The employer and insurer appeal from the compensation judge’s determination that the employee’s work injury represented a substantial contributing cause to his disability and need for medical treatment.  The intervenor cross-appeals from the compensation judge’s denial of its motion to intervene and order extinguishing the intervenor’s right to reimbursement.  We affirm in part and reverse in part.

Mr. James Polfliet, the employee, has worked for Northern Lights Distributing, the employer, and its predecessor company, for over 36 years.  During his tenure with the employer, he worked as a salesperson, which included driving a semi-trailer truck and selling, loading, and delivering food to restaurants and schools.  The employee sustained an admitted injury to both feet,^[1] and later developed a low back condition which required medical treatment.  The employer and its insurer, Selective Insurance Group, denied primary liability for the employee’s claimed low back injury.  The issues contested at the evidentiary hearing, and again on appeal, relate to the employee’s claims for wage loss benefits and medical expenses related to his low back condition, and to the claim by Wellmark Blue Cross Blue Shield of Iowa for reimbursement of medical expenses it paid through the employee’s health insurance policy.

By way of background, on September 24, 2003, while delivering an order to a convenience store, the employee stepped off the bumper on the back of his truck with his right leg, and inverted both ankles.  He testified that his right foot first caught the edge of a concrete slab on the ground, and his right foot rolled; the employee heard a “pop.”  He transferred his weight to his left leg; his left leg rolled and the employee heard another “pop.”  The employee fell on his left side onto the concrete slab, and felt severe pain in both feet and his right knee.  As he started to walk, he briefly lost consciousness.  According to the employee’s testimony, within a few minutes of his fall emergency ambulance personnel examined him and determined that “nothing visible was broken.”  The employee declined additional treatment because he needed to complete his deliveries.  He sat down to rest for ten or fifteen minutes, and then resumed his delivery route; he completed his route on the date of his injury, despite his symptoms.  The employee later reported to the employer that he injured his left ankle and foot, and right ankle, foot, knee and calf as a result of his injury.

The employee’s family physician, Dr. Paul Buhr, diagnosed torn ligaments in both feet, and advised the employee to “be careful” and not re-injure himself.  The employee continued his normal work activities but experienced ongoing pain in both feet and in his right knee.  In early 2001, at the suggestion of the insurer, the employee consulted a podiatrist, Dr. Mark Johnston, who diagnosed bilateral ankle sprains and plantar fasciitis and prescribed orthotics.  Due to ongoing pain, the employee returned for medical treatment in early 2005.  An MRI showed tenosynovitis of the flexor hallucis longus tendon and evidence of plantar fasciitis.  The employee underwent physical therapy and was provided custom orthotics for his shoes, but continued to experience bilateral foot pain.  By March 2006, Dr. Johnston determined that the employee had reached maximum medical improvement (MMI) from his injuries to his feet but referred the employee back to his treating physician, Dr. Buhr, expressing concern that the employee’s ongoing symptoms might reflect a low back condition.

Dr. Buhr reexamined the employee and referred him for an orthopedic consultation with Dr. Robert Heeter, who examined the employee in April 2006.  The employee reported pain in both feet and aching in his right knee and low back.  Dr. Heeter recommended diagnostic studies to rule out suspected peripheral neuropathy.  An MRI of the employee’s right knee was normal, although an MRI of the lumbar spine in July 2006 showed degenerative discs at L3-4, L4-5, and L5-S1.  An EMG of the lower extremities in September 2006 was interpreted to be negative.  Following conservative care, including a series of epidural steroid injections which provided minimal relief, Dr. Heeter concluede that the employee had neuritic foot pain secondary to recess stenosis and functional stenosis in the lumbar spine at the L4 and L5 segments, and that the employee would be a candidate for decompressive surgery.

On March 17, 2008, Dr. Mark Friedland conducted an independent medical examination of the employee.  He concluded that, at most, the employee had an “[o]bjectively resolved bilateral plantar fascial and flexor hallucis longus inflammation” as a result of his 2003 injury, but that such injury was temporary in nature.  He concluded that the employee had reached MMI with respect to his bilateral foot and ankle injuries as of at least March 3, 2006, consistent with Dr. Johnston’s opinion.  Dr. Friedland also concluded that the employee’s complaints of right knee pain were not objectively corroborated by physical examination or radiographic studies, and that the employee’s chronic multilevel lumbar degenerative disc disease was unrelated to his 2003 injury.  Dr. Friedland found it implausible that the employee had sustained either a direct or consequential injury to his low back or right knee due to his 2003 work injury “yet made no complaints with respect to these body areas until April 2006.”  In Dr. Friedland’s opinion, the employee’s low back symptoms for which he commenced treatment in April 2006 were related to his longstanding pre-existing lumbar degenerative disc disease and were “completely unrelated to his alleged work injury” in 2003.  He also concluded that the employee had no ratable permanent partial disability with respect to his low back condition.^[2]

Dr. Heeter referred the employee to Dr. Richard Salib for a surgical consultation.  Following additional diagnostic testing, including a transforaminal nerve root block, Dr. Salib diagnosed the employee’s condition as a disc bulge at L4-5 with compression of the L4 and L5 nerve roots, resulting in foraminal stenosis on the right at L4-5, and recommended surgery.  In June 2009, Dr. Salib performed surgery on the employee’s lumbar spine, which consisted of decompression of the L4-5 nerve root, medial laminotomy and facetectomy at the L4-5 level and interspinous decompression with the use of an X-Stop implant to stabilize the L4-5 segment.  The employee testified that he noted significant relief of his lower extremity symptoms following the surgery.  He returned to work within the month and continues to work for the employer, although he no longer drives a delivery truck.  According to the employee, his current job is physically lighter and easier for him to perform.

The employee had undergone treatment for low back symptoms before his September 2003 injury.  In 1978, he was hospitalized for 3 or 4 days for severe low back pain; x-rays taken at time showed degeneration of the lumbar spine with disc space narrowing at L5-S1 and loss of lumbar lordosis believed to be secondary to muscular spasm.  In 1982, the employee was examined for pain in his right gluteal region and right lower extremity after missing a step and falling out of a truck.  He was diagnosed as having a right SI joint strain.  In March 1987, the employee sought medical treatment for low back pain that had started two weeks earlier after je lifted a case of hamburgers.  He was diagnosed at that time with low back syndrome, and was prescribed pain medication, was advised to treat his pain with heat and the use of a stiff mattress, and to return to the clinic in 4 to 10 days if he was not well.  The medical records do not show that the employee received any further medical treatment following that incident.

The employee also sought occasional chiropractic care in 1987, and chiropractic and medical care in 1988 and 1999, reporting aching in his right lower extremity from the knee to the ankle and muscle spasms in his low back.  Between 1999 and 2003, however, the employee missed no time from work and sought no treatment for low back symptoms.

In December 2007, the employee filed a medical request for medical expenses incurred at Renville County Hospital and Ridgeview Medical Center, related to treatment for his low back condition.  He also filed a claim petition, amended in 2009 and 2010, seeking payment for 15% permanent partial disability to the body as a whole, temporary total disability benefits from June 3 through June 17, 2009, and additional medical expenses.  In their answer, the employer and insurer denied liability for the claim, asserting that the employee’s injury in 2003 was limited to a bilateral foot injury.  The claim petition and medical request were consolidated for a hearing.  The matter was postponed at least twice during the next two years, at the employee’s request, and ultimately was addressed at a hearing on May 26, 2010.

Due to the employer and insurer’s denial of primary liability for the employee’s low back condition, medical treatment for his low back was paid in part by his medical insurer, Wellmark Blue Cross Blue Shield of Iowa (BCBS).  During the pendency of the litigation, six medical providers filed for and were granted intervention status; each provider sought payment of its Spaeth^[3] balance remaining after deduction of payments made by BCBS.^[4]  At the hearing on May 26, therefore, the employee’s claims were addressed as were the intervention claims brought by the medical providers.  BCBS had not yet intervened by the time of the hearing, although counsel for the employee and the compensation judge discussed its potential intervention at the outset of the hearing.

The hearing record initially remained open post-hearing to allow the employer and insurer to submit an additional chart note from Dr. Salib.  On June 1, 2010, BCBS filed a motion to intervene, requesting reimbursement of its insurance payments totaling approximately $20,305; the compensation judge re-opened the record to allow submission of the motion into the hearing record.  The employer and insurer objected to the motion to intervene, on the grounds that the benefits provided were not reasonable, necessary, or causally related to a work injury, that the employee had claimed various out of pocket payments which duplicated payments issued by BCBS, and that the intervention claim was untimely filed.  The record was closed on June 14, 2010.  No separate decision was issued on BCBS’s motion for intervention.

In the compensation judge’s findings and order served and filed on August 12, 2010, the compensation judge found that the employee’s September 24, 2003, work injury significantly aggravated his pre-existing degenerative lumbar spine condition, and substantially contributed to his disability and need for medical treatment to his lumbar spine.  The compensation judge awarded the following payments to the employee:

The compensation judge denied the following claims:

The compensation judge also denied the intervention claim of BCBS in its entirety and extinguished its claim on the grounds that the intervention claim was untimely.  The judge concluded that BCBS failed to serve an application of motion to intervene within 60 days after it was served with a notice of a right to intervene, as required by Minn. Stat. § 176.361, subd. 2.

On August 17, 2010, counsel for BCBS submitted a letter to the compensation judge, requesting an amendment granting the motion to intervene and ordering reimbursement to BCBS.  No amended findings and order were issued.

The employer and insurer appeal from the award of benefits to the employee.  Wellmark Blue Cross Blue Shield of Iowa cross-appeals from the compensation judge’s denial of its motion to intervene and extinguishment of its claim.

The employer and insurer appeal from the compensation judge’s finding that the employee’s 2003 work injury was a substantial contributing cause of his low back condition and related disability from work and his need for medical treatment.  The employer and insurer contend that Dr. Salib, on whose opinion the compensation judge specifically relied, and Dr. Heeter, another treating physician, lacked foundation for their causation opinions.  They argue that both physicians failed to adequately explain how the employee’s 2003 injury aggravated his preexisting lumbar condition, that neither was aware of the employee’s previous history of low back symptoms and treatment, and that, specifically, Dr. Salib’s opinions were based on the employee’s reports that he had no low back symptoms before his 2003 injury.

In addition to their foundational objections, the employer and insurer argue that the employee’s pre-existing low back condition necessitated his post-injury treatment and surgery and argue that the opinion of Dr. Friedland supported their position that the employee’s work injury was not a substantial contributing cause of his ongoing low back condition and temporary total disability.

The compensation judge relied on the opinion of Dr. Salib in concluding that the employee’s work injury was a substantial cause of his low back condition, need for medical treatment and temporary total disability.  She specifically referred to the employee’s pre-existing low back condition and the treatment he had undergone before his work injury.  She also referred to the focus of the employee’s initial post-injury treatment being on his knee, ankle and foot symptoms, and that the employee’s physicians eventually evaluated his low back to determine whether his complaints instead were related to his lumbar spine condition.

From his deposition testimony, it is evident that Dr. Salib relied on the employee’s history that he had no previous low back problems.  It is unclear which of the employee’s previous medical records were reviewed by Dr. Salib; it appears that he did not rely on certain medical records documenting the medical treatment the employee had received for his low back before 2003.  Dr. Salib testified, however, that he had viewed certain records earlier provided to him, although he did not have a recollection of reviewing all enumerated records; that he had reviewed Dr. Heeter’s records and radiographic films; and that he acknowledged the possibility that the employee’s low back pain was related to his preexisting condition and not to his 2003 injury.  Dr. Salib also testified about the physical examination he conducted of the employee in October 2008 and about the employee’s reported symptoms since his 2003 injury.  Dr. Salib also explained that whereas the employee’s earlier symptoms had been intermittent and temporary, his symptoms following his 2003 injury had been continual, and for that reason he believed the 2003 injury exacerbated the employee’s preexisting low back condition and necessitated surgery.

To be of evidentiary value, an expert medical opinion must be based on adequate foundation.  Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988); Bode v. River Valley Truck Ctr., No. WC09-132 (W.C.C.A. Sept. 29, 2009).  The competence of a witness to render expert medical testimony depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter at issue.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).  Our review of Dr. Salib’s records shows that he initially examined the employee in October 2008 and continued his treatment through mid-2009.  Over the course of his treatment of the employee, Dr. Salib conducted physical examinations of the employee, obtained histories from him, reviewed the employee’s films from his x-rays and MRI scans of his lumbar spine, reviewed results from diagnostic testing, recommended conservative medical treatment, including epidural injections, and conducted surgery on his lumbar spine in April 2009.  As a general rule, this level of knowledge establishes a doctor’s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).  Dr. Salib had adequate foundation for his medical opinion.

The compensation judge took into account the opinion of Dr. Friedland, who had determined that there was no causal relationship between the employee 2003 work injury and his low back condition and medical treatment.  She found Dr. Salib’s opinion to be more persuasive on the issue of the cause of the employee’s low back condition.  While it is true there is evidence in the record, specifically Dr. Friedland’s opinion, to support the employer and insurer’s position, the issue for this court to determine is not whether the evidence will support alternative findings but whether substantial evidence supports the compensation judge’s findings.  On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1 (2010).  Where evidence conflicts or more than one inference can be drawn from the evidence, the judge’s findings are to be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  The judge's decision centered on her choice between the medical opinions; she found Dr. Salib’s opinion to be adequately founded, and adopted his opinion over that of Dr. Friedland.  Because Dr. Salib had adequate foundation for his medical opinion, we find no basis to reverse.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

Based on our review of the record as a whole, we conclude that substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work injury was a substantial contributing cause of his low back condition, temporary total disability in June 2009, and his need for medical treatment.  Accordingly, we affirm that finding.

The employer and insurer denied liability for the employee’s low back condition.  BCBS thereafter paid $20,304.98 to various medical providers for treatment provided to the employee for his low back condition.  At the hearing, the parties stipulated the medical treatment provided to the employee was reasonable and necessary to cure and relieve the employee from the effects of his low back condition.

BCBS filed a motion to intervene in this proceeding, but the compensation judge found the motion untimely under Minn. Stat. § 176.361, subd. 2.  The compensation judge’s order stated that the intervention claim of BCBS “is denied and shall be extinguished; BCBS of Iowa may not collect, or attempt to collect, the extinguished interest from the employee, employer, insurer, or any government program.”  (Order 3.)  BCBS appealed the compensation judge’s order extinguishing its reimbursement rights and the denial of its intervention motion.

Minn. Stat. § 176.361 governs the right of a health insurer or benefits plan to intervene in a workers’ compensation matter.  However, the right of a health carrier or benefits plan to reimbursement is governed by the relevant benefit plan or contract.  In this case, BCBS states its $20,304.98 in payments to medical providers was made pursuant to a self-funded plan governed by the Employee Retirement Income Security Act of 1974 (ERISA).^[5]  Attached to the brief of BCBS is a copy of a portion of its plan that provides,

At oral argument, BCBS conceded a compensation judge could, under appropriate circumstances, extinguish its right of reimbursement from an employer and insurer.^[6]  BCBS, however, contends that since ERISA governs its plan, a compensation judge cannot extinguish its reimbursement rights against the participant employee.  We agree.

The Employee Retirement Income Security Act of 1974 establishes uniform minimum standards governing most voluntarily established health plans to provide protection for the individuals in those plans.  ERISA contains a preemption provision which states that the act

In determining the rights and responsibilities of a self-funded employee benefits plan and its participants, the language of the plan is determinative.  The Minnesota Supreme Court has held that, consistent with Congress’s broad preemptive intent, ERISA preempts application of Minnesota subrogation law to a self-funded employee benefit plan when state law conflicts with the plan’s terms.  Riley ex rel. Swanson v. Herbes, 524 N.W.2d 523 (Minn. App. 1994) (citing Hunt by Hunt v. Sherman, 345 N.W.2d 750 (Minn. 1984)).

Subdivision 2 of Minn. Stat. § 176.361, provides, in part, that if a potential intervenor fails to file a timely motion to intervene, “the potential intervention 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.”  If applicable, the statute abrogates the contractual right of BCBS to obtain reimbursement from the employee.  The crucial question is whether such statutory abrogation of BCBS’s reimbursement claim against the employee is barred by ERISA.

An employer and insurer’s liability for payment of an employee’s medical expenses caused by work-related injury is governed exclusively by chapter 176.  An employee benefit plan or insurance company having made payment of medical and/or wage loss benefits to or on behalf of an employee, cannot file a petition for reimbursement in its own name.  Rather, the claim must be asserted by the employee and the employee benefits plan or insurance company may then intervene in the proceeding.  If the employee’s claim is compensable, the employee benefit plan or insurance company is entitled to reimbursement from the employer and its insurer.  Repo v. Capitol Elevator Co. 312 Minn. 363, 252 N.W.2d 248, 39 W.C.D. 414 (1977); see also Johnson v. Blue Cross and Blue Shield of Minn., 329 N.W.2d 49 (Minn. 1983).  BCBS acknowledges that, under certain circumstances, the compensation judge could deny BCBS’s reimbursement claim against the employer and its insurer.

With respect to the employee, however, the BCBS plan provides that if the employee receives benefits from the plan for an injury or condition for which workers’ compensation benefits are payable, BCBS is entitled to reimbursement from the employee for all benefits paid under the plan.  This is a contractual term between BCBS and the employee that is entirely independent of the employer and insurer’s obligation to pay, or the employee’s entitlement to receive, workers’ compensation benefits.  This contractual provision establishing BCBS’s right to obtain reimbursement from the employee is governed by ERISA, not chapter 176.  BCBS has a right to assert a reimbursement claim against the employee outside the workers’ compensation system.  Cf. Equitable Life Assurance Soc’y of U.S. v. Bachrach, 265 Minn. 83, 120 N.W.2d 327 (1963).  Minnesota cannot, by statute or case law, preempt this contractual right contained in an employee benefits plan governed by ERISA.  Cf. Riley, 524 N.W.2d at 527.  Accordingly, the compensation judge lacked jurisdiction to extinguish BCBS’s contractual right of reimbursement against the participant employee.

The employee’s attorney provided notice to BCBS of its right to intervene under Minn. Stat. § 176.361 on September 21, 2009.  The hearing before the compensation judge was held on May 26, 2010, at which time the compensation judge and counsel discussed the potential intervention claim of BCBS.  On June 1, 2010, BCBS filed a motion to intervene in the proceeding.  The compensation judge re-opened the record to allow submission of the intervention motion.  The employer and insurer filed an objection to the motion on June 14, 2010, following which the compensation judge closed the record.  In a Findings and Order filed August 12, 2010, the compensation judge found BCBS failed to timely intervene under Minn. Stat. § 176.361, subd. 2, and denied its claim.  On appeal, BCBS concedes its motion to intervene was untimely, but contends the compensation judge erred in failing to grant its motion to intervene where the employer and insurer suffered no prejudice.  We agree, and conclude that under the facts of this case, the compensation judge erred in denying the reimbursement claim of BCBS.

The employer is responsible for an injured employee’s medical care.  Minn. Stat. § 176.135.  Nonetheless, a health insurer or plan may initially pay an employee’s medical bills even though the plan or policy, as here, contains an exclusion of benefits for an injury covered by workers’ compensation.  Under the act, if a dispute exists as to whether the employee’s injury is compensable under chapter 176, and the employee is covered by a health insurance plan or policy, “that insurer or entity shall pay any medical costs incurred by the employee for the injury up to the limits of the applicable coverage. . . .  If the injury is subsequently determined to be compensable . . . the workers’ compensation insurer shall be ordered to reimburse the insurer or entity that made the payments for all payments made under this subdivision by the insurer or entity.”  Minn. Stat. § 176.191, subd. 3.  The policy behind the statute is two-fold: first, in order to ensure that the injured employee receives necessary treatment, the health carrier is required to pay the employee’s medical bills until liability for workers’ compensation benefits is established; and second, to ensure the burden of economic loss for work injuries is placed on the employer and its insurer, not on the health carrier.  Brooks v. A.M.F., Inc., 278 N.W.2d 310, 31 W.C.D. 521 (Minn. 1979); Johnson, 329 N.W.2d at 52.  The provisions of Minn. Stat. § 176.191, subd. 3, are mandatory: the health insurer shall pay the injured employee’s medical bills and then shall be reimbursed by the workers’ compensation carrier.

Minn. Stat. § 176.361, subd. 2, is equally mandatory: if a motion to intervene is not timely filed, the potential intervention interests shall be extinguished.  Even if the noncompliance with subdivision 2 causes no material prejudice to the interests of the other parties, a denial of the reimbursement claim is nonetheless mandatory.  Minn. Stat. § 176.361, subd. 7.^[7]

We cannot reconcile the language and purposes of Minn. Stat. § 176.191, subd. 3, with the limitations of Minn. Stat. § 176.361, subds. 2 and 7.  In this case, the strict application of Minn. Stat. § 176.361, subds. 2 and 7, will have two results: the employer and insurer will be absolved of any liability for the injured employee’s reasonable and necessary medical expenses and, second, if BCBS makes a claim, the employee will have to reimburse BCBS for its payments.  Each of these results offends the basic principle of the workers’ compensation act which is to place upon industry the burden of economic loss resulting from work injuries.

This is not a case in which the interest of BCBS was unknown to the parties.  Indeed, prior to the hearing, counsel discussed with the compensation judge the intervention interest of BCBS.  (T. at 7-8.)  Significantly, the employer and insurer stipulated at the hearing that the employee’s medical bills were reasonable and necessary to treat his low back condition.  Thus, the sole issue for trial was the employer’s liability for the employee’s low back injury and resulting benefits and the employee prevailed on this issue.  But for the strict application of Minn. Stat. § 176.361, subd. 2, the employer and insurer would be liable for the medical bills paid by BCBS.

The language of Minn. Stat. § 176.361, subd. 2, is clear that an untimely motion for intervention must be denied.  Similarly, subdivision 7 of the statute clearly states that prejudice is irrelevant to the issue of timeliness.  While we cannot disregard clear statutory language, we must also consider the clear language of Minn. Stat. § 176.191, subd. 3, and the purposes of that statute as set forth in Brooks and Johnson.  In determining legislative intent, it is presumed the legislature does not intend a result that is unreasonable.  Minn. Stat. § 645.17 (1).  The court shall construe statutes together if possible to harmonize and give effect to both provisions, even if they apparently conflict.  Minn. Stat. § 645.26, subd. 1.  We conclude that where prejudice or unjust enrichment occurs, the purposes and intent of chapter 176, in general, and the purposes and intent of Minn. Stat. § 176.191, specifically, must control over the essentially procedural provisions of Minn. Stat. § 176.361, subds. 2 and 7.  Where, as here, the employer and insurer are unjustly enriched with resulting prejudice to the employee and BCBS, we hold the compensation judge erred in denying the motion of BCBS to intervene.^[8]

At the hearing, the employer and insurer stipulated the medical treatment was reasonable and necessary to cure and relieve the effects of the employee’s low back condition.  Thus, the only issue for hearing was the liability of the employer and insurer for that condition.  We have affirmed the compensation judge’s finding that the employee’s work injury was a substantial cause of the employee’s need for medical treatment for his back.  Accordingly, there is now no dispute that the employer and insurer are liable for the medical expenses paid by BCBS.  The employer and insurer are ordered to reimburse BCBS for the medical expenses it paid.