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STATE OF MINNESOTA
IN COURT OF APPEALS
C6-97-2117

Stanley Sayre II,
Appellant,

vs.

McGough Construction Co., Inc.,
Respondent.

Filed June 23, 1998
Reversed
Schumacher, Judge
Dissenting, Shumaker, Judge

Ramsey County District Court
File No. C6965617

Mitchell R. Spector, Sally M. Spector, Abrams & Spector, P.A., 6750 France Avenue South, Suite 126, Minneapolis, MN 55435-1900 (for appellant)
Neal J. Robinson, Conley Law Office, 1660 South Highway 100, Suite 250, Minneapolis, MN 55416 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

S Y L L A B U S
A worker injured through the negligence of a third-party tortfeasor may pursue a claim against the tortfeasor for damages for loss of earning capacity in an amount over and above those recoverable under the Minnesota Workers' Compensation Act.

O P I N I O N
SCHUMACHER, Judge
Appellant Stanley Sayre II was injured at work through the negligence of respondent McGough Construction Co., Inc. He recovered under the Minnesota Workers' Compensation Act (the Act) and then sued McGough Construction. McGough Construction moved to exclude Sayre's evidence on his claim for loss of earning capacity, arguing that McGough Construction's settlement of the workers' compensation insurer's potential subrogation claims with the workers' compensation insurer precluded Sayre's claim. The district court treated the motion as one for summary judgment on the issue of loss of earning capacity and granted it. We conclude Sayre's claim against McGough Construction for loss of earning capacity is not barred. We reverse.

FACTS
Sayre is an electrician employed by People's Electric. He was injured at work when a temporary wall erected by McGough Construction fell on him. Sayre recovered medical expenses in the amount of $9,487 and wage loss in the amount of $9,141 under the Act from his employer/insurer. He also brought several claims against McGough Construction, among them a claim for loss of earning capacity.
Prior to trial, McGough Construction entered into a reverse-Naig settlement with the workers' compensation insurer for People's Electric (employer/insurer) whereby McGough Construction paid the employer/insurer $19,500 and the employer/insurer released McGough Construction from any subrogation claims for workers' compensation benefits
paid or payable to Sayre. [1] His total claim against McGough Construction for loss of earning capacity is $411,000.

ISSUE

May a worker injured through the negligence of a third-party tortfeasor pursue a claim against the tortfeasor for damages for loss of earning capacity in an amount over and above those recoverable under the Minnesota Workers' Compensation Act ?

ANALYSIS
There is no dispute as to the facts; the issue presented is solely a question of law. When the material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).
Here, Sayre seeks to recover damages for loss of earning capacity against McGough Construction. He has been reimbursed under the Act for medical expenses and lost wages, but not for loss of earning capacity; however, he is entitled to assert a claim under the Act for part of his loss of earning capacity damages. McGough Construction maintains that any claim for loss of earning capacity lies exclusively against the workers' compensation insurer/employer and that Sayre is therefore prohibited from bringing a loss of earning capacity claim against McGough Construction.
Two preliminary points need to be established. First, the existence of a reverse-Naig settlement is not dispositive here. Sayre was not a party to the reverse-Naig settlement between the employer/insurer and McGough Construction and therefore cannot be bound by it. Second, Minn. Stat.

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Minnesota Law