source: Caselaw Access Project

author: ANDERSON, PAUL H„ Justice. ANDERSON, RUSSELL A., Justice MEYER, Justice PAGE, Justice

license: Public Domain

text:
    James A. HEINE, Respondent, v. Valerie SIMON, Appellant.
    No. A03-710.
    Supreme Court of Minnesota.
    Aug. 18, 2005.

      Emilio R. Giuliani, Vincent I. Breza, La-Bore, Giuliani, Cosgriff & Viltoft, Ltd., Hopkins, MN, for Appellant.
    DeAnna M. McCashin, Schoep & McCashin, Chtd., Alexandria, MN, for Respondent.
    William M. Hart, Damon L. Highly, Meagher & Geer, PLLP, Minneapolis, MN, for Amicus Curiae MN Defense Lawyers Ass’n.
   OPINION

ANDERSON, PAUL H„ Justice.

Respondent James A. Heine was involved in two separate automobile accidents while on service calls for his employer. The accidents occurred approximately four and one-half months apart. The first accident was with an uninsured motorist and the second accident was with appellant Valerie Simon. As a result of the accidents, Heine sustained injuries to his right shoulder, right hip, neck, and lower back. He jointly sued State Farm Insurance Company, under his employer’s uninsured motorist coverage, and Simon. The district court granted Simon’s motion to sever the trials, but denied her request for partial summary judgment based on collateral estoppel. The court found that Heine’s previous workers’ compensation determination did not collaterally estop him from litigating in this action his wage loss from the second accident. A jury found that Simon was primarily at fault for the second accident and awarded Heine $16,900.

Heine moved for a new trial on damages or, alternatively, for additur. Along with motions for costs and remittitur, Simon moved to reduce Heine’s award for past medical expenses by the amounts he had already received from his workers’ compensation benefits. The district court granted in part and denied in part Simon’s collateral source offset motion and denied all other motions. Heine appealed on the ground that the court improperly refused to give CIVJIG 91.40 as a jury instruction. Simon appealed on the issues of collateral source offsets and collateral estoppel. The Minnesota Court of Appeals affirmed the district court decision in its entirety. Heine v. Simon, 674 N.W.2d 411, 419, 423 (Minn.App.2004). We affirm in part, reverse in part, and remand.

On September 26, 1993, an uninsured motorist hit respondent James A. Heine’s vehicle from behind while Heine waited at a stoplight (“first accident”). At the time, Heine was on a service call for his employer, Apple Automatic Food Service. Because he was working within the scope of his employment, Heine’s injuries were covered under a workers’ compensation policy that Apple carried with State Farm Insurance Company. As a result of the accident, Heine suffered injuries to his right shoulder, right hip, neck, and lower back. He received physical therapy for his injuries and missed several weeks of work. He eventually returned to work to modified duties and, initially, for less than full time.

On February 8, 1994, Heine was involved in a second accident (“second accident”) while on a work assignment for Apple. He swerved to avoid risking a head-on collision with appellant Valerie Simon, whose vehicle had spun out of control ahead of him. When Heine swerved, he skidded off the road and hit a pole. When the second accident occurred, Heine was still receiving physical therapy as a result of the first accident, but he was working full time at his previous wage. After the second accident, Heine was treated for injuries in his neck, lower back, hips, and shoulder, and he suffered from headaches. Heine gradually returned to full-time permanent work with Apple with some lifting and work restrictions.

Heine never had a work-related injury before the first accident nor did he have any shoulder, neck, hip, or low back problems. His work had required him to regularly lift more than 20 pounds. Since the accidents, no doctor has released Heine to return to the full range of his previous duties. He has been restricted from overhead lifting and from lifting weights greater than 20 pounds and instructed to limit repetitive rotation of the neck and lower back. Through workers’ compensation benefits, State Farm paid Heine $23,214.43 for his medical expenses through October 7, 2002.

After the second accident, Apple continued to assign Heine different duties because of his restricted mobility. In August 1994, Heine asked Apple if he could become a partner in the business, but Apple rejected the request and Heine resigned. Heine then started a business with some friends maintaining vending machines. Heine has also worked for several other employers following his resignation from Apple. Since September 18, 1994, Heine has never earned as much as his previous wages of $255.50 per week and has never held full-time employment.

On February 7, 2000, Heine filed a workers’ compensation claim seeking temporary partial disability benefits and permanent partial disability benefits because of his injuries from the two accidents. He claimed that the accidents restricted him to part-time work. At hearings held on November 30 and December 4, 2000, a vocational expert testified that she believed Heine was voluntarily underemployed between September 18, 1994, and the date of the workers’ compensation hearing. The workers’ compensation judge found that Heine’s resignation from Apple in September 1994 was for personal reasons and not related to work injuries. The judge also found that Heine had not met his burden of proof on his claim that his doctor had restricted him to working only half-time between September 1994 and August 2000.

The compensation judge found that Heine’s permanent partial disability was seven percent and that he was entitled to a maximum of 225 weeks of temporary partial disability benefits for his injuries related to both accidents collectively. The judge also determined that Heine’s wages at the time of both accidents averaged $255.50 gross per week. On January 31, 2001, the judge’s order included the following: (1) Heine was entitled to payment for a seven percent permanent partial disability; (2) no interest was due on the payment; and (3) Heine’s claim for temporary partial disability wage loss benefits from September 18, 1994 to December 4, 2000 was denied.

Heine appealed from the compensation judge’s determination of the amount of his weekly wages and the judge’s denial of temporary partial disability benefits between September 18, 1994 and December 4, 2000. The Workers’ Compensation Court of Appeals (WCCA) affirmed, and we affirmed the WCCA without an opinion.

On September 3, 1999, five months before filing his workers’ compensation claim, Heine commenced a negligence action against Simon and State Farm, Apple’s uninsured motorist insurer. Heine sued the parties jointly because he claimed that he could not apportion the damages caused by each defendant. He asserted that the uninsured motorist and Simon both had been driving carelessly and negligently when the respective accidents occurred. Heine alleged that, as a result of the accidents, he “sustained injuries to his cervical and lumbar spine and was otherwise severely and permanently injured satisfying the thresholds set forth in Minn. Stat. § 65B.51, Subd. 3.” He requested a judgment of greater than $50,000 from each defendant for past and future medical expenses and loss of earnings and earning capacity.

On Simon’s motion and against Heine’s opposition, the district court severed the trials on the two causes of action stating that “the two accidents [were] not part of the same series of occurrences and are not factually connected to each other.” Because the two accidents occurred nearly five months apart and involved different defendants and circumstances, the court found that keeping the two matters together would be “an unreasonable extension of the joinder rule.”

After the two causes of action were severed, Simon moved for partial summary judgment arguing that Heine was collaterally estopped from relitigating the issue of accident-related wage loss. She asserted that the issue of whether the second accident had caused Heine any wage loss was already settled in the workers’ compensation proceedings. The district court denied Simon’s motion, finding that Simon failed to establish that (1) the workers’ compensation issue was identical; (2) Heine had a full and fair hearing on the issue of wage loss; and (3) privity existed between Simon and the parties in the workers’ compensation claim.

At trial, in the action against Simon, Heine stated that he did not know which accident caused which injuries, but he stated that his pain from the first accident had decreased significantly just before the second accident. The doctors who examined or treated Heine had widely varying opinions as to the causation and seriousness of Heine’s injuries. Dr. Joseph Engel, a specialist in physical medicine who had treated Heine many times, testified that he believed that the first accident caused Heine’s injuries, but that the second accident was responsible for 75 percent of Heine’s continuing lower back injuries and 40 percent of his continuing neck injuries. Dr. Engel also testified that the second accident had aggravated Heine’s injuries from the first accident. Dr. Steven Tro-biani, a neurologist to whom Dr. Engel referred Heine for further evaluation, believed that the second accident caused permanent injuries to Heine’s spine and right shoulder and was responsible for all of Heme’s post-February 1994 medical bills. Dr. Thomas McPartlin, a neurologist who performed an independent medical examination on Heine in 2001, testified that the second accident caused only minor temporary injuries. Dr. Barbara Seizert, another specialist in physical medicine who treated Heine beginning in 2000, did not render an opinion as to which injuries were caused by the second accident. After all of the testimony was completed, Heine requested $27,167.44 for past medical expenses; $70,000 to $140,000 for future medical expenses; $78,600 for past lost wages; and $260,000 for future lost wages.

Because he contended that the second accident aggravated his injuries and because he could not determine the damage apportionment between the two accidents, Heine requested 4A Minn. Dist. Judges Ass’n, Minnesota Practice, Jury Instruction Guides — Civil, CIVJIG 91.40 (4th ed.1999). Alternatively, he says that he requested a special interrogatory on the special verdict form requesting the jury to apportion between the injuries from the first and second accidents. The district court denied both of these motions and specifically stated that it rejected CIVJIG 91.40 because it “misstates the current State of Minnesota law.” In place of CIVJIG 91.40, the court gave 4 Minn. Dist. Judges Ass’n, Minnesota Practice, Jury Instruction Guides — Civil, CIVJIG 163 (3d ed.1986).

The jury returned a verdict for Heine on September 29, 2002, finding that Simon was 80 percent directly at fault for the accident. The jury awarded Heine $2,100 for past pain, disability, and emotional distress; $6,800 for past wage loss; $8,000 for past health care expenses; and nothing for future damages. On December 16, 2002, the district court entered judgment for Heine in the amount of $16,900.

Heine moved for a new trial on damages, or alternatively, for additur, which the district court denied. With her motions for costs and remittitur, Simon made a motion for collateral source offset under Minn.Stat. § 548.36, which the court granted in part and denied in part. The court determined that State Farm had already paid $23,214.43 of Heine’s $27,167.44 claim for past medical expenses. Accordingly, to avoid overcompensating Heine for past medical expenses, the court reduced Heine’s $8,000 past health care expense award by $4,046.99. The $3,953.01 that remained payable on Heine’s award was the exact difference between Heine’s claimed expenses of $27,167.44 and the amount that State Farm had already paid to Heine — $23,214.43. The court then amended its Order for Judgment, reducing Heine’s total award to $12,853.01. The court denied Simon’s other motions.

Both parties appealed. Heine appealed from the denial of his motion for a new trial claiming that the district court erred in refusing to instruct the jury in accordance with CIVJIG 91.40. Simon challenged the court’s finding that Heine was not collaterally estopped from recovering lost wages against Simon. Simon also challenged the court’s application of collateral source offset under Minn.Stat. § 548.36. The court of appeals affirmed the district court. Heine, 674 N.W.2d at 419, 423.

Simon appeals on two grounds, claiming that: (1) the district court erred when it applied Minn.Stat. § 548.36, allowing for only a partial offset of the jury award; and (2) Heine is collaterally estopped from seeking lost wages because the workers’ compensation court already decided this claim. Heine appeals and requests a new trial on the issue of damages with the jury receiving CIVJIG 91.40 in its entirety.

I.

First, we address the question whether Heine, in his action against Simon, is collaterally estopped from litigating the issue of lost wages. Simon argues that Heine cannot litigate this issue because Heine had a full and fair opportunity to be heard on the identical wage loss issue at his workers’ compensation hearing. Simon bases her argument on the workers’ compensation judge’s determination that Heine did not meet his burden of proving that he was limited to working part time between September 18,1994, the date that he left his job with Apple, and the dates of the workers’ compensation hearing. Heine denies that the wage loss issues from the two proceedings are identical because of the limits built into the workers’ compensation statute.

The doctrine of collateral estop-pel is employed to prevent litigants from relitigating in subsequent actions identical issues that were determined in a prior action. Nelson v. Am. Family Ins. Group, 651 N.W.2d 499, 511 (Minn.2002). But we “do not apply collateral estoppel rigidly and focus instead on whether an injustice would be worked upon the party upon whom the estoppel is urged.” Id. Whether collateral estoppel is available presents a mixed question of law and fact that we review de novo. Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn.2000).

When an agency acts in a judicial or quasi-judicial capacity, we have said that collateral estoppel might apply in subsequent proceedings. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 115-16 (Minn.1991). We have also indicated that a workers’ compensation hearing is quasi-judicial. See Abraham v. County of Hennepin, 639 N.W.2d 342, 353 (Minn.2002). But we have noted that “[a] right to a jury trial ordinarily may not be abridged by the doctrine of collateral estoppel.” Id. at 355 (holding that an employee was not es-topped from pursuing issues previously litigated when he had been improperly denied a jury trial in his previous action). Moreover, with workers’ compensation determinations, the employee retains his or her common law right to recover in tort from a negligent third party. Kline v. Berg Drywall, Inc., 685 N.W.2d 12, 17 (Minn.2004). Further, we have never used an administrative determination to apply collateral estoppel to a subsequent action that involved outside parties.

We have provided a four-prong test to determine whether a party is to be collaterally estopped from raising an issue in a subsequent case. Haavisto v. Perpich, 520 N.W.2d 727, 731 (Minn.1994). All four prongs of the test must be met and they are as follows:

(1) the issues in the prior and present adjudication must be identical; (2) there must have been a final adjudication on the merits; (3) the estopped party must have been a party or in privity with a party to the prior adjudication; (4) and the estopped party must have been given a fair and full opportunity to be heard on the adjudicated issue.

Id.

Our focus in this case is on the first element — whether the issue litigated in Heine’s tort action against Simon is identical to the issue litigated in his prior workers’ compensation adjudication. We begin by noting that the purpose of a workers’ compensation determination is different from a negligence action. The purpose of workers’ compensation is to provide a measure of security to workers injured on the job. Kline, 685 N.W.2d at 21 (quotation omitted). The purpose of a negligence action, however, is to allow a plaintiff the right to seek a remedy for any damages caused by the defendant. Liability is not an issue in a workers’ compensation hearing as it is in negligence actions. Katzenmaier v. Doeren, 150 Minn. 521, 522-23, 185 N.W. 938, 938 (1921). The liability of the employer to pay compensation benefits does not depend on whether the employee has a cause of action against a third party. Allstate Ins. Co. v. Eagle-Picher Indus., Inc., 410 N.W.2d 324, 328 (Minn.1987).

The specific wage loss issues decided as a result of Heine’s workers’ compensation proceedings were: (1) What was Heine’s average weekly wage on his two dates of injury? (2) What time spans between September 18, 1994, when Heine left his employment with Apple, and the dates of the workers’ compensation hearing was Heine restricted to part-time work by his doctors? (3) Can Heine claim 225 weeks of temporary partial disability for each injury? (4) Were Heine’s actual earnings after September 18, 1994 a measure of his earning capacity? (5) Did Heine withdraw from the labor market to become self-employed in 1994? and (6) Did Heine make a diligent search for work from September 18, 1994 through the dates of the hearing? The issue to be determined in Heine’s subsequent tort action against Simon was defined in distinctly different terms. The jury was instructed, “[p]ast damages for loss of earnings may include earnings, salary and value of working time lost as a result of the injury, from the time of injury to date.” In the verdict form, the jury needed to determine “[wjhat amount of money will fairly and adequately compensate [Heine] for damages directly caused by the accident, up to the time of this verdict, for * * * past wage loss?”

An employee seeking to recover temporary partial disability payments in a workers’ compensation claim must show that (1) he is employed, (2) he is earning less than his weekly wage at the time of the injury, and (3) the reduced wage he is able to earn in his partially disabled condition is due to the injury. Minn.Stat. § 176.101, subd. 2(b) (2004). But the plaintiff in a negligence action does not have to prove these particular requirements in order to be able to recover lost wages. Impairment of earning capacity in negligence is an item of general damages that does not require specific proof of actual earnings or income either before or after the injury. Wilson v. Sorge, 256 Minn. 125, 130-32, 97 N.W.2d 477, 482-83 (1959).

Based on the foregoing distinctions, the requirements for determining compensation loss in Heine’s workers’ compensation proceedings are different from those used to determine wage loss in this tort action. Heine’s workers’ compensation wage loss issues only indirectly address whether Simon’s negligence from the second accident caused him any lost wages. Moreover, given the exclusivity of the Workers’ Compensation Act as a remedy against the employer, invocation of collateral estoppel in an employee’s third-party action in a case such as Heine’s where the third party had, and could have had, no involvement in the workers’ compensation proceedings does not necessarily serve the purposes of collateral estoppel. Here, these purposes, to conserve judicial resources, protect parties from multiple lawsuits, and improve court efficiency, are not served by invoking collateral estoppel. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 553, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990).

Because the wage loss issues raised in Heme’s workers’ compensation proceedings and this action are not identical, we conclude that Heine is not collaterally es-topped from litigating lost wages in his action against Simon. Accordingly, we hold that the district court did not err in concluding that Heine’s workers’ compensation determination did not collaterally estop his wage loss claim. Having determined that the issues in the workers’ compensation proceedings and the negligence action were not identical, we do not need to consider the three remaining prongs of our four-prong collateral estoppel test.

II.

Next, we address whether the district court abused its discretion when it gave CIVJIG 163 from the Third Edition of the Civil Jury Instructions Guides rather than CIVJIG 91.40 from the Fourth Edition for the jury to use in apportioning Heine’s injuries. We review the district court’s decision on jury instructions under an abuse of discretion standard. Hilligoss v. Cargill, 649 N.W.2d 142, 147 (Minn.2002). District courts have considerable discretion in selecting the language and the propriety of a specific jury instruction. Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159 (Minn.2002). The district court errs if it gives a jury instruction that materially misstates the law. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001).

Our holding on this issue is controlled by our companion opinion in Rowe v. Munye, 702 N.W.2d 729 (Minn. Aug. 18, 2005). In Rowe, we set forth more fully our holding that CIVJIG 91.40, as it is currently written, misstates Minnesota law when it is given to the jury in cases involving one defendant and aggravation of a preexisting injury. In Rowe, we concluded that CIVJIG 91.40 is an erroneous jury instruction in aggravation cases because it improperly shifts to the defendant the burden of apportioning the plaintiffs injuries between the injuries caused by the defendant and the plaintiffs preexisting injuries. In Rowe, we addressed the rationale of Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970), and Canada by Landy v. McCarthy, 567 N.W.2d 496 (Minn.1997), which led to placing the burden on the defendant to prove apportionment of damages in cases involving a single injury and jointly and severally liable tortfeasors. But we declined to extend this rationale to injury aggravation cases involving one defendant. We also reaffirmed that CIVJIG 163 properly states Minnesota law on aggravation.

Because Heine was injured in two accidents occurring close in time by two tort-feasors, he argues that his suit falls within the single indivisible injury rule and that Mathews controls the result in this case. Heine sued the defendants jointly, arguing that he could not apportion damages because the accidents occurred so close together. In severing Heine’s lawsuits, the district court determined that State Farm and Simon were not joint tortfeasors. The court found the accidents to be too unrelated to be tried in the same suit because the accidents occurred “approximately five months” apart and involved completely different circumstances. We agree with the district court. We conclude that Heine’s action against Simon does not involve jointly and severally liable tortfeasors and a single indivisible injury, but instead involves a single defendant and aggravation of preexisting injuries from the first accident.

Accordingly, based on our holding in Rowe that CIVJIG 91.40 misstates Minnesota law when applied to aggravation cases and our conclusion that CIVJIG 163 is an accurate statement of Minnesota law, we hold that the district court did not abuse its discretion when it gave CIVJIG 163 rather than CIVJIG 91.40 to the jury for determining the apportionment of damages caused by Simon.

III.

Finally, we determine whether the district court erred in applying Minn. Stat. § 548.36, the collateral source offset statute, to reduce Heine’s medical benefits award. We review questions of statutory application under a de novo standard. S. Minnesota Mun. Power Agency v. Boyne, 578 N.W.2d 362, 364 (Minn.1998). We are not bound by the district court’s interpretation of a statute. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999). Our goal in statutory interpretation is to give effect to the intention of the legislature that drafted the statute. Educ. Minnesota-Chisholm v. Ind. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003).

When interpreting a statute, we first look to see whether the statute’s language is clear or ambiguous on its face. American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A statute is ambiguous when its language is subject to more than one reasonable interpretation. Id. Ambiguity can arise from the statute’s application to the facts of the particular case. See Minn.Stat. § 645.16 (2004). But “[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.” Id.

Minnesota Statutes § 548.36 allows a party who has been found liable for tort damages for injury or disability to file a motion requesting the court to reduce the amount of the plaintiffs award by the amount the plaintiff has already received from “collateral sources.” Minn.Stat. § 548.36, subd. 2-3. Collateral sources include payments made to the plaintiff up to the date of the verdict pursuant to “a federal, state, or local * * * Workers’ Compensation Act.” Id., subd. 1. Essentially, the statute limits the amount a plaintiff can recover from a tortfeasor. W. Nat. Mut. Ins. Co. v. Casper, 549 N.W.2d 914, 917 (Minn.1996). We have noted that the purpose of section 548.36 is to prevent duplicate recovery. Imlay v. City of Lake Crystal, 453 N.W.2d 326, 335 (Minn.1990). But we have also said that applying the statute when the injured party has been “undercompensated is not justified.” Id.

Section 548.36 requires the parties to submit written evidence and the court shall determine the amounts of the collateral sources paid or otherwise available to the plaintiff, and the amounts the plaintiff paid to secure the right to the collateral source benefit. Minn.Stat. § 548.36, subd. 2. Then, “[t]he court shall reduce the award by the amounts determined under subdivision 2, clause (1), and offset any reduction in the award by the amounts determined under subdivision 2, clause (2).” Id., subd. 3(a)., If the court is unable to determine the collateral sources from the written evidence that parties submitted, “the court may within ten days request additional written evidence or schedule a conference with the parties to obtain further evidence.” Id., subd. 3(b). The statute is silent on which party has the burden of proof.

The parties dispute the application of Minn.Stat. § 548.36 collateral source calculations to Heine’s jury award of $8,000 for past medical expenses. Heine asserts that the district court properly applied section 548.36 by offsetting only the amount that would have resulted in overcompensation to him. He claims that Simon is not entitled to a full offset of the $8,000 awarded for past medical expenses because his medical claim of $27,167.44 includes medical expenses that were not paid through workers’ compensation. Heine asserts that Simon did not meet her burden of proof in showing that all of the medical bills that Heine submitted to the jury had been paid by another source.

Simon responds by arguing that the district court improperly applied Minn.Stat. § 548.36 when it offset the jury award. She asserts that the court erred when it used $27,167.44 as the starting point because (1) section 548.36 requires the court to use the jury award as the starting point; and (2) the $27,164.44 only reflects Heine’s claimed medical expenses, which the jury rejected when it awarded him $8,000. The Minnesota Defense Lawyers’ Association, as amicus, also supports reversal of the court’s collateral-source offset calculation supporting Simon’s contention that, had the statute been properly applied, Heine’s jury award should have been reduced to $0.

The parties also disagree about the amount of the collateral sources. Heine claims that the workers’ compensation payment of $23,214.43 relates to both accidents and that his claim for $27,167.44 represents both the medical bills paid through workers’ compensation and medical bills that he incurred since the workers’ compensation hearing. Thus, he asserts that the medical bills presented to the jury and the medical bills from the workers’ compensation claim are not identical. Heine argues that Simon has the burden to prove that the medical bills are the same and that she did not carry this burden.

Simon argues that all of the $23,214.43 was paid toward the second accident and that section 548.36 requires that all of the $8,000 should be offset by the $23,214.43. She contends that her argument is supported by an affidavit from State Farm Claim Representative Shirley Gustafson indicating that the $23,214.43 was based entirely on the second accident. Heine, however, requested Gustafson to amend her affidavit to indicate that the amount paid was for both accidents. Gus-tafson responded to this request by stating that she does “not believe that there has been a judicial apportionment between these two injuries” and that State Farm assigned the $23,214.43 to the second accident because Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 307 (Minn.1987), requires that “[t]he most recent occurrence of á compensable personal injury is the controlling event.” When this qualification is considered, it becomes evident that the Gustafson affidavit does not control any determination of the apportionment of the $23,214.43 between the two accidents.

We note that while the parties do not explicitly argue that section 548.36 is ambiguous, Heine’s argument nevertheless requires us to interpret section 548.36 in light of the legislative purpose of avoiding overcompensation to the plaintiff. Although legislative history may be useful in interpreting an ambiguous statute, we generally do not consider it when faced with a clearly worded provision. State v. McKown, 475 N.W.2d 63, 66-67 (Minn.1991). We conclude that section 548.36 is not ambiguous because the language plainly requires the district court to reduce the “award” by the amount of the “collateral sources.” Here, the jury, in total, awarded Heine $8,000 for his past medical expenses for the second accident. We agree with Simon that the $8,000 award is the proper starting point under the statute. The $27,167.44 that Heine claimed as his medical expenses is not the proper starting point because the jury may have rejected Heine’s claim for $27,167.44 when it determined the award.

The difficulty in this case arises in determining the total payments from collateral sources because the payments involve two separate accidents with one total amount received for medical expenses. While the difficulty does not make the statute ambiguous, its application is nevertheless complicated. From the award, the district court was supposed to reduce what it determined to be the amount of collateral sources that Heine had received for the second accident. The jury’s verdict of $8,000 does not necessarily directly correlate to the jury’s conclusion as to the total amount of Heine’s past medical expenses. The jury might have believed that Heine’s claimed expenses of $27,167.44 were appropriate, but it determined that Heine was only able to prove that the second accident caused a fractional part of his injuries. But the jury also could have determined that Heine’s claimed medical expenses were not reasonable. The jury had no knowledge of the collateral offset and had no instruction to specifically apportion damages between the accidents.

The $23,214.43 of collateral source benefits paid through workers’ compensation covered both accidents without an actual apportionment between the accidents. The workers’ compensation judge did not have to determine apportionment of fault or causation between the two accidents. See Minn.Stat. § 176.021, subd. 1 (2004). But, without knowing the apportionment between the accidents, we cannot conclude how much of the $23,214.43 applies as a collateral source to the second accident.

When the district court determined that the total payments from collateral sources were $4,046.99, it appears to have been guided primarily by the statutory purpose of avoiding overcompensation as it arrived at a collateral source amount that would pay the exact amount of Heine’s claimed medical expenses. But the court erred when it did this. It should not have factored Heine’s claimed expenses into its calculation because the jury appears to have already rejected that figure. The court’s calculation also did not apportion the $23,214.43 between the two accidents. Although determination of the proper apportionment would be difficult, the court is not supposed to follow the spirit of the law when the letter of the law is clear.

We conclude that the district court erred when it calculated Heine’s award to be the exact difference between his claimed medical expenses and the medical benefits he received through workers’ compensation. We therefore hold that the district court erred and reverse and remand so that the district court may apply Minn.Stat. § 548.36 in accordance with this opinion.

We note that, at oral arguments, both parties indicated that even if we remand this issue to the district court, allocating the $23,214.43 between the two accidents might be impossible. Nevertheless, we remand because the court must make a determination in accordance with section 548.36. Further, we note that the statute does allow the court to “request additional written evidence or schedule a conference with the parties to obtain further evidence.” Minn.Stat. § 548.36, subd. 3(b).

Affirmed in part, reversed in part, and remanded.

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

ANDERSON, RUSSELL A., Justice

(concurring).

I concur with the majority opinion for the reasons set forth in my concurring opinion in Rowe v. Munye, A03-465, 702 N.W.2d 729 (Minn. Aug. 18, 2005), released by the court today.

MEYER, Justice

(dissenting).

I dissent from the majority opinion for the reasons set forth in my dissenting opinion in Rowe v. Munye, A03-65, 702 N.W.2d 729 (Minn. Aug. 18, 2005), released by the court today.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Meyer.

      . The parties disagreed as to whether the second accident caused injury to Heine's right shoulder. This was important because Heine was claiming costs for surgery that was performed on his right shoulder in January 2002.

      . Heine had also claimed that he had received an additional $100 per week in cash in 1993 and 1994 from his employer, but the workers' compensation judge found that this claim was "not substantiated by any contemporaneous documentation.

      . Minnesota Statutes § 65B.51, subd. 3 (2004), limits the circumstances under which a person can recover damages for noneco-nomic detriment. It requires that the person have accrued medical expenses in excess of $4,000 or that the person have suffered an injury that resulted in permanent injury, permanent disfigurement, death, or disability for 60 days or more.

      . The jury award of $16,900 should have been reduced by 20 percent, the amount that the jury determined that Heine was at fault. A proposed court order, dated October 30, 2002, and signed by Judge McGunnigle, reflects this reduction and leaves a damage amount of $13,520. The order for judgment, dated December 16, 2002, and signed by Judge McGunnigle, however, does not reflect the reduction for Heine’s portion of fault.

      . Heine's former employer admitted that Heine was restricted to working less than full-time between August 3, 2000, and the workers’ compensation hearing.

      . The aim of temporary partial benefits is to compensate for reduction in earning capacity. Jasnoch v. Schwab Co., 495 N.W.2d 204, 205 (Minn.1993). Post-injury earning capacity is a relatively theoretical concept for workers’ compensation purposes, although post-injury wages create a presumption of post-injury earning capacity. Jellum v. McGough Constr. Co., 479 N.W.2d 718, 719 (Minn. 1992). Nevertheless, loss of earning capacity is not synonymous with loss of actual earnings. Jerabek v. Teleprompter Corp., 255 N.W.2d 377, 380 (Minn.1977).

      .We also note that Simon is attempting to apply collateral estoppel selectively based on the results of the workers' compensation hearing. Were we to apply collateral estoppel as Simon suggests, we would also have to determine that the issue of Heine’s permanent disability also could not be relitigated. While the jury did not find that Heine had suffered from a permanent injury, the workers’ compensation judge found that Heine’s permanent partial disability was seven percent. Collateral estoppel was never intended to be applied in such a way that Heine’s workers' compensation hearing would virtually nullify Heine's jury trial in his tort lawsuit.

      . Subrogation claims are not included in the collateral source calculation. Minn.Stat. § 548.36, subd. 2. State Farm, the workers' compensation insurer, waived any subrogation claims and subrogation is not at issue here.

      . Heine does not claim that he paid any amounts under subdivision 2, clause (2), to secure his right to the collateral source benefit.

      . Simon filed a motion on June 30, 2004 to strike portions of Heme's brief. Because we have not considered any of the contested material in reaching our decision, we need not respond to Simon's allegations that the material is not properly before us.


author: /s/Kathleen A. Blatz Chief Justice

text:
    William F. SERRA, Respondent, v. HANNA MINING CO./National Steel Pellet Self-Insured/MN. Self-Insured Security Fund, Relators.
    No. A05-915.
    Supreme Court of Minnesota.
    Aug. 23, 2005.
    Allen R. Webb, Burnsville, MN, for Appellant/Relator.
    T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., St. Paul, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 12, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Kathleen A. Blatz Chief Justice


author: WRIGHT, Judge. ROBERT H. SCHUMACHER, Judge

text:
    In the Matter of the CITIES OF ANNANDALE AND MAPLE LAKE NPDES/SDS PERMIT ISSUANCE FOR the DISCHARGE OF TREATED WASTEWATER, and Request for Contested Case Hearing.
    No. A04-2033.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      Janette K. Brimmer, Minnesota Center for Environmental Advocacy, St. Paul, MN, for relator Minnesota Center for Environmental Advocacy.
    Mike Hatch, Attorney General, Stephanie Morgan, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Pollution Control Agency.
    Edward J. Laubach, Jr., Christopher W. Harmoning, Heather I. Olson; Gray, Plant, Mooty, Mooty & Bennett, P.A., St. Cloud, MN, for respondents Cities of An-nandale and Maple Lake.
    Considered and decided by PETERSON, Presiding Judge; SCHUMACHER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Respondents City of Annandale and City of Maple Lake applied for a permit for a new wastewater-treatment plant, the discharge from which would flow into waters with impaired status under the Clean Water Act. The Minnesota Pollution Control Agency granted the permit. Relator Minnesota Center for Environmental Advocacy challenges the permit, asserting that the new source of discharge would contribute to the impairment of waters with impaired status, in violation of federal regulations. We reverse.

FACTS

For its wastewater treatment, the City of Annandale currently utilizes a pond system with spray irrigation that does not discharge phosphorus directly into a body of water. The City of Maple Lake currently utilizes a mechanical plant for its wastewater treatment. This wastewater plant discharges into Mud Lake, which later flows into the North Fork of the Crow River (the North Fork). Approximately 1,400 pounds of phosphorus are discharged from this plant each year.

Respondents City of Annandale and City of Maple Lake (the Cities) jointly submitted plans for a new wastewater-treatment plant in late 2002. The proposed plant will discharge 3,600 pounds of phosphorus into the North Fork each year, 2,200 pounds greater than the phosphorous discharged by the Cities’ existing wastewater-treatment facilities. The North Fork flows into the Mississippi River and contributes to the Lake Pepin watershed.

Section 303(d) of the federal Clean Water Act provides that, when a designated body of water does not meet water quality standards due to an excessive level of a pollutant or lax controls over thermal discharges, a state environmental agency shall identify it as an impaired water and establish a priority ranking for the body of water. 33 U.S.C. § 1313(d)(1)(A), (B) (2000). Once a body of water is identified and ranked under Section 303(d), the state environmental agency shall establish a “total maximum daily load,” (TMDL), setting the maximum amount of the pollutant permitted in that water. Id., (C) (2000). One section of the North Fork, 17.9 miles downstream from the discharge point of the Cities’ proposed plant, is identified as impaired under Section 303(d) because of insufficient dissolved-oxygen levels. Lake Pepin also is listed as impaired under Section 303(d) because of excessive nutrient levels. The Minnesota Pollution Control Agency (PCA) has not completed TMDLs for these waters. The PCA estimates that TMDLs will not be set before 2012 for the North Fork and 2009 for Lake Pepin.

Pursuant to the plans for the plant, on July 25, 2003, the Cities submitted an application for a National Pollutant Discharge Elimination System (NPDES) permit to the PCA for the proposed wastewater-treatment plant. The PCA gave due notice of the application and, with its request for public comment, submitted a proposed draft of the NPDES permit. The draft NPDES permit placed several limits on the plant’s discharge, including a maximum level for phosphorus and a minimum level for dissolved oxygen.

Relator Minnesota Center for Environmental Advocacy (MCEA) submitted comments on July 21 and August 18, 2004. The MCEA claimed that additional phosphorus from the plant would contribute to the low dissolved-oxygen levels on the North Fork and excessive nutrients in Lake Pepin. Asserting that federal regulations do not allow a new source to cause or contribute to the impairment of Section 303(d) waters, the MCEA argued against issuance of the NPDES permit.

Following a public hearing, the PCA addressed the comments of the MCEA and recommended approval of the NPDES permit in its order dated September 28, 2004. The PCA interpreted the federal regulations to provide that, if a new source contributes to the impairment of Section 303(d) waters, but the aggregate impairment of those waters is reduced by improvements elsewhere, a NPDES permit may be issued for the new source. The PCA concluded that the 2,200-pound increase in the phosphorus discharge from the Cities’ proposed plant would be offset by a new wastewater-treatment plant in Litchfield that will reduce the phosphorus discharge into the North Fork by approximately 53,500 pounds per year.

Regarding the impact of the phosphorus discharge on dissolved oxygen in the North Fork, the PCA observed that the impaired section of the North Fork is 17.9 miles downstream from the discharge point for the Cities’ proposed plant. Relying on an internal study, the PCA found that dissolved oxygen is most severely affected 1.8 miles downstream from the discharge point. The PCA then concluded that the discharge would not contribute to the impairment of the North Fork.

On September 30, 2004, the PCA then adopted the proposed draft and issued the NPDES permit. This appeal followed.

ISSUE

Does a discharge of phosphorus from a new source contribute to the impairment of Section 303(d) waters, in violation of 40 C.F.R. § 122.4(i) (2004), when that discharge contains an increase in phosphorus that is offset by reductions from other sources?

ANALYSIS

Appellate review of an agency decision ordinarily is governed by the Minnesota Administrative Procedure Act, which provides in relevant part:

In a judicial review ... the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are: ... (d) [a]ffected by other error of law[.]

Minn.Stat. § 14.69 (2004); Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 463-64 (Minn.2002). The decision of an agency is presumed to be correct, and we ordinarily accord deference to an agency in its field of expertise. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977).

The MCEA challenges the PCA’s interpretation of 40 C.F.R. § 122.4(i) (2004) and argues that, under this regulation, the Cities are not entitled to receive a permit. The MCEA asserts that, when a new source will contribute to the impairment of Section 303(d) waters, the discharge cannot be offset by reductions from other sources. Because the interpretation of a federal regulation is a question of law, we need not defer to a state agency’s interpretation, and we thus review de novo. MCIMetro Access Transmission Servs., Inc. v. BellSouth Telecomms., Inc., 352 F.3d 872, 876 (4th Cir.2003); Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn.2003); see also In re Denial of Eller Media Co.'s Applications for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.2003) (stating that courts retain authority to review de novo errors of law arising when agency decision is based on statutory construction). See generally 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.11 (4th ed.2002) (observing that, when separate agencies promulgate and enforce regulations, deference to the enforcing agency improperly allows inconsistent interpretation of regulations).

When a federal regulation is unambiguous, it shall be given effect according to its plain language without considering the intent of the agency or other extrinsic evidence. Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 311 (D.C.Cir.2001). When the meaning is in doubt, the primary consideration is the intent of the promulgating agency, which controls unless such intent is plainly inconsistent with the language of the regulation. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997). In the absence of controlling interpretation by an agency, the meaning of a regulation is determined in accordance with canons of statutory construction. Burns v. Barnhart, 312 F.3d 113, 125 (3d Cir.2002); White Bear Lake Care Ctr., Inc. v. Minn. Dep’t of Pub. Welfare, 319 N.W.2d 7, 8 (Minn.1982).

Section 122.4(i) provides in relevant part:

No permit may be issued: ... [t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by [Section 301(b) ] of [the] CWA,[] and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:
(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and
(2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

40 C.F.R. § 122.4(i). Two basic propositions may be derived from the regulation. One is that a new source cannot discharge if it will contribute to the violation of water-quality standards. The other is that, when a new discharge is proposed and a TMDL has been established, the proponent must demonstrate that the discharge complies with the TMDL.

MCEA argues initially that the regulation requires a TMDL to be established before a permit may issue. This position is contrary to the plain language of the regulation. When a TMDL has not been established, a new source is not required to demonstrate compliance with the TMDL. Rather, the opening sentence of 40 C.F.R. § 122.4(i) provides that a permit may be issued provided that the new source does not “cause or contribute to the violation of water quality standards.” The remainder of section 122.4(i) addresses the criteria for issuing a permit when a TMDL has been established. Because the PCA has not yet established TMDLs for the affected waters, this portion of section 122.4(i) is not applicable.

Our construction of 40 C.F.R. § 122.4(f) comports with the only published authority to discuss the effect of the regulation in the absence of a TMDL. In Crutchfield v. State Water Control Bd., 45 Va.App. 546, 612 S.E.2d 249, 251 (2005), a county applied for a permit for its proposed waste-water-treatment plant, which would discharge into a river with a Section 303(d) listing for insufficient dissolved oxygen. As here, a TMDL had not yet been established for the river. Id. at 255. The agency determined that the proposed discharge would not contribute to insufficient dissolved-oxygen levels in the river. Id. at 253-54. Applying a state regulation that incorporates 40 C.F.R. § 122.4(i), the Crutchfield court concurred with the determination that the discharge will not “cause or contribute to the violation of water quality standards” and upheld the issuance of a permit. Id. at 255.

In reaching its decision, the Crutchfield court addressed the same argument advanced here, that a permit could not issue in the absence of a TMDL for the river. Because the latter portion of the regulation governs only new sources that “discharge into a water segment which does not meet applicable water quality standards ... and for which the [State] has performed a pollutants load allocation,” the Crutchfield court held that this requirement did not attach until a TMDL was established. Id. at 255 (emphasis added). Thus, as we conclude here, in the absence of a TMDL, a permit may issue to a new source that does not otherwise cause or contribute to an impairment of waters with impaired status.

MCEA counters that the meaning of the phrase “water quality standards,” as recited in the first sentence of the regulation, must be determined in accordance with a TMDL. But in first determining whether waters receive a Section 303(d) listing, water-quality standards other than a TMDL are necessarily employed. See 33 U.S.C. § 1313(c) (2000) (referring to procedure for adopting and revising water-quality standards). We are without legal authority to conclude that the EPA intended the phrases “water quality standards” and “pollutants load allocation” to be synonymous, absent explicit definitions to that effect or the use of an identical phrase to convey both concepts. Accordingly, a TMDL is not required in order to determine whether a new discharge source will cause or contribute to the violation of water-quality standards under 40 C.F.R. § 122.46).

Here, the PCA found that discharge from the Cities’ proposed plant would not affect dissolved-oxygen levels on the impaired portion of the North Fork. We conclude that the PCA was not barred as a matter of law from issuing a permit because of the impact of the Cities’ proposed plant on dissolved-oxygen levels in the North Fork.

MCEA next challenges the conclusion of the PCA that phosphorus in the proposed discharge will not cause or contribute to the excessive nutrient impairment of Lake Pepin. The PCA found that the proposed plant will increase the annual phosphorus discharge into the North Fork from 1,400 to 3,600 pounds. Because it does not break down into smaller components, phosphorus persists in a watershed to a greater degree than other pollutants. Thus, the PCA concedes that this phosphorus will affect the Lake Pepin watershed. But the PCA asserts that, because of a reduced phosphorus discharge from other sources, the proposed plant will not contribute to higher phosphorus levels. This reduced discharge from other sources, however, does not rectify the violation of water-quality standards.

We note that a system of offsets akin to the rationale offered by the PCA was proposed by the Environmental Protection Agency (EPA) five years ago when it last considered revisions to 40 C.F.R. § 122.4(i). Revisions to the Water Quality Planning and Management Regulation & to the NPDES Program, 65 Fed.Reg. 43,-586, 43,639 (proposed July 13, 2000). But this proposal was essentially rejected as unworkable. Id. at 43,640. The EPA noted:

EPA also concluded that the additional environmental benefits from the offset requirement, in many cases, would have been minimal at best.... The offset requirement would have been a requirement over and above the requirements under current NPDES permitting regulations at [§ 122.4(i) ] .... For those dischargers who would have been subject to the offset requirement, consistent implementation of [these regulations] following existing EPA guidance would result in permits, if issued, containing limits and conditions for the pollutants of concern that derive from and comply with applicable water quality standards .... EPA believes that progress toward the attainment of water quality standards prior to a TMDL would be achieved through consistent implementation of EPA’s existing regulatory authorities.

Id. at 43,641. Were we to assume that the language in 40 C.F.R. § 122.4(f) is ambiguous, this statement by the EPA, which was not proffered by the agency during litigation, demonstrates that the regulation is not intended to incorporate a system of offsets. Nor is there any indication that a discretionary system of offsets is authorized.

A plain reading of the phrase “cause or contribute to the violation of water quality standards” indicates that, so long as some level of discharge may be causally attributed to the impairment of Section 303(d) waters, a permit shall not be issued. Here, the record demonstrates that, notwithstanding the reduction in phosphorus resulting from other sources, the waters at issue remain impaired. And the amount of phosphorus discharged into the North Fork from the proposed waste-water-treatment plant, which is more than double the current phosphorus level of 1,400 pounds per year, will contribute to impaired nutrient levels in Lake Pepin. We, therefore, conclude that the PCA erred as a matter of law when it issued a permit for the Cities’ proposed plant.

In doing so, we reject the PCA’s argument that, if 40 C.F.R. § 122.4(f) is interpreted to disallow issuance of the Cities’ permit, the result would be the “complete ban” that the United States Supreme Court cautioned against in Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). See generally Dianne K. Conway, TMDL Litigation: So Now What?, 17 Va. Envtl. L.J. 83, 117-18 (1997). The Arkansas case involved the availability of an NPDES permit for a municipal discharge source in the state of Arkansas. 503 U.S. at 95, 112 S.Ct. at 1057. The proposed discharge would flow into a river designated as a scenic waterway by the state of Oklahoma. Id. at 95 & n. 2, 112 S.Ct. at 1051 & n. 2. Under the scenic-waterway designation, Oklahoma’s anti-degradation laws barred any source that would contribute to the violation of water-quality standards in the river. Id. The Tenth Circuit determined that, at the time the permit was proposed, the water quality of the river also was in violation of Oklahoma’s anti-degradation standards. Id. at 108,112 S.Ct. at 1058.

Even though an Administrative Law Judge (ALJ) concluded that the proposed discharge would have no measurable effect on the scenic waterway, the Tenth Circuit disallowed the permit. Id. at 97-98, 112 S.Ct. at 1052. The Tenth Circuit relied exclusively on Section 402(h) of the Clean Water Act, which provides that when a municipal discharge source violates the terms of an NPDES permit, the EPA or a state environmental agency may seek to restrict or prohibit discharge from that source. 33 U.S.C. § 1342(h) (2000). Determining that the proposed discharge would violate Oklahoma’s anti-degradation laws, the Tenth Circuit held that the Clean Water Act necessarily barred issuance of the permit. Oklahoma v. Envtl. Prot. Agency, 908 F.2d 595, 633-34 (10th Cir.1990).

The United States Supreme Court reversed the decision of the Tenth Circuit and reinstated the permit. Even though the water quality of the river was in violation of state anti-degradation standards, the Arkansas court did not observe any legal impediments to the issuance of a permit:

Although the Act contains several provisions directing compliance with state water quality standards, the parties have pointed to nothing that mandates a complete ban on discharges into a waterway that is in violation of those [state] standards .... Thus, rather than establishing the categorical ban announced by the Court of Appeals — which might frustrate the construction of new plants that would improve existing conditions — the Clean Water Act vests in the EPA and the States broad authority to develop long-range, area-wide programs to alleviate and eliminate existing pollution.

Arkansas, 503 U.S. at 108, 112 S.Ct. at 1058 (citations omitted). The Arkansas court upheld the determination of the ALJ that the proposed discharge would not measurably affect the quality of water in the river. Id. at 111-12,112 S.Ct. at 1059— 60.

Arkansas is distinguishable in several respects from the instant case. The ALJ in Arkansas determined that the proposed source had no measurable impact on the scenic waterway. Here, the PCA determined that the Cities’ proposed source has a measurable impact on the Section 303(d) impairment factors for the North Fork and the Lake Pepin watershed. Arkansas also did not consider Section 303(d) or its attendant regulations for the issuance of permits, such as 40 C.F.R. § 122.4(f). Instead, Arkansas addressed Section 402(h), which governs sanctions against certain existing permit holders.

Even though we conclude that 40 C.F.R. § 122.4(i) does not allow a permit to be issued here, our decision does not preclude permits to be issued in the future. The PCA implicitly suggests that every proposed discharge source would contribute to the impairment of Section 303(d) waters, but neither the record nor existing precedent supports such a broad conclusion. See Arkansas, 503 U.S. at 95-96, 112 S.Ct. at 1051 (observing that proposed discharge would not affect downstream water-quality standards); Crutchfield, 612 S.E.2d at 255 (authorizing permit when proposed discharge had no measurable impact on impaired waters). We are mindful of the difficult wastewater-management issues arising from the Cities’ current size and anticipated growth. The Cities’ joint effort to resolve these issues is laudable. But neither the difficulty of the issues nor the commendable effort authorizes a resolution that clearly violates the plain language of the regulations governing impaired waterways.

DECISION

Because the discharge from the Cities’ proposed plant would contribute to the impairment of Section 303(d) waters, the PCA erred by issuing a permit in violation of 40 C.F.R. § 122.4(f) (2004).

Reversed.

ROBERT H. SCHUMACHER, Judge

(dissenting).

I respectfully dissent. I agree with the majority that 40 C.F.R. § 122.4(f) (2005) does not bar the Minnesota Pollution Control Agency (PCA) from issuing a permit in the period between the initial listing of a water body as impaired under section 303(d) of the Clean Water Act (CWA) and the implementation of a Total Maximum Daily Load. I also agree that the PCA was not barred as a matter of law from issuing a permit due to the impact of the proposed plant on dissolved oxygen levels in the North Fork of the Crow River.

But I disagree with the majority’s conclusion that the PCA erred by interpreting 40 C.F.R. § 122.4(i) as authorizing it to issue the permit. I believe that when reviewed with the deference properly accorded agency actions on review by this court, the PCA’s interpretation of the regulation and its decision to grant the permit were reasonable and consistent with the purposes and principles of the CWA. I would therefore affirm the PCA’s decision.

The majority rejects the PCA’s interpretation of section 122.4(f), which provides that no permit will issue if a new dischar-ger will “cause or contribute to the violation of water quality standards.” The PCA interpreted this provision as authorizing an additional annual phosphorus discharge of 2,200 pounds to the Lake Pepin watershed where agency findings showed that this discharge will be offset by an annual reduction in phosphorus discharge in excess of 50,000 pounds to the same watershed from a new Litchfield wastewa-ter plant.

The majority first declines to give deference to the PCA’s interpretation of the regulation on the grounds that a state agency’s construction of federal law presents a legal question, which this court reviews de novo. Although it is axiomatic that this court is free to exercise its independent judgment when reviewing questions of law, I believe that reviewing the PCA’s interpretation de novo disregards the “fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency’s authority, In re Special Instruction & Servs. for Pautz, 295 N.W.2d 635, 637 (Minn.1980), and judicial deference, rooted in the separation of powers doctrine, is extended to an agency decision-maker in the interpretation of statutes that the agency is charged with administering and enforcing. Krumm v. R.A. Nadeau Co., 276 N.W.2d 641, 644 (Minn.1979); In re Max Schwartzman & Sons, Inc., 670 N.W.2d 746, 754 (Minn.App.2003).

The PCA is charged by state and federal law with administering the CWA and its attendant regulations. 40 C.F.R. § 123.25(a)(1); Minn.Stat. § 115.03, subd. 1(a), (e) (2004). And I cannot agree with the majority’s implication that an agency’s interpretation of a federal regulation it administers is entitled to less deference than its interpretation of a state regulation it administers. Therefore, in recognition of the “need for exercising judicial restraint and for restricting judicial functions to a narrow area of responsibility, lest [we] substitute [our] judgment for that of the agency,” Reserve Mining Co., 256 N.W.2d at 824, I would review the PCA’s interpretation 'of the regulation under a reasonableness standard. See In re Univ. of Minn., 566 N.W.2d 98, 103 (Minn.App.1997) (stating that “when an agency reasonably interprets a statute, it is the role of the legislature or the supreme court, and not the role of this court, to overrule that interpretation”).

The majority also declines to defer to the PCA’s interpretation of the regulation because it is based upon an Environmental Protection Agency (EPA) interpretation submitted in a brief to federal district court. Because the “cause or contribute” language at issue here is reasonably susceptible to different interpretations — as evidenced by the meritorious opposing constructions advanced by both parties— the EPA’s interpretation would typically be entitled to “considerable deference.” St. Otto’s Home v. Minnesota Dept. of Human Servs., 437 N.W.2d 35, 40 (Minn.1989). The majority states that “[w]here an agency’s representations in the course of litigation are not based on its previous decisions or administrative practice, and thereby lack a sound basis, the representations cannot be used to determine the meaning of a regulation, because they may constitute a rationalization after the fact,” relying upon Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 473-74, 102 L.Ed.2d 493 (1988), and Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129-30 (D.C.Cir.1997).

But Bowen does not categorically reject agency litigating positions as interpretive guides; it only states that courts should not defer to those positions where they “are wholly unsupported by regulations, rulings, or administrative practice ... [or] where the agency itself has articulated no position on the question.” 488 U.S. at 212, 109 S.Ct. at 473-74. In Browner, the court in fact rejected as “unpersuasive” the “contention that the court should not defer to EPA’s interpretation of [a] regulation because it is no more than a convenient litigating position,” observing that the “mere fact that an agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency.” 127 F.3d at 1129 (quotation omitted). The court stated that although “agency litigating positions are not entitled to deference when they are merely appellate counsel’s post hoc rationalizations for agency action, advanced for the first time in the reviewing court ... deference to an interpretation offered in the course of litigation is still proper as long as it reflects ‘the agency’s fair and considered judgment on the matter.’ ” Id. (quoting Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 912, 137 L.Ed.2d 79 (1997)).

The EPA brief upon which the PCA relies here describes the offset system as an agency “practice,” and, as the majority observes, the EPA itself proposed a rule requiring offsets when it last considered revisions to section 122.4(i) in 2000. Because the record demonstrates that the EPA’s litigation position reflected an administrative practice, and was not a post hoc rationalization advanced for the first time on appeal, I do not believe that Bowen and Browner preclude the PCA’s reliance upon the EPA’s brief in interpreting section 122.4(i).

Finally, the majority discounts the PCA’s interpretation of the regulation because in 2000, the EPA considered and rejected a proposed “system of offsets akin to the rationale offered by the PCA.” For two reasons, I do not believe the EPA’s earlier action compels the conclusion that the PCA may not interpret the regulation as permitting offsets here. First, the 2000 proposal would have required new dischar-gers nationwide to offset new-pollutant loading by “securing reductions in the loading of the same pollutant from an existing source(s) located on the same water-body.” Revisions to the Water Quality Planning Regulation & NPDES Program, 65 Fed.Reg. 43586, 43639 (E.P.A. July 13, 2000). The EPA rejected the proposal as practically “unworkable” both because of the likely impossibility of always finding a source in a given waterbody “from which an offset might be obtained” and because a national-scale, “one size fits all” approach to regulation would “undercut State primacy in determining what actions are necessary to attain water quality standards.” Id. at 43639-40.

These problems are not present here. The offset source has already been identified and permitted, and the PCA is acting in the state’s interest to improve water quality, not in compliance with a federal mandate. I do not believe the EPA’s earlier rejection of the offsets requirement is dispositive as to the PCA’s interpretation of the regulation. Second, I do not believe that the EPA’s choice not to mandate an offset system bars the PCA from considering the effect of the Litchfield offset in determining whether to grant the permit at issue.

The majority contends that a “plain reading of the phrase ‘cause or contribute to the violation of water quality standards’ indicates that, so long as some level of discharge may be causally attributed to the impairment of Section 303(d) waters, a permit shall not be issued.” Because I feel this approach will effectively preclude issuance of a permit prior to completion of a TMDL, I believe it frustrates the purposes of the CWA and prevents the PCA from exercising its authority to take necessary action to ameliorate water quality in the meantime. See Arkansas v. Oklahoma, 503 U.S. 91, 107, 112 S.Ct. 1046, 1057, 117 L.Ed.2d 239 (1992) (rejecting, as supported by “nothing in the Act,” interpreting CWA “to prohibit any discharge of effluent that would reach waters already in violation of existing water quality standards”). I would give deference to the PCA’s interpretation of the regulation and affirm its decision to issue the permit.

      . The dissent argues that a state agency is entitled to reasonable deference in its interpretation of a federal regulation. None of the authorities cited in favor of this proposition, however, considers the interpretation of a federal regulation by a state agency. See Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 840, 842-44, 104 S.Ct. 2778, 2780-82, 81 L.Ed.2d 694 (1984) (federal agency interpretation of federal statute); George A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn.1988) (state agency interpretation of a state statute); Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824-25 (Minn.1977) (same). The Fourth Circuit has held that a state agency is not entitled to deference in its interpretation of a federal regulation. MCIMetro Access Transmission Servs., Inc., 352 F.3d at 876. And the Minnesota Supreme Court has recently treated the interpretation of a federal regulation as a question of law. Denelsbeck, 666 N.W.2d at 346.
      The dissent also implies that the same standard of review should control a state agency's interpretation of state statutes and federal regulations. But the preponderance of recent authority provides that a state agency's interpretation of a state statute is reviewed de novo. See, e.g., In re Denial of Eller Media

        Co’s. Applications for Outdoor Adver. Device Permits, 664 N.W.2d at 7; Metro. Sports Facilities Comm’n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn.1997); In re Petition to Adopt S.T., 512 N.W.2d 894, 897 (Minn.1994); Kloss v. E & H Earthmovers, 472 N.W.2d 109, 112 (Minn.1991).

      . This portion of the Clean Water Act imposes timetables for the implementation of best-technology practices for the removal of pollutants from discharge sources. It does not establish quantitative limits on water quality. 33U.S.C. § 1311(b) (2000).

      . Because we reverse on other grounds, we do not address the argument by MCEA that the PCA's findings on dissolved-oxygen levels in the North Fork were not supported by substantial evidence.

      . In support of this interpretation of 40 C.F.R. § 122.4(i), the PCA relies on an interpretation of the regulation that the Environmental Protection Agency (EPA) submitted in a brief to federal district court. See Sierra Club v. Clifford, 1999 WL 33494861 (E.D.La. Oct.1, 1999). Where an agency’s representations in the course of litigation are not based on its previous decisions or administrative practice, and thereby lack a sound basis, the representations cannot be used to determine the meaning of a regulation because they may constitute a rationalization after the fact. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 473-74, 102 L.Ed.2d 493 (1988); Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129-30 (D.C.Cir.1997). Because the EPA’s brief does not reference any preexisting ruling or practice with respect to 40 C.F.R. § 122.4(1), we conclude that the brief does not meaningfully inform our interpretation of the regulation here.

      . The dissent correctly observes that the proposed system of offsets would have required all new sources to obtain offsets from other sources. But the EPA did not mention or endorse the discretionary application of a system of offsets. Rather, the EPA focused on the execution of TMDLs and the reduction of pollutants from each individual source. See Revisions to the Water Quality Planning and Management Regulation & to the NPDES Program, 65 Fed.Reg. at 43,641-42.


author: MINGE, Judge.

text:
    Dan CONAWAY, Respondent, v. ST. LOUIS COUNTY, Appellant.
    No. A04-2350.
    Court of Appeals of Minnesota.
    Aug. 16, 2005.

      Mitchell J. Brunfelt, John M. Colosimo, Colosimo, Patchin, Kearney & Brunfelt, Ltd., Virginia, MN, for respondent.
    Alan L. Mitchell, St. Louis County Attorney, Timothy O. Lee, Assistant County Attorney, Duluth, MN, for appellant.

      Considered and decided by MINGE, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

MINGE, Judge.

In challenging summary judgment, appellant argues that the district court erred in determining that respondent is entitled to continued health-insurance coverage under Minn.Stat. § 299A.465 (2004) because (1) respondent began suffering from post-traumatic stress disorder before the statute became effective, and the statute cannot be applied retroactively; (2) Minn.Stat. § 299A.411 (2004) provides the only benefits for a peace officer disabled by post-traumatic stress disorder; and (3) respondent is not disabled, as defined by Minn. Stat. § 299A.465, or there is at least a genuine issue of material fact as to whether respondent is disabled. We conclude that because respondent did not retire until after Minn.Stat. § 299A.465 was effective, there is no retroactive application of the statute here. We further conclude that because Minn.Stat. § 299A.411 provides benefits for peace officers who are temporarily disabled, while Minn.Stat. § 299A.465 provides benefits for officers with long-term or permanent disabilities, section 299A.411 does not provide the exclusive remedy for officers with posttrau-matic stress disorder. Finally, we conclude that under the Minnesota statutes the determination made by the Minnesota Public Employee Retirement Association (PERA) that respondent is disabled is binding on appellant, and appellant is not entitled to further discovery. For these reasons, we affirm.

FACTS

In November 2001, respondent Dan Conaway applied for duty-related disability retirement benefits with PERA. In November 2001, respondent’s doctor wrote a letter to PERA stating that respondent was suffering from depression, panic disorder, and posttraumatic stress disorder. The doctor stated that respondent’s “prognosis for returning to work as a police officer or firefighter is extremely poor. I do not anticipate that he will be able to work in law enforcement in the future.” PERA’s reviewing physician confirmed that respondent was occupationally disabled and that his disability arose in the line of duty. In February 2002, respondent notified the St. Louis County Sheriffs Department that his application for disability benefits had been approved by PERA and that he was retiring. PERA designated respondent’s disability as duty-related. But appellant St. Louis County declined to provide respondent with the continued health-insurance coverage which, under Minn.Stat. § 299A.465 (2004), is available to officers disabled in the line of duty.

Respondent sued appellant alleging that the county’s failure to provide continued health-insurance benefits was a violation of Minn.Stat. § 299A.465 and a breach of contract. He also made a claim under 42 U.S.C. § 1983 (2000), asserting that appellant’s actions violated his right to equal protection. Appellant moved to remove the claim to federal district court, but pursuant to the parties’ stipulation for partial dismissal and remand, the federal district court dismissed the equal protection claim and remanded the case to state court.

Respondent requested summary judgment, arguing that appellant was required to pay for his continued health-insurance coverage under Minn.Stat. § 299A.465. Appellant argued that Minn.Stat. § 299A.465 does not apply to respondent because respondent began suffering from psychological-related issues before the statute was passed. Finally, appellant asserted that it was entitled to undertake its own discovery, including an independent medical examination of respondent, because the following material facts were at issue: whether respondent suffered a disabling injury and whether a disabling injury occurred in the line of duty.

The district court granted respondent’s motion for summary judgment. The district court determined that Minn.Stat. § 299A.465 applies to both physical and mental injuries/disabilities, such as post-traumatic stress disorder. The district court also determined that because respondent retired after the effective date of Minn.Stat. § 299A.465, he was not attempting to apply the statute retroactively. Finally, the district court determined that because PERA decided respondent is entitled to disability benefits, appellant must pay for respondent’s continued health-insurance coverage. The district court concluded that there were no genuine issues of material fact, and granted summary judgment. This appeal follows.

ISSUES

I. Did the district court err by determining that Minn.Stat. § 299A.465 (2004) applies to a peace officer who retires after the statute became effective if the officer began suffering from post-traumatic stress disorder before the statute became effective?

II. Does MinmStat. § 299A.465 provide benefits for a peace officer disabled by posttraumatic stress disorder?

III. Did the district court err by deciding that appellant could not conduct discovery after a PERA determination of disability?

ANALYSIS

I.

The first issue is whether the district court erred by determining that Minn.Stat. § 299A.465 (2004) applies to a peace officer who retires after the statute became effective even if the officer began suffering from injuries before the statute became effective. Appellant argues that awarding respondent benefits is an unlawful, retroactive application of Minn.Stat. § 299A.465 because respondent experienced multiple traumatic events at work before 1997 and began having difficulty performing his job at that time. Minn. Stat. § 299A.465 became effective on June 1, 1997. 1997 Minn. Laws 1st Spec. Sess. ch. 1, § 1.

“No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Minn.Stat. § 645.21 (2004). There is no indication that the legislature intended Minn.Stat. § 299A.465 to apply to officers who retired before June 1,1997.

Respondent continued to work as a police officer until he retired on March 1, 2002. PERA did not designate respondent as disabled until 2002. Respondent did not meet the requirements of Minn.Stat. § 299A.465 until 2002, when his disabling injury caused his retirement and he was approved to receive a disability pension. Granting benefits to respondent is not a retroactive application of the statute.

II.

The second issue is whether the health-insurance benefit provided under Minn.Stat. § 299A.465 is available for officers suffering from posttraumatic stress disorder. The interpretation of a statute is a question of law, which we review de novo. Nash v. Wollan, 656 N.W.2d 585, 589 (Minn.App.2003), review denied (Minn. Apr. 29, 2003). “Words and phrases are construed according to rules of grammar and according to their common and approved usage....” Minn.Stat. § 645.08 (2004). The courts should give words their ordinary meaning unless the legislature has specifically provided otherwise or unless such construction would be inconsistent with legislative intent. Summers v. R & D Agency, Inc., 593 N.W.2d 241, 244 (Minn.App.1999). When the language in a statute is ambiguous, we may consider the legislature’s intent. Minn.Stat. § 645.16 (2004).

A. Appellant contests the applicability of Minn.Stat. § 299A.465 at two levels. First, it argues that Minn.Stat. § 299A.411 provides the exclusive remedy for officers who suffer from posttraumatic stress disorder. Appellant reasons that if officers suffering from posttraumatic stress disorder were entitled to benefits under Minn.Stat. § 299A.465, then the later enactment of Minn.Stat. § 299A.411 was unnecessary. Minn.Stat. § 299A.411 provides that a peace officer who is diagnosed with posttraumatic stress disorder and is unable to perform his job is entitled to

(1) payment by the employer for un-reimbursed loss of wages during the time period the officer is disabled, but not to exceed one year; and
(2) payment by the employer for un-reimbursed expenses for medical treatment, including psychiatric or psychological counseling, to cure and relieve the effects of the posttraumatic stress syndrome during the time period the officer is disabled, but not to exceed one year.

(Emphasis added.) Minn.Stat. § 299A.411 provides short-term benefits for officers who suffer from posttraumatic stress disorder.

Not all officers who suffer from post-traumatic stress disorder are out of work for more than one year. Before Minn. Stat. § 299A.411 became law, officers could not recover lost wages or unreim-bursed medical expenses incurred due to posttraumatic stress disorder if they were able to return to work within one year. See Minn.Stat. § 299A.465 (providing benefits only if an officer qualifies for a duty-related disability pension); Minn.Stat. § 353.656, subd. 2 (2004) (providing that an officer qualifies for a duty-related disability pension only if the officer is mentally unable to perform his or her duties for one year or longer). Sections 299A.411 and 299A.465 serve different purposes and benefit different classes of officers. Minn. Stat. § 299A.411 is short term, while § 299A.465 is long term. Thus, the district court correctly ruled that § 299A.411 is not the exclusive remedy for officers who suffer from posttraumatic stress disorder. Respondent’s disability is classified as permanent, and Minn.Stat. § 299A.465 provides him with benefits in his situation.

B. At another level, appellant argues that respondent is not disabled under Minn.Stat. § 299A.465 because the statute only entitles officers with physical injuries to continued health-insurance coverage. The statute states:

(a) This subdivision applies when a peace officer or firefighter suffers a disabling injury that:
(1) results in the officer’s or firefighter’s retirement or separation from service;
(2) occurs while the officer or firefighter is acting in the course and scope of duties as a peace officer or firefighter; and
(3) the officer or firefighter has been approved to receive the officer’s or firefighter’s duty-related disability pension [under Minn.Stat. § 353.656].

Minn.Stat. § 299A.465, subd. 1. We note that the term “disabling injury” does introduce some element of ambiguity into the statute.

When the legislature has intended to limit the term “injury” to physical injuries, the legislature has used the terms “physical injury” or “bodily injury.” See, e.g., Minn.Stat. §§ 15.31 (“The state shall pay premiums on insurance policies insuring its employees against liability from claims for bodily injuries .... ”), 38.013, subd. 2(3) (“This subdivision does not limit the liability of a member of the board for physical injury....”), 60A.06, subd. l(5)(a) (Insurance companies may be authorized to insure “against loss or damage by the sickness, bodily injury or death by accident of the assured.”), 123B.25(b) (School district must provide legal counsel for teacher who is sued for causing “physical injury.”), 447.32, subd. 9 (“Nothing in this subdivision shall be construed to limit the liability of a member of the board for physical injury .... ”), 604.16, subd. 3 (“[A] person fleeing the police officer is liable for all bodily injury....”) (2004). The legislature’s choice to use the term “disabling injury” here signals that it did not intend to limit the term to physical injuries.

We also observe that the legislature linked Minn.Stat. § 299A.465 to Minn.Stat. § 353.656 (2004). As the statutory language already quoted indicates, Minn.Stat. § 299A.465, subd. 1(a)(3), provides that an officer must be approved to receive a “duty-related disability pension” under Minn.Stat. § 353.656 in order to receive continued health-insurance coverage. That latter section provides benefits to an officer

who becomes disabled and physically unfit to perform duties as a police officer ... as a direct result of an injury, sickness, or other disability incurred in or arising out of any act of duty, which has or is expected to render the member physically or mentally unable to perform the duties as a police officer ... for a period of at least one year, shall receive disability benefits.

Minn.Stat. § 353.656, subd. 1. We see a remarkable similarity between the two statutes. The phrase “suffers a disabling injury that ... results in the officer’s or firefighter’s retirement or separation from service” in Minn.Stat. § 299A.465, subd. 1(a)(1), is the functional equivalent of the phrase “becomes disabled and physically unfit to perform duties as a police officer ... as a direct result of an injury, sickness, or other disability ... which has or is expected to render the member physically or mentally unable to perform the duties as a police officer” in Minn.Stat. § 353.656, subd. 1. Because Minn.Stat. § 353.656 recognizes mental injuries as duty-related disabilities, it seems even more clear that Minn.Stat. § 299A.465 does not exclude mental injuries such as posttraumatic stress disorder from the definition of disabling injuries. The district court did not err in concluding that that section covers respondent’s disorder.

III.

The third issue is whether appellant, as the employer of respondent, was entitled to conduct further discovery, including its own independent medical examination, after PERA had determined that respondent was disabled and entitled to benefits under Minn.Stat. § 353.656, subd. 1. The district court concluded that because appellant, as a county and as an employer, is bound by PERA’s determination that respondent has a duty-related disability and it could not conduct further discovery.

As set forth above, Minn.Stat. § 299A.465, subd. 1(a), provides three criteria for determining if an officer is entitled to continued health coverage: (1) the officer must suffer a disabling injury that results in retirement; (2) the disabling injury must occur while the officer is acting in the course and scope of his or her duty; and (3) PERA must have approved the officer to receive a duty-related disability pension. When PERA approves an officer to receive a duty-related disability pension, PERA must conclude that the officer is suffering a disabling injury that results in a long-term disability and that the injury occurred while the officer was acting in the course and scope of his or her duties. See Minn.Stat. § 353.656, subd. 1 (stating that an officer is entitled to duty-related pension benefits if he or she is disabled “as a direct result of any injury, sickness, or other disability ... which has or is expected to render the member physically or mentally unable to perform the duties as a police officer,” and the injury was “incurred in or [arose] out of any act of duty”). In other words, if an officer satisfies the third criterion of Minn.Stat. § 299A.465, subd. 1(a), by qualifying for a duty-related disability pension, the officer necessarily has satisfied the other two criteria as well.

Although examining the legislative history is not necessary, we note that the legislative comments on Minn.Stat. § 299A.465 show that the legislature believed PERA would be an effective screen in determining an officer’s eligibility for benefits. See Hearing on S.F. No. 233 Before the Senate Comm, on State Gov’t Operations Veteran Affairs (Apr. 8,1997); House Floor Debate on H.F. No. 333 (Mar. 3, 1997) (statement of Rep. Farrell). PERA has the ability to access all of an applicant’s medical records and related information from any source to determine whether an officer is disabled. Minn.Stat. § 353.656, subd. 5. Additionally, PERA has its own physicians review evidence of an applicant’s disability. Minn. Stat. § 353.33, subds. 4, 6a (2004).

Appellant questions the fairness of the legislature’s actions to the county and the county’s financial interests. Minn. Stat. § 299A.465 transfers the financial responsibility for continued health coverage to the counties without guaranteeing funding. We acknowledge that the county has an interest in PERA’s disability determinations. Perhaps the county has the right to participate independently in the disability-determination process. However, because appellant failed to raise or pursue the issue of the accuracy of PERA’s disability determination during the discovery period, because appellant acknowledged that several identifiable incidents in respondent’s work history caused or played a significant role in the development of respondent’s posttraumatic stress disorder, and because it appears that appellant does not disagree with PERA’s determination of respondent’s eligibility for pension benefits, we do not reach the issue of a county’s right to participate in the PERA disability proceeding.

DECISION

Because applying Minn.Stat. § 299A.465 to respondent’s situation is not a retroactive application of the statute and because the statute covers a peace officer disabled by posttraumatic stress disorder, we determine that the district court correctly determined that respondent is entitled to continued health-insurance coverage under Minn.Stat. § 299A.465 for that disorder. Because PERA’s disability determination is binding on appellant, we conclude that the district court did not err in rejecting appellant’s discovery effort. The district court’s decision granting summary judgment to respondent is affirmed.

Affirmed.

      . The statute also requires that the injury occur in the course of the officer’s duties. Minn.Stat. § 299A.465, subd. 1(a)(2). Although appellant claims the statute is limited to physical injuries and we address this issue in this opinion, there was no factual dispute that respondent’s posttraumatic stress disorder occurred as a result of his work as a law enforcement officer.

      . Appellant does not argue that the legislature lacks the authority to give PERA responsibility for making disability determinations for peace officers or to impose financial responsibility on the county. We note that counties are subordinate agencies of the state government and subject to legislative control. See Kasch v. Clearwater County, 289 N.W.2d 148, 151 (Minn.1980); Mid-City Hotel Assocs. v. Hennepin County Bd. of Comm'rs, 516 N.W.2d 574, 576 n. 1 (Minn.App.1994).

      . Although the statute authorizes the counties to seek reimbursement from the Commissioner of Public Safety for a part of the benefits provided, appellant represents that it has not received full reimbursement. See Minn.Stat. § 299A.465, subd. 4.