Miskowiec v. CM Info. Specialists, Inc., No. WC18-6227 (W.C.C.A. May 16, 2019)
The employer and insurer appeal from a compensation judge’s findings that the intervenor Central Medical Clinic (CMC) had timely intervened, and that the employee did not make an unauthorized change of physic cian to CMC. (A third issue was rendered moot by the decision on these issues.)
- Unauthorized Change of Physician
The employee suffered an admitted work injury with the employer on November 12, 2012. In December 2015, the employee began treatment with Dr. Todd Hess at United Pain Clinic. By April 2016, the employee was discharged from Dr. Hess’ care due to three separate violations of her pain contract with Dr. Hess.
On May 26, 2016, the employee reported to Dr. Alfonso Morales at CMC. 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. 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. At hearing the compensation judge found that the employee’s switch from Dr. Hess to Dr. Morales at CMC did not constitute an unauthorized change in physician and medical benefits were awarded. The employer and insurer appealed.
Minnesota Rule 5221.0430, subp. 2 and 3, states in relevant part, in sum, that a change in provider must be approved by the insurer after the first 60 days, otherwise the insurer is not liable for treatment prior approval. The employee argued there was substantial evidence to support the finding of a retroactive referral, asserting that case law allows for retroactive referrals from one provider to another. 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.
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. Accordingly, the compensation judge’s decision was reversed.
- Intervention of CMC
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. 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. No new notice of a right to intervene was served.
The employer and insurer argued that CMC failed to timely intervene within 30 days after notice of the right to intervene and of the administrative conference because it violated the statutory and rule framework of the Workers’ Compensation Act. The compensation judge rejected this argument; employer and insurer appealed.
Contrary to the employer and insurer’s argument, the Court found no indication in the record that CMC was directly notified of the 30 day deadline. Despite the requirement to do so contained in the rules, the employer and insurer did not send any intervention notice to CMC. 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. Accordingly, the appeal was denied.