a curfew violation where the court did not believe any mitigating factors were present. While it appears that the rule was intended to parallel the statute, 12 Robert Scott & John O. Sonsteng, Minnesota Practice—Juvenile Law and Practice 345 (3d ed.2002), it does not contain the “reasons to revoke the stay” language found in the statute nor does it specifically incorporate our Austin rationale. While this is of concern to us, even a strict application of this narrow reading of our law does not lead to an automatic revocation of the appellant’s probation.

Under the facts of this case, it is not appropriate to base the execution of the stayed sentence on Minn. R. Juv. P. 19.09, subd. 3(C)(2). Even as written, the rule only allows for the execution of a previously stayed sentence, “[i]f the court finds upon clear and convincing evidence that any provision of the disposition order were violated, or if the probationer admits the violation.” Minn. R. Juv. P. 19.09, subd. 3(C)(2). Here, appellant admitted in a preceding hearing that he had violated his 9 p.m. curfew. However, the curfew does not appear to have been part of the disposition order. Therefore, his admission to violating the curfew cannot be the basis for executing his sentence under the rule, since it was not a provision of the disposition order. Minn. R. Juv. P. 19.09, subd. 3(C)(2).

Accordingly, we conclude the district court erred by revoking probation and executing appellant’s sentence. We reverse the decision of the court of appeals and remand to the district court for reconsideration of whether the adult sentence should be executed under Minn.Stat. § 260B.130, subd. 5.

III.

We now move to whether mitigating factors were present in this case. Both the rule and the statute provide for continuing the stay where mitigating factors justify that result. Because the issue of what are properly considered mitigating factors in regard to EJJ probation revocation is a question of first impression with the potential of reoccurring throughout the state and in fact may reoccur in this case upon remand, it is appropriate that we address the issue.

Here, the relevant mitigating factors are not those circumstances surrounding the original offense, but rather the mitigating factors relating to the probation violation. The rule and statute at issue provide that unless the district court makes written findings of the mitigating factors, the previously stayed sentence must be executed. Minn. R. Juv, P. 19.09, subd. 3(C)(2); Minn.Stat. § 260B.130, subd. 5. The court explicitly indicated an inability to find the existence of mitigating factors in the present case. Unfortunately, the record before us does not reflect what factors the court looked to when determining that no mitigating factors were present.

We have recognized that where an adult is “particularly amenable to treatment in a probationary setting,” it is a justifiable basis for downward departure from the sentence recommended under the sentencing guidelines. See State v. Hennessy, 328 N.W.2d 442, 443 (Minn.1983); State v. Trog, 323 N.W.2d 28, 31 (Minn.1982); State v. Wright, 310 N.W.2d 461, 462 (Minn.1981). So too may it be considered a mitigating factor, permitting the district court to refrain from executing a previously imposed sentence in an EJJ proceeding under Minn.Stat. § 260B.130, subd. 5. A defendant would only be subject to having the previously imposed sentence executed if there had been a probation violation. Although a probation violation can be considered as evidence potentially indicating unamenability to probation, the district court in its discretion may find it to be an anomaly in what has otherwise been a path to rehabilitation.

The appellant’s amenability to probation was considered by the district court in this case. In the memorandum accompanying the order executing the previously imposed sentence the court stated, “It is clear to the court that the defendant is unamenable to probation supervision.” However, in the course of the disposition hearing the court also stated, “Now I don’t know that I necessarily agree with [the prosecutor] that this is showing that pretty soon you’re going to be off committing crimes, but you certainly are not doing the kinds of things that we all need to know that you should be doing to insure public safety.”

Prior to the curfew violation appellant had successfully completed a year in Woodland Hills inpatient juvenile rehabilitation program in Duluth. We have recognized that in the adult system successful completion of a chemical dependency program is relevant when determining that “a defendant is particularly suitable to individualized treatment in a probationary setting” so as to justify departure from a presumptively executed sentence. State v. Clemmer, 328 N.W.2d 739, 740 (Minn.1983). Similarly, successful completion of the rigorous Woodland Hills rehabilitation program should be appropriately considered by the district court as a mitigating factor demonstrating amenability to probation.

Furthermore, the only probation violation of which appellant was notified, in writing, pursuant to Minn.Stat. § 260B.130, subd. 5, was the curfew violation. And, there is no indication the court imposed this condition. A 19-year-old violating a 9 p.m. curfew does little to demonstrate that he is not amenable to probation. Although appellant was warned by the probation officer of the curfew, it is probable that appellant did not fully comprehend the harsh sanction he would face for violating curfew. Similarly, it is more probable that such a violation is not evidence that appellant is likely to return to criminality. We have recognized that the imposition of sentences is the province of the judiciary. Misquadace, 644 N.W.2d at 68. Here, without specific court approval, the conditions of probation were enhanced by the probation officer. Then, in appellant’s first court appearance for a violation of probation, one of these new and less significant terms, instituted by a probation officer, was used to execute a 108-month sentence.

The fact that a curfew was not part of the plea, the disposition order, or a condition of the stayed sentence may be a mitigating factor reducing the degree of culpability and hence the sanction for violating it. The EJJ statute makes it the court’s responsibility to set the disposition of the juvenile’s sentence:

(a) If an extended jurisdiction juvenile prosecution results in a guilty plea or a finding of guilt, the court shall:
(1) impose one or more juvenile dispositions under section 260B.198; and
(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.

Minn.Stat. § 260B.180, subd. 4.

The court did not expressly prescribe any conditions beyond requiring that appellant keep in touch with his probation officer. Appellant apparently did not comply with that condition and, as a result, the probation department placed him on enhanced probation, which included the imposition of a curfew. While probation officers have discretion in establishing the terms of probation, ultimately the court is responsible for the sentence or disposition. Minn.Stat. § 260B.130, subd. 4.

Furthermore, the record does not contain the written findings relating to the original disposition order as required by Minn.Stat. § 260B.198, subd. l(m) (2002). Apparently, the district court did initially find that it was in the best interests of appellant to go through the rehabilitation program at Woodland Hills and then be placed on probation rather than be incarcerated. The question then is how a curfew violation that was not part of the disposition order, nor expressly made a condition of probation by the court, should be treated in the context of mitigation and why “the best interests of the [appellant]” are now served by long-term incarceration in prison based-on the curfew violation. Id.

Appellant also offered some evidence to justify or excuse violating curfew and argued that it was at most a technical violation. His parents testified at the disposition hearing on his behalf. His father testified that B.Y. violated curfew because he was seeking after school employment and asked the court for forgiveness. His mother testified that he was a good son who followed her instructions and helped with household chores. The district court is in the best position to judge the credibility of this type of testimony. However, there were no findings on this issue. If the court on remand reaches the issue of the mitigating factors, findings on this testimony should also be expressly made.

If the appellant was an adult at the time of the underlying offense, the kidnapping charge he pleaded guilty to would have required a mandatory minimum period of incarceration. See MinmStat. § 609.11, subds. 1 and 9. Appellant, by entering EJJ, avoided that mandatory sentence, but now an even longer adult sentence has been executed as a result of a curfew violation. The legislature has granted the district courts many more options when there is a stayed sentence for an adult, and that adult has violated the terms of the stayed sentence. MinmStat. § 609.14, subd. 3(2) (2002). The court may execute the sentence, again stay the execution of the previously imposed sentence, or order an array of intermediate sanctions. Id.; see also Minn. R.Crim. P. 27.04, subd. 3. The potential intermediate sanctions in the adult system, which may be imposed upon a finding that the conditions of the stay have been violated, include but are not limited to the following:

incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, restitution, fines, day-fines, community work service, work service in a restorative justice program, work in lieu of or to work off fines and, with the victim’s consent, work in lieu of or to work off restitution.

Minn.Stat. § 609.135, subd. 1(b) (2002).

In the adult context we have held, “The decision to revoke cannot be ‘a reflexive reaction to an accumulation of technical violations’ but requires a showing that ‘the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.’ ” Austin, 295 N.W.2d at 251 (citations omitted). In the EJJ context where the determination, absent mitigating factors, that a defendant has violated probation may result in the execution of a lengthy prison sentence, a district court in its mitigation findings must be certain to take all of the circumstances of probation into consideration. The public is not particularly well served by automatic incarceration on a technical violation. If the violation is one of youthful obstinance, it may not always foreclose a determination that an EJJ defendant is amenable to probation. This is especially true because a mitigation finding, when reduced to writing, can be sufficient to avoid the harsh and inflexible result otherwise required by MinmStat. § 260B.130, subd. 5 or Rule 19.09, subd. 3(C)(2). In the final analysis, we conclude that for a court to revoke probation and execute a previously stayed adult sentence for technical violations of EJJ probation, the violations must demonstrate that the offender “cannot be counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251.

We reverse and remand to the district court for further proceedings consistent with our ruling.

Reversed and remanded.

      . Minnesota Statutes § 609.11, subds. 1 and 9 (2002), specify kidnapping as a mandatory commitment to the Commissioner of Corrections for imprisonment.

      . The court of appeals in State v. Bradley interpreted the EJJ statute as not requiring a court to consider the Austin factors. 592 N.W.2d 886, 888 (Minn.App.), rev. denied (Minn. July 28, 1999). We disagree.

      . To the extent that Minn. R. Juv. P. 19.09, subd. 3(C)(2), has failed to incorporate the requirement that the Austin factors be considered where an adult sanction may be imposed, we direct the Supreme Court Advisory Committee on the Rules of Juvenile Procedure to review Minn. R. Juv. P. 19.09, subd. 3(C) and propose appropriate and needed amendments to it.


author: RUSSELL A. ANDERSON, Justice.

text:
    Jacqueline S. BUSCH, Relator, v. ADVANCED MAINTENANCE and State Farm Fire & Casualty Company, Respondents, Viking Foods and State Fund Mutual Insurance Co., Respondents, and Center for Diagnostic Imaging, Institute for Low Back & Neck Care, Corestar Health Plan, Intervenors, and Special Compensation Fund, Respondent.
    No. C9-02-1480.
    Supreme Court of Minnesota.
    April 24, 2003.

      Timothy J. McCoy (# 69930), McCoy, Peterson & Jorstad, Minneapolis, MN, for Employee-Relator.
    Nancy E. Lamo (# 187136), McCollum, Crowley, Vehanen, Moschet & Miller, Ltd., Minneapolis, MN, for Employer/Insurer-Respondents, Advanced Maintenance and State Farm Fire & Casualty.
    Steven T. Scharfenberg (# 199485), Lynn, Scharfenberg & Associates, Minneapolis, MN, for Employer/Insurer-Respondents, Viking Foods and State Fund Mutual Insurance Company.
    Miriam Lantsberg, St. Louis Park, MN, for Intervenor-Respondent, Center for Diagnostic Imaging.
    Larry C. Farrar, Mendota Heights, MN, for Intervenor-Respondent, Corestar Health Plan.
    Michael Rasmussen, Minneapolis, MN, for Intervenor-Respondent, Institute for Low Back & Neck Care.
    Mike Hatch, Attorney General, Rorey H. Foley (# 155056), Assistant Attorney General, St. Paul, MN, for Respondent, Special Compensation Fund.
   OPINION

RUSSELL A. ANDERSON, Justice.

The issue presented by this case, which we review on certiorari, is whether the Workers’ Compensation Court of Appeals erred in reversing the compensation judge’s determination as to the controlling event for purposes of establishing the amount and period of an injured employee’s compensation. We reverse and remand.

On June 19, 1990, Jacqueline Busch sustained injuries to her low back and coccyx when she slipped and fell while working for Advanced Maintenance, a cleaning service. She sought medical care at the Alexandria Clinic on June 21, 1990 for complaints of pain in her coccyx, lower back and legs. A July 6, 1990 CT scan showed a small right disc herniation at L5-S1. Busch experienced an onset of back pain on December 2, 1990, was hospitalized overnight, and was seen by an orthopedist at St. Cloud Orthopedic Associates on December 18, 1990. In a follow-up visit on May 6, 1991, the orthopedist found Busch had reached maximum medical improvement (MMI). He ultimately rated permanent partial disability at nine percent pursuant to Minn. R. 5223.0070, subp. 1 (1990).

In September 1991, Busch began working full time for Jo-Ann Fabrics as a cashier. On February 18, 1992, she was seen at the Alexandria Clinic for pain in her coccyx, radiating upward, after lifting a box. On April 28, 1992, Busch was examined by orthopedic surgeon Dr. Mark Engasser at the request of Advanced Maintenance and its workers’ compensation carrier, State Farm Mutual & Casualty Company. The doctor noted that most of Busch’s pain was in her coccyx area, diagnosed a ligamentous injury to her sa-crococcygeal area as a result of the June 19, 1990 fall, and opined that the disc protrusion did not play any role in her ongoing symptoms. Advanced Maintenance and State' Farm admitted liability for the June 19, 1990 injury and paid related medical and wage loss benefits. In 1993, Busch agreed to a settlement that included a permanent partial disability claim for a nine percent impairment. Busch continued to work full time, eight hours per day.

In 1994, Busch began working for Viking Foods as a cashier. On November 27, 1995, Busch had an acute onset of low back pain while at work. She was seen at the Alexandria Clinic on December 7,1995. Her doctor noted that she had “chronic low back pain with intermittent flares” and pain that radiated into both legs, left greater than right, since the June 19, 1990 injury. Over the next several years, Busch reported persistent low back/coccy-gial pain at her annual physical examinations.

In 1999, Busch found her low back problem worsening and reduced her work schedule to three or four days, or about 24 hours per week. She had a flare-up of low-back pain at work on July 2, 1999, and a CT scan done in August 1999 showed a small herniation and disc space narrowing at L5-S1. On September 13, 1999, Busch tripped over some groceries at work and fell forward to the floor. Shortly after this incident, she experienced severe back pain and shooting pain in her right arm and leg which forced her to reduce her hours at work.

At her December 1999 annual physical exam, Busch indicated that she had experienced significant back discomfort over the preceeding three weeks. Her doctor noted that her back pain dated to the June 19, 1990 injury. Busch was referred to the Institute for Low Back and Neck Care in January 2000. Following an MRI which showed a herniation at L5-S1, Busch underwent a right L5-S1 microdiscectomy on March 10, 2000. Busch’s orthopedic surgeon determined that Busch had reached MMI by October 29, 2001 and rated her permanent partial disability at 14 percent. See Minn. R. 5223.0390, subp. 4D (1999).

Busch filed a series of claim petitions for medical and wage loss benefits, including permanent total disability benefits continuing from March 10, 2000, naming Advanced Maintenance and State Farm, Viking Foods and its workers’ compensation insurer, State Fund Mutual, and the Special Compensation Fund as parties. Busch’s claims came on for hearing on November 20, 2001, at which time the parties stipulated that Busch had been permanently and totally disabled as of March 10, 2000, as defined by the law in effect on the date of both the June 19, 1990 injury and the September 13, 1999 injury. Relevant evidence at the hearing included the opinions of Drs. Jack Drogt and John Dowdle. Drogt, medical consultant for Advanced Maintenance and State Farm, opined that the 1990 injury was not a substantial contributing factor in Busch’s need for surgery and apportioned 100 percent of the responsibility for her permanent total disability and medical care to the September 13, 1999 injury. Dowdle, medical consultant for Viking Foods and State Fund, concluded that the 1990 injury was the substantial contributing cause of Busch’s disability and that the 1999 injuries were temporary aggravations of the 1990 injury. He apportioned all responsibility for the low back surgery and ongoing disability to the 1990 injury.

The compensation judge found that Busch’s June 19, 1990 and September 13, 1999 injuries were both substantial contributing causes of Busch’s permanent total disability and need for medical care and allocated 75 percent of the liability for benefits to the 1990 injury and 25 percent of the liability for benefits to the 1999 injury. The judge further determined that the 1990 injury was the controlling event and awarded medical and permanent total disability benefits based on the allocation of liability, including supplementary benefits for that part of the award allocated to the 1990 injury. On appeal, the Workers’ Compensation Court of Appeals (WCCA) reversed the controlling event determination and vacated the award of supplementary benefits. The WCCA, applying Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304 (Minn.1987), reasoned that because the compensation judge found the September 13, 1999 injury “to be a ‘new, separate injury’ and not a consequential injury or simple continuance of an earlier injury, the amount and period of compensation resulting from the combined effects of the employee’s injuries [was] fixed by the law in effect in 1999.” Busch v. Advanced Maintenance, 2002 WL 1979106, at *4 (Minn. WCCA Jul. 30, 2002).

On review on certiorari, we will not disturb a compensation judge’s findings affirmed by the WCCA unless the findings are manifestly contrary to the evidence or unless the evidence clearly requires reasonable minds to adopt a contrary conclusion. Pelowski v. K-Mart Corp., 627 N.W.2d 89, 92 (Minn.2001) (citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn.1984)). If the compensation judge’s findings have been reversed, “we look at the record to see if the compensation judge’s findings had substantial evidentiary support.” Freyholtz v. Blackduck Sch. Dist. No. 32, 613 N.W.2d 757, 758 (Minn.2000) (citing Ruether v. State, 455 N.W.2d 475, 478 (Minn.1990), and Polaschek v. Asbestos Products, Inc., 361 N.W.2d 37, 42 (Minn.1985)). We consider questions of law de novo. Vezina v. Best Western Inn Maplewood, 627 N.W.2d 324, 328 (Minn.2001) (citing Owens v. Water Gremlin Co., 605 N.W.2d 733, 735 (Minn.2000)).

“[A] basic tenet of workers’ compensation law [is] that the substantive rights of [the] employer and [the] employee are fixed, not by their agreement, but rather by the law in effect on the date of the controlling event.” Joyce, 412 N.W.2d at 307. Usually, it is the date of the most recent occurrence of a compensa-ble personal injury which is the controlling event, and the law then in effect governs the employee’s rights with respect to the claim arising put of that injury. Id. If a period of disability is precipitated by a mere temporary aggravation of a prior injury, however, “as opposed to a new, separate injury, the original injury continues to be the controlling event, and the employee’s rights are governed by the Workers’ Compensation Act in effect on the date of the original injury.” Id. at 307-08.

In the instant case, the parties dispute whether the law in effect in 1990 or the law in effect in 1999 governs the amount and duration of Busch’s compensation. This dispute arises because of a 1995 revision of the Workers’ Compensation Act. In 1995, the legislature repealed the supplementary benefits program that provided benefits if the permanent total disability benefits provided by MinmStat. § 176.101, subd. 4 (2002), fell below 65 percent of the statewide average weekly wage. Act of May 25, 1995, ch. 231, art. 1, § 35 and art. 2, § 110, 1995 Minn. Laws 1998, 2072. The elimination of supplementary benefits was balanced by an increase in the minimum compensation rate for permanent total disability to 65 percent of the statewide average weekly wage. Act of May 25, 1995, ch. 231, art. 1, § 20,1995 Minn. Laws 1990.

. In Joyce, we also addressed the effect of a change in the Workers’ Compensation Act. The relevant amendment applied to injuries occurring on or after January 1, 1984, and capped temporary total disability benefits at 90 days past MMI. Joyce, 412 N.W.2d at 305-07; Act of June 7, 1983, ch. 290, §§ 48, 176, 1983 Minn. Laws 1341, 1405. The employee in Joyce had sustained multiple injuries, all but one of which had occurred prior to this 1983 amendment. 412 N.W.2d at 306. The compensation judge limited temporary total disability benefits for the 1984 injury to the period ending 90 days after MMI. Id. On appeal, the majority of the WCCA was of the opinion that following the 1984 injury, the employee had a vested right under the pre-1984 Act to ongoing temporary total disability benefits and that the limitation on temporary total disability benefits based on MMI provided by the 1983 revisions was inapplicable. Id. at 306-07.

On review on certiorari, we reversed, holding that the law in effect at the time the employee sustained a separate, new injury in 1984 governed his workers’ compensation rights. Id. at 307-08. In so doing, we noted that the WCCA’s award included compensation for permanent partial disability under the 1984 law and wage loss benefits under the pre-1984 law but calculated on the employee’s wage basis on the date of the 1984 injury. We said, “It seems to us that neither the employee nor the WCCA can straddle the demarcation line between the ‘old’ and ‘new’ laws and keep a foot in each camp.” Id. at 307. As for “vesting,” we said that compensation rights were contingent on the disability for which compensation was sought and did not vest until the causal relationship between that disability and prior work-related injuries had been proved. Id. at 308. We also said that vesting was a “two-way street;” and even though an employee may regard application of one version of the law over another to be in his or her best interest,

to treat disability caused in substantial part by each of several injuries as governed by the statute in effect at the time of the original injury or to apportion the disability among several contributing injuries and apply the statute in effect on the date of injury to the portion of disability attributable to each injury would not only represent a significant departure from the principles upon which the law of workers’ compensation rests; but would also in likelihood be a disservice to employees and employers alike.

M

In support of her position that the WCCA erred in reversing the compensation judge’s determination that the 1990 injury was the controlling event, Busch argues that a “controlling event” determination is a factual one subject to affirmance unless clearly erroneous or unsupported by substantial evidence. We disagree. The determination of controlling event is a legal conclusion which follows from factual findings that an injury is either a new, separate injury or a consequential injury, recurrence, or mere temporary aggravation. See 5 Arthur Larson & Lex K. Larson, Larson’s Worker’s Compensation Law § 93.05(3) (2003). We conclude, therefore, that the WCCA did not err in applying a de novo standard of review.

Busch also maintains that the compensation judge found that the 1999 injuries were “at most re-occurrences” and not new, separate injuries. The compensation judge’s equitable allocation of liability for permanent total disability compensation, however, suggests otherwise and apparently prompted the WCCA to conclude that a finding of a “new, separate injury” in 1999 had been made. Busch, 2002 WL 1979106, at *4. As the Special Compensation Fund points out, the compensation judge did not make such a finding. We agree with the Fund’s position that, instead of finding implicit in the compensation judge’s allocation of liability a finding that the 1999 injury was a discrete, new injury, the more appropriate remedy is a remand to the compensation judge for a factual finding.

On remand, the compensation judge must first determine whether Busch’s 1999 injury was either a new, separate injury or a consequential injury, a recurrence, or a mere temporary aggravation. After the judge makes the requisite factual finding, she can then draw the legal conclusions necessary for a proper computation of the amount and period of compensation. In other words, if the judge finds that Busch’s 1999 injury was a new, separate injury, the 1999 injury is the controlling event as a matter of law. If, on the other hand, the judge determines that Busch’s 1999 injury is a recurrence or mere temporary aggravation, the 1990 injury is the controlling event. Finally, after determining which injury is the controlling event for the purposes of determining the amount and period of compensation due Busch, she may reconsider and/or clarify the equitable allocation of permanent total disability.

Employee is awarded $800 in attorney fees.

Reversed and remanded.

      . Maximum medical improvement “means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.'' Minn.Stat. § 176.011, subd. 25 (2002).

      . The “controlling event” may be death, the manifestation of the disabling effect of an occupational disease, or the occurrence of a compensable personal injury. Joyce, 412 N.W.2d at 307.

      . Supplementary benefits were paid by the employer with a right of reimbursement from the Special Compensation Fund. Minn.Stat. § 176.132 (1994) (repealed 1995). When the costs to the Special Compensation Fund rose to over $40 million annually, there were a number of recommendations for change, including elimination of the supplementary benefits program. See Minnesota Department of Labor and Industry Report to the Legislature on Workers' Compensation in Minnesota 52-57 (January 1988); Minnesota Legislative Auditor Report to the Legislature on Workers’ Compensation Program 93-100 (February 1988). In 1992, the supplementary benefits provision was amended to provide supplementary benefits only to those who were permanently totally disabled. Act of April 28, 1992, ch. 510, art. 1, §§ 10, 14, 1992 Minn. Laws 596, 598. In 1995, the supplementary benefits provision was repealed, and the minimum permanent total rate was set at 65 percent of the statewide average weekly wage. Act of May 25, 1995, ch. 231, art. 1, §§ 20, 35, and art. 2, § 110, 1995 Minn. Laws 1990, 1998, 2072. The Special Compensation Fund has taken the position that the repeal of supplementary benefits is not retroactive and reimburses supplementary benefits for injuries occurring before October 1, 1995. Minnesota Workers’ Compensation Deskbook § 13.4, at 13-9 (Jay T. Hartman & Thomas D. Mottaz eds., 2d. ed.1997).

      . Busch asserts that Joyce was "repudiated" by DeNardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290 (Minn.1990), a case involving an equitable allocation of liability for wage loss benefits between successive insurers and employers. In workers’ compensation, "an employer takes an employee with whatever preexisting maladies he or she may have.” Silva v. Maplewood Care Ctr., 582 N.W.2d 566, 568 (Minn.1998). Consequently, "[w]hen a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.” 9 Arthur Larson & Lex K. Larson, Larson’s Workers Compensation Law § 153.00 (2003); see also Michels v. Am. Hoist & Derrick, 269 N.W.2d 57, 59 (Minn.1978) (holding that employee is entitled to prompt payment of full benefits when employment immediately preceding total disability contributed to the disability). In Minnesota, to temper the harshness of requiring a single insurer to assume the entire cost, common law principles of equitable apportionment permit apportionment between insurers "when two or more successive injuries combine' to produce the final disability." Silva, 582 N.W.2d at 568. But the computation of the amount and period of compensation due the.employee "‘has nothing to do with equitable apportionment— the proportionate allocation of liability among various employers and insurers ⅜ * ” Johnson v. Tech Group, Inc., 491 N.W.2d 287, 288 (Minn.1992) (quoting Marose v. Maislin Transp., 413 N.W.2d 507, 513 (Minn.1987)). Generally, where equitable allocation of liability is appropriate, after the employee's compensation is calculated, the employers and insurers are assessed according to the so-called Kaisershot formula. See Kloss v. E & H Earthmovers, 472 N.W.2d 109, 112-13 (Minn.1991) (citing Kaisershot v. Archer Daniels Midland Co., 23 Minn. Workers’ Comp. Dec. 706 (Indus. Comm’n 1996)). Of course, a different assessment might be made when there is a need to address the total diminution in earning capacity caused by successive injuries in the calculation of the employee’s benefits. See Patrin v. Progressive Rehab Options, 497 N.W.2d 246, 248 (Minn.1993) (citing Kirchner v. Anoka County, 339 N.W.2d 908 (Minn.1983), appeal after remand, 410 N.W.2d 825 (Minn.1987)).

      . Busch is essentially asking us to revisit Joyce, but she has presented no compelling reason for doing so. Cf. Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 407 (Minn.2000) (presenting court with compelling reason sufficient to override . stare decisis concerns); Geoffrey R. Stone, Precedent, the Amendment Process, and Evolution in Constitutional Doctrine, 11 Harv. J.L. & Pub. Pol’y 67, 71-73 (1988) (discussing reasons for overruling a case).


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jeremy Martin MONROE, an Attorney at Law of the State of Minnesota.
    No. C6-01-1782.
    Supreme Court of Minnesota.
    April 24, 2003.

      Kenneth L. Jorgensen, Director, Betty M. Shaw, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Petitioner.
    Seamus Mahoney, St. Paul, MN, for Respondent.
   PER CURIAM.

OPINION

In this attorney discipline proceeding, we determine the appropriate sanction for an attorney abandoning a client and refusing to cooperate with the Director of the Office of Lawyers Professional Responsibility (Director).

After working as a banker, Jeremy Monroe attended law school and was admitted to practice law in Minnesota in May of 1997. The present disciplinary action against Monroe stems from his representation of Kelly Mortensen in her divorce. The Director reports that Mortensen paid Monroe a $2,600 retainer in 1998. Monroe neglected to inform Mortensen that she needed to appear at a pretrial conference on June 21, 2000, in district court. The court rescheduled the hearing for October 4, 2000.

Monroe conducted no discovery in the case and did not respond to Mortensen’s repeated attempts to contact him about her case dining the summer and fall of 2000. Mortensen attended her October 4, 2000, hearing, but Monroe was not there. Eventually Mortensen discovered that Monroe had closed his law practice and moved to Park Rapids, Minnesota. Mor-tensen hired a new attorney who had to reconstruct her file from court records because Monroe did not respond to requests for her file and an accounting of her retainer.

A referee of Ramsey County Family Court complained of Monroe’s conduct to the Director after Monroe failed to appear at the October 4, 2000, hearing. Monroe did not respond to letters from the District Ethics Committee or the Director. Charges of unprofessional conduct were served upon Monroe on August 3, 2001. After promising to answer the charges, Monroe failed to do so, and failed to attend an August 24, 2001, prehearing meeting. The Director reports that Monroe also failed to respond to the Director’s motion to the panel chair for authority to file a petition for disciplinary action under Rule 10(d), Rules on Lawyers Professional Responsibility (RLPR).

In October of 2001, the Director served a petition for disciplinary action against Monroe. Monroe did not answer the petition, but his counsel phoned the Director’s office in November of 2001 requesting more time. The Director granted the request; however, no answer had been filed by February of 2002. The Director moved for summary relief on February 7, 2002. This court granted the summary relief motion on February 25, 2002, and agreed to consider the question of the appropriate discipline for Monroe.

Before this court could hear the matter, the Director withdrew his request for summary relief because Monroe had contacted the Director’s office. Monroe’s counsel had communicated that Monroe was suffering from depression and was attempting to get treatment. The Director informs us that on March 23, 2002, Monroe sent the Director a letter that accounted for Mor-tensen’s $2,600 retainer, and refunded her $1,000. The Director verified Monroe’s diagnosis and treatment, and tendered a stipulated disposition of this matter. Monroe did not execute the stipulation. Monroe then left his employment at a Park Rapids bank, stopped receiving treatment for depression, and ceased communicating with his attorney.

On November 25, 2002, the Director renewed his motion for summary relief, and this court granted the motion on December 16, 2002. Pursuant to this court’s order, Monroe is deemed to have admitted violating Rules 1.3 (acting with diligence and promptness in representing a client), 1.4 (complying with a client’s reasonable requests for information), 1.15(b) (providing clients an accounting of their funds), 1.16(d) (surrendering the client’s papers, property, and any unearned portion of advance upon termination of representation), and 8.4(d) (misconduct that is prejudicial to the administration of justice), of the Minnesota Rules of Professional Conduct, by abandoning his client, Ms. Mortensen. Monroe is also deemed to have admitted violating Rule 8.1(a)(3) (failing to respond to a discipline authority’s demand for information), of the Minnesota Rules of Professional Conduct, and Rule 25 (failing to cooperate with the District Committee, Director, etc.), RLPR, by refusing to cooperate with the Director. The only issue before the court is the appropriate discipline for Monroe. For the public’s protection, the Director requests indefinite suspension with reinstatement by petition under Rules 18(a)-(d), RLPR.

This court considers four factors in determining the appropriate discipline to impose on an attorney: “(1) the nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4) the harm to the legal profession.” In re Muenchrath, 588 N.W.2d 497, 500 (Minn.1999). The court frequently looks to cases involving similar misconduct to determine an appropriate sanction. Id.

Indefinite suspension has been considered an appropriate sanction in analogous cases. In In re Geiger, this court noted that “[e]ven in cases where an attorney is involved in only one instance of client neglect, when that neglect is combined with other violations we have often suspended or disbarred the attorney.” 621 N.W.2d 16, 23 (Minn.2001). And in In re Engel, this court was faced with noncooperation by an attorney with a prior disciplinary history and said “the failure to cooperate is viewed as an act of misconduct warranting an indefinite suspension from the practice of law.” 538 N.W.2d 906, 907 (Minn.1995).

In re Pucel, 588 N.W.2d 741 (Minn.1999), involves the most similar facts to those of the instant case. Attorney Che-rylyn Pucel had accepted $3,500 as a retainer and advance from a prisoner who wanted to bring a postconviction appeal. Pucel did not put the money in a trust account, and neither worked on the case nor responded to communications from the prisoner. Pucel repeatedly failed to reply to communications from the Director regarding the client complaint. Id. at 742. Like Monroe, she failed to appear at the prehearing meeting, and did not answer the petition for disciplinary action. Id. This court indefinitely suspended Pucel from the practice of law. Id. at 743.

This court has recognized depression can be a mitigating factor in determining the appropriate discipline. See In re Weyhrich, 339 N.W.2d 274, 278-79 (Minn.1983). An attorney must prove he or she has a severe psychological problem, that the problem caused the misconduct, that he or she is receiving treatment and making progress, and that the misconduct has stopped and is not likely to recur. Id. at 279. However, Monroe has not satisfied his burden of establishing the necessary criteria by clear and convincing evidence because he has not responded to any of the Director’s allegations and has not made a case for mitigating illness. Compare In Re Bergstrom, 562 N.W.2d 674, 676-78 (Minn.1997) (in which Bergstrom successfully argued that his recovery from depression had arrested his misconduct, and this court stayed his indefinite suspension subject to a number of conditions).

Having considered the most instructive cases, we hold that the appropriate disciplinary action for an attorney’s complete abandonment of a client and refusal to cooperate with the Office of Lawyers Professional Responsibility, without mitigating factors, is an indefinite suspension. Accordingly we order that:

1. Monroe is suspended from the practice of law indefinitely, commencing fourteen days from the date of this order. Notice of this suspension shall be mailed both to Monroe at his last known address and his counsel of record.
2. In order to be reinstated, Monroe must comply with the requirements of Rules 18(a)-(d), RLPR.
3. Monroe shall pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24, RLPR.

So ordered.