Lorrie J. Froemel v. Douglas Machine, Inc

Lorrie J. Froemel v. Douglas Machine, Inc., WC18-6141 (W.C.C.A. July 19, 2018)

Employer and Insurer appeal Findings and Order arguing that the intervention claim of Allina Health should be subject to the fee schedule.

In the original findings and order, issued in 2015, the compensation judge found that the employee experienced injuries to her head, neck, left shoulder, bilateral shoulders, and bilateral wrists. The employee was approved for left shoulder surgery at the time but her treating physician declined to more forward before of concerned of a possible complicate to the employee’s cervical spine.

After subsequent approval, the employee underwent left shoulder surgery in 2017 and the employee’s treating physician recommended right shoulder surgery. The employee underwent an IME with Dr. Engasser, who opined that the right shoulder surgery was premature pending the results of more conservative treatment.

The employee filed a medical request seeking approval of the right shoulder surgery and the employer and insurer objected, relaying on Dr. Engasser’s IME opinion. The employee underwent the right shoulder surgery, the treating physician provided a summary report supporting compensability of the surgery and Allina intervened seeking payment for the surgical procedure.

The compensation judge incorporated the original Findings and Order into the decision on the medical request and held that the right shoulder surgery was compensable, awarding the intervention claim of Allina. No reference was made to the fee schedule. On appeal, the employer and insurer requested that the award to Allina be limited to the treatment parameters and fee schedule set forth in Minn. R. Ch. 5221 and Minn. Stat. § 176.191.

The WCCA discussed holding that Minn. R. 5221.6020, subp. 2 is clear that the treatment parameters do not apply until after liability is established when liability is initially denied. Similarly, under Minn. Stat. § 176.191, subd. 3, the fee schedule is not initially applicable where liability is denied for claims of certain intervenors.

With respect to the treatment parameters, the Court held that nothing in the original Findings are Order required the employer and insurer to pay for the right shoulder surgery and that the issue before the compensation judge on the medical request was whether the right shoulder surgery was reasonably required to cure or relieve the employee from a work related injury. Because the employer and insurer argued a lack of causation, the defense constituted a denial of liability. The Court concluded, therefore, that the treatment parameters do not apply to the case.

With respect to the applicability of the fee schedule, the WCCA acknowledge that there is a difference between health care providers and health insurers when there is a denial of liability. Pursuant to the rule, the fee schedule applies to health care providers whereas, it is not apply to health insurers and it is incumbent upon the workers’ compensation carrier to seek reimbursement from the health care provider. The WCCA held that it was unclear from the record whether Allina Health was a health care provider or health insurer, as applied to this case, and remanded the case back to the compensation judge for sole determination of whether Allina fell within the categories of insurer listed in Minn. Stat. § 176.191, subd. 3.