KELLY MISKOWIEC, Employee/Respondent, v. CM INFO. SPECIALISTS, INC. and ZURICH AM. INS. CO., Employer-Insurer/Appellants and INJURED WORKERS’ PHARMACY and CENT. MED. CLINIC, Intervenors.

MAY 16, 2019

No. WC18-6227

PRACTICE & PROCEDURE – INTERVENTION. Where an intervenor was not given direct notice of the 30-day time limit for filing a motion to intervene after a notice of an administrative conference and had filed a motion to intervene within 60 days of a notice of a right to intervene, the compensation judge did not err by finding that the intervenor’s claim was not barred by a failure to timely intervene.

MEDICAL EXPENSES – CHANGE OF PHYSICIAN; RULES CONSTRUED – MINN. R. 5221.0430. Where there was no evidence that the employee’s physician had referred the employee to a new physician or that the physician had endorsed the care provided by the new physician, the compensation judge erred by finding that the physician had made a proper referral and by determining that the treatment with the new physician did not constitute an unauthorized change of physician under Minn. R. 5221.0430. The findings and award of payment for the treatment provided by the new physician are therefore reversed.

MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY; PRACTICE & PROCEDURE. Where the medical treatment at issue is denied on other grounds, whether the treatment is reasonable and necessary is moot and need not be addressed on appeal.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: Kirsten M. Tate

Attorneys: David B. Kempston, Law Office of Thomas Mottaz, Coon Rapids, Minnesota, for the Respondent. Patrick T. Grove, Drawe & Maland, Schaumburg, Illinois, for the Appellants.

Affirmed in part and reversed in part.



The employer and insurer appeal from a compensation judge’s findings that the intervenor Central Medical Clinic (CMC) had timely intervened, that the employee did not make an unauthorized change of physician to CMC, and that the medical care at CMC was reasonable and necessary. We affirm in part and reverse in part.


The employee, Kelly Miskowiec, suffered an admitted work injury with the employer, CM Information Specialists, Inc., on November 12, 2012. The parties stipulated that the injury was to the employee’s right ankle and resulted in reflex sympathetic dystrophy/complex regional pain syndrome (collectively referred to as CRPS).

The employee had pre-existing injuries and as a consequence, she started taking narcotic pain medication on a regular basis as early as 2008. This included, among other things, regular use of Percocet throughout the summer and fall of 2012.

After the work injury, the employee treated at Minnesota Advanced Pain Specialists (MAPS) in April 2013, describing her pain level as ranging from seven to ten out of ten on the pain scale. The employee continued to receive opioid pain medication through MAPS, and was also treated with a spinal cord stimulator. In July 2015, the employee was discharged from treatment at MAPS due to her violation of a controlled substance agreement. About a month before, in June 2015, the employee began treating at HealthPartners Clinic, receiving narcotic pain medication from that clinic through August 2016.

In December 2015, the employee began treatment with Dr. Todd Hess at United Pain Clinic. She was prescribed with narcotic pain medication and underwent two or three lumbar sympathetic block injections. By April 2016, the employee was discharged from Dr. Hess’ care due to three separate violations of her pain contract with Dr. Hess. At this time, the employee was regularly reporting a pain level of nine out of ten to Dr. Hess. On her last visit with Dr. Hess, April 27, 2016, the employee became upset on learning that Dr. Hess was discontinuing her narcotic pain prescriptions. She subsequently asked him to reconsider his decision to cut off her narcotic prescriptions. On May 9, 2016, he declined to do so.

On May 26, 2016, the employee reported to Dr. Alfonso Morales at CMC. She reported a pain level of nine out of ten. She did not inform Dr. Morales that she had treated with Dr. Hess or that she had been discharged from Dr. Hess’ care. There is no evidence that Dr. Morales knew the employee had treated with Dr. Hess or that Dr. Morales saw Dr. Hess’ medical records. Dr. Morales began prescribing narcotic pain medication. He also recommended that the employee see Dr. John Cronin for a psychological evaluation and that she begin physical therapy at Impact Physical Medicine and Aquatic Center (IPM).

On July 13, 2016, after treating with Dr. Morales on two occasions, the employee contacted Dr. Hess’ office by phone. Dr. Hess’ staff summarized the employee’s message as follows:

Patient called wanting a referral to Dr. Morales. Patient stated that he is a different pain provider and he does injections into the actual pain site that actual [sic] work. Patient stated her insurance won’t pay for it until she gets a referral. Patient requesting a call back.

Dr. Hess’ records for the same date state, “Per patient’s request – is transferring care to Dr. Morales.” There is no evidence Dr. Morales was provided with this note, whether from Dr. Hess, the employee, or otherwise. The CMC records from both before and after July 13, 2016, describe the employee as a “self-referral” to Dr. Morales.

Over the next two years, the employee continued to treat with Dr. Morales and others at CMC, primarily receiving narcotic pain medication. She regularly reported pain from as low as six to as high as ten on the pain scale.

The employee reported on one or two occasions that she tried to initiate treatment with Dr. Cronin and/or begin therapy at IPM, but she never saw Dr. Cronin or any other psychiatric evaluator. Dr. Morales’ records indicate she did see a therapist on a PRN basis, although such therapy records are not in evidence. On one or two occasions during the two years in which the employee saw Dr. Morales at CMC, she was prescribed Gabapentin, a non-narcotic. On one occasion, Dr. Morales discontinued the employee’s narcotics due to a violation of her pain contract, although the narcotics were reinstated the next month. On December 5, 2017, a peroneal nerve release injection of her right ankle was performed at CMC.

Successive medical records from CMC are often identical to each other, repeating the same pattern of the employee’s personal pain assessment, noting that she had not commenced therapy or seen Dr. Cronin, and reporting that she had exhausted her 30 day supply of narcotic pain medications and needed refills of those medications. From time to time, the records discussed alternative therapies as under consideration, none of which occurred. The CMC medical records document a physical examination of the employee at each visit generally describing objective signs of her CRPS condition, but without much detail in the examination findings.

The record fails to show any efforts by Dr. Morales’ office to aid the employee in getting her evaluation from Dr. Cronin or a similar psychiatrist, to aid the employee in getting therapy at IPM or elsewhere, or to afford the employee any form of care other than refilling her narcotic medication.

On January 15, 2018, the attorney for the employee sent a letter to CMC notifying CMC of its right to intervene in the employee’s workers’ compensation claim. The intervention notice stated that the relevant workers’ compensation statute and rules were attached to the notice. The intervention notice from the employee’s attorney stated in bold print that CMC had 60 days to file its intervention motion. On January 18, 2018, the employee filed a medical request seeking payment for the medical care she received from CMC and for the narcotic pain medications prescribed by Dr. Morales. CMC was notified of the administrative conference on January 24, 2018. On February 9, 2018, Injured Workers’ Pharmacy (IWP) filed a motion to intervene.

CMC filed its motion to intervene more than 30 days after receipt of the notice to intervene and of the notice of the administrative conference, but less than 60 days after receiving the notices.

The initial administrative conference on the employee’s medical request took place on February 23, 2018. CMC filed its motion to intervene on February 26, 2018. The administrative decision was issued on March 9, 2018. The decision was appealed to OAH. More than six months after CMC filed its intervention claim, the hearing took place before the compensation judge. The issues presented included whether the change from Dr. Hess to Dr. Morales was an unauthorized change of physician, including whether there was a proper referral from Dr. Hess to Dr. Morales, whether CMC failed to timely intervene, and whether the care at CMC, including the narcotic medication prescribed, was reasonable and necessary care.

The compensation judge made extensive findings in which she concluded the narcotic treatment was not reasonable nor necessary, and not in compliance with Minn. R. 5221.6110. Consequently, she did not award payment to Injured Workers’ Pharmacy for the narcotics. These findings were not appealed. The compensation judge found, however, that the care provided by CMC during the two years of treatment, which primarily consisted of prescribing narcotic medications, also included other treatment such as examinations, referrals for other treatment, discussions of workability, and prescribing non-narcotic medications. The compensation judge accordingly found the care at CMC to be reasonable and necessary. The compensation judge rejected the employer and insurer’s additional argument that the care at CMC was not compensable because it violated the statutory and rule framework of the Workers’ Compensation Act.


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 make three arguments in support of their appeal.

1.   Intervention

First, the employer and insurer argue the compensation judge committed an error of law by finding that Dr. Morales and CMC properly intervened.

Minn. Stat. § 176.361 governs the manner in which parties may intervene. Subdivision 2(a) of the statute states, in relevant part:

A motion to intervene must be served and filed within 60 days after a potential intervenor has been served with notice of a right to intervene or 30 days of notice of an administrative conference . . . .

Minn. R. 1415.1100 governs how a party must give notice to a potential intervenor and provides that attorneys for both the employee and for the employer and insurer must give notice once they are aware of the existence of a potential intervenor. Subpart 2(d) of the rule provides that the notice must inform the potential intervenor of the 60 or 30 day time limits.

Upon receipt of a notice of an administrative conference, a potential intervenor has 30 days to file its motion to intervene. See Minn. Stat. § 176.361, subd. 2(a); Minn. R. 1415.1250, subp. 1. We note that while the notice of intervention stated that a copy of the relevant rules and statute were attached to the notice, the exhibit included in the record at the hearing below did not include any such attachment. There is no indication in the record that CMC was directly notified of the 30 day limit to file its motion to intervene after notice of the administrative conference. Despite the requirement to do so contained in the rules, the employer and insurer did not send any intervention notice to CMC.

The employer and insurer argue that because CMC received notice of an administrative conference, it needed to intervene within 30 days, and because it failed to do so, its claims are barred. The employee notified CMC of it right to intervene, with a 60 day time limit, before an administrative conference was even requested. Once the conference was requested, neither party clearly notified CMC of the 30 day time limit. Further, neither party suffered any prejudice given the long time that elapsed between CMC’s intervention and the subsequent hearing at OAH. The compensation judge did not err in finding that under the unique circumstances here, CMC timely intervened, and we affirm that finding.

2.   Unauthorized Change of Physician

Second, the employer and insurer argue that the compensation judge committed an error of law by failing to conclude the employee’s switch from Dr. Hess to Dr. Morales at CMC constituted an unauthorized change of physician. They further argue that the compensation judge’s finding of a valid referral from Dr. Hess to Dr. Morales is unsupported by the record.

Minnesota Rule 5221.0430, subp. 2, states in relevant part:

Following selection of a primary provider, the employee may change primary providers once within the first 60 days after initiation of medical treatment for the injury without the need for approval from the insurer, the department, or a workers’ compensation judge. After the first 60 days following initiation of medical treatment for the injury, any further changes of primary provider must be approved by the insurer, the department, or a workers’ compensation judge. However, at any time throughout the claim, transfer of medical care coordination due to conditions beyond the employee’s control, such as retirement, death, cessation from practice of the primary provider, or a referral from the primary provider to another provider, does not require prior approval.

(Emphasis added). The rule goes on to state:

If the employee or health care provider fails to obtain approval of a change in provider before commencing treatment where required by this part, the insurer is not liable for the treatment rendered prior to approval unless the insurer has agreed to pay for the treatment. Treatment rendered before a change of provider is approved under this subpart is not inappropriate if the treatment was provided in an emergency situation and prior approval could not have reasonably been obtained.

Minn. R. 5221.0430, subp. 3 (emphasis added).

Here, the employee’s primary provider was Dr. Hess. The employee did not have approval from the employer and insurer or the Department of Labor and Industry to change providers from Dr. Hess to Dr. Morales, and there were no emergency or exigent circumstances for her treatment with Dr. Morales. At the time of the employee’s first visit with Dr. Morales, there was no referral from Dr. Hess. The compensation judge, however, approved the care by Dr. Morales, finding that there was a retroactive referral from Dr. Hess to Dr. Morales.

The employee argues there is substantial evidence to support the finding of a retroactive referral, asserting that case law allows for retroactive referrals from one provider to another. We note that in Gibbs v. The Duluth Clinic, Ltd., 58 W.C.D. 23 (W.C.C.A. 1998), this court affirmed the compensation judge’s award of medical care to a provider following a retroactive referral from the employee’s treating physician to another physician, where the referring physicians reviewed the care provided by the later physician and endorsed the care provided by that physician. Here, however, there is no evidence Dr. Hess was aware of the nature or efficacy of the care provided by Dr. Morales or that Dr. Hess endorsed the care provided at CMC. The only evidence bearing on the alleged referral is a single sentence in Dr. Hess’ records from July 12, 2016, a couple of months after the employee commenced care with Dr. Morales, stating that Dr. Hess was transferring care of the employee to Dr. Morales at her request. We note also that although the employee had already treated with Dr. Morales on two occasions before July 13, 2016, the purported reason for the transfer of care, that Dr. Morales would provide injections directly into the injury site, was an inaccurate description of the care which was being provided by Dr. Morales and his clinic.

Further, although the evidence demonstrates Dr. Morales sought to obtain medical records from some of the employee’s previous medical providers, there is no evidence that Dr. Morales obtained the records of Dr. Hess or was aware of Dr. Hess’ earlier participation in the employee’s care. Dr. Morales’ records consistently referred to the employee as a self-referred patient. We conclude that the evidence in the record does not support the finding that this was a proper referral from one doctor to another.

Although this court defers to a compensation judge’s findings of fact when supported by substantial evidence in the record, in this case substantial evidence fails to support the compensation judge’s finding that Dr. Hess properly referred the employee to Dr. Morales, which was the basis for the compensation judge’s determination that the employee’s treatment with Dr. Morales was not due to an unauthorized change of physician. Absent such a referral from Dr. Hess to Dr. Morales, the change in physician in this case was unauthorized under Minn. R. 5221.0430, the compensation judge’s finding to the contrary is reversed, and the employer and insurer cannot be held liable for payment for the care provided by Dr. Morales or his clinic.

3.   Reasonable and Necessary Care

Third, the employer and insurer argue substantial evidence does not support the compensation judge’s finding that the care provided by Dr. Morales and others at CMC was reasonable and necessary, particularly given the unappealed findings that most of the care from CMC was the prescribing of narcotics, and that narcotic medications here were not reasonable or necessary treatment.

In light of our holding that the treatment was not compensable due to an unauthorized change of physician, this issue is moot. Accordingly, we need not address the issue.


Although we affirm the compensation judge’s finding that CMC timely intervened, we reverse the compensation judge’s finding that the employee was authorized to treat at CMC. Consequently, we reverse the compensation judge’s award of payment for CMC’s charges.