WORKERS’ COMPENSATION COURT OF APPEALS
MAY 15, 2020
ARISING OUT OF & IN THE COURSE OF - GOING TO AND FROM WORK. Substantial evidence supports the arbitrator's finding that the employee's injury arose out of and in the course of employment where the employee was injured on a street while leaving a worksite through an exit which led directly onto a street.
EVIDENCE - EXPERT MEDICAL OPINION. Inaccuracies in an employee's medical history as reported by a doctor do not render that doctor's opinion inadmissible for lack of foundation where the arbitrator noted the errors and found the opinion persuasive based on other relevant evidence.
EVIDENCE - ADMISSION; EVIDENCE - UNOPPOSED MEDICAL OPINION. Rules established under a union alternative dispute resolution system pursuant to Minn. Stat. § 176.1812, which state that only medical providers on an approved list may be paid under that system, do not limit the admissibility of an opinion from a provider who is not on that list.
UCWCP Arbitrator: Deborah L. Crowley
Attorneys: Jerry W. Sisk, Mottaz & Sisk Injury Law, Coon Rapids, Minnesota, for the Appellant. M. Elizabeth Giebel, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Cross-Appellants.
Affirmed in part, reversed in part, vacated in part, and modified in part.
SEAN M. QUINN, Judge
Both the employee and the employer and insurer appeal the arbitrator’s decision under the Union Construction Workers’ Compensation Program (UCWCP). The employee appeals from the arbitrator’s denial of benefits for claimed neck and low back injuries. The employee also appeals from the arbitrator’s denial of a recommended left shoulder surgery and her refusal to define the nature and extent of the left shoulder injury, though she found that injury to be compensable. The employer and insurer cross-appeal the arbitrator’s finding that the employee’s left shoulder injury arose out of and in the course of employment. We affirm in part, reverse in part, vacate in part, and modify in part.
The employee, Luis Aguilar-Prado, worked as a union construction drywall/taper for the employer, W. Zintl Construction, when he was injured while leaving a worksite in March 2016. The perimeter of the worksite was surrounded by a chain-link fence, and the only way to enter or exit the worksite was through one of three fence gates that abutted a street. One gate was located at a street intersection, one was located close to another intersection, and the third was located between the other two gates. There was little space between the curb and the fence and leaving the worksite through a gate resulted in being immediately in the street. There was no designated parking area for workers, and most, including the employee, parked along nearby streets.
At the end of his workday on March 23, 2016, the employee left the worksite, exiting through the middle gate. This was the gate that most employees used when leaving the worksite. He stepped into the street abutting the worksite. While walking diagonally down the street to reach his vehicle, the passenger side mirror of a passing truck struck the employee on the left arm.
Later that day, the employee went to HealthPartners Clinic with complaints of left arm pain after being hit by a truck. He also complained of low back pain, believing he may have strained his back from the force of the vehicle hitting him. X-rays of the left shoulder were negative for fracture or dislocation. He was referred for an MRI of the left shoulder, which showed an anterior and inferior labral tear with a moderate-size paralabral cyst.
On March 29, 2016, the employee saw Dr. Matthew Butterfield of Twin Cities Orthopedics for left shoulder pain. Dr. Butterfield examined the employee, reviewed the MRI, and recommended conservative management. He restricted the employee from all work for two weeks, at which time he expected the employee could return to work without restrictions. Less than two months later, on May 11, 2016, the employee saw Dr. Kirk Scofield of Summit Orthopedics with left shoulder complaints. The employee recounted his history and ongoing left shoulder symptoms, and described how as a taper, he was required to do a lot of overhead work with his left arm and was having difficulty doing his job. Dr. Scofield recommended that the employee use his own pain as a guide for his work and for his activities of daily living, and to follow up if he had increased pain.
Nine months later, on February 27, 2017, the employee saw Dr. Douglas Becker of Minneapolis Orthopedics for an evaluation of his left shoulder. Dr. Becker reviewed x-ray and MRI scans, performed an examination, and diagnosed the employee with a left shoulder anterior inferior Bankart labral tear, impingement syndrome, and an AC joint strain, all causally related to the March 23, 2016, work injury. He considered the treatment the employee had received to have been reasonable and necessary care, but noted the employee had not improved. Dr. Becker recommended left shoulder arthroscopic surgery with debridement, decompression, and an AC resection, with possible anterior labral repair. He provided restrictions for the employee of no lifting over five pounds and no overhead activity with the left arm.
Prior to the 2016 work injury, the employee had treated for low back pain. An MRI taken on March 24, 2015, showed degenerative disc disease at L4-5 and L5-S1. On March 25, 2015, the employee underwent low back surgery, performed by Dr. Kyle Nelson, in the nature of a right L4-5 hemilaminectomy with microdiscectomy to repair a large right L4-5 disc herniation. The employee testified to a complete resolution of his symptoms.
Following the 2016 work injury, the employee treated for neck and low back pain he related to the work injury. He received chiropractic care twice in 2016. Regular chiropractic care for his low back, mid-back, and neck pain began in March 2017. In May 2017, the employee underwent an MRI after complaints of pain into the low back. The MRI showed a left L3-4 disc herniation resulting in marked left L4 nerve root compression, as well as stenosis at the same level.
The employee returned to Dr. Nelson with low back complaints on June 6, 2017. Dr. Nelson observed that the employee did not have low back pain after the 2015 surgery until the March 23, 2016, work injury. The employee reported pain in his low back radiating down his left hip and leg to his ankle. Dr. Nelson reviewed the recent MRI showing the large disc herniation at L3-4. On June 23, 2017, Dr. Nelson performed a left L3-4 hemilaminectomy with microdiscectomy. Dr. Nelson authored a report dated September 21, 2017, opining that the employee sustained an injury to his low back as a result of the work injury, which necessitated the surgery.
On April 3, 2018, the employee underwent an MRI of his neck which showed moderate C3-4 spondylosis with a disc bulge and osteophytes, narrowing and stenosis on the left at C3-4, and mild to moderate right C4-5 foraminal narrowing. On May 2, 2018, the employee saw Dr. Nelson regarding his neck complaints.
The employee saw Dr. Mark Larkins for a neutral examination as authorized by the UCWCP on August 27, 2018. Dr. Larkins wrote a report dated September 26, 2018, stating that the employee “suffered a [left] shoulder injury which is better assessed by the orthopedic consultant” and that he would defer to an orthopedic surgeon regarding restrictions for the left shoulder. (Ex. B.) In a follow-up report dated July 16, 2019, he stated, “I would defer to an orthopedic surgeon as to whether [the surgery recommended by Dr. Becker] is appropriate.” (Ex. AA.) As to the neck and low back, Dr. Larkins opined that the employee’s low back difficulties were related to his pre-existing low back condition and that the employee did not have a neck injury caused by the truck accident as the records did not reflect a neck injury.
On September 7, 2018, Dr. Nelson authored a second report reiterating his opinion which related the employee’s low back pain and need for the June 2017 surgery to the work injury. He noted that while the employee had prior low back difficulties, they were at the L4-5 level, and not at the L3-4 level impacted by the work injury. Dr. Nelson also opined that the employee’s left shoulder symptoms might be related to a neck injury, specifically disc degeneration and stenosis at C3-4, which were causally related to the work injury of March 23, 2016. On October 9, 2018, Dr. Nelson examined the employee due to ongoing neck complaints and opined that if the employee were to continue to struggle with symptoms, he may require a C3-4 fusion surgery.
The employee filed a claim petition in March 2017. On May 4, 2017, Minneapolis Orthopedics filed a timely motion to intervene for $455.00 for the February 27, 2017, treatment provided by Dr. Becker to the employee’s left shoulder. No objection was made to this motion to intervene.
A hearing was held before UCWCP Arbitrator Deborah Crowley on June 19, 2019. The arbitrator identified the issues at the hearing as whether the employee’s injury arose out of and in the course of his employment, and if so, what was the nature and extent of the alleged injuries to his left shoulder, low back, and neck, whether the proposed left shoulder surgery was reasonable, necessary, and causally related to the work injury, and whether various medical intervenors were entitled to be paid for their services.
On August 14, 2019, the arbitrator issued her findings of fact, conclusions of law, and order. The arbitrator found that while engaged in reasonable egress from his worksite, the employee suffered an injury to his left shoulder arising out of and in the course of employment. She awarded periods of temporary total disability benefits and medical expenses related to the left shoulder. Finally, the arbitrator found that the employee’s claimed low back and neck injuries were not causally related to the work injury.
The employee appeals the arbitrator’s finding that the neck and low back conditions were not caused by the work injury, and the arbitrator’s finding wherein she declined to adopt the opinion of Dr. Becker regarding the nature and extent of the left shoulder injury and need for surgery. The employer and insurer cross-appeal the arbitrator’s finding that the employee’s left shoulder injury arose out of and in the course of his employment.
Pursuant to the collective bargaining agreement between the employee’s union and the employer, any work-related injury disputes are resolved through arbitration under the UCWCP as authorized by Minn. Stat. § 176.1812. Such resolutions are subject to review by this court “in the same manner as an award or order of a compensation judge.” Minn. Stat. § 176.1812, subd. 1(a).
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).
On appeal, the employer and insurer contest the arbitrator’s finding that the employee’s left shoulder injury arose out of and in the course of employment. They assert that the employee’s injury is not compensable because it occurred after his workday ended, after he exited the worksite, and while he was not engaged in work activities.
To be compensable under the Workers’ Compensation Act, an injury must arise out of employment and must occur in the course of employment. Minn. Stat. § 176.011, subd. 16. Typically, an injury must occur during the employee’s regular work hours, on the employer’s premises, and while the employee is engaged in work activity. See, e.g., Bronson v. Joyner’s Silver & Electroplating, Inc., 268 Minn. 1, 4, 127 N.W.2d 678, 680, 23 W.C.D. 166, 169 (1964); Snickers v. Fingerhut Corp., slip op. (W.C.C.A. May 28, 1999). Injuries which occur while an employee travels to and from work are generally not compensable. Swanson v. Fairway Foods, 439 N.W.2d 722, 724, 41 W.C.D. 1010, 1013 (Minn. 1989).
An exception to this general rule is made for injuries occurring while an employee is engaged in reasonable ingress or egress. Kirchner v. Cty. of Anoka, 339 N.W.2d 908, 911, 36 W.C.D. 335, 338 (Minn. 1983). Where the route to or from the job site is peculiar to or closely connected with the employment, the ingress and egress route is considered part of the premises. Sommers v. Schuler Chocolates, Inc., 239 Minn. 180, 183, 58 N.W.2d 194, 196, 17 W.C.D. 294, 296 (1953). Under this exception, the workday, the work premises, and the employee’s work activities are expanded.
Cases involving ingress and egress are fact dependent, often turning on whether there were street risks peculiar to the employment and whether the employee was on a route of his or her own choosing. Whether an employee’s injury is compensable during ingress and egress is a difficult factual and legal question. In Johannsen v. Action Constr. Co., 264 Minn. 540, 119 N.W.2d 826, 22 W.C.D. 400 (1963), the Minnesota Supreme Court stated:
While it is difficult, it is not impossible, to reconcile many of the decisions on this subject, and it is hardly desirable to attempt to formulate a rule that can be applied with mathematical precision to all fact situations, the rationale of the rule is that, if the employee, in going to or leaving the working premises, is exposed to a hazard causally connected with the employment and sustains injury while doing so, the injury arises out of and in the course of employment. It is only reasonable to conclude that an employee is within the protection of the act as long as he is exposed to a hazard causally connected with the employment and peculiar to it. This does not mean that the protection will continue when he has entered the avenues of travel where he is exposed to no work-connected hazard or any hazard greater than that to which all others not so employed are exposed.
Id. at 549, 119 N.W.2d at 831, 22 W.C.D. at 410. The determination of whether an injury occurs within a reasonable time and place of ingress or egress is a mixed question of fact and law. Whether the injury arose out of and in the course of employment is a legal question reviewed de novo, but we defer to the fact finder on whether there is substantial evidence to support the legal conclusion. See Hohlt v. Univ. of Minn., 897 N.W.2d 777, 77 W.C.D. 509 (Minn. 2017); see also Keltner v. Spartan Staffing, LLC, 77 W.C.D. 755 (W.C.C.A. 2017).
The arbitrator concluded that the circumstances of the employee’s injury were similar to those in Fossum v. Egan & Sons Air Conditioning, 39 W.C.D. 926 (W.C.C.A. 1987). In Fossum, the employee exited the job site using a gate that all of the other employees used and which led directly into the street. While walking from the job site to his vehicle parked approximately one block away, the employee was injured in the street. The Fossum court concluded that the employee’s injury occurred during the reasonable time and place of safe egress. While under the facts of this case the arbitrator could have come to a different conclusion, where the evidence can support more than one conclusion, we will affirm the fact finder’s determination. See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
As the supreme court recognized in Johannsen, there is no precise method to determine the parameters of reasonable ingress and egress. Here, the arbitrator found that the employee was still within the time and place of safe egress when he was struck by the truck and was injured. Substantial evidence supports the arbitrator’s finding that the employee’s work injury arose out of and in the course of employment and we affirm.
In his appeal, the employee contends that the arbitrator erred by adopting Dr. Larkins’ opinion that the employee’s neck and low back conditions were not causally related to the work injury because that opinion lacks foundation. When an expert’s opinion is well founded, this court will affirm a fact finder’s reliance upon that expert’s opinion. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). An expert medical opinion has sufficient foundation if it is not based on speculation or conjecture. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017).
The employee argues that Dr. Larkins’ opinion lacks foundation because he relied on an inaccurate or incomplete history regarding the employee’s pre-existing low back condition and his complaints of neck and low back pain following the work injury. The arbitrator adopted the opinion of Dr. Larkins, stating, “While Dr. Larkins’ history is not entirely accurate, the employee did not begin to complain of left leg radiating pain following the March 23, 2016 injury until the spring of 2017.” (Finding 10.) The arbitrator also found that Dr. Nelson’s opinion contained flaws, writing, “Dr. Nelson stated that since the March 23, 2016 accident the employee has had worsening left leg radicular pain and was subsequently found to have a large disc herniation at the L3-4 level. The medical records do not document left leg pain or a worsening of left leg pain since the March 23, 2016 injury and the arbitrator finds the opinion of Dr. Larkins more credible than the opinion of Dr. Nelson.” Id. Likewise, the arbitrator found that the employee did not report significant neck pain until the spring of 2018, nearly two years after the work injury, and found that this time gap supported Dr. Larkins’ opinion of no causation between the work injury and the neck complaints. (Finding 11.)
The arbitrator acknowledged the errors in Dr. Larkins’ history of the employee’s medical condition, but found his opinions more credible than those of Dr. Nelson, based on her findings regarding the employee’s medical history. Dr. Larkins’ opinions regarding the neck and low back were supported by sufficient foundation. The arbitrator did not err in relying upon those opinions over those of Dr. Nelson in denying the employee’s claims for neck and low back injuries, and we affirm.
The employee argues that the arbitrator erred in concluding that, because Dr. Becker is not on the list of approved physicians under the UCWCP, she could not consider Dr. Becker’s opinion in determining the nature and extent of the employee’s left shoulder injury and need for surgery. We agree.
The statute authorizing the UCWCP allows “the use of a limited list of impartial physicians to conduct independent medical examinations,” i.e., neutral examiners. Minn. Stat. § 176.1812, subd. 1(c). When the opinion of a treating doctor is disputed, a neutral doctor selected from the agreed upon list is selected to provide an examination and issue an opinion. The statute also allows the UCWCP to include “an agreed list of providers of medical treatment that may be the exclusive source of all medical and related treatment” for injured workers. Minn. Stat. § 176.1812, subd. 1(b). In this case, the UCWCP includes an Exclusive Provider Organization (EPO) list. A union’s health and welfare fund, the employer, and the insurer are not responsible “for the cost of medical services provided by health care providers that are not included in the EPO.” Rule 10.2.4.
The arbitrator found that the employee sustained a compensable injury to his left shoulder, but did not make any finding regarding the nature and extent of the employee’s left shoulder injury or regarding the proposed surgery. The arbitrator delineated the treatment, findings, and recommendations of Dr. Becker, including his diagnosis and his recommendation for left shoulder arthroscopic surgery. Dr. Larkins, the neutral examiner, offered no opinion regarding the left shoulder, other than there was a left shoulder injury and that he would defer to an orthopedic surgeon regarding diagnosis, treatment, and restrictions for the left shoulder. The arbitrator did not adopt Dr. Becker’s opinion, however, and declined to make any findings regarding the nature and extent of the employee’s left shoulder injury or need for surgery. Though not argued by either party at hearing, the arbitrator determined that because Dr. Becker was not on the EPO list, his treatment was not authorized and his opinion could not be considered as evidence. Without this evidence, the arbitrator concluded that she could not make a finding regarding the nature and extent of the employee’s left shoulder injury and need for surgery.
An arbitrator, like a compensation judge, generally cannot raise legal issues on her own. See Dexter v. Hubbard Cty. Dev. Achievement Ctr., 79 W.C.D. 547 (W.C.C.A. 2019); see also Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988) (“[b]asic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made”). While this court will affirm findings if supported by substantial evidence when reviewing the record as a whole, there is no evidence to support a finding that Dr. Becker was not on the EPO list as the EPO list was never offered or admitted into evidence. See Dexter, 79 W.C.D. at 551. Regardless of whether Dr. Becker was on the EPO list, the arbitrator is not limited to only considering medical evidence from EPO treating doctors or from those who provided neutral examinations. The UCWCP rules provide for admission of evidence to include essentially all relevant medical evidence which, in this case, would include the records of Dr. Becker. See Rule 6.4.3(c) (medical records from all treating doctors shall be admissible). The EPO list only limits which medical providers the employer and insurer must pay. Rule 10.2.4. The EPO list does not limit the evidence the arbitrator may consider.
Because Dr. Larkins did not give an opinion regarding the nature and extent of the employee’s left shoulder injury and need for surgery, Dr. Becker’s opinion was unopposed. Generally, a finder of fact may not disregard an unopposed medical opinion. Ruether v. State, Mankato Univ., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990); Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969); Clark v. Archer Daniels Midland, 50 W.C.D. 363, 369 (W.C.C.A. 1994) summarily aff’d (Minn. May 23, 1994). Not only is Dr. Becker’s opinion unopposed, it is consistent with the employee’s medical records. In her findings, the arbitrator outlined Dr. Becker’s opinion that “the employee sustained a left shoulder anterior inferior Bankart labral tear, an impingement syndrome, and an AC joint strain as a result of the March 23, 2016 work injury and [that he] recommended a left shoulder arthroscopic evaluation with debridement, decompression and AC resection, and probable arthroscopic anterior labral repair.” (Finding 5.) We conclude that this finding defines the nature and extent of the employee’s left shoulder injury, and need for surgery, and therefore adopt it as such.
Based on her conclusion that Dr. Becker was not on the EPO list, the arbitrator also denied Minneapolis Orthopedics’ intervention claim for Dr. Becker’s treatment. Because there is no evidence that Dr. Becker was not on the EPO at the time he treated the employee, substantial evidence does not support the denial of the intervention claim. Furthermore, no objection was made to Dr. Becker’s intervention claim by any party for any reason and is therefore waived. See Anwiler v. Luoma Egg Ranch, Inc., 74 W.C.D. 541 (W.C.C.A. 2014). We therefore reverse the arbitrator’s denial of Minneapolis Orthopedics’ intervention claim.
For these reasons, we affirm the arbitrator’s finding that the employee’s work injury arose out of and in the course of his employment. We also affirm the arbitrator’s denial of the employee’s claims for neck and low back injuries arising from the work injury and the arbitrator’s finding of a compensable left shoulder injury. We vacate Finding 6. Finding 5 delineating Dr. Becker’s opinion is modified and adopted as the nature, extent, and need for care of the employee’s left shoulder injury. Finally, we reverse the arbitrator’s denial of the intervention claim of Minneapolis Orthopedics.
 The employee is a union worker. Under the collective bargaining agreement between his union and the employer, any on-the-job injuries are covered by the UCWCP as authorized by Minn. Stat. § 176.1812. The statute permits qualified employers and unions to use an alternative dispute resolution system for the litigation of workers’ compensation claims. Under the UCWCP, arbitrators rather than compensation judges make fact findings and issue orders.
 The arbitrator did not include Minneapolis Orthopedics when listing the intervenors in her findings, but specifically identified Minneapolis Orthopedics as an intervenor when denying its intervention claim related to Dr. Becker’s treatment of the employee’s left shoulder. (Finding 14.) There is no dispute that Minneapolis Orthopedics timely intervened.
 For example, in Sommers, the supreme court reasoned the employee’s injury did not arise out of or in the course of employment because the employee fell after reaching the public sidewalk in front of the employer’s building, was not bound to follow a route incident or peculiar to her employment, and was no longer on a route of egress incident to her employment. Sommers, 239 Minn. at 183, 58 N.W.2d at 196, 17 W.C.D. at 296-97; see also Blanks v. Oak Ridge Nursing Home, 281 N.W.2d 690, 31 W.C.D. 614 (Minn. 1979) (compensation denied where the employee slipped while walking on the boulevard adjacent to the frontage road of her employment on the way to work); but see Goff v. Farmers Union Accounting Serv., Inc., 308 Minn. 440, 241 N.W.2d 315, 28 W.C.D. 372 (1976) (an injury was found compensable where the employee was struck by an automobile while crossing the street in the usual route most of the employees from her place of employment took to the parking lot).
 The employer and insurer also argue that the employee could have exited the worksite through one of the gates located near an intersection, and that he could have crossed more directly and at a faster pace. The employee’s actions and how he may have avoided injury, however, are not relevant to compensability. Whether an injury arose out of and in the course of employment is generally made without reference to the fault or negligence of either party. Yacoub v. Am. Nat’l Ins., 59 W.C.D. 104, 108 (W.C.C.A. 1999), summarily aff’d (Minn. Apr. 28, 1999).
 The UCWCP provides, regarding the exclusive list of medical providers, that:
The program administrator shall establish an Exclusive Provider Organization (EPO) that shall include recommended physicians from those medical specialties most appropriate for treating industrial injuries. The program may add or remove health care providers from the EPO at any time. Injured workers subject to this agreement will receive medical care exclusively by physicians who are enrolled in the EPO subject to the exceptions below.
Rule 10.2.1 (emphasis added). The exceptions contained in the rule are not at issue here.
 All references to “Rules” in this opinion are to the rules of the UCWCP.
 Because Rule 10.2.1 allows the list to be amended at any time, any online version of the list is not reliable evidence to determine whether a doctor was on the list at the time of treatment.
 Rule 10.2.4 applies to future care.
 The employee also argued that despite Rule 10.2.4, the employer and insurer should not be allowed to avoid liability for payment of treatment that is reasonable, necessary, and causally related to his work injury, even if provided by a doctor not on the EPO list, when the employer and insurer are denying primary liability for the injury. Because we have determined that the intervention claim was improperly denied for other reasons, we need not address this argument.