LINDA XAYAMONGKHON, Employee/Cross-Appellant, v. ISD 625, SELF-INSURED/CCMSI, Employer/Appellant, and NORAN NEUROLOGICAL CLINIC, PHYSICIANS NECK AND BACK CTRS., and MOE BODYWORKS, Intervenors.

The self-insured employer appeals from the compensation judge’s decision ordering payment of the bill for chiropractic services at Moe Bodyworks.  The employer claims the bill should be denied based on the intervening provider’s failure to appear at the hearing.  We reverse.

Linda Xayamongkhon sustained an injury in the course of her employment for the St. Paul Public Schools when she was in a motor vehicle accident on December 4, 2013.  The next day, the employee sought treatment for headaches, neck pain and low back pain with a chiropractor at Moe Bodyworks.  The employee treated with a doctor there over the next six months.  The employee was subsequently referred for treatment at the Noran Neurological Clinic and was also referred to Physicians Neck and Back Care.

At the request of the employer, a chiropractic record review of the employee’s treatment at Moe Bodyworks was performed by chiropractor Crystal Pfisterer in April 2014.  Dr. Pfisterer concluded that the treatment provided at Moe Bodyworks was not providing significant relief for the employee.  She also stated that proper billing codes were not being used.  The employer denied payment of bills from Moe Bodyworks and subsequently denied payment of expenses at Noran Neurological Clinic and Physicians Neck and Back Care.

The employee filed medical requests in April 2014 and February 2015, seeking payment of the bills for Moe Bodyworks, Noran Neurological Clinic, and Physicians Neck and Back Care.  All three providers were put on notice of their right to intervene and all three providers filed motions to intervene.  The employer filed objections to the motions to intervene.

A hearing was held on the employee’s medical requests before a compensation judge on June 15, 2015.  By the time of the hearing, the claims of Noran Neurological Clinic and Physicians Neck and Back Clinic had been resolved.  The issues at the hearing were whether the treatment at Moe Bodyworks was reasonable, necessary, and causally related to the work injury and whether a departure from the treatment parameters was warranted.  No representative from Moe Bodyworks appeared at the hearing.  The employer’s attorney argued at the hearing that the bill at Moe Bodyworks should be denied based on their failure to appear.

The compensation judge issued her findings and order on July 14, 2015, and ordered payment of the bill at Moe Bodyworks from December 5, 2013, through February 27, 2014.  The employer appealed the compensation judge’s order for payment.  The employee filed a cross appeal on the compensation judge’s denial of bills incurred after February 27, 2014.

The employer’s appeal raises the issue of an intervenor’s obligation to appear at a hearing when there has not been a stipulation as to the intervenor’s claim. 

That issue was definitively resolved by the Minnesota Supreme Court in its decision in Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 75 W.C.D. 263 (Minn. 2015).  An intervenor must make a personal appearance at all conferences and hearings unless a stipulation has been signed or the intervenor’s right to reimbursement has otherwise been established.  Minn. Stat. § 176.361, subd. 4; Sumner, 865 N.W. 2d at 708, 75 W.C.D. at 266.  Failure to make a personal appearance results in a mandatory denial of the intervenors claim.  Sumner, 865 N.W.2d at 710, 75 W.C.D. at 269-70.  It is undisputed that Moe Bodyworks did not appear at the hearing and, as a result, its claim for reimbursement must be denied.

In response, the employee argues that the right of an injured worker to directly claim reimbursement for medical expenses incurred by the injured worker has not been affected by Sumner.  The employee states that the only claim at the hearing was for the payment of the employee’s bill at Moe Bodyworks so that the presence or absence of the provider was irrelevant.  The employee cites to our decisions in Stoia v. Seagate Technology, 52 W.C.D. 417 (W.C.C.A. 1995) and Adams v. DSR Sales, Inc., 64 W.C.D. 396 (W.C.C.A. 2004).  Neither of those cases affects the result here.

In Stoia, the issue was the timeliness of a chiropractor’s intervention in a situation where the employee had been presenting the chiropractor’s bill as part of the employee’s claim.  In Adams, this court dealt with a non-intervening medical provider and the right of an injured worker to claim the bills of that provider.  Those facts are not before us in this present appeal.  In this case, Moe Bodyworks was not relying on the employee’s attorney to recover its bill.  Moe Bodyworks instead decided to intervene in the pending action.

The statute and Sumner make it clear that once a provider has intervened in a pending claim, the provider is a party and like all parties has an obligation to attend conferences and hearings.^[1]  Moe Bodyworks made no appearances at conferences or hearings and there is no indication in the record that the employee’s attorney was representing the provider.

We conclude that the statute and Sumner mandate a denial of the claim for reimbursement from Moe Bodyworks.  The compensation judge’s decision must be reversed.

Our decision on the appeal of the employer also determines the cross-appeal of the employee.