ED WIENEKE, Employee, v. CONAGRA FOODS, INC./SWIFT & CO., SELF-INSURED/SEDGWICK CMS, Employer/Appellant, and SWIFT PORK CO. and ZURICH AM. INS. CO./SEDGWICK CMS, Employer-Insurer, and ORTHOPEDIC INST., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 18, 2007
PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where the employer had not objected to a medical provider=s intervention but had also not agreed that the rendered services were reasonable and necessary, and where it was reasonable for the employer to conclude, based on discussions at hearing, that the intervenor=s interest would not be addressed at that time, the compensation judge erred in ordering reimbursement to the intervenor, and a remand for hearing on that claim was appropriate.
Vacated and remanded, in part.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Gary P. Mesna
Attorneys: Richard C. Lund, Law Offices of Donald F. Noack, Jr., Mound, MN, for the Employee. M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants. Jeremy D. Rosenberg, Johnson & Condon, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s award of reimbursement to the intervenor. We vacate and remand, in part.
The employee sustained work-related injuries to his low back on November 29, 1997, and February 21, 1998, while working for ConAgra Foods, Inc./Swift & Company [the employer], which was then self-insured for workers= compensation purposes. The employer admitted liability for the injuries and paid various benefits. On April 16, 1998, the employee underwent a microdiscectomy at L5-S1 for a herniated disc. The employee had an excellent result from that surgery and until October of 2003 had little low back pain and was able to perform rather heavy work without specific physical restrictions.
On October 14, 2003, the employee woke up at home with significant pain in his low back and down his left leg. The employee alleged that he sustained a work-related injury on that date, while employed by Swift Pork Company [Swift Pork], which was insured by Zurich American Insurance Company for workers= compensation. Swift Pork denied liability. Dr. Gail M. Benson, of the Orthopedic Institute, eventually recommended a two-level fusion at L4-5 and L5-S1.
On June 2, 2006, the employee filed a claim petition seeking approval for the surgery recommended by Dr. Benson. On July 13, 2006, Orthopedic Institute filed a motion to intervene.
The employer filed an objection to the intervention petition on July 17, 2006, stating that the employer had no objection to Orthopedic Institute being granted intervention status but that the treatment provided by Orthopedic Institute Amay relate to conditions which are not causally related to the Employee=s claimed work injuries@ and Amay not be reasonable and necessary, or may be otherwise not reimbursable by the Self-Insured Employer.@ On July 25, 2006, Swift Pork filed a reply to Orthopedic Institute=s petition, stating that it had no objection to Orthopedic Institute=s intervention but that it did Anot stipulate that each day of service rendered to the Employee is related to the Employee=s alleged disability.@
The claim petition proceeded to hearing on April 26, 2007. The compensation judge delineated the issues as whether the surgery should be approved, whether the surgery was reasonable and necessary, whether the employee had sustained an injury at work on October 14, 2003, and causation.
In findings and order filed on May 16, 2007, the compensation judge found that the proposed surgery was not reasonable and necessary, that the employee had not proven that he had sustained a Gillette injury culminating on October 14, 2003, that the Orthopedic Institute had intervened in the matter, and that the treatment rendered by that provider had been reasonable, necessary, and causally related to the 1997 and 1998 injuries. The judge went on to order the employer to pay the outstanding bills from Orthopedic Institute for medical treatment to the employee=s low back. The employer appeals from the judge=s award to Orthopedic Institute.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (2004). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
On appeal, the employer contends that the compensation judge improperly expanded the issues by addressing Orthopedic Institute=s claim. We agree.
Orthopedic Institute was not present or represented at the hearing. At the beginning of the hearing, the judge outlined the four issues that he believed were before him at that time. Those issues did not include Orthopedic Institute=s intervention interest. The judge then asked, AAre there any other issues that I haven=t talked about?@ There was no response from the attorneys.
A little later during preliminary discussions, the attorney for Swift Pork specifically pointed out that the judge had not listed Orthopedic Institute=s intervention interest as an issue, and he explained why he did not think the intervention claim should be addressed. The attorney for the employer joined in Swift Pork=s position, and the employee=s attorney stated, AWe don=t disagree.@ At no time during the preliminary discussions or at any time during the hearing did the compensation judge advise the parties that he intended to rule on Orthopedic Institute=s intervention interest.
ABasic fairness requires that the parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.@ Kulenkamp v. Timesavers, Inc., 420 N.W. 2d 891, 894, 40 W.C.D. 869, 872 (Minn.1988); Fast v. L.E. Meyers Company, slip op. (W.C.C.A. Sept. 12, 1996). We therefore vacate the judge=s findings and award ordering reimbursement to Orthopedic Institute. As the employer agreed to Orthopedic Institute=s intervention in its answer to the petition to intervene, we affirm the judge=s finding that Orthopedic Institute is an intervenor in this matter, and we remand for hearing on the issue of whether Orthopedic Institute is entitled to reimbursement.
 The employer also contends that it was improper for the judge to award reimbursement to the intervenor given the fact that the intervenor did not attend the hearing. In support of this position, the employer cites Minn. Stat. '176.361. However, this court has previously held that the filing of a motion to intervene constitutes an appearance where the attachments are sufficient to establish the claim and that, by failing to attend a hearing, an intervenor waives only the right to submit additional evidence, examine witnesses, and make statements or arguments. See Carlino v. Peterson Construction, slip op. (W.C.C.A. Oct. 4, 2004); Sether v. Wherley Motors, slip op. (W.C.C.A. July 27, 2005); Paoli v. Rainbow Foods, WC05-304 (W.C.C.A. July 28, 2006). Therefore, Orthopedic Institute=s failure to appear at hearing does not constitute a waiver of its claim for reimbursement.