Valerie Winstead v. Martin Luther Manor

Valerie Winstead v. Martin Luther Manor, WC18-6191 (January 16, 2019)

The employee sustained an alleged injury on March 10, 2017 for which primary liability was denied by the employer and insurer. The employee’s attorney filed a claim petition seeking “vocational services” and reserving “rehabilitation expert” as a witness. A rehabilitation request was simultaneously filed by the employee’s attorney seeking to have vocational rehabilitation provided by PAR. Two medical providers were put on notice of their right to intervene, but no intervention notice was given to any vocational services provider.

The employer filed a response indicating that because primary liability was denied, VRU should provide services. PAR still conducted an evaluation which found the employee not precluded from engaging in her usual occupation and could return to gainful employment with the employer and found her qualified for services. The employer and insurer filed a rehab request seeking to terminate services because of the denial of primary liability, and that the employee was not qualified. PAR did not respond. PAR continued to provide services and then filed its own rehab request seeking payment for the invoices. PAR also sent a letter stating they were allowed to perform services on denied claims so long as they understood the risk of non-payment. An intervention notice was sent to PAR on July 19, 2017.

PAR was later notified DLI did not have jurisdiction over the rehab request because of the denial of primary liability. PAR did not file a motion to intervene. The employee entered into negotiations with the employer, and all the intervenors who had filed for intervention. No offer was extended to PAR. On September 21, 2017 the employee and her attorney signed a Stipulation for Settlement seeking to extinguish PAR for failure to timely intervene. This Stipulation was approved. PAR requested a Parker-Lindberg hearing and retained the employee’s former attorney. The compensation judge conducted an evidentiary hearing, rather than a Parker-Lindberg, and found PAR did not timely intervene and was not entitled to a Parker-Lindberg hearing and that PAR was barred from receiving payment based on the Stipulation.

On appeal, PAR argued that although it did not file a formal motion to intervene, it effectively became an intervenor through its filing of a rehabilitation request. The WCCA found that the fact that DLI denied jurisdiction and PAR’s rehabilitation request was not certified and its claims were not effectively raised. PAR was also given statutory notice of its right to intervene and failed to do so. The court held that once jurisdiction was denied for the rehabilitation request PAR’s only remaining recourse was to file a motion to intervene, and it did not do so, therefore its interests were properly extinguished.