DONALD E. MALENIUS, Employee, v. HIBBING TACONITE CO., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer, and HIBBING TACONITE CO. and AMERICAN HOME ASSURANCE/AIG DOMESTIC CLAIMS, INC., Employer-Insurer, and EVELETH CHIROPRACTIC CLINIC, Intervenor/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 11, 2008
PRACTICE & PROCEDURE - INTERVENTION; INTERVENORS - SETTLEMENT. Under the particular circumstances of this case, where the employee had included a claim for chiropractic treatment expenses on his claim petition, where the parties had negotiated with the provider in an attempt to settle the expense claim, where the stipulation and award on stipulation both contemplated that the provider would have the opportunity to prove its claim at a hearing, and where there were no grounds to conclude that the parties had been prejudiced by the provider’s failure to formally intervene prior to settlement, the compensation judge erred in denying the provider’s motion for intervention, and the provider was entitled to a hearing on the merits of its claim for treatment expenses.
Vacated and remanded.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: James B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent Employee. Kenneth A. Kimber, Hanft Fride, Duluth, MN, for the Respondent Hibbing Taconite/Self-Insured. Sarah E. Groskreutz, Johnson & Condon, Minneapolis, MN, for the Respondents Hibbing Taconite/AIG. David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
Eveleth Chiropractic Clinic appeals from the compensation judge’s order denying its motion to intervene and finding it “precluded from further action in this matter.” We vacate the judge’s order, grant the motion for intervention, and remand the matter for hearing on the merits of Eveleth Chiropractic’s treatment expense claim.
In April of 2006, the employee filed a claim petition alleging entitlement to benefits as a result of numerous injuries sustained in the course and scope of his employment with Hibbing Taconite Company [the employer]. The employer had been self-insured on the dates of eighteen of the alleged injuries; for two other alleged injuries, American Home Assurance was on the risk. Claimed benefits included benefits for permanent partial disability of the cervical, thoracic, and lumbar spine and medical expenses incurred for the employee’s treatment at Eveleth Chiropractic Clinic [Eveleth Chiropractic], in an amount “to be shown.”
Also in April of 2006, the employee’s attorney served a copy of the claim petition on Eveleth Chiropractic, along with a letter concerning Eveleth Chiropractic’s right to intervene in the pending proceeding. That letter reads, in relevant part, as follows:
The interests of the Employee and your interests may not be the same and may conflict. If the reasonableness or necessity of the bill is an issue, the decision in this matter might preclude you from collecting all or part of the bill. If the bill for treatment or services has not been paid in full, you have the right to ask the Court to order payment of the treatment expenses by filing a petition for intervention and payment, pursuant to Minn. Stat. §176.361 and Minnesota Rules Part 1415.1200. A copy of the applicable workers’ compensation regulation is attached hereto.
* * *
Failure to comply with the statute within 30 days from this notice will result in a denial of the claim for reimbursement unless the Compensation Judge determines the noncompliance or delay has not materially prejudiced the interests of the other parties.
In November of 2007, about a year and a half after the filing of the employee’s claim petition, the employee and the employer and insurers submitted a stipulation for settlement to Compensation Judge Gregory A. Bonovetz. Under the terms of the settlement, the employee agreed to accept $4,560.00 from American Home, in full, final, and complete settlement of all claims against that insurer, and $14,440.00 from the self-insured employer, for a to-date settlement of all claims and a close-out of permanent partial disability claims to the extent of 21% of the cervical spine, 2.5% of the thoracic spine, and 12% of the lumbar spine. According to the stipulation, all rehabilitation and medical expenses had been paid by the employer and insurers, except for a claim by Eveleth Chiropractic for $9,027.34. With regard to the unpaid expenses, the stipulation provided as follows:
Eveleth Chiropractic Clinic has submitted bills for payment in the total amount of $9,027.34 reportedly for medical treatment related to the Employee’s personal injury or occupational disease. Eveleth Chiropractic Clinic has not intervened in this litigation even though they were provided with notice of their right to intervene on April 13, 2006, per the attached Exhibit D. Legal counsel for the Employee, the Employer and Insurers have made good faith efforts to attempt to resolve said bill on a compromise basis. Insurers shall hold the Employee and Employer harmless for any potential claim brought by Eveleth Chiropractic Clinic for payment of said bill in the amount of $9,027.34. Insurers retain all defenses to payment of said bill, including the defenses of primary liability, failure to intervene by Eveleth Chiropractic Clinic, lack of reasonableness of the medical charge, treatment outside of the treatment parameters and lack of necessity of the medical services. The resolution of said potential intervention claim of Eveleth Chiropractic Clinic shall be in accordance with the decisions in Parker/Lindberg v. Friendship Village, 395 N.W.2d 713 (1986) and Hardie v. Cotter & Co., 45 WCD 263 (1990).
Pursuant to Minn. R. 1420.1850, the parties were unable to obtain a response from the Eveleth Chiropractic Clinic, despite good faith efforts, or were unable to reach agreement with the Eveleth Chiropractic Clinic despite the belief that the parties negotiated with the Eveleth Chiropractic Clinic in good faith and made a reasonable offer to settle the intervention claim. At the time this Stipulation was filed for approval, a copy of this Stipulation was served on the Eveleth Chiropractic Clinic. An affidavit of service of the Stipulation accompanies this Stipulation when it is filed for approval.
Compensation Judge Bonovetz executed an award on stipulation on November 2, 2007, containing the following provision concerning Eveleth Chiropractic:
IT IS FURTHER ORDERED that the Insurers shall hold the Employee and Employer harmless from any potential claim brought by Eveleth Chiropractic Clinic for payment of said bill in the claimed amount of $9,027.34. The resolution of said potential intervention claim of Eveleth Chiropractic Clinic shall be in accordance with the decisions in Parker/Lindberg v. Friendship Village, 395 N.W.2d 713 (1986) and Hardie v. Cotter & Co., 45 WCD 263 (1990), and a hearing will be scheduled to address this matter.
However, in a November 5, 2007, letter, attached to a copy of the stipulation for settlement, counsel for one of the insurers informed Eveleth Chiropractic as follows:
I draw your attention to the third paragraph on page two, which indicates that your clinic’s potential intervention claim will be subject to a Parker-Lindberg hearing that will be scheduled to address this matter. Judge Bonovetz, who signed the Award, has informed us that a hearing will not be scheduled at this time since your clinic was placed on notice of its right to intervene and did not do so. Should you have any questions in that regard, you should seek legal counsel to represent your interests.
On January 8, 2008, Eveleth Chiropractic, through counsel, filed an application to intervene in the matter, claiming $9,027.34 in chiropractic treatment expenses. The self-insured employer filed an objection, contending that, because the employee’s claim petition had been dismissed pursuant to the award on stipulation, there was no proceeding in which to intervene. The employer also contended that, because Eveleth Chiropractic had not intervened when advised of its right to do so in April of 2006, the intervention motion should be denied as untimely. Further, the employer asserted that the treatment at issue was not reasonable and necessary and that Eveleth Chiropractic had not attached an itemized bill for services to its application to intervene, as required by statute. Counsel for American Home also objected to the motion to intervene.
Judge Bonovetz subsequently notified counsel that he intended to schedule “an informal telephone conference call” to “discuss the propriety/standing of any claim now being asserted by Eveleth Chiropractic.” That conference call evidently took place on January 25, 2008, following which counsel for Eveleth Chiropractic evidently submitted additional documentation to the compensation judge.
Several months later, on June 10, 2008, Judge Bonovetz issued an “Order on Intervention/Litigation Rights of Eveleth Chiropractic Clinic.” In that order, Judge Bonovetz found, in part, that Eveleth Chiropractic had been “properly advised as to the consequence of failing to intervene” but had made no attempt to intervene; that, despite the lack of intervention, counsel for the other parties had attempted to settle Eveleth Chiropractic’s claim; and that “the actual parties to this action, although wishing to conclude an amicable settlement, were materially prejudiced in the negotiation process since the non-intervening clinic effectively refused to participate in the settlement process and thus caused uncertainty in the evaluation of and arrival at settlement terms.” In conclusion, the compensation judge determined as follows:
WHEREAS based on the submission of additional documents and based on a telephone conference call with counsel for the employer and insurers and counsel for Eveleth Chiropractic Clinic, the undersigned was asked to determine: Whether the Eveleth Chiropractic Clinic’s failure to formally intervene in a timely manner after the notice of April 13, 2006 precludes any further action in this matter, and
WHEREAS the undersigned having carefully reviewed the pleading in this case, the historic scenario of the pleadings, the attempts to settle the case and the non-responsiveness of the non-intervening Eveleth Chiropractic Clinic concludes that Eveleth Chiropractic Clinic failed to comply with the intervention statute and rules and this failure to properly and timely intervene has prejudiced one or more of the parties to this action.
NOW THEREFORE IT IS HEREBY ORDERED this most tardy attempt to intervene made by Eveleth Chiropractic Clinic is DENIED.
IT IS FURTHER ORDERED that with no outstanding claim document pending and with no litigation currently existing Eveleth Chiropractic Clinic is precluded from further action in this matter.
Eveleth Chiropractic appeals.
STANDARD OF REVIEW
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
On appeal, Eveleth Chiropractic contends that the compensation judge erred in denying it the opportunity to prove its claim at hearing, in that the parties specifically contemplated that a hearing on the chiropractic expense claim would be held. Eveleth Chiropractic also asserts that the compensation judge erred in concluding that the parties had been prejudiced by the failure of Eveleth Chiropractic to intervene in the matter prior to the settlement. In response, the employer and insurers contend that Eveleth Chiropractic has no standing in the underlying action or right to relief, because, pursuant to Minn Stat. § 176.361, subd. 2, Eveleth Chiropractic’s interest was “extinguished” by virtue of its failure to intervene within the time limits specified by statute. In the alternative, the employer and insurers contend that the judge’s order should be affirmed because, as found by the judge, the parties were materially prejudiced by Eveleth Chiropractic’s failure to intervene in a timely manner. We conclude that further proceedings are required.
Minn. Stat. § 176.361, subd. 2, provides, in part, as follows:
Subd. 2. Written application or motion. A person desiring to intervene in a workers’ compensation case as a party, including but not limited to a health care provider who has rendered services to an employee or an insurer who has paid benefits under section 176.191, shall submit a timely written application or motion to intervene to the commissioner, the office or to the court of appeals, whichever is applicable.
(a) The application or motion must be served on all parties either personally, by first class mail, or registered mail, return receipt requested. An application or motion to intervene must be served and filed within 60 days after a potential intervenor has been served with notice of a right to intervene or within 30 days of notice of an administrative conference. Upon the filing of a timely application or motion to intervene, the potential intervenor shall be granted intervenor status without the need for an order. Objections to the intervention may be subsequently addressed by a compensation judge. Where a motion to intervene is not timely filed under this section, the potential intervenor interest shall be extinguished and the potential intervenor may not collect, or attempt to collect, the extinguished interest from the employee, employer, insurer or any government program.
(Emphasis added.) The apparent intent of this provision is to ensure that all parties are fully aware of outstanding claims and to prevent unnecessary delays and uncertainty in litigation and settlement. Where, as here, the employee included the disputed treatment expenses on his claim petition, we question what purpose would be served by requiring separate intervention by the provider. However, whether or not Minn. Stat. § 176.361 might otherwise apply to bar Eveleth Chiropractic’s claim, the particular circumstances of this case make the provision inapplicable.
First, the time limits specified in Minn. Stat. § 176.361, subd. 2(a), begin to run only “after a potential intervenor has been served with notice of a right to intervene.” Pursuant to Minn. R. 1415.1100, subd. 2.D., that notice “must specifically advise . . . that the failure of a potential intervenor to file a motion for intervention within 60 days of service of the notice or within 30 days of notice of administrative conference or expedited hearing shall result in a denial of the claim unless otherwise provided by law.” (Emphasis added.) However, in the present case, the intervention notice informed Eveleth Chiropractic only that reimbursement would be denied “unless the Compensation Judge determines the noncompliance or delay has not materially prejudiced the interests of the other parties.” Moreover, the notice erroneously cited to Minn. R. 1415.1200, which was repealed in 2005. While a copy of some “regulations” was apparently attached to the notice, we find no record of just which “regulations” were attached, and the notice itself contained no information concerning the automatic “extinguishment” of interest provided by Minn. Stat. § 176.361, subd. 2(a). By implying that reimbursement would be denied only on grounds of prejudice and citing a repealed rule, the notice was misleading and arguably ineffective for the purposes of applying Minn. Stat. § 176.361, subd. 2(a). As such, the record, such as it is, does not support the judge’s conclusion that Eveleth Chiropractic was “properly notified” of “the consequence of failing to intervene.”
Second, the parties expressly agreed that Eveleth Chiropractic’s claim would be resolved pursuant to Parker/Lindberg, and the award on stipulation expressly provided that a hearing would be set to address that claim. We acknowledge that the stipulation also included language whereby the insurers reserved Eveleth Chiropractic’s “failure to intervene” as a defense to the outstanding chiropractic expense claim. However, the employer and insurers cannot have it both ways: application of Minn. Stat. § 176.361, subd. 2(a), would obviate any need for a hearing. Therefore, to reconcile the terms of the stipulation, we conclude that, by reserving as a defense Eveleth Chiropractic’s “failure to intervene,” the insurers intended only to reserve the right to argue that Eveleth Chiropractic’s failure to intervene materially prejudiced the parties. As such, we further conclude that the employer and insurers waived the right to ask for extinguishment of Eveleth Chiropractic’s interest pursuant to Minn. Stat. § 176.361, subd. 2(a).
Having concluded that no grounds exist to extinguish the interest of Eveleth Chiropractic under Minn. Stat. § 176.361, subd. 2(a), we turn to the judge’s stated basis for denying intervention: his conclusion that the other parties were “prejudiced” by Eveleth Chiropractic’s failure to comply with the intervention statute and rules. See Minn. Stat. § 176.361, subd. 7 (except as provided by Minn. Stat. § 176.361, subds. 2 and 4, failure to comply with Minn. Stat. § 176.361 “shall not result in denial of the claim for reimbursement unless the compensation judge . . . determines that the noncompliance has materially prejudiced the interests of the other parties”).
The judge’s decision as to prejudice is clearly erroneous. As indicated previously, the employee had asserted the claim for chiropractic treatment expenses when he filed his claim petition. The employer and insurers were well aware of the treatment at issue and in fact negotiated with Eveleth Chiropractic in an attempt to settle the chiropractic expense claim. The parties were in no way prejudiced by Eveleth Chiropractic’s failure to intervene, only by Eveleth Chiropractic’s refusal to settle, and, refusal to settle provides no basis to deny intervention.
One further matter warrants discussion here. No formal hearing was held on the application for intervention and objections, only an informal telephone conference. As such, there is no record of the proceedings, no testimony was taken, and the compensation judge did not delineate the specific documentation he considered in rendering his decision. In fact, we cannot be certain what arguments were made by the parties. The question of prejudice, at least, is often a fact issue, and adequate review of a fact issue is dependent on clearly identified evidence. This court has on numerous occasions stressed the importance of creating a reviewable record when questions of fact are in dispute, see, e.g. Mettner v. Brush Masters, Inc., slip op. (W.C.C.A. Nov. 1, 2002); Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. Jan. 24, 2001), and under other circumstances we might have remanded the matter for hearing. Because, however, the employer and insurers’ arguments establish no basis for the requisite finding of prejudice, we conclude that no further proceedings, on this particular issue, are warranted.
In summary, Minn. Stat. § 176.361, subd. 2(a), is inapplicable to extinguish the rights of Eveleth Chiropractic Clinic under the circumstances of this case, and the judge erred in concluding that intervention should be denied on grounds of prejudice. We therefore grant Eveleth Chiropractic’s petition to intervene and order that the caption of the case be amended accordingly. We further remand the matter to the compensation judge for a hearing as contemplated by the stipulation and award. Because there is no contention that Eveleth Chiropractic was excluded from settlement negotiations, the scope of the hearing should be limited to the merits of Eveleth Chiropractic’s claim for payment of treatment expenses. Given the posture of this case, Eveleth Chiropractic has the burden of proof to establish the compensability of the expenses at issue. Hardie v. Cotter and Co., 45 W.C.D. 263 (W.C.C.A. 1990).
 Information in the background section of this decision was taken largely from documents attached to the employer and insurer’s brief on appeal and from some imaged documents, which were apparently submitted to the compensation judge. There is no formal record here, an issue that will be addressed later in this decision.
 Twenty injuries were listed, most to the neck and back. Dates of injury ranged from 1979 to 2005.
 According to a hearing notice, the conference was set for January 25, 2008, but there is no record of the proceedings, and the judge’s order does not specify the date of the conference.
 Indeed, we have held on several occasions that extinguishing a provider’s claim pursuant to this provision is inappropriate where the employee has asserted a direct claim for payment of those expenses. See, e.g., Hughes v. Edwards Mfg. Co., 61 W.C.D. 481 (W.C.C.A. 2001); Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004). Allowing a medical expense claim to be extinguished if the employee abandons that claim in order to reach a settlement with the employer and insurer - - when it is far too late for “timely” intervention by a medical provider - - would seem to invite improper collusion between employees and employers.
 Under the prior version of Minn. Stat. § 176.361, prejudice was the only ground for denying late intervention.
 See Parker/Lindberg v. Friendship Village, 395 N.W.2d 713, 39 W.C.D. 125 (Minn. 1986).
 In a letter also bearing on the contemplation of the parties with regard to Eveleth Chiropractic’s claim, the employee’s attorney wrote as follows:
I received a copy of your letter of January 29, 2008 to Sarah Groskreutz. Regarding the settlement discussions, I have one thing to add: We had initially tentatively agreed to a to-date settlement in the amount of $22,000, from which the employee would satisfy the chiropractic expense. I tried to do so for $3,000. When I was not able to reach any sort of agreement with Dr. Maki’s office (and when, unfortunately, his office did not provide any counteroffer), we then re-negotiated the to-date settlement for $19,000, with the express intent of not resolving the outstanding chiropractic expense issue. I believe that was how the Stipulation for Settlement was drafted and signed. Obviously, if everyone believed that Dr. Maki was somehow precluded from being paid by the settlement, we would not have had to renegotiate it. (It was certainly my impression, in my conversations with Dr. Maki’s office manager, that she did not understand the workers’ compensation procedures.)
 We note in this regard that the judge in fact made his decision on the basis of prejudice, not the extinguishment language of subdivision 2(a).
 For example, we have no way of telling whether the employer and insurers raised Minn. Stat. § 176.361, subd. 2(a), in their arguments to the compensation judge. The judge did not refer to that provision in his order.