If you have a financial interest in an employee’s workers’ compensation claim, you may want to file a document called a Motion to Intervene. This starts the process to obtain payment of expenses you have incurred in rendering services or providing benefits to an injured worker. An example would be services from a health care or rehabilitation provider, or a payer of wage replacement benefits or medical expenses of an injured worker. It is also a method to advise the parties that you have a claim from the employee’s current or future workers’ compensation benefits such as a child support lien or Medicare interest.
If you are given notice of the right to intervene (to participate in resolution of the employee’s workers’ compensation claim) and you fail to file a Motion within the time deadline, there may be an order issued that absolves the workers’ compensation insurer from paying your claim and may prevent you from collecting from the employee or any government program.
After you file a Motion to Intervene, the Office of Administrative Hearings (OAH) or the Department of Labor and Industry gives notice to you of proceedings in the case. This keeps you updated on the case status, and informed of administrative conferences, settlement opportunities, pretrial planning conferences, and hearings. It requires the parties to include you in settlement negotiations of the employee’s claim.
If you wish to claim any difference between what has been paid and what you believe is owed by the workers’ compensation insurer, you may file a claim for the remaining unpaid bill. This is often referred to as a Spaeth interest because of a case by that name that established the right to make such a claim. There may be provisions in law outside of the workers’ compensation law that limit the ability to collect these balances if you have accepted payment from a government source. The government entity that paid your claim should be able to tell you if that is the case and direct you to the applicable law. There may also be disputes regarding the allowable fee for a service or whether the benefit or service is payable by the insurer. If you wish to claim an additional payment is due, you should file a Motion to Intervene.
In this situation, you may file a Motion to Intervene to make sure the claim is not compromised in a manner unacceptable to you. After you file a Motion to Intervene, you become a party to the case and your consent must then by obtained for any settlement affecting your claim. Instead of filing a Motion to Intervene, you may simply rely on the employee to advance the claim for payment. It is a choice that depends upon how involved in the litigation you wish to be and the extent to which your interest differs from that of the employee. Remember, however, that the employee’s attorney represents the interests of the employee, not you. You may wish to discuss the advantages and disadvantages of filing a Motion to Intervene with an attorney chosen by you.
The website has forms to help you file an intervention claim. In order to intervene you must file a Motion to Intervene and Affidavit of Service. You can also use the optional Cover Letter and an optional proposed Stipulation of Intervention.
You will need to fill in all the blanks on the forms and check the appropriate boxes. Be sure to include the total amount of your current claim in the body of the Motion to Intervene. This is the sum that you are requesting be paid by the insurer. If partial payment has previously been made, this sum would be the balance due rather than the total amount of services or benefits provided. The “applicant” is you or your company. Be sure to include the name, phone number, and e-mail address of the person who should be contacted to obtain additional information about your claim and to settle the claim. Failure to provide this information delays resolution of your claim.
You are probably very familiar with your billing statements, but the judge and the parties may not be. On the billing statement, please clearly identify the services and costs at issue in your claim. If the parties and the judge have trouble determining what you are claiming, it may delay resolution of your claim. You are required to provide documentation of your claim. This includes an itemization of disability or other benefits paid or owing, itemized bills, and treatment notes. You do not need to attach HCFA billing forms to the Motion of Intervention filed with the state. (The insurer will need this information, however.)
The original Motion to Intervene must be sent to the state. Note the mailing address on the top of the Motion form and on the cover letter form provided on the OAH website. Copies must be served on (sent to) the other parties to the claim. You must serve the parties listed at the top of the Motion: the employee, the employer, and the workers’ compensation insurer. Sometimes there are additional parties such as the Special Compensation Fund and there may be multiple employers and insurers. You do not need to send your Motion to other Intervenors. You must also fill out the Affidavit of Service form showing who the Motion was sent to, and include the Affidavit of Service with your Motion.
The Stipulation of Intervention is your invitation to the primary parties in the claim (the employee, employer and insurer) to agree that if the employee is successful in proving his or her claim, then your claim will be payable as well. If all the parties sign this document, you are excused from making an appearance at future proceedings, however, if your claim changes, you will want to file an Amended Motion to Intervene to protect your interest and update the judge and the parties concerning the change. The amendment may be in the form of a letter adding additional claims.
Check the date or the postmark on the Notice of Right to Intervene sent to you by one of the parties. You generally have 60 days after the date the Notice of Right to Intervene is sent to you to file a Motion to Intervene. The 60-day period starts when the attorney or party sends the notice to you, not when you receive it. The 60-day period ends when OAH receives your Motion, not when you send it. (It is filed when it is received.)
However, if you have received notice of an administrative conference or an expedited hearing and you wish to intervene, you only have 30 days from the date the notice was sent to you to file your Motion. An expedited hearing would typically be held if the employee filed an Affidavit of Hardship, or when the employee seeks approval to obtain surgery or other future treatment, or when a party has filed an Objection to Discontinuance of Benefits or Petition to Discontinue Benefits. The notice of administrative conference would identify the proceeding as a claim under MInn. Stat. § 176.239 regarding the discontinuance of benefits or under Minn. Stat. § 176.106 concerning a Rehabilitation or Medical Request. If you aren’t sure whether you have 30 days or 60 days to file your Motion, call OAH and ask to speak to a staff attorney or call the Department of Labor and Industry’s customer assistance telephone hotline listed at the end of this document.
You are not required to file this document, however, it may be helpful in establishing your claim and avoiding the need to personally appear at scheduled proceedings. The Stipulation of Intervention is an agreement between you and the primary parties (the employer, employer and insurer) that your claim is payable if the employee is successful in proving his or her claim. The Stipulation of Intervention form is available on the OAH website at http://www.oah.state.mn.us/wcforms/forms.html. (See also “Must I appear at a proceeding if I have filed a Stipulation for Intervention?” below.)
Assuming that your claim relates to the employee’s claim and the claim is currently still being litigated, you are automatically a party in the case. You will be notified of future proceedings. If there is no current claim pending in which you may intervene, you will receive a letter or notice informing you that there is no current claim and that you should contact the parties to resolve your claim.
An administrative conference is an informal meeting with the judge or staff in the workers’ compensation alternative dispute resolution unit at the Department of Labor and Industry where the parties present arguments and supporting documents on limited issues. If the case is not resolved by settlement, the judge or department staff makes a written decision on the claim. If you are an intervenor in an administrative conference, your claim would also be addressed at the conference. A party or intervenor may request a formal evidentiary hearing at OAH if he or she is not satisfied with the decision.
A settlement conference is conducted by a judge at OAH to assist the parties to resolve the claim before the hearing. A pretrial conference is a pre-hearing planning session with the judge to prepare for a hearing. The issues to be addressed at the hearing are clarified, witnesses identified, and anticipated exhibits discussed. Settlement and pretrial conferences are an opportunity for you to determine if there are issues concerning your claim that are different from the employee’s claim. For example, the employee may be claiming certain medical expenses that the insurer is denying. If the insurer is denying payment of medical services because the services were excessive and should not have been provided, the interest of the health care provider would differ from the employee’s interest. If the judge determines that the services were excessive, neither the insurer nor the employee is liable for payment of those services. In such a case, the health care provider intervenor may protect its interest by presenting evidence that the services were not excessive. If your case is not scheduled for a pretrial conference, you may contact the attorneys to clarify their positions regarding your claim.
Cases not resolved prior to a hearing proceed to an evidentiary hearing. If you are an intervenor in the unresolved claim, you will receive notice of the hearing so that you may participate to protect your interest. You will need to present an exhibit of your updated and itemized claim at the hearing, and make any arguments or present any evidence pertaining to your claim as it differs from the employee’s claim.
The Workers' Compensation Act requires your attendance in these proceedings. Unless you have permission from the judge, or the parties have signed or failed to object to a Stipulation of Intervention, your attendance is expected. Failure to appear may result in denial of your claim and an inability to collect the sum claimed from the parties or a government program. If your Motion contains sufficient information to establish your claim and failure to personally appear does not prejudice the parties, the judge may determine your claim based upon the written documents submitted.
While appearance by telephone for informal administrative or pretrial conferences is often approved, appearances for hearings must be in person except in limited circumstances. If you wish to appear by telephone, you should send a written request to do so to the judge and send a copy to the other parties. You should state the reason for your request. A request to appear by telephone before a proceeding is even scheduled is not recommended. OAH does not typically grant such requests and it may not be seen by a judge later assigned to the case.
To request to appear by telephone at an administrative conference at the Department of Labor and Industry call 651-284-5030, or 1-800-DIAL-DLI.
If you will be appearing by telephone, it is a good idea to check with the attorneys for the employee and insurer before a proceeding to provide any updated information they need. You may amend your Motion to Intervene at any time by sending a letter updating your claim; send the update to OAH or DLI, as applicable, and the attorneys.
An option for you is to seek a Stipulation of Intervention with the other parties concerning the interest of the party you represent. For example, the other parties may be willing to agree that a medical claim is payable if the employee is successful in establishing that there was a work-related injury, or that benefits paid by the intervenor to the employee should be reimbursed if the employee establishes entitlement to the workers’ compensation benefits claimed. In such cases, you may enter into a written agreement with the other parties, including that the parties agree that an appearance by you at the hearing is not necessary. This agreement is called a Stipulation of Intervention. It would be your responsibility to make sure that the judge receives the Stipulation of Intervention. A sample form for the Stipulation of Intervention is on the OAH web site at http://www.oah.state.mn.us/wcforms/forms.html.
Even if a Stipulation of Intervention has not been signed by the parties, you may be able to establish your claim if there is no written objection to the Stipulation of Intervention. If you sign a Stipulation of Intervention, send it to the other parties and no one files an objection within 30 days after you sent it, your right to reimbursement is established so long as the employee’s claim is payable by the insurer. It is your responsibility to bring these facts to the attention of the parties and the judge.
Alternatively, you may enter into a similar verbal agreement at the beginning of the hearing and ask to be excused for the remainder of the hearing. In the case of either a written or verbal agreement with the other parties regarding your claim, you would also need to provide an updated claim to the parties and to the judge before the hearing if the amount of your claim has changed since you filed your Motion to Intervene.
The Workers’ Compensation Act specifically allows intervenors to represent themselves in a workers’ compensation proceeding without hiring an attorney. Attorneys in this area of practice may be helpful to you because they are familiar with the process and the nature of proof needed to establish or settle intervention claims. OAH sees both attorneys and non-attorneys representing intervenors. The decision of whether or not to hire an attorney to assist you is up to you.
Of course, it is up to you to decide if a settlement offer is acceptable or not. Since payment by the workers’ compensation insurer will only occur if the employee can prove benefits are due, the insurer may be offering a low amount because the insurer believes it is unlikely that the employee will be successful in proving the claim. For example, the insurer may be asserting that a work injury did not occur or that a work injury did not substantially contribute to the employee’s disability or the need for medical treatment, or that the worker was not an employee. Understanding the strength or weakness of the employee’s claim and the insurer’s defenses to the claim will help you have a better sense of whether or not the workers’ compensation insurer will be required to pay you or reimburse you if the case goes to hearing.
The Workers' Compensation Act prohibits a health care provider from billing the employee for treatment of an admitted workers’ compensation injury if the workers’ compensation insurer, the commissioner, or compensation judge has determined that the treatment was not reasonable or necessary or that the charge was excessive. The law is not entirely clear regarding whether or not the provider may bill the employee for the remaining balance in a claim that has been denied by the insurer and then partially paid in a settlement without admitting there was a work injury. The law is also not clear about whether a health care provider may attempt to collect from the employee after intervening in a case and refusing a settlement offer for the intervention interest where the insurer disputes that the medical condition is caused by the work injury or maintains a denial of liability for the injury. But remember that if the insurer is disputing causation or denies primary liability, the employee’s health insurer, if there is one, may be liable for payment until the dispute is resolved. (See footnote 1.) If you have any questions about a health insurer’s obligation to pay medical bills for a claimed workers’ compensation injury, contact the Department of Labor and Industry.
If you decide not to accept the settlement offer made by the insurer, you have the right to have a hearing on your claim. An initial short hearing (called a Parker-Lindberg hearing after a case by that name) may be held to determine whether or not the settlement of the other parties may be approved without an agreement on your claim. If the settlement on the claims of the other parties is approved, there would then be a hearing at a later date on the merits of your claim. It is a full evidentiary hearing that is recorded. You would be expected to present evidence and testimony regarding your claim and the underlying claim of the employee from which your claim is derived. For example, if the insurer denies that the work injury substantially contributed to the need for medical treatment and you are trying to obtain payment of the medical treatment, you would have to prove that the work injury substantially contributed to the need for medical treatment. The employee would need to participate as a witness. You could also seek to prove that a settlement offer was not made to you or was not made in good faith, or that a settlement that precluded your interest was made without notice to you. If you prove that you were effectively excluded from meaningful settlement negotiations and the claim is now closed, you are entitled to full payment by the insurer. Keep in mind that although an offer may seem low, the insurer may nevertheless be making a good faith offer to settle the case if the employee’s claim is weak. After the full evidentiary hearing, the judge has 60 days to issue a decision regarding your claim.