Reich v. F&S Constr.

JOSEPH REICH, Employee/Appellant, v. F&S CONSTR. and EMPLOYERS INS. CO. OF WAUSAU, Employer-Insurer/Respondent, and ADVANTAGE COATING and AQUITY, Employer-Insurer, and ALLINA/PHILLIPS EYE INST., Intervenor.

PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS; STATUTES CONSTRUED - MINN. STAT. ' 176.151. Where the compensation judge expressly credited the employee=s testimony that the employer=s owner had assured him that the bills for treatment for his work injury would be paid, where the employee was justified in relying on the owner=s statements, and because other than for payment of his medical expenses the employee had had no reason to file a claim for benefits at the time of his work injury, the employer and insurer were estopped from pleading the statute of limitations as a defense, and the compensation judge erred in denying benefits based on the statute of limitations.

MEDICAL TREATMENT & EXPENSE; INTERVENORS. Where there was no dispute over the fact that the treatment at issue was reasonable and necessary and causally related to the work injury, and where the employee had made a direct claim for payment of the treatment expenses at issue, the compensation judge=s order denying payment of the treatment expenses at issue was reversed, notwithstanding the fact that several of the providers involved and one third party payor of the employee=s medical bills had not formally intervened in the case.

Attorneys: Carl J. Sommerer, Minneapolis, MN, for the Appellant. Sarah E. Groskreutz, Conley Law Office, St. Paul, MN, for the Respondent.

The employee appeals from the compensation judge=s determination that the employee=s claim for workers= compensation benefits relating to a work injury of December 17, 1986, is barred by the statute of limitations and from the judge=s implicit denial of medical expenses claimed by the employee. We reverse.

On December 17, 1986, Joseph Reich [the employee] sustained an injury to his left eye while working for F & S Construction [the employer], which was insured on that date by Employers Insurance of Wausau [Wausau]. The employee was nailing siding at a townhouse project when a nail flew up and struck him in the left eye. The employee evidently notified one of the owners of the employer, Peter Seamons, of his injury, and the following day he sought medical treatment at Park Nicollet Medical Center.

The employee was seen by Dr. A. E. Sadowsky, who obtained a history of the work injury and diagnosed a conjunctival laceration of the left eye and an inferior retinal dialysis. The employee was referred immediately to Dr. William Mestrezat, who performed a laser retinopexy. The employee lost only a day or two of work as a result of the injury and was able to return to his regular job duties with no limitations regarding his left eye. The left eye subsequently returned to 20/20 uncorrected vision, and the employee was not required to wear eyeglasses. The employee had no further problems with his left eye until 2001.

In late October 2001, the employee developed a partial loss of vision in his left eye, and on November 1, 2001, he sought medical attention at Mound Eye Clinic. He was immediately referred to the Phillips Eye Institute, where he came under the care of Dr. Sundeep Dev of Vitreo Retinal Surgery, P.A. On November 2, 2001, Dr. Dev diagnosed an inferior chronic traction retinal detachment of the left eye and performed a repair of the retinal detachment. Following this surgery, the employee continued to enjoy 20/20 vision in his left eye but now required a moderately strong eyeglass to achieve this acuity. As a result of his retinal detachment, the employee was out of work from November 2 through November 5, 2001, and able to work on only a light duty basis at reduced hours from November 6 through December 21, 2001.

The employee asserted a claim for workers= compensation benefits based on an alleged injury in January 2001 at employer Advantage Coating,^[1] and on July 31, 2002, the employee was examined for Advantage Coating and its insurer by ophthalmologist Dr. James Allen. In a report on that same date, Dr. Allen concluded that the employee=s retinal detachment diagnosed in November 2001 was related to and caused by the retinal dialysis diagnosed in 1986. He concluded also that, although the employee has no loss of visual acuity and no loss of ocular motility, he does have superior visual field loss resulting in a 5% impairment of the whole body.

In November 2002, the employee filed an amended claim petition also against the employer, and the employer arranged for the employee to be examined by neuro-ophthalmologist Dr. Howard Pomeranz on September 23, 2003. Dr. Pomeranz obtained a history, reviewed medical records, and performed a physical examination. In a report dated September 26, 2003, Dr. Pomeranz, like Dr. Allen, concluded that the employee=s injury of December 17, 1986, had been a substantial contributing factor to the employee=s inferior retinal detachment and subsequent need for surgery in November 2001. He pointed out that there is always a risk of a retinal detachment occurring after a retinal dialysis as undergone by the employee in 1986, which he concluded had been reasonable and necessary treatment causally related to the 1986 injury. Lastly, he agreed with Dr. Allen=s assessment of a 5% whole body permanent partial disability.

The employee=s claim for workers= compensation benefits came on for hearing before a compensation judge on January 14, 2004. Issues pertinent to this appeal included (1) whether the employee=s claim for workers= compensation benefits relating to the December 17, 1986, work injury was barred by the statute of limitations, (2) whether intervenor Phillips Eye Institute is entitled to payment, and (3) whether claims of third party payor MEDICA and other medical providers that did not intervene are entitled to payment or reimbursement.

In his testimony at trial, the employee testified that the day after his injury he had asked Mr. Seamons about who would pay for his medical treatment related to his left eye. He testified that Mr. Seamons told him not to worry and that it would be taken care of. The employee testified that he had assumed from Mr. Seamons= statement that either the employer or its workers= compensation insurer would pay for the medical treatment. He testified further that he had never received a billing for the 1986 medical treatment and made no payments himself. The employee testified further that, prior to trial, he had contacted the three owners of the employer, Peter Seamons, Lonnie Fisk, and Scott Fisk. He testified that Mr. Seamons had remembered the 1986 eye injury but had not remembered how the bill was paid, that Lonnie Fisk had had no recollection of the injury, and that Scott Fisk had remembered not only the injury but also that the employee=s related medical bill had been paid out of the employer=s checkbook. A representative from Wausau testified that the insurer had no documentation of the employee=s injury and had found, in checking with Park Nicollet Clinic, that the clinic did not retain billing records back to 1986.

In a findings and order issued January 20, 2004, the compensation judge found that the employee had sustained a work-related injury to his left eye on December 17, 1986, that he had given due and statutory notice of the injury to his employer, and that the medical treatment received by the employee beginning in November 2001 was reasonable and necessary to cure and relieve the employee from the effects of his eye problems. However, although the judge accepted as credible the employee=s testimony that Mr. Seamons told him in 1986 that his medical bills would be taken care of, that he did not receive a medical bill for his treatment, and that Scott Fisk remembered paying the bill out of the employer=s checkbook, the judge determined that such evidence was not sufficient to establish that a medical bill relating to the employee=s 1986 left eye injury was paid by the employer or insurer. The judge found that A[t]o conclude that such a bill was paid would be too speculative and would thwart the purposes of the legislative intent regarding the statute of limitations.@ Because, he concluded, there is insufficient reliable evidence of record to indicate that any benefits were ever paid to or on behalf of the employee, the claim was barred by the statute of limitations. He found further that, if the claim were ultimately held to be compensable, the Phillips Eye Institute, the only entity to intervene, and the employee, who had incurred out-of-pocket expenses, would be entitled to reimbursement for the reasonable fee schedule expenses claimed, implicitly determining that MEDICA and any other medical providers that did not intervene were not entitled to reimbursement under the fee schedule. The employee appeals.

Actions or Aproceedings by an injured employee to determine or recover compensation@ must be brought within Athree years after the employer has made written report of the injury to the commissioner of the Department of Labor and Industry, but not to exceed six years from the date of the accident.@ Minn. Stat. ' 176.151 (1). However, A[i]t is well settled that the payment by an employer of a worker=s hospital or medical bills constitutes a >proceeding= for the purposes of Minn. Stat. ' 176.151 (1).@ Anderson v. Stremel Bros. Mfg., 47 W.C.D. 99, 104 (W.C.C.A. 1992), citing Knopp v. Gutterman, 102 N.W.2d 689, 21 W.C.D. 195 (1960); Livgard v. Cornelius Co., 243 N.W.2d 309, 28 W.C.D. 413 (1976). Therefore, such payment effectively tolls the statute of limitations from barring a later claim petition. As stated by the supreme court, ATo permit an employer to make unreported payments of the type of benefits compensable under the Workers= Compensation Act and thereafter assert the statute of limitations when the employee files an untimely claim would be subversive of the purposes and objectives of the act.@ Weidemann v. Kemper Insurance Group, 312 Minn. 157, 161, 251 N.W.2d 117, 119-20, 29 W.C.D. 376, 379 (1977) (citations omitted).

In the present case, the compensation judge concluded that there was Ainsufficient reliable evidence of record@ to indicate that any benefits were ever paid to or on behalf of the employee during the six-year period following his work injury. At finding 16, the judge stated the following:

Because the employee did not receive a medical bill and that the employer in 1986 indicated that it would pay the bill or that after seventeen years a representative of the employer specifically remembered paying the bill out of the employer=s checkbook are not sufficient considerations to establish that a medical bill relating to the employee=s 1986 left eye injury was paid by the employer or insurer. To conclude that such a bill was paid would be too speculative and would thwart the purposes of the legislative intent regarding the statute of limitations.

The employee argues that the compensation judge imposed an improper burden of proof by apparently requiring direct and documentary evidence that the employer had in fact paid the 1986 medical expenses, rather than relying on inferences that may reasonably be drawn from the circumstantial evidence. In the alternative, the employee argues that, whether or not the employer actually paid the 1986 medical bill, the employee reasonably relied on the employer=s representation that it would pay the bill, thus estopping the employer and insurer from asserting a statute of limitations defense. Under the facts of this case, we agree that the statute of limitations should not bar the employee=s claim.

In this case, the compensation judge concluded that the employee injured his left eye on December 17, 1986, while working for the employer and that the employee gave due and statutory notice of his eye injury to his employer. The judge also accepted as credible the following testimony by the employee: that the employer acknowledged responsibility for the employee=s medical bills and told the employee those bills would be taken care of; that the employee did not receive a medical bill for his treatment in 1986 and did not pay for any of his treatment; and that one of the employer=s owners personally reported to him that he remembered paying a bill out of the employer=s checkbook. While a compensation judge is not required to speculate where the evidence is not sufficient to make a reasoned determination, Gilles v. S. B. Foot Tanning Co., slip op. (W.C.C.A. Dec. 3, 1992), we can only conclude, given the facts found by the judge, that the only inference reasonably to be drawn from the evidence in this case is that the employer paid the employee=s medical bill. Even if, as found by the judge, the reliability of the employer=s statements were insufficient to prove that the employee=s medical bill had actually been paid, we conclude that the employee justifiably relied on the employer=s representations, especially that his bills would be taken care of, so as to estop the employer from asserting a statute of limitations defense. AWhere an employer is >primarily responsible= for its employee=s failure to file a timely claim, the employer may be estopped from pleading the statutory time bar against its injured worker.@ Anderson, 47 W.C.D. at 105, citing Brochu v. United States Steel Corp., 307 Minn. 38, 237 N.W.2d 833, 28 W.C.D. 270 (1976); Neuberger v. Hennepin County Workhouse, 340 N.W.2d 330, 36 W.C.D. 348 (Minn. 1983). Accordingly, concluding that the employee was justified in relying on Mr. Seamon=s statement that his bills would be paid, and because other than for payment of his medical expenses the employee had no reason to file a claim for benefits in 1986, we conclude that the employer and insurer are estopped from pleading the statutory time bar of Minn. Stat. ' 176.151. Based upon the evidence and applicable law, we reverse the compensation judge=s finding that the employee=s claim to benefits based on a December 17, 1986, work injury is barred by the statute of limitations.

At finding 12, the compensation judge found that, beginning in November 2001, the employee underwent reasonable and necessary medical treatment to cure and relieve the effects of his 1986 eye injury. He also found that this reasonable and necessary treatment was provided by Vitreo Retinal Surgery, Phillips Eye Institute, and Mound Eye Clinic. The bills for this treatment were introduced as evidence by the employee. The judge found that only Phillips Eye Institute actually intervened in this matter, despite proper notices being sent to all providers as well as MEDICA. He concluded that, if the employee=s claim was held to be compensable, Phillips Eye Institute and the employee would be entitled to reimbursement for the reasonable fee schedule expenses claimed, implicitly denying other claims for payment for medical treatment by those who did not intervene. Citing Minn. Stat. ' 176.291, Hughes v. Edwards Mfg. Co., 61 W.C.D. 481 (W.C.C.A. 2001), and Adams v. DSR Sales, Inc., slip op. (W.C.C.A. Mar. 12, 2004), the employee asserts that he has a right to directly assert claims for payment of medical expenses and that all bills related to treatment for his left eye are entitled to coverage under the Workers= Compensation Act consistent with the medical fee schedule. We agree.

As noted in Adams, A[n]othing in the amended language [of Minn. Stat. ' 176.361] impairs the right of the employee to seek direct payment of medical expenses.@ The present case includes the claims of MEDICA, a third party payor, but we see no basis for distinguishing between those claims and the claims of a medical provider. No one disputes the judge=s finding on causation and the reasonableness and necessity of the medical treatment at issue. Therefore, as the employee made a direct claim for payment of medical expenses related to his work injury, and in that an injured employee is entitled to receive medical treatment that is reasonably required to cure and relieve the effects of his work injury, the judge=s order denying payment of medical expenses is reversed. To the extent that payments have been made by the employee, the employer and insurer should reimburse the employee; to the extent that medical bills remain unpaid or paid for by the health insurer, the employer and insurer should make appropriate payments according to the fee schedule.

^[1] This claim was still being asserted at the hearing below. The compensation judge determined that any 2001 injury was not a substantial contributing factor in the continuing disability at issue, and there was no appeal from that finding. Therefore we do not address that claim.