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].^[2]  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:

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:

Compensation Judge Bonovetz executed an award on stipulation on November 2, 2007, containing the following provision concerning Eveleth Chiropractic:

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,^[3] 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:

“[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:

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.”^[5]  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,^[6] and the award on stipulation expressly provided that a hearing would be set to address that claim.^[7]  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.^[8]  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.^[9]  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).