The employee appeals the compensation judge’s findings that the employee had recovered from her work injury by May 21, 2012; from the denial of temporary total disability benefits after February 11, 2012; from the failure to determine whether certain medical treatment was reasonable, necessary, and causally related to the work injury; and from the denial of reimbursement to intervenors.  North Memorial Healthcare and Mercy Hospital cross-appeal from the denial of their claims for reimbursement.  We affirm in part, reverse in part, vacate in part, and remand in part.

On January 28, 2012, Yer Sumner, the employee, was working as an internet sales director of automotive sales for Jim Lupient Infiniti, the employer, which was insured for workers’ compensation liability by SFM Risk Solutions.  The employee claimed that she slipped and fell that day around noon while working on the employer’s outdoor premises, striking her head, left elbow, and back.  The employer and insurer denied primary liability, arguing that the employee had already told co-workers during an early morning conversation that she had fallen, hitting her head and injuring her elbow.  One co-worker testified that the employee did not mention the location of the fall or whether the fall had resulted in injury.

The employee reported the incident to her supervisor and continued working.  Later that afternoon, she left work to seek treatment at West Health Urgent Care for pain, dizziness, and confusion.  The employee had difficulty answering basic questions or associating words; therefore, she was transferred by ambulance to North Memorial emergency department for further evaluation.  The employee reported cognitive difficulty, headache, and neck pain.  An EKG was taken to rule out cardiac problems.  CT scans of the employee’s head, of her chest, spine, and pelvis, and of her cervical spine were normal with no evidence of trauma; a chest x-ray was also normal.  The employee was discharged to home with a plan to follow up for further cardiac evaluation.

On January 30, 2012, the employee sought treatment at the Mercy Hospital emergency department for chest pain and headache, and was diagnosed with post-concussive syndrome.  A head CT scan taken that day indicated no acute intracranial process and no fractures, and the employee was discharged the same day.  On February 1, 2012, the employee returned to the same emergency department.  An MRI scan of the brain was unremarkable, and the employee was discharged that day.

On February 7, 2012, the employee treated with her primary care doctor, Dr. David Bachman at Fairview Andover Clinic, reporting neck and chest pain, and headache.  Dr. Bachman diagnosed concussion, prescribed medication, and referred the employee for chiropractic treatment.  Chiropractic treatment began on February 15, 2012, at the M.A.I. Spine Center.  The employee was also treated with acupuncture.  Dr. Bachman referred the employee to Dr. Junger Tang at the Minneapolis Clinic of Neurology.  Dr. Tang evaluated the employee on February 23, 2012.  Dr. Tang diagnosed post-concussion syndrome, paresthesias, and post-traumatic headaches, and referred the employee for a repeat MRI of her head.

The employee underwent a rehabilitation consultation with QRC-intern Julie Mosny (QRC) on February 23, 2012.  The QRC noted that the employee had restrictions that prevented her from returning to work for the employer and found that the employee was eligible for rehabilitation services.  The QRC withdrew from the employee’s case on May 30, 2012, after the employer and insurer denied liability.  At that time, the QRC noted that the employee continued to be employed by the employer, but that she was not released to work by Dr. Bachman.

At a March 1, 2012, follow-up appointment with Dr. Bachman, the employee was diagnosed with post-concussion syndrome, disturbance of skin sensation, post-traumatic headache, unspecified, and TMJ.  The employee remained off work at Dr. Bachman’s direction.  On March 3, 2012, the employee sought treatment at HealthEast St. John’s Hospital emergency department for headache and chest pain.  A head CT scan indicated no evidence of acute intracranial process.  The repeat head MRI was performed on March 17, 2012, and was read as normal and unchanged from her February 1, 2012, head MRI.  A hearing evaluation and an eye examination were normal.

On March 7, 2012, the employee sought treatment at Mercy Hospital emergency department for headache and chest pain.  An EKG was read as normal and the employee was discharged that day.  On April 9, 2012, the employee was treated at Mercy Hospital emergency department for neck pain.

Dr. Bachman referred the employee to Medical Advanced Pain Specialists for evaluation and treatment in April 2012.  The employee was prescribed medication and referred for physical therapy and a behavioral evaluation.  During the physical therapy program, the employee was instructed in the use of a cervical traction unit.

On May 21, 2012, the employee underwent an independent medical evaluation with Dr. James Allen.  In the written evaluation, Dr. Allen diagnosed a mild concussion, soft tissue strain, contusion of the torso and cervical/trapezius region, and whiplash-type involvement of her cervical/trapezius musculature.  Dr. Allen was of the opinion that the employee’s initial medical care and diagnostic imaging studies were reasonable and necessary.  He also noted that all of her objective clinical neurological findings and her CT and MRI scans of her brain and neck were normal.  Dr. Allen further stated that the employee had improved, but seemed to have some post-concussion syndrome.  He opined that “it would have been reasonable for her to be totally disabled for perhaps two weeks from the time of the injury followed by a gradual return to full-time work, starting at half days.”^[1]  Dr. Allen indicated that the employee was not at maximum medical improvement, which he anticipated would be at about six months from the time of injury.  He recommended a gradual return to work, a cervical traction unit, and treatment in a MedX program.

Dr. Bachman referred the employee for a neurological evaluation; a neuropsychological consultation was ordered before the evaluation.  On May 29, 2012, the employee underwent a neuropsychological consultation with Dr. Megan Adams-Rieck at Bethesda Hospital.  Dr. Adams-Rieck diagnosed mild traumatic brain injury, resolved, and conversion disorder.  She opined that the employee’s intense and unusual symptoms were not typically related to concussion, that these symptoms and her increase in anxiety, tearfulness, and overall emotional distress were not direct consequences of her concussion, and that her presentation suggested conversion disorder.  After the consultation, the employee underwent a neurological evaluation by Dr. Peter Boardman on June 25, 2012, at Bethesda.  Dr. Boardman reported normal examination findings and opined that the employee had sustained a mild concussion, but that “[h]er quite dramatic symptoms since then indicate some additional psychological factors.”^[2]

In June 2012, the employee began receiving rehabilitation services at the Department of Labor & Industry/Vocational Rehabilitation Unit.  At that time, the employee was still employed by the employer.            In July 2012, Dr. Bachman released the employee to return to work two hours per day, slowly increasing each week if tolerated, with a ten-pound lifting restriction.  In August 2012, he modified the restrictions to four hours per day with a 15 pound lifting restriction.  QRC Michael Haire contacted the employer to determine if they could accommodate these restrictions.  The employee also began a job search.  In September 2012, the employee told the QRC she had contacted the employer about her return to work options with her restrictions, but she had not received a call back from the employer.

On January 30, 2013, Dr. Bachman released the employee to full-time work with a 35-pound lifting restriction.  In February 2013, he changed the lifting restriction to 45 pounds, and noted that this restriction could be removed the next month.  He concluded that the employee had an acute distress disorder and anxiety state, that she suffered a concussion, pain in the left elbow, headache, neck pain, and post-traumatic stress disorder, and that her cervical, thoracic, and lumbar soft-tissue injuries, headache, and closed head injury were all related to her January 2012 fall.

Dr. Allen, the independent medical examiner, wrote a supplemental report in October 2012 stating that the employee did not require any additional medical treatment or work restrictions and that she did not sustain any permanent partial disability.  He also stated that his opinions in his earlier report remained the same.  He wrote an additional supplemental report in April 2013 where he disagreed with Dr. Bachman’s lifting restrictions and with the diagnosis of anxiety and post-traumatic stress disorder.  He did not express an opinion about Dr. Bachman’s restrictions on the number of hours the employee could work per day.

The employee filed a claim petition seeking temporary total disability benefits and payment of medical expenses.  The employer and insurer answered denying liability. The parties notified all potential intervenors of the claim.  Eleven payers and providers submitted motions to intervene, most attaching billing records to their motions.  The employer and insurer filed objections to all but two of the intervention motions, those of McCarron-Lake Chiropractic and Rehab Results, LLC.  The objections admitted that the intervenors were proper parties to the claim, but denied that the treatment charges were reasonable, necessary, or causally related to the claimed work injury.  They further asserted the defense that any claim for medical reimbursement was limited to amounts payable under the fee schedule.^[3]

The hearing in this matter was held on September 10, 2013.  All intervenors had been served with the hearing notice.  No representative of any intervenor attended the hearing.

The compensation judge found that the employee was temporarily totally disabled from January 28 through February 11, 2012, and awarded temporary total disability benefits for this period.  The judge found that the employee had fully recovered from her work injury without the need for work restrictions or further treatment and with no residual disability by May 21, 2012.   Holding that none of the intervenors’ rights to reimbursement were otherwise established prior to the hearing, the judge denied all intervenors’ claims for reimbursement due to their failure to personally attend the hearing.

The employee appeals the compensation judge’s finding that the employee had recovered from her injury by May 21, 2012, from the denial of temporary total disability benefits after February 11, 2012, and from the denial of reimbursement to all intervenors.  Two intervenors, North Memorial Health Care and Mercy Hospital, cross-appeal the compensation judge’s denial of their claims for reimbursement.

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.^[4]  Substantial evidence supports the findings if, in the context of the entire record, they are supported by evidence that a reasonable mind might accept as adequate.^[5]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.^[6]  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”^[7]

The compensation judge found that the employee had recovered from the effects of the work-related injury without the need for work restrictions or further medical treatment and with no residual disability by May 21, 2012.  The date is the day of the employee’s independent medical examination with Dr. Allen.  The judge noted in his memorandum that he accepted Dr. Allen’s opinion that the employee’s injuries were not permanent and had resolved shortly after the work injury, citing his findings regarding Dr. Allen’s reports.  The judge specifically stated that Dr. Allen’s opinion was “best aligned with the credible and persuasive evidence as a whole.”^[8]  We note that Dr. Allen stated that the employee did not require any further medical treatment or work restrictions and did not have any permanent partial disability in his October 2012 report.  However, after the May 21, 2012, examination, Dr. Allen opined that the employee was not at maximum medical improvement and projected she would be at MMI about six months from the time of injury.  He recommended a gradual return to work and further medical treatment at that time.  While the compensation judge cites other medical records in his memorandum regarding the employee’s normal findings, the references by the compensation judge to Dr. Allen’s opinion and to the judge’s findings are inconsistent with the entire record.  For that reason, the basis for the judge’s finding that the employee was fully recovered by May 21, 2012, is not clear, and we cannot conclude that substantial evidence supports the judge’s finding on this issue.  We therefore vacate the compensation judge’s finding regarding the date of the employee’s recovery from the work injury, and remand for redetermination.

The employee argues that substantial evidence does not support the compensation judge’s finding that the employee was temporarily totally disabled from January 28 through February 11, 2012, claiming that she was entitled to temporary total disability benefits through October 30, 2012.  To establish entitlement to temporary total disability benefits, the employee must prove the work injury contributes to the inability to work or to find employment.  The employee must be subject to physical restrictions related to the work injury to be entitled to temporary total disability benefits.^[9]

The compensation judge relied on Dr. Allen’s report that she was totally disabled for two weeks after the injury.  The judge rejected Dr. Bachman’s opinion on restrictions, specifically stating that he agreed with Dr. Allen that Dr. Bachman’s restrictions were “arbitrary” and without “objective or scientific basis.”^[10]  We note, however, that Dr. Allen only addressed the lifting restrictions, not the restrictions on the number of hours worked per day, and by contrast, that he had recommended a gradual return to work.  In addition, the compensation judge did not consider whether the employer would accommodate any hourly restrictions or a gradual return to work.  As a result, we cannot conclude that substantial evidence supports the compensation judge’s ultimate finding that the employee was not entitled to temporary total disability benefits any time after February 11, 2012.  We therefore vacate the compensation judge’s denial of temporary total disability benefits after February 11, 2012, and remand for reconsideration of the employee’s work restrictions and ability to work after that date.

An intervenor is any person or entity which has an interest in an existing claim such that the person or entity may either gain or lose by an order or decision.^[11]  While a provider or insurer has the right of reimbursement, it has no right to initiate a petition for reimbursement, but can only intervene in an employee’s claim.^[12]  Public policy favors this relatively passive role for an intervenor in workers’ compensation litigation so that “the burden of economic loss in work-related injuries is . . . put on industry, not the health insurer; and so that the injured employee does not suffer while primary liability is being disputed, health carriers are expected to pay the bills until workers’ compensation coverage is established.”^[13]  This policy must, however, be balanced against the need for a sufficient degree of participation by intervenors to ensure that the reimbursement issues are fairly and finally determined at the hearing.

The rights and obligations of an intervenor are set out in Minn. Stat. § 176.361^[14] and Minn. R. 1415.1100^[15] and 1415.1250.^[16]  These statutes and rules set forth as a general requirement that an intervenor must personally attend all scheduled administrative conferences and hearings in the matter unless the intervenor’s interests are “otherwise established.”  Minn. Stat. § 176.361 allows only limited exceptions to the personal attendance requirement, most notably giving the compensation judge discretion to waive personal attendance by an intervenor at a proceeding.

In the present case, after none of the intervenors attended the hearing, and where none had been excused from the requirement, the compensation judge ordered all of the intervenors’ claims for reimbursement denied based on the provisions of the statute and rule.  On appeal, the employee and the cross-appellants contend that the compensation judge erred in applying the sanction provided by Minn. Stat. § 176.361, subd. 4, arguing that personal attendance at the hearing was not required and that they made a sufficient appearance in the case to meet their obligations under statute and rule.  They argue, first, that our interpretation of the provisions of Minn. Stat. § 176.361 and Minn. R. 1415.1100 must be guided by Rule 5.01 of the Minnesota Civil Rules of Procedure, which states that a party “appears when that party serves or files any document in the proceeding.”  We note, first, that the rules of civil procedure are not directly applicable to workers’ compensation proceedings.^[17]  We note further that the plain language of Minn. Stat. § 176.361, subd. 4, states:

The employee and the cross-appellants next contend that this court previously held that the requirement that an intervenor personally attend hearings was met by the initial filing of the petition for intervention, citing Carlino v. Peterson Construction.^[18]  We do not interpret the holding in Carlino quite so broadly.  However, we do agree that the Carlino holding is applicable to some, but not all, of the intervenors in the present case.  In Carlino, the employer and insurer argued that the compensation judge erred by awarding reimbursement of the claims of intervenors that had not attended the hearing, citing Minn. Stat. § 176.361, subds. 4 and 6.  Noting that the intervenors had attached documentation to their intervention applications which was sufficient to establish their claims, and that no objection had been made to the intervention petitions, we rejected that argument, holding that the intervenors’ failure to attend the hearing had under those facts waived only the right to submit additional evidence, examine witnesses, and make arguments.  In essence, we held that for these intervenors, the intervention claims were “otherwise established” so that they fell within an exception to the statute and rule requiring personal attendance.

In the present case, no objections were filed with respect to the intervention applications of intervenors McCarron-Lake Chiropractic and Rehab Results, and both intervenors had attached sufficient documentation to their applications to establish their claims.  Pursuant to our holding in Carlino, these intervenors were not subject to the personal attendance requirement of the statute and rule or to its sanction for failure to do so.  We therefore reverse the compensation judge’s order disallowing any potential reimbursement to these two intervenors as a result of their failure to attend the hearing.

However, since timely objections were filed to the remaining intervenors’ motions to intervene, the holding in Carlino does not apply to them.  For those intervenors, a right to reimbursement was not “deemed established,” for the purpose of the exceptions to personal attendance provided by the statute and rule.^[19]  With respect to these intervention claims, the accuracy of the amounts paid on behalf of the employee in the intervention statements and the reasonableness, necessity, and causal relationship between the treatment or payments and the work injury remained at issue for hearing.

The statutes and rules, taken together, clearly state that unless an intervenor’s right to reimbursement has “otherwise been established,” the intervenor can obtain a waiver of the requirement that the intervenor personally attend the hearing only from and at the discretion of the compensation judge, who can assess from the status of the issues in the case and the parties’ positions whether an intervenor’s presence at the hearing is necessary for the full and fair litigation of the issues.^[20]  In this case, there is nothing in the record to indicate that the judge had waived the personal attendance requirement for any of the intervenors.  Accordingly, the compensation judge had authority to deny these intervenors’ right to reimbursement as a result of the failure to personally attend the hearing.  We therefore affirm the compensation judge’s denial of reimbursement for the remaining intervenors in this case.

The compensation judge denied the claims of the intervenors and ordered the intervenors not to collect or to attempt to collect “the denied interests from the employee, employer, insurer/administrator or any government program.”^[21]  The judge determined this pursuant to Minn. Stat. § 176.361, subd. 4.  However, not all of the claims appear to be causally related or reasonable and necessary.  The compensation judge failed to reach the issues of the causal relationship, reasonableness, and necessity of the medical treatment rendered in this case, apparently under the impression that these issues no longer required determination where reimbursement to the intervenors was being denied as a result of their non-attendance at the hearing.  Our reversal of the denial of potential reimbursement to intervenors McCarron-Lake Chiropractic and Rehab Results does not resolve the question of whether the treatment rendered by these providers was reasonable, necessary, or causally related to the work injury, all being necessary prerequisites to any award of reimbursement.  However, since all medical treatment remains at issue under the employee’s claim petition, the compensation judge should not limit consideration of these issues only to treatment rendered by those intervenors, but must determine the reasonableness, necessity, and causal relationship of the medical treatment provided by all of the medical providers, even where we have affirmed the order denying reimbursement to those intervenors.  These issues formed part of the employee’s case in chief, raised by the employee in her claim petition and at hearing, and were not necessarily rendered moot by the imposition of a sanction on the merely derivative reimbursement claims of the intervenors.  Medical records and other evidence submitted by the employee at hearing seem to be sufficient for the judge to make findings on these issues.  We have remanded this matter to the judge above on other issues.  We also remand for determination of which medical expenses are reasonable, necessary, and causally related to the employee’s work injury.

I concur and join the majority with regard to both the extent of the injury and the temporary total disability benefit claims.

I respectfully dissent on the issue of whether an intervenor’s claim for reimbursement may be extinguished for failing to personally appear at all conferences and hearings in a worker’s compensation case.  I would reverse and remand on this issue.

The majority has interpreted Minn. Stat. §176.361 in a manner which is contrary to many years of past practice, contrary to accepted practices in other areas of the law,^[22] and which imposes an unduly harsh sanction (loss of entire claim for reimbursement) for relatively minor procedural missteps.

This court has two possible interpretations of the statutory and rule provisions governing intervenor participation in worker’s compensation litigation.  The first, and the most consistent with current practice, is to read the language of Minn. Stat. §176.361 as requiring intervenors to “appear” by filing their intervention documents after due notice, and then “attend” by being available for settlement discussions during a scheduled proceeding, whether they choose to appear in-person or simply be available by telephone at that time.  Under this statutory interpretation, the rules requiring personal appearance at every proceeding would be invalid as exceeding the scope of the statute because they create additional procedural obligations with unduly harsh sanctions for noncompliance.  It is inconceivable to me that the legislature intended to allow the extinguishment of an intervenor’s entire claim as a sanction for a procedural misstep.  Rather, the sanction of extinguishment should only be available where the intervenor’s failure to participate results in substantial prejudice to the other parties (i.e., a settlement has been reached and the intervenor is not available or responsive to offers, or where, after due notice, the intervenor fails to intervene and the case results in a final order).  Where the intervenor, after filing intervention documents, chooses not to further participate or otherwise fails to participate in a litigation process resulting in a final decision, the sanction is simply that it would have to accept the court’s decision on the merits.

The second interpretation, adopted by the majority, is to interpret the statute and rule to require personal appearance by all intervenors at every settlement conference, pretrial conference, and hearing in every case, unless they get permission from the trial judge to appear by telephone,^[23] or risk having their entire claim denied on procedural grounds.  The majority is correct that public policy favors a passive role for intervenors in this system.  However requiring a more active level of participation and personal appearance by intervenors will not only add significant cost and complexity to ancillary and often small claims for reimbursement, it will also add cost and complexity to the administration of worker’s compensation claims.

The majority justifies the additional complexity as necessary to ensure sufficient participation by the intervenors.  However, sufficient participation by intervenors is already satisfied by requiring them to be available by telephone at the time of a proceeding in order to expedite settlement negotiations should they occur.  The interpretation adopted by the majority requires both a higher level of participation than necessary and imposes severe sanctions for procedural errors.  A more reasonable approach would be to interpret the statute to impose the sanction of extinguishment only where the failure to participate resulted in substantial prejudice to the other parties.  An intervenor’s decisions concerning submission of evidence, questioning of witnesses, or personal appearance are strategic judgments that it is entitled to make in litigating its case.  Misjudgments in this regard may adversely affect the final decision on the merits, but such misjudgments should not result in a denial of a claim on procedural grounds alone.

Finally, disputes should be decided on their merits whenever possible.  Accordingly, I believe the statutory requirement of “appearance” should be satisfied by the filing of a petition to intervene, and the statutory requirement of “attend” should be viewed simply as a guarantee that the intervenor will be available for settlement negotiations should they occur during a scheduled proceeding.  The intervenor should be entitled to have its claim decided on the merits, despite lack of personal appearance, so long as there is no substantial prejudice to the rights of other parties.