INTERVENORS. Upon intervention by a medical provider, an employee cannot assert a direct claim for benefits on behalf of that provider absent a demonstration that the employee or employee’s counsel is authorized to act on that provider’s behalf.
Compensation Judge: Rolf G. Hagen
Attorneys: Raymond R. Peterson, McCoy Peterson & Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent. Carrie I. Jacobson, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellant.
Reversed.
DAVID A. STOFFERAHN, Judge
The self-insured employer has appealed the order of the compensation judge directing payment to intervenors who did not make an appearance at the hearing. We reverse.
The employee, Julie Fischer, sustained a work injury to her left thumb on May 21, 2013. The employer and third-party insurer admitted liability for the injury and paid various workers’ compensation benefits.
The employee filed a claim petition in September 2015 that was heard by a compensation judge on February 26, 2016. A number of issues were presented at the hearing, including the employee’s claim for temporary total benefits, if and when the employee reached maximum medical improvement, the employee’s claimed entitlement to a rehabilitation consultation, reimbursement to the employee for out of pocket medical expenses, and the claims of intervenors.
The employee had incurred medical bills with Landmark Surgery Center and Summit Orthopedics. Some medical bills were paid by First Class Recoveries/Preferred One. Those providers were put on notice of their right to intervene by the employee’s attorney and each timely filed a motion/application to intervene. The employer and its claims administrator filed objections to each of the intervention claims. Under the standing order then in effect at the Office of Administrative Hearings, intervenors were allowed to file a “notice of intervenors election to appear by telephone at hearing.” Landmark Surgery Center and First Class Recoveries did so. No filing was made by Summit Orthopedics and there was no further action by Summit Orthopedics with regard to its intervention claim. At the hearing, neither Landmark Surgery Center nor First Class Recoveries made any appearance by telephone. The employee’s attorney asserted at the hearing that he was making a direct claim on behalf of the employee for the expenses incurred with the intervenors.
The compensation judge issued his Findings and Order on April 26, 2016. The findings relevant to this appeal are the findings that the employee asserted as a direct claim the interests of the intervenors (Finding 6) and the finding that the intervenors were entitled to payment from the employer and insurer (Finding 16). The employer and insurer have appealed these findings and the order to reimburse the intervenors (Order 3).
Our decision in this matter is controlled by the opinion of the supreme court in Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 75 W.C.D. 263 (Minn. 2015). In its opinion, the court considered Minn. Stat. § 176.361 and the obligation of intervenors to appear at hearings pursuant to the statute.[1] The court concluded that the intervention statute was unambiguous and required intervenors to attend all conferences and the hearing. Failure to appear resulted in a denial of the intervenors’ claims for reimbursement. Sumner, 865 N.W.2d at 710, 75 W.C.D. 269-270.
Subsequent to the Sumner decision, the Office of Administrative Hearings issued a standing order setting out procedures to be followed in appearances by intervenors. The standing order became effective on September 15, 2015, and was in effect during the litigation of this case.[2] Under the standing order, in the event of an objection being filed to a motion or application to intervene, the intervenor could appear by telephone after providing notice of intent to do so. It is undisputed that the three intervenors did not comply with the provisions of the standing order.
The question for this court is whether in that situation the employee was able to make a direct claim for the expenses that are the subject of an intervenor’s claim. Our conclusion is that the employee may not do so.
We considered this issue previously in Xayamongkhon v. ISD 625, No. WC15-5852 (W.C.C.A. Apr. 19, 2016). As we stated there, once a provider or other entity intervenes in a workers’ compensation case, it becomes a party. Although an intervenor’s claims may be inextricably connected with those of the employee, those claims belong to the intervenor, not the employee. If the employee’s attorney in that situation wishes to represent the claims of the intervenor, it must be unequivocally established at the hearing that the attorney represents not only the employee but also represents a separate party – the intervenor. No such claim was made by the employee’s attorney at the hearing in this matter.
We reverse the compensation judge’s decision on this issue and vacate the award of reimbursement to the intervenors.
[1] The pertinent section of the statute was changed effective August 1, 2016, but those changes have no bearing here.
[2] The standing order was superseded by amendments to Minn. Stat. § 176.361, effective August 1, 2016. 2016 Minn. Laws, Chap. 110, Art. 3, Secs. 6-12.