MEDICAL TREATMENT & EXPENSE; CAUSATION - MEDICAL TREATMENT. Where an award of an intervention interest is potentially controlled by Minn. Stat. § 176.191, subd. 3, through a denial of liability, the compensation judge must ascertain if the intervenor falls within any of the listed categories of insurer to determine if the amount awarded is to be limited by the fee schedule or awarded in its entirety.
Compensation Judge: Sandra J. Grove
Attorneys: DeAnna McCashin, McCashin Law Firm, Alexandria, Minnesota, for the Respondent. T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota, for the Appellants.
Affirmed and remanded.
PATRICIA J. MILUN, Chief Judge
Appellants Douglas Machine, Inc. and TRIFAC Workers’ Compensation Fund appeal the December 18, 2017, Findings and Order in this matter on the ground that the awarded intervention claim of Allina Health should be subject to adjustments pursuant to the Department of Labor and Industry Fees for Medical Services. Because the employer and insurer contested liability of the treatment at issue for lack of causation, Minn. R. 5221.6020, subd. 2, renders the treatment parameters inapplicable. However, the provisions of Minn. Stat. § 176.191, subd. 3, render the limitations of the fee schedule inapplicable where the intervenor is a member of a number of listed categories of insurer. Because the record is not clear that Allina Heath falls within one of these categories, the matter is remanded for determination of that question, and retention or modification of the award language, as appropriate.
The employee, Lorrie Froemel, performed light industrial work for the employer, Douglas Machine Inc., when she suffered a number of work injuries. In 2015, the employee’s claims regarding those injuries were heard by a compensation judge. In a findings and order served and filed on November 24, 2015, the judge found that the employee had experienced injuries to her head, neck, left shoulder, bilateral shoulders, and bilateral wrists. Some injuries were found to be temporary and resolved. Some requested benefits were awarded and others denied. The employee was approved for left shoulder surgery, but her treating physician declined to go forward with the procedure, due to concerns over a possible complication to the employee’s cervical spine.
In June 2016, the employee’s treatment was focused toward her left shoulder as it was more symptomatic than the right shoulder. The employee continued to experience symptoms in her right shoulder, which increased over time. Until January 2017, the employer and insurer refused to approve the left shoulder surgery. After approval by the employer and insurer, the employee underwent left shoulder surgery. Subsequently, the employee’s treating physician recommended right shoulder surgery.
At the request of the employer and insurer, the employee underwent an independent medical examination (IME) conducted by Mark C. Engasser, M.D., on June 1, 2017. Dr. Engasser concluded that the proposed right shoulder surgery was premature pending the result of more conservative treatment. Dr. Engasser opined that the employee’s condition was not substantially caused by the work performed for the employer.
On September 11, 2017, the employee filed a medical request seeking approval for right shoulder surgery. The employer and insurer objected, relying on the June 1, 2017, examination and IME opinion of Dr. Engasser. On October 16, 2017, the employee underwent the surgery. L. Pearce McCarty III, M.D., the employee’s surgeon, provided a narrative report supporting compensability. Allina intervened in the proceeding, seeking payment for the surgical procedure.
Dr. Engasser was deposed prior to the hearing. In that deposition, he opined that the employee’s right shoulder condition was unrelated to her work activities for the employer.
The matter came before a compensation judge on November 28, 2017. The parties identified the issues as: 1) whether the employee’s right shoulder surgery was reasonably required to cure and relieve the employee from the effects of a work injury, and 2) whether Allina Health was entitled to payment as claimed. The judge incorporated the November 24, 2015, Findings and Order into her decision, held that the right shoulder surgery was compensable, and awarded the intervention claim of Allina. No reference was made to the fee schedule. The employer and insurer appealed.
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(3). 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.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
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), summarily aff’d (Minn. June 3, 1993).
The employer and insurer have requested that the award by the compensation judge be limited by the standards in Minn. R. Ch. 5221, which consists of the treatment parameters and the medical fee schedule.[1] The purpose of the treatment parameters is to “establish parameters for reasonably required treatment of employees with compensable workers' compensation injuries to prevent excessive services ….” Minn. R. 5221.6020, subp. 1. The treatment parameters are set out in Minn. R. Ch. 5221. The language of Minn. R. 5221.6020, subp. 2, is unambiguous. Where liability is denied, the treatment parameters do not apply until after liability is established. Similarly, the limitations on payment for intervenors contained in the fee schedules is not initially applicable where liability is denied for claims advanced by certain intervenors pursuant to Minn. Stat. § 176.191, subd. 3. The employer and insurer contend that the November 24, 2015, Findings and Order established liability within the meaning of the rule. We disagree for the reasons set forth below.
Nothing in the prior findings and order required the employer and insurer to pay for the disputed right shoulder surgery at issue in this appeal. The employer and insurer denied liability for the claimed shoulder surgery by challenging both the reasonableness and necessity of the surgery and causation. Case law is clear that denial of medical causation through resolution of the condition or independent causation of symptoms renders the treatment parameters inapplicable under Minn. R. 5221.6020, subp. 2. See Schulenburg v. Corn Plus, 65 W.C.D. 237, 248-49 (W.C.C.A. 2005), summarily aff’d (Minn. May 25, 2005); Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8, 13-14 (W.C.C.A. 1999), summarily aff’d, 606 N.W.2d 445, 446 (Minn. 2000); Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999).[2] As the applicable statue and rule are unambiguous and supporting case law is clear, the treatment parameters are not applicable in this matter.
The employer and insurer seek application of the Department of Labor and Industry medical fee schedules in reimbursing Allina’s intervention claim. The purpose of the medical fee schedules is to prohibit health care providers treating employees with compensable injuries from receiving excessive reimbursement for their services. Minn. R. 5221.0300. Neither the employee, nor the intervenor, Allina, dispute that the workers’ compensation carrier should pay Allina pursuant to the Minnesota fee schedule. In her brief, the employee states that “the statutory scheme with the accompanying rules make it clear that any medical treatment that becomes the responsibility of workers’ compensation insurance company is governed by the Maximum Medical Fee Schedule.” (Resp. Brief at 4-5.) Allina, though a party to this litigation, did not file a brief regarding this issue.
For situations in which the health care provider provides treatment to the employee, is not paid by an insurer for the services rendered, and it is later deemed that treatment was due to a work-related injury under Chapter 176, the fee schedules apply. Minn. R. 5221.0500, subp. 2.A.
For those situations in which a health insurer provides payment to the health care provider, the workers’ compensation carrier reimburses the health insurer in full, without regard to the fee schedules. Minn. Stat. § 176.191, subd. 3. It then becomes incumbent upon the workers’ compensation carrier to seek reimbursement from the health care provider for excessive payments. Chrz v. Sacred Heart Hospice, slip op. (W.C.C.A. Feb. 13, 1990); Chhin v. J & L Wirecloth, Inc., slip op. (W.C.C.A. Sept. 25, 1995).
Here, it is not entirely clear whether Allina is a health care provider or a health insurer. Therefore, this matter is remanded to the compensation judge to determine if Allina falls within the definition of insurer under Minn. Stat. § 176.191, subd. 3, or if Allina is a health care provider seeking payment for care and treatment rendered.
The issue before the compensation judge on November 28, 2017, was whether the employee’s right shoulder surgery was reasonably required to cure and relieve the employee from the effects of a work injury. As argued before the compensation judge, the issue included a lack of causation from a work injury. This defense constitutes denial of liability under the Minn. Stat. § 176.191, subd. 3, and Minn. R. 5221.6020, subp. 2.
The employer and insurer contend that their position in this matter was adopted by this court in Hofbauer v. Made Wright Custom Cabinets, 63 W.C.D. 171, 172-174 (W.C.C.A. Jan. 6, 2003). In that case, this court set out language modifying a findings and order to clarify the amount awarded, which was expressly at issue in the proceeding on appeal. The modified language included a reference to the treatment parameters, despite a challenge to causation in the court below.
In Hofbauer, there was no discussion of the treatment parameters in the decision and no indication that Minn. R. 5221.6020, subp. 2, was considered. We conclude that the language in Hofbauer is dicta and not a holding of this court.
As with the treatment parameters, the fee schedule is inapplicable to the initial award of an intervention interest where an insurer has denied liability. Under Minn. Stat. § 176.191, subd. 3, the insurer must pay all the benefits awarded, subject to reimbursement of any amount exceeding the fee schedule limits in a subsequent proceeding brought by the employer and insurer. Chrz v. Sacred Heart Hospice, slip op. (W.C.C.A. Feb. 13, 1990). This court has held that applying the fee schedule limits to amounts awarded to health insurers where the employer and insurer denied liability was error. Chhin v. J & L Wirecloth, Inc., slip op. (W.C.C.A. Sept. 25, 1995) (footnote 6); Hoffman v. SDS, Inc., slip op. (W.C.C.A. Jan. 20, 1998) (footnote 5).[3]
As the status of the intervenor is not clear from the record before us, this court cannot determine if Allina Health falls in the category of intervenor entitled to be paid the entire intervention interest, or is subject to the limitations of the fee schedule. For this reason, the matter is remanded to the compensation judge solely for determination of whether Allina Health falls within categories of insurer listed in Minn. Stat. § 176.191, subd. 3. If so, the entire intervention interest is payable as stated in the Findings and Order served and filed December 18, 2017. If Allina does not fall within one of the listed categories, the intervention interest is subject to the limitations of the fee schedule and those limitations should be reflected in the award of Allina Health’s interest. In all other respects, the compensation judge correctly applied the law to the facts in this case and the Findings and Order served and filed December 18, 2017, is affirmed.
[1] The medical fee schedule analysis appears to be more applicable to the outcome sought by the employer and insurer on appeal. But as the parties argued the treatment parameter issues and many of the liability cases fall under the treatment parameter portion of Minn. R. Ch. 5221, both portions will be analyzed.
[2] We note that the Minnesota Supreme Court affirmed without opinion in Schulenburg, 65 W.C.D. 237 (W.C.C.A. 2005), but the affirmance contains the statement that the employer is free to object to payment for treatment using the treatment parameters after the date of the Supreme Court’s order. See Johnson v. Darchuks Fabrication, Inc., WC17-6114 (W.C.C.A. June 13, 2018).
[3] The court notes that Allina was the named intervenor in Hoffman v. SDS, Inc., slip op. (W.C.C.A. Jan. 20, 1998), and the full intervention interest was awarded on appeal. As there was no analysis of the status of Allina in Hoffman, that result is not dispositive in this case.