                                  STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A13-1409


Workers’ Compensation Court of Appeals                                          Dietzen, J.
                                            Concurring in part, dissenting in part, Page, J.

Lon F. Gamble,

                     Respondent,

vs.                                                                Filed: August 13, 2014
                                                                Office of Appellate Courts
Twin Cities Concrete Products and
Gallagher Bassett Services, Inc.,

                     Relators,

Lakeview Hospital,

                     Intervenor, Respondent,

Minnesota Laborers Health & Welfare
Fund, Dr. Elmer Kasperson, Nurse
Anesthesia Services, St. Croix
Orthopaedics,

                     Intervenors.

                                 ________________________

David N. Larson, Sarah A. Bennett, Fitch, Johnson, Larson & Held, P.A., Minneapolis,
Minnesota, for relators.

Kris A. Wittwer, Jessica A. Syverson, Kris A. Wittwer Law Firm, Roseville, Minnesota,
for intervenor, respondent Lakeview Hospital.
                              ________________________




                                            1
                                     SYLLABUS

       When an employer fails to give a medical provider notice of its right to intervene

in a workers’ compensation proceeding, the medical provider is not entitled to automatic

payment of unpaid medical charges under Brooks v. A.M.F., Inc., 278 N.W.2d 310

(Minn. 1979), unless the medical provider can show the lack of notice resulted in

prejudice.

       Reversed and remanded.

                                     OPINION

DIETZEN, Justice.

       The question before us is whether we should extend our decision in Brooks v.

A.M.F., Inc., 278 N.W.2d 310 (Minn. 1979), and require automatic payment of a medical

provider’s treatment expenses when an employer fails to give the medical provider notice

of its right to intervene in a workers’ compensation proceeding to determine

responsibility for those expenses.

       The employee, Lon Gamble, was injured in a work-related accident at Twin Cities

Concrete Products (Twin Cities). His doctor recommended surgery, but Twin Cities

objected to the surgery on the ground that it was not reasonable and necessary. Gamble

obtained approval for the surgery from the Minnesota Laborers Health & Welfare Fund

(the Fund), a union-sponsored benefit plan, and proceeded with the surgery at Lakeview

Hospital. A workers’ compensation judge conducted a hearing and determined that the

surgery was not reasonable and necessary and ordered Twin Cities to reimburse the Fund

for the medical bills, but concluded that Twin Cities could itself seek reimbursement of

                                           2
the expenses from the medical providers. Lakeview, however, was not given notice of

that hearing.   Subsequently, before a second hearing on Twin Cities’ request for

reimbursement, Lakeview intervened. Following the second hearing, the compensation

judge concluded again that Gamble’s surgery was not reasonable and necessary and

ordered the medical providers, including Lakeview, to reimburse Twin Cities. On appeal,

the Workers’ Compensation Court of Appeals (WCCA) reversed, concluding that the

Brooks automatic-reimbursement rule should be extended to Lakeview because it was not

given notice of the first hearing. We disagree and therefore reverse and remand.

      The relevant facts are largely undisputed. Gamble injured his low back when he

fell six or seven feet from a ladder during the course of his employment at Twin Cities

Concrete Products on May 24, 2010. He reported the incident to Twin Cities and saw

Dr. Christian DuBois for medical treatment. An MRI conducted at Lakeview in July

2010 revealed mild to moderate disk space narrowing at L4-5 and L5-S1 with mild

degenerative changes. Gamble received epidural injections in July and September 2010,

but the injections provided little relief.   Gamble then returned to Dr. DuBois, who

recommended back surgery to relieve the back pain.

      Gamble subsequently filed a petition for workers’ compensation benefits in

November 2010.      At the request of Twin Cities, Dr. David Florence conducted an

independent medical examination of Gamble and concluded that surgery was not only

unreasonable and unnecessary, but was “contraindicated in view of the total picture and

the lack of surgical guidelines.” Thereafter, Twin Cities refused to pay for the surgery.

Nevertheless, Gamble obtained pre-authorization from the Fund to proceed with the back

                                             3
surgery, and then Dr. DuBois performed the surgery at Lakeview. Lakeview charged

$67,460.25 for the back surgery, of which the Fund paid $52,809.36.

       A hearing was held in June 2011 on Gamble’s petition to consider, among other

things, whether the back surgery was causally related to his work injury, whether the

surgery was reasonable and necessary, and who was responsible for the medical expenses

related to that surgery. Prior to the hearing, Gamble notified the Fund and some of the

medical providers of their right to intervene in the proceeding, see Minn. Stat. § 176.361,

subd. 1 (2012) (providing intervention rights to a “person who has an interest” in the

matter), but failed to notify Lakeview of its intervention right.1 Based on the record,

including the opinions and notes of the treating physicians, the workers’ compensation

judge concluded that Gamble’s back surgery was not reasonable and necessary, for

reasons not relevant here. The judge ordered Twin Cities to reimburse the Fund for its

payment of the medical expenses and authorized Twin Cities to seek reimbursement from

the medical providers.

       Twin Cities reimbursed the Fund and then filed a medical request seeking

reimbursement from the medical providers. Lakeview filed a motion to intervene, in

which it sought to obtain payment of the unpaid balance of Gamble’s medical bills.2


1
       The medical providers notified were St. Croix Orthopaedics, High Pointe Surgery
Center, Therapy Partner/OSI, and Stillwater Medical Group. It appears to be undisputed
that the parties were aware of Lakeview’s interest before the June 2011 hearing, but the
hearing proceeded without Lakeview’s participation.
2
       Lakeview had previously moved to intervene in the matter after it first learned in
late 2011 of the June 2011 proceeding. This motion was denied because there were no
                                                   (Footnote continued on next page.)
                                            4
Following a hearing in September 2012, the workers’ compensation judge evaluated the

evidence, including new evidence presented by Lakeview, and determined that the

surgery was not reasonable and necessary and ordered the medical providers to reimburse

Twin Cities for the medical bills it had paid to the Fund.

       The WCCA reversed, concluding that the Brooks automatic-reimbursement rule

applied, and that Lakeview was entitled to payment in full of its medical charges because

it had not been given notice of its right to intervene in Gamble’s proceeding. Gamble v.

Twin Cities Concrete Prods. & Gallagher Bassett Servs., Inc., 2013 WL 3791882, at *4-7

(Minn. WCCA July 8, 2013). The WCCA reasoned that it was undisputed that Lakeview

did not receive notice of the first hearing, and therefore Lakeview was entitled to

reimbursement regardless of the reasonableness and necessity of the surgery. Id. at *7.

This certiorari appeal followed.

                                             I.

       Twin Cities argues that the Brooks automatic-reimbursement rule applies only in

the context of settlement negotiations, and thus the WCCA erred in extending Brooks

simply because Lakeview was not given notice of its right to intervene in Gamble’s

workers’ compensation proceeding.        Lakeview counters that the Brooks automatic-

(Footnote continued from previous page.)
disputes pending, but once Twin Cities requested reimbursement, Lakeview filed a
second motion to intervene seeking payment of the unpaid balance, which is often
referred to as the Spaeth balance. A Spaeth balance is the amount that remains after a
health insurer pays the medical provider the amount provided under the workers’
compensation fee schedule. See Spaeth v. Cold Spring Granite Co., 56 Minn. Workers’
Comp. Dec. 136 (WCCA 1996), aff’d in part, rev’d in part without opinion, 560 N.W.2d
92 (Minn. 1997).

                                             5
reimbursement rule applies not only to potential intervenors that are excluded from

settlement negotiations, but also to potential intervenors that are excluded from a hearing

on the merits.3

       The determination of whether to extend the holding of Brooks to provide

automatic reimbursement to Lakeview is a question of law that we review de novo.

Troyer v. Vertlu Mgmt. Co./KOK & Lundberg Funeral Homes, 806 N.W.2d 17, 23

(Minn. 2011). To provide context, it is useful to first examine the workers’ compensation

statutory framework as it relates to medical treatment for work-related injuries and the

intervention rights of a medical provider that provides treatment to an injured worker.

       Under the Workers’ Compensation Act, an employer is responsible for furnishing

medical treatment to an injured employee if two conditions are met. First, the employee

must have sustained a personal injury “arising out of and in the course of employment.”

Minn. Stat. § 176.021, subd. 1 (2012). Second, the medical treatment must “reasonably

be required . . . to cure and relieve from the effects of the injury” including treatment

“necessary to physical rehabilitation.” Minn. Stat. § 176.135, subd. 1(a) (2012). Unless

a claim is denied for reasons permitted by statute, the employer must “pay the charge” for

3
       Lakeview also contends that the workers’ compensation judge erred in relying on
Chrz v. Sacred Heart Hospice, 1990 WL 291794 (Minn. WCCA Feb. 13, 1990), to
require Lakeview to reimburse Twin Cities because Chrz did not involve the failure to
provide intervention notice. Lakeview’s argument lacks merit. Chrz involved the
reimbursement procedures when an employee is covered by a health insurer and an
employer-insurer and there is a dispute about whether the employee’s medical treatment
was reasonable and necessary. Id. at *3-4. The workers’ compensation judge here did
not rely on Chrz to reject Lakeview’s automatic-reimbursement argument, but instead
concluded, consistent with Chrz, that Twin Cities was entitled to reimbursement from
Lakeview for its payment of medical treatment that was not reasonable and necessary.

                                             6
the reasonable and necessary treatment, including surgery charges.            Minn. Stat.

§ 176.135, subds. 1a, 6 (2012). In general, therefore, an employer must pay for an

employee’s medical treatment that is reasonable and necessary to cure or relieve the

effects of a personal injury arising out of and in the course of employment, but is not

required to pay for medical treatment that is not “reasonably required for the cure or

relief of the effects of a compensable injury.” Minn. R. 5221.0500, subp. 1F (2013); see

also Minn. Stat. § 176.135, subd. 1.

       A medical provider that treats an injured employee has the right to intervene in the

employee’s workers’ compensation case. See Minn. Stat. § 176.361, subd. 1 (2012)

(stating that “[a] person who has an interest in any [workers’ compensation matter] such

that the person may either gain or lose by an order or decision may intervene in the

proceeding”). The attorneys representing the parties in the matter must inquire from their

clients whether there are medical providers that provided treatment to the employee that

are entitled to notice of the right to intervene in the matter. See Minn. R. 1415.1100,

subp. 1 (2013). If such a medical provider exists, the attorneys must promptly serve the

provider with written notice of its right to petition for intervention and reimbursement.

Id., subp. 3 (2013).

       We have not addressed the consequence of excluding a medical provider that has

provided medical treatment or services to an injured employee from a hearing on the

merits of the employee’s claim. But we have addressed the consequence of excluding an

insurer that has paid medical or disability benefits to an injured employee from settlement

negotiations between the employer-insurer and the injured employee. See Le v. Kurt

                                            7
Mfg., 557 N.W.2d 202 (Minn. 1996); Vetsch v. Schwan’s Sales Enters., 283 N.W.2d 884

(Minn. 1979); Brooks v. A.M.F., Inc., 278 N.W.2d 310 (Minn. 1979). In Brooks, we

considered whether a group health insurer that had intervened in a workers’

compensation matter but was then excluded from participating in settlement negotiations

between the employee and the employer-insurer—which resulted in a complete

settlement of the employee’s workers’ compensation claim—was entitled to full

reimbursement of the medical expenses it had paid on behalf of the employee. 278

N.W.2d at 311. We concluded that a group health insurer who has intervened in a matter

and “is excluded from participating in negotiations resulting in a final settlement and who

is not a party to the settlement stipulation should, on principles of equity and public

policy, be awarded full reimbursement by the settlement award.” Id. at 315. We adopted

the automatic-reimbursement rule to motivate the employer-insurer and the employee to

include an intervening group health insurer in all settlement negotiations, knowing the

insurer may be fully reimbursed if excluded. Id. at 316. Additionally, we intended to

encourage health insurers to continue to make prompt payment of claims, “with the

assurance that they w[ould] be able to compromise and settle or receive reimbursement if

the employee later recover[ed] workers’ compensation benefits.” Id.

       We applied the Brooks automatic-reimbursement rule in both Vetsch and Le to

award reimbursements to health and disability insurers that had been excluded from

negotiations between the employee and the employer-insurer that had resulted in

settlement of the employee’s claim. Le, 557 N.W.2d at 205; Vetsch, 283 N.W.2d at 886-

87.

                                            8
                                               II.

       With the relevant law in mind, we turn to the question of whether we should

extend the Brooks automatic-reimbursement rule to a medical provider that does not

receive notice of a hearing to determine responsibility for its medical bill. We conclude

that when an employer fails to give a medical provider notice of its right to intervene in a

workers’ compensation proceeding, the medical provider is not entitled to automatic

payment of its medical bill under Brooks, unless the medical provider can show the lack

of notice resulted in prejudice. Two reasons support our conclusion.

       First, since Brooks was decided, rules have been promulgated to protect an

intervenor’s interest in workers’ compensation proceedings. Minnesota Rule 1420.1850

(2013) provides for the resolution of claims when a stipulation for settlement does not

include the agreement of all intervenors or potential intervenors. It provides in relevant

part that, subject to certain time limitations, the intervenor is entitled to a hearing to

       present evidence that the intervenor was effectively excluded from
       meaningful settlement negotiations through lack of an offer of settlement,
       lack of notice of the right to intervene, or an unreasonable or bad faith offer
       of settlement. If the judge finds that the intervenor was effectively
       excluded from the proceeding or negotiations, full reimbursement to the
       intervenor will be ordered.

Minn. R. 1420.1850, subp. 3B.

       Moreover, under Minnesota Rule 1415.1100, subpart 4 (2013), a judge may

sanction a party for failing to give a potential intervenor notice of its right to intervene in

a matter if that failure “materially prejudice[d] the rights and liabilities of the other

parties or the potential intervenor.”      Minn. R. 1415.1100, subp. 4.          The sanctions


                                               9
available include, among other things, any “sanction permitted by rule, statute, or case

law, as the judge deems just or appropriate under the circumstances.”            Minn. R.

1420.3700, subp. 1G (2013).

       These post-Brooks intervention rules adequately protect the rights of an interested

party, including a medical provider, that is not given notice of its right to intervene and

participate in a hearing or settlement negotiations. At the time Brooks was decided, the

lack of such procedures left intervenors with no remedy to protect their interest in the

proceeding. See Brooks, 278 N.W.2d at 315 (“[T]o leave an intervenor [excluded from

participating in settlement negotiations] with no remedy other than to . . . undertake the

burden of proving that the injury was work related is not the type of protection which

strikes a proper balance of the interests of all parties concerned.”). Now, however,

Minnesota Rules 1415.1100, subpart 4, and 1420.1850, subpart 3, provide consequences

for excluding a potential intervenor from a workers’ compensation matter. See also

Minn. R. 1420.3700, subp. 1G (providing a number of sanctions that are available).

       Second, Lakeview was not prejudiced by its absence from the June 2011 hearing.

In Brooks, we concluded that the health insurer was prejudiced by being excluded from

settlement negotiations resulting in a full settlement of the employee’s claim because “it

is incongruous to place upon the intervenor the burden of proving that the injury was

work related before [the intervenor] can recover reimbursement.” Brooks, 278 N.W.2d at

315.   Further, we noted that the employee had no incentive to cooperate with an

intervenor once the employee settled on the workers’ compensation claim. Id.



                                            10
      The concerns expressed in Brooks are not present here, and there is no material

prejudice to Lakeview or any other party under Minnesota Rule 1415.1100, subpart 4. In

this case, Gamble established that his injury was work-related at the June 2011 hearing,

and therefore the remaining issue was whether Gamble’s back surgery was reasonable

and necessary. It is true that the compensation judge concluded in Lakeview’s absence

that the back surgery was not reasonable and necessary. When Lakeview’s intervenor

interest was asserted, however, the compensation judge revisited the issue de novo at a

second hearing. Lakeview relied upon the evidence presented at the June 2011 hearing

and presented new testimony from Gamble and a new report from Dr. DuBois. We

conclude that the procedures employed by the workers’ compensation judge ensured that

Lakeview’s interests were protected and not materially prejudiced.4

      For the foregoing reasons, we decline to extend Brooks, and we conclude that

Lakeview is not entitled to automatic payment of its medical bill for treatment of

Gamble.5



4
       Although a second proceeding to determine the reasonableness and necessity of
the surgery before the same workers’ compensation judge was not completely
satisfactory from the perspective of Lakeview, and perhaps understandably so, we cannot
say on this record that the proceeding was unfair or resulted in prejudice.
5
       At oral argument, Lakeview indicated that if we reverse the WCCA, it may seek
reimbursement from Gamble. The issue of whether Lakeview is entitled to obtain
reimbursement from Gamble is not before us, and we decline to reach it. See Meyer v.
Nwokedi, 777 N.W.2d 218, 223 n.5, 224 n.6 (Minn. 2010) (declining to address issues not
before the court). We observe, however, that Minn. Stat. § 176.136, subd. 2 (2012),
provides that a medical provider may not collect or attempt to collect payment from an
injured employee for treatment that is not reasonable and necessary, unless the
                                                     (Footnote continued on next page.)
                                           11
                                          III.

      Having concluded that Lakeview is not entitled to automatic payment of its

medical bill, we must remand the case to the WCCA to decide whether the workers’

compensation judge’s conclusion that the surgery was not reasonable and necessary is

supported by the record.6 Lakeview raised this issue before the WCCA, but the WCCA

did not reach it because it concluded Lakeview was entitled to automatic reimbursement.

Gamble, 2013 WL 3791882, at *7, n.4. A remand is therefore necessary. See Minn. Stat.

§ 176.481 (2012) (“Where necessary the Supreme Court may remand the cause to the

[WCCA] for a new hearing or for further proceedings with such directions as the court

deems proper.”); Middleton v. Nw. Airlines, 600 N.W.2d 707, 711 (Minn. 1999)

(remanding case to the WCCA when issue of legal causation was raised before the

WCCA but not reached by it).

      Reversed and remanded.




(Footnote continued from previous page.)
commissioner, the workers’ compensation judge, or the WCCA determines otherwise.
See also Minn. R. 5221.0500, subp. 1F.
6
      The concurrence and dissent contends that Lakeview is not obligated to reimburse
Twin Cities, presumably because the Fund authorized Gamble’s surgery and therefore the
Fund, and not Lakeview, should ultimately be responsible for Gamble’s medical
expenses. That issue is not before us, and therefore we decline to reach it.

                                          12
                       CONCURRENCE & DISSENT

PAGE, Justice (concurring in part, dissenting in part).

       Although I do not disagree with the court’s conclusion that respondent Lakeview

is not entitled to automatic reimbursement of its treatment expenses, I nonetheless dissent

from that part of the court’s opinion that suggests that Lakeview may have some

obligation to reimburse relator Twin Cities. I do so because, on the record presented

here, it is not clear to me that Lakeview has any such obligation.




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