DAVID T. ADAMS, Employee, v. DSR SALES, INC., and MILWAUKEE INS. GROUP/UNITRIN, Employer-Insurer/Appellants, and RADIOLOGICAL ASS=N OF DULUTH, Intervenor.

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 12, 2004

HEADNOTES

INTERVENORS - MEDICAL PROVIDERS; PRACTICE AND PROCEDURE.  Where the employee had filed a claim for medical expenses and where there was no showing of material prejudice to the parties, the compensation judge did not err in awarding payment to non-intervening healthcare providers.

Affirmed.

Determined en banc

Compensation Judge: Gregory A. Bonovetz

Attorneys: Daniel A. Lively, Attorney at Law, Bloomington, MN, for the Appellants.  David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent.

OPINION

DAVID A. STOFFERAHN, Judge

The employer and insurer appeal from the compensation judge=s award of payment to health care providers who did not intervene.  We affirm.

BACKGROUND

On June 23, 2002, the employee, David Adams, was injured in a motor vehicle accident near Hill City, South Dakota.  While admitting the occurrence of the accident, it was the position of the employer, DSR Sales Inc., and its insurer, Milwaukee Insurance Group/Unitrin, that the employee=s personal injury did not arise out of and in the course and scope of his employment.

The employee filed a claim petition on January 2, 2003, alleging entitlement to various benefits, including medical expenses, for an injury to the right leg sustained on June 23, 2002.  The employer and insurer filed its answer, denying liability for the employee=s injury.  On March 3, 2003, the employee=s attorney sent letters to a number of health care providers, advising them of their right to intervene in the pending claim pursuant to Minn. Stat. ' 176.361.  Only one health care provider, Radiological Associates of Duluth, intervened.  On June 3, 2003, the employee filed an amended claim petition which provided an itemization of medical bills and identified 15 providers with outstanding bills totaling over $35,000.  From the names of the providers, some would appear to be located in South Dakota and others in Minnesota.

The employee=s claim petition was heard by Compensation Judge Gregory Bonovetz on September 3, 2003.  No health care provider, including the intervenor, appeared at the hearing.  The employer and insurer argued at the hearing that the non-intervening health care providers were not entitled to payment of their benefits because of their failure to intervene, citing to Minn. Stat. ' 176.361, as amended in 2002.  In his Findings and Order of September 5, 2003, the compensation judge determined that the employee=s personal injury arose out of and in the course and scope of his employment.  The compensation judge also determined that the employer and insurer were obligated to pay outstanding medical bills which were related to the employee=s injury and which were reasonable and necessary treatment for that injury.  The employer and insurer appeal only from the determination regarding medical bills.

DECISION

An injured employee is entitled to receive medical treatment which is reasonably required to cure and relieve from the effects of the injury.  Minn. Stat. ' 176.135, subd. 1.  In the event of a dispute over the responsibility for that treatment, this court has previously held that under Minn. Stat. ' 176.291 the employee has the right to assert directly any claims for medical expenses.  Hughes v. Edwards Mfg. Co., 61 W.C.D. 481 (W.C.C.A. 2001).  In that case, the employer and insurer argued that even though the employee had filed a claim for medical expenses, the medical providers had an obligation to intervene and their failure to do so should result in being barred from reimbursement.  This court decided that, under Minn. Stat. ' 176.361, subd. 7, material prejudice to the parties would have to be shown for the claim for reimbursement to be denied.^[1] 

The employer and insurer in the present case argue that the result in Hughes has been changed by the 2002 amendment to Minn. Stat. ' 176.361.  The phrase, AExcept as provided in subdivisions 2 and 4,@ was added to subdivision 7 and the following language was added to subdivision 2:

AWhere 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.@

The employer and insurer contend that the statute now requires a medical provider to intervene, regardless of whether or not the employee has asserted a direct claim for payment of the providers bill.  We disagree. 

Nothing in the amended language impairs the right of the employee to seek direct payment of medical expenses.  If unpaid, medical expenses remain the obligation of the employee. The employee asserts the claim for payment of medical expenses under Minn. Stat. ' 176.135, subd. 1, just as the employee asserts a claim for wage loss benefits.  AThe employee=s claim and the health care provider=s claim is the same - that is, entitlement to payment of the medical or chiropractic bills incurred by the employee - and in the usual case, a provider relies on the employee and the employee=s attorney to pursue payment of the claim.  In such a situation, there is normally little or no need for a separate intervention by the healthcare provider.@  Stoia v. Seagate Technology, 52 W.C.D. 417, 424 (W.C.C.A. 1995).  The employee=s attorney in the present case made a claim for medical expenses on behalf of his client.  No argument is advanced as to why a separate intervention by a medical provider in this case is still needed.

In the present case, there was no argument by the employer and insurer that they were materially prejudiced by the failure of the medical providers to intervene in the proceeding.  We conclude that the medical providers in this case are not barred from payment when the employee made a direct claim for payment of medical expenses.  The compensation judge=s order allowing reimbursement to the healthcare providers is affirmed.