On Wednesday July 8, the Minnesota Supreme Court held that an intervenor in a workers' compensation matter must appear at a hearing at which a compensation judge resolves the intervenor's reimbursement claim. Sumner v. Jim Lupient Infiniti and SFM Risk Solutions, A14-0726 (July 08, 2015)
Two health care providers treated an employee injured after a work injury. The employer denied primary liability and the health care providers moved to intervene. The intervenors did not appear at the hearing, did not receive permission to be absent from the hearing, and the parties did not stipulate that the intervenors were entitled to reimbursement. The compensation judge denied reimbursement to the intervenors based on Minn. Stat. § 176.361, subd. 4 (2014), which states intervenors “shall attend all settlement or pretrial conferences, administrative conferences, and the hearing,” and that the “[f]ailure [of an intervenor] to appear shall result in the denial of the claim for reimbursement.” The intervenors appealed to the Minnesota Workers' Compensation Court of Appeals (WCCA). The WCCA affirmed the compensation judge, and the intervenors appealed to the Minnesota Supreme Court.
The Minnesota Supreme Court concluded the unambiguous language of the statute requires intervenors to “appear” at the hearing unless they meet statutorily required conditions allowing them not to appear. (The statute allows intervenors not to appear if the parties sign and file a stipulation establishing the intervenors right to reimbursement or an insurer fails to object to an intervenors claim within 30 days.) Because the intervenors did not appear and did not meet the conditions for non-appearance, the statute mandated denial of the reimbursement claims.
The Court stated that it would not judicially rewrite the statute and invited the Legislature to do so if appropriate. The Court noted its decision was not intended to provide an opinion regarding whether an intervenor may appear telephonically or by some other medium, or on the validity of the standing order of the Office of Administrative Hearings that allows intervenors to provide a contact person who must be available during settlement conferences.
We anticipate that the Legislature will attempt to clarify whether intervenors must personally attend administrative conferences, settlement conferences, pretrial conferences and hearings. OAH is reviewing whether, in light of Sumner, their Standing Order Granting Attendance At Settlement Conference Via Telephone will remain in effect. In the meantime, we expect intervenors to personally attend conferences and hearings or aggressively pursue obtaining stipulations or asserting failures to timely object. We also anticipate the workers compensation bar and OAH may pursue common sense, cost effective solutions until the Legislature acts.