Keith Johnson, D. C., Petitioner,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1192

Keith Johnson, D. C.,
Petitioner,

vs.

Office of Administrative Hearings,
Respondent.

Filed April 5, 2021
Petition dismissed; motion denied
Worke, Judge

Office of Administrative Hearings
File No. 10589406-CP-2204

David C. Wulff, Law Office of David C. Wulff, Roseville, Minnesota (for petitioner)

Keith Ellison, Attorney Genera l, Allen Cook Barr, Assistant A ttorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Kalitowski,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
WORKE, Judge
In this declaratory-judgment action under Minn. Stat. § 14.44 (2020), petitioner asks
us to declare Minn. R. 1420.1850 (2019) i nvalid because it exceeds the scope of the
statutory rulemaking authority of respondent Office of Administrative Hearings (OAH)
and because it is unconstitutional. Because petitioner lacks standing to challenge the rule,
we dismiss the petition.
FACTS
Petitioner Keith Johnson, D.C., filed a petiti on for declaratory judgment following
the events described in Koehnen v. Flagship Marine Co., 947 N.W.2d 448 (Minn. 2020).1
In that case, Koehnen was injured while working for Flagship Marine Company. Koehnen,
947 N.W.2d at 450. Johnson provided chiropractic treatment and supplies to Koehnen and
submitted his charges to Flagship’s workers’ compensation insurer. Id. But Flagship and
the insurer denied liability for Koehnen’s injury, and Johnson’s bills were not paid. Id.
Koehnen filed a claim seeking workers’ compensation benefits, including payment
for Johnson’s treatment. Id. Koehnen’s attorney gave Johnson notice of his right to

1 OAH moved to strike portions of Johnson’ s brief discussing the underlying facts of the
Koehnen case, arguing that those facts are outside the record in this matter. See Minn. Stat.
§ 14.365 (2020) (providing that the official rulemaking record “constitutes the official and
exclusive agency rulemaking record with respect to agency action on or judicial review of
the rule”). But OAH also assert s that Johnson lacks standing to challenge the rule based,
in part, on the same underlying facts. To resolve whether Johnson has standing, we must
consider whether the challenged ru le “interferes with or impair s, or threatens to interfere
with or impair the legal rights or privileges of the petitioner.” See Minn. Stat. § 14.44.
Thus, we deny OAH’s motion to strike and consider the underlying facts to the extent that
they purport to establish Johnson’s standing to bring his petition.

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intervene in the matter. Id. But Johnson chose not to inte rvene and did not move to
intervene under Minn. Stat. § 176.361, subd. 2 (2020), which allows interested persons to
intervene in a pending workers’ compensation case. Id.
The matter proceeded without Johnson. Koehnen and Flagship entered into a
settlement agreement that “resolved Koehnen’s claim for benefits, settled the interests of
an intervening health care provider, and extinguished the claims of the potential intervenors
who received adequate notice but did not intervene, including Johnson.” Id. But the
settlement “did not resolve the liability dispute between Koehnen and Flagship.” Id. The
stipulation for settlement, eventually approve d by the compensation ju dge, provided that
“pursuant to Minn. Stat. § 176. 361, [Johnson’s] failure to in tervene shall result in [his]
claims being extinguished and prohibit [him] from collecting or attempting to collect the
extinguished interest from th e [e]mployee, [e]mployer, [i]n surers, or any government
program.” Id. The compensation judge entered an award on the stipulation that provided:
“More than 60 days has expi red and pursuant to Minn. St at. § 176.361, subd. 2, any
potential interest[] of Johnson . . . [is] hereby extinguished.” Id. at 450-51.
By petition under section 14.44, Johnson challenges rule 1420.1850, which governs
the procedure for the resolution of claims in cases with intervenors, asserting that the rule
injured him because it author ized the compensatio n judge to extingu ish his potential
intervenor interest.
DECISION
Johnson challenges the validity of rule 1420.1850 by petition filed under section
14.44. “In proceedings under section 14.44, th e court [of appeals] sh all declare the rule

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invalid if it finds that it violates constitutional provisions or exceeds the statutory authority
of the agency or was adopted without compliance with statutory rulemaking procedures.”
Minn. Stat. § 14.45 (2020). Johnson asserts that rule 1420.1850 exceeds OAH’s statutory
rulemaking authority and viol ates the constitutional rights of potential intervenors who
choose not to intervene in matters before a compensation judge.
Before addressing the merits of a petiti on under section 14.44 , however, we must
determine whether the petitioner has standing to challenge the rule. Rocco Altobelli Inc. v.
Dep’t of Commerce, 524 N.W.2d 30, 34 (Minn. App. 1994). We may only consider the
validity of the rule when “it appears that the rule, or its threatened application, interferes
with or impairs, or threatens to interfere with or impair the legal rights or privileges of the
petitioner.” Id. (quoting Minn. Stat. § 14.44); see also Minn. Voters All. v. State , __
N.W.2d __, __, 2021 WL 317737 , at *4 (Minn. App. Feb. 1, 2021) (dismissing petition
based on petitioner’s lack of standing). To establish standing, the petitioner must allege an
injury that is “uniquely attributable to the rule.” Minn. Voters All., __ N.W.2d at __, 2021
WL 317737, at *3. When the in jury asserted derives from a statute, and not a rule, the
petitioner lacks standing. Rocco Altobelli, 524 N.W.2d at 34-35.
Johnson asserts that he has standing to bring this petition becau se rule 1420.1850
authorizes a compensation judge to extinguish a potential intervenor’s interest in a
workers’ compensation case when the potential intervenor chooses not to intervene. OAH
asserts that Johnson lacks standing because the injury he alleges derives from the statutory
mandate that when “a motion to intervene is not timely filed . . . the potential intervenor
interest shall be extinguished.” See Minn. Stat. § 176.361, subd. 2(a). To determine

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whether Johnson’s alleged injury is uniquely attributable to rule 1420.1850, or whether the
injury is actually attributable to section 176.361 (2020), we consider the language of both.
Section 176.361 governs in tervention in workers’ co mpensation matters. It
provides that a potential intervenor “may” in tervene in any matter before a compensation
judge. Id., subd. 1. It also provides that a potential intervenor “desiring to intervene in a
workers’ compensation case . . . shall submit a timely wr itten motion to intervene.” Id.,
subd. 2. It further establishes the deadlines by which a potential intervenor must intervene,
and provides that when “a motion to intervene is not timely filed . . . the potential intervenor
interest shall be extinguished.” Id., subd. 2(a).
Rule 1420.1850 governs the resolution of claims with intervenors in matters before
a compensation judge within OAH. It provides that “[i]f the [compensation] judge finds a
potential intervenor had proper notice or actual notice of the right to intervene within a
reasonable period of time before a case was fi nally concluded but failed to act, the judge
may order extinguishment of the potential inte rvenor’s interest under [Minn. Stat. §]
176.361.” Minn. R. 1420.1850, subp. 1(A).
The unambiguous language of the statut e and the rule demonstrate that the
extinguishment of a potential intervenor’s interest under these circumstances is attributable
to section 176.361. Th e statute mandates that a potential intervenor’s interest “shall” be
extinguished when the potential intervenor does not file a tim ely motion to intervene.
Minn. Stat. § 176.361, subd. 2(a). Rule 1420.1850 ackno wledges that mandate and
provides that a compensation judge may extinguish a potential in tervenor’s interest if the

6
potential intervenor, who has proper notice of his right to intervene, does not file a motion
to intervene pursuant to section 176.361.2
Johnson, however, argues that his injury is uniquely attributable to the rule because
it allows for compensation judges to extingui sh a potential intervenor’s interest under
circumstances not contemplated by the statute. He asserts that se ction 176.361 does not
require the extinguishment of a potential intervenor’s interest in a matter when the potential
intervenor chooses not to intervene. Johnson’s argument rests on a strained interpretation
of section 176.361.
Johnson maintains that extin guishment is only required under the statute when a
potential intervenor files an untimely motion to intervene. He contends that his
interpretation is correct because the statute provides that a potential intervenor “may”
intervene, giving the potential intervenor the choice as to whether or not to intervene, and
because the statute requires extinguishment when a motion “is not timely filed.” See id.,
subds. 1, 2 (emphasis added). Johnson also observes that subdivision 2—which contains
the extinguishment provision—begins with the clause “[a] person desiring to intervene in
a workers’ compensation case.” See id. , subd. 2. He theref ore asserts that the
extinguishment provision is intended only to affect those “desiring to intervene.”
The language of the statute does not support Johnson’s interpretation. The clause
“[w]here a motion to interven e is not timely filed” enco mpasses instances when an

2 We observe that the rule, in fact, purports to provide greater protection to potential
intervenors than the statute—indicating th at a compensation judge “may” extinguish a
nonintervening potential intervenor’s interest. Minn. R. 1420.1850, subp. 1(A).

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untimely motion is filed and instances when no motion is filed at all. And while potential
intervenors may choose not to intervene, the consequence of that choice, under the statute,
is that the potential interveno r’s interest will be extinguish ed. Thus, Johnson’s argument
that rule 1420.1850 allows a compensation judge to extinguish a nonintervening potential
intervenor’s interest in circumstances outside the limits of section 176.361 is unavailing.
Because the statute requires a nonintervening potential intervenor’s interest to be
extinguished, rule 1420.1850 merely effectua tes what is required under section 176.361.
Johnson’s interest would have been extinguished by operation of section 176.361 even if
rule 1420.1850 did not exist. Thus, because Johnson’s injury is attributable to section
176.361, and is not “uniquely attributable” to rule 1420.1850, he lacks standing to bring a
section 14.44 petition challenging rule 1420.1850.
Petition dismissed; motion denied.