MICHAEL LEE RECTOR, Employee, v. ALVIN E. BENIKE, INC., and STATE FUND MUT. INS. CO., Employer-Insurer, and MINNESOTA LABORERS HEALTH & WELFARE FUND, MN DEP=T OF ECON. SEC., and MAYO FOUNDATION, Intervenors, and REEVE CHIROPRACTIC CLINIC, Intervenor/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 3, 2002

                                                                             

HEADNOTES

 

INTERVENORS; PRACTICE & PROCEDURE - DISMISSAL.  Where the judge had scheduled a hearing to consider the chiropractor=s possible objections to the stipulation at issue and to consider hearing of the chiropractor=s potential intervention claim but the chiropractor had not appeared, where there was no indication that either the employee or the employer and insurer had been requesting that the chiropractor=s interest be extinguished, and where remand for hearing on the merits would not materially prejudice the rights of the other parties, the compensation judge=s dismissal of the potential intervenor chiropractor=s intervention claim was vacated and the matter remanded for hearing on the merits, notwithstanding evidence that the potential intervenor had, contrary to his claim, been served with notice of the hearing that he missed.

 

Affirmed in part, vacated in part, and remanded.

 

Determined by Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  Peggy A. Brenden.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

Reeve Chiropractic Clinic appeals from the order of the compensation judge issued September 18, 2001, dismissing with prejudice its Apotential intervention interest.@  We vacate the order for dismissal and remand for a hearing on the merits.

 

BACKGROUND

 

On May 15, 2000, Michael Rector [the employee], through his attorney, filed a claim petition for permanent partial disability and medical benefits allegedly related to a right shoulder injury of August 8, 1997, and a low back injury of April 12, 1999, both sustained while working for Alvin E. Benike, Inc. [the employer], which was insured at those times against workers= compensation liability by State Fund Mutual Insurance Company [the insurer].  On August 17, 2000, the employee filed an amended claim petition, in which he also claimed an injury to his left shoulder while working for the employer on January 1, 2000, and entitlement to temporary total disability benefits continuing from February 10, 2000.  In both petitions, the employee claimed entitlement to payment of an outstanding medical bill with the Reeve Chiropractic Clinic [Reeve] in the sum of $3,862.87.  The employer and insurer admitted liability for the right shoulder and low back injuries but denied liability for the claimed left shoulder injury.  They also denied liability for the claimed chiropractic treatment, contending the treatment was unreasonable and unnecessary, while also asserting their defenses under the medical treatment parameters and the employer=s participation in a managed care program.

 

The Minnesota Laborers Health and Welfare Fund and the Minnesota Department of Economic Security both filed applications to intervene in the proceedings and were made parties to the case.  On January 11, 2001, the employee=s attorney served Reeve and the Mayo Foundation with notices of their right to intervene in the employee=s Aclaim for workers= compensation benefits for personal injuries of August 8, 1997, April 12, 1999 and January 1, 2000.@  Copies of the relevant statute (Minn. Stat. ' 176.361), all pleadings in the case, and all notices and orders served were included with the letters.  On January 26, 2001, the Mayo Foundation moved to intervene and was made a party to the case by Order served February 15, 2001.^[1]  Reeve did not submit an application to intervene.

 

About three months later, the employee and the employer and insurer began settlement discussions.  On May 31, 2001, the attorney for the employer and insurer, Anne Kevlin, sent a four-page letter to Reeve, setting forth their claimed defenses to the outstanding chiropractic bill, along with an offer of settlement.  Ms. Kevlin stated, AIt is my understanding that your current outstanding balance is $3,852.71.  This is based on information that was faxed to me.@  She offered Reeve the sum of $1,000.00 in full satisfaction of the employee=s outstanding chiropractic bills, and she stated further, AIf you are unwilling to settle for this amount, my clients will proceed with a settlement with [the employee].  You would then be entitled to pursue your claim pursuant to the case of Parker/Lindberg v. Friendship Village, 395 N.W.2d 713 (1986).@  Reeve apparently did not respond to this letter.

 

On August 27, 2001, the parties submitted for approval a Stipulation for Settlement to the Office of Administrative Hearings.  Reeve was not a party to the agreement and did not sign the Stipulation.  Paragraph II.4. of the Stipulation provided that it was the employee=s position that Athe employer and insurer are liable for the outstanding chiropractic bill at Reeve Chiropractic Clinic in the amount of $3,862.67.@  Paragraph III.4. of the Stipulation provided that it was the employer and insurer=s position that Athe chiropractic bill from Reeve Chiropractic Clinic is related to services that were not reasonably or medically necessary, and chiropractic services exceeded the permanent treatment parameters.@  At Paragraph VIII.D. of the Stipulation, the parties agreed to the following:

 

The parties hereto acknowledge an outstanding balance of $3,862.67 to Reeve Chiropractic Clinic.  Employer and insurer agree to hold employee harmless for the outstanding balance of $3,862.67 within the parameters of the Minnesota Workers= Compensation Act, and pursuant to the case of Parker/Lindberg v. Friendship Village, 395 N.W.2d 713, 38 W.C.D. 539.  Employer and insurer contend that the outstanding balance of $3,862.67 is for services rendered that were medically unreasonable and necessary and/or not causally related to employee=s claimed injuries and/or outside of the permanent treatment parameters.  Employer and insurer have made a reasonable offer to Reeve Chiropractic Clinic pursuant to letter dated May 31, 2001, a copy of which is attached hereto and incorporated herein by reference.  The Reeve Chiropractic Clinic has not responded in any way to the letter dated May 31, 2001.  The employer and insurer agree that the Reeve Chiropractic Clinic has a separate right to prosecute its claim for outstanding medical bills pursuant to the decision in Parker/Lindberg v. Friendship Village and shall agree to attend a Parker/Lindberg hearing, thereby protecting employee=s interest within the parameters of the Minnesota Workers= Compensation Act.

 

The parties= Stipulation was assigned to Compensation Judge Peggy A. Brenden, who issued an Order for Telephone Hearing on August 28, 2001.  In her Order, the judge noted that the Stipulation was not signed by a representative of Reeve Chiropractic Clinic.  The Order further provided that

 

NOW THEREFORE IT IS HEREBY ORDERED that a telephone hearing will be held on Monday, September 17, 2001 at 8:30 a.m.  Counsel for the employee, employer/insurer and a representative of Reeve Chiropractic Clinic shall all be available by phone at that time.  Prior to the hearing, counsel for the employer/insurer shall provide Reeve Chiropractic Clinic a copy of the stipulation for review.  At the hearing the Court will consider any objections Reeve Chiropractic Clinic has to the stipulation and a hearing will be scheduled to resolve Reeve Chiropractic Clinic=s potential intervention interest.

 

IT IS FURTHER ORDERED that if Reeve Chiropractic Clinic fails to participate in the scheduled telephone hearing its potential intervention interest will be dismissed with prejudice.

 

According to the judgment roll, this Order was served upon counsel for the employee and employer and insurer and also upon Reeve Chiropractic Clinic.  Pursuant to the judge=s Order, Attorney Kevlin provided Reeve with a copy of the executed Stipulation by letter dated August 31, 2001.

 

On September 18, 2001, the compensation judge issued an Award on Stipulation and Dismissal of Potential Intervention Interest of Reeve Chiropractic Clinic.  The judge=s Award states in pertinent part that

 

On August 28, 2001, an Order was served by the Court on Attorney Dean Adams, Counsel for the employee, Attorney Anne Kevlin, Counsel for the employer/insurer and Reeve Chiropractic Clinic.  The Order provided that a telephone hearing would be held on September 17, 2001 to address the Court=s concerns regarding the calculation of attorney fees and the outstanding claims of Reeve Chiropractic Clinic.

 

* * *

 

At the scheduled time for hearing on September 17, 2001, only Attorney Kevlin appeared and participated in the hearing.  The conference operator spoke with Dr. Reeve and was advised by the doctor he had no notice of the hearing and no time to participate in the conference.  No one answered the phone at Attorney Adams=s office.

 

* * *

 

IT IS FURTHER ORDERED that all claims for payment for services provided by the Reeve Chiropractic Clinic for treatment related to the work injury of April 12, 1999 to the date of this Order are denied and dismissed with prejudice.  Reeve Chiropractic shall not collect or attempt to collect outstanding charges for the period April 12, 1999 through the date of this Order from the employee, employer/insurer, third payer or governmental agency.

 

On September 25, 2001, counsel for the employee, Dean Adams, wrote to the compensation judge to request that she amend the Award and Dismissal to allow for the scheduling of a Parker/Lindberg hearing to address the unpaid chiropractic expenses of Reeve Chiropractic Clinic.  In his letter, Mr. Adams argued that it was the intent of the parties, as reflected in the Stipulation for Settlement, that, if the outstanding chiropractic expenses could not be resolved by agreement, Reeve be given an opportunity to pursue its claim at a hearing on the merits.  The compensation judge declined to amend her Order, and Reeve appeals.

 

STANDARD OF REVIEW

 

A[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).

 

DECISION

 

In her order of September 18, 2001, the compensation judge noted that the conference operator spoke with Dr. Reeve and was advised by the doctor that he had had no notice of the hearing.^[2]  The judge presumably dismissed Reeve=s potential interest based on the August 28, 2001, Order for Telephone Hearing, in which the judge ordered that, if Reeve failed to participate in the scheduled telephone hearing, Reeve=s potential intervention interest would be dismissed with prejudice.  The judge=s Order does not specifically state the grounds for the dismissal or that Reeve=s noncompliance with the August 28, 2001, order materially prejudiced the interests of the other parties.

 

On appeal, Reeve requests Aan opportunity to at least represent ourselves in a prepared manner at a time convenient to the courts.@  Reeve has expressed no objection to the Award on Stipulation.

 

The employer and insurer contend that the compensation judge was well within her discretion to dismiss the potential intervenor with prejudice.  They argue that Reeve did not comply in any way with the requirements of Minn. Stat. ' 176.361, despite being served with a Notice to Potential Intervenors on January 11, 2001.  Moreover, they argue, despite Reeve=s failure to comply with the statute, they went to great lengths to include Reeve in settlement negotiations, and again Reeve failed or refused to participate.  Reeve=s pattern of noncompliance, they argue, materially prejudiced the rights of the other parties to finalize a settlement.

 

We are mindful of the quandary for a compensation judge in attempting to afford reasonable protection to an unpaid medical provider who has not intervened in a proceeding.  Under the facts presented here, the judge scheduled a hearing to consider any objections Reeve might have had to the Stipulation and to schedule a hearing to resolve Reeve=s potential intervention interest.  We conclude, however, that the judge erred in dismissing Reeve=s interest with prejudice.  There is no indication in the documentary record before us that either the employee or the employer and insurer were requesting that Reeve=s interest be extinguished.  In fact, the parties in their Stipulation for Settlement specifically acknowledged Reeve=s outstanding bill^[3] and agreed to attend a separate hearing on the merits.  We acknowledge the authority of the compensation judge to dismiss the potential intervention interest of a medical provider who has been notified of its right to intervene in a pending workers= compensation matter but fails to respond.  See Burke v. Ben Franklin Elec., slip op. (W.C.C.A. Mar. 7, 1997).  In the present case, however, it was clearly the intent of the parties to allow Reeve to pursue its outstanding bill on the merits subject to the defenses of the employer and insurer.  Even if Reeve did receive notice of the Order for Telephone Hearing, the purpose of the hearing was to consider any objections Reeve had to the Stipulation and to schedule a hearing to resolve its potential intervention interest.  Contrary to the assertion of the employer and insurer, Reeve=s lack of participation, especially at the telephone hearing, did not materially prejudice the rights of the other parties to finalize a settlement.

 

Given all of the circumstances in this case, we conclude that the interests of all parties are best served by remanding the case to the compensation judge for a hearing on the claims of Reeve Chiropractic Clinic as they relate to the injuries claimed by the employee in this proceeding.  Accordingly, we vacate the compensation judge=s September 18, 2001, order dismissing with prejudice the interest of Reeve Chiropractic Clinic.  The caption of the case is hereby amended to name Reeve Chiropractic Clinic as a party intervenor.