FRANKLIN v. RIVERFRONT HILTON INN, 1994 AWCC 112

CLAIM NOS. E215616 E101552

ROSALIE FRANKLIN, EMPLOYEE, CLAIMANT v. RIVERFRONT HILTON INN, EMPLOYER, RESPONDENT and U.S.F. G., INSURANCE CARRIER, RESPONDENT and DR. LEWIS F. BRACY, P.A., INTERVENOR

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 30, 1994

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE ROBERT TSCHEIMER, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE JIM TILLEY, Attorney at Law, Little Rock, Arkansas.

Intervenor represented by the HONORABLE RANDY HILL, Attorney at Law, Arkadelphia, Arkansas.

Decision of Administrative Law Judge: Vacated.

[1] OPINION AND ORDER
[2] Dr. Lewis F. Bracy appeals an order filed by the administrative law judge on November 16, 1993. In that order, the administrative law judge denied Dr. Bracy’s motion to intervene in the proceedings related to this claim. After considering this matter, we find that Dr. Bracy should be allowed to intervene and to participate in any matter related to the reasonableness or necessity of the services provided by him or expenses related to those services. Therefore, we find that the administrative law judge’s order should be vacated.

[3] Dr. Bracy is a psychologist who contends that he provided services to the claimant totaling approximately $13,000. The claimant contends that Dr. Bracy provided services to her and that these services were reasonably necessary for the treatment of her compensable injury. The respondents have controverted liability for Dr. Bracy’s charges, contending that the services were unauthorized and that the services were not reasonably necessary for treatment of the compensable injury. Consequently, the claimant filed a claim seeking, inter alia, payment of Dr. Bracy’s charges, and the claimant requested a hearing on that claim. Dr. Bracy contacted the claimant’s attorneys to determine whether they were prepared to protect his interests, and they indicated that they were not prepared to do so and that he should attempt to intervene. Consequently, Dr. Bracy filed the motion to intervene which the administrative law judge denied in her November 16, 1993, order.

[4] Intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding. Wood Construction Co. v. Ford, 258 Ark. 47, 522 S.W.2d 408 (1975); Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972). Under the Arkansas Rules of Civil Procedure, parties may intervene either as a matter of right or by permission of the court. Ark. R. Civ. Pro. 24. Unless the right to intervene is unconditionally conferred by statute, one may intervene as a matter of right if he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless his interest is adequately represented by existing parties. Ark. R. Civ. P. 24 (a); UHS ofArkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988); Polnac-Hartman Assoc. v. First National Bank, 292 Ark. 501, 731 S.W.2d 202 (1987); Arkansas State HighwayComm’n v. Wilkinson, 12 Ark. App. 28, 670 S.W.2d 462 (1984). If one is not entitled to intervene as a matter of right, the court may permit intervention if a statute confers a conditional right to intervene or if the applicant’s claim or defense and the main action have a question of law or fact in common. Ark. R. Civ. Pro. 24 (b). Intervention as a matter of right should be granted where the party seeking intervention is a financially interested party. RLI Ins.Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). Intervention may be appropriate, either as a matter of right or discretion, where one of the parties is indebted to the applicant and where this indebtedness is related to the property or transaction in such a way that remedies which would otherwise be available to the applicant to recover the debt will be affected, as a practical matter, by the outcome of the pending action, and this is true even though the applicant could have prosecuted an independent action.Lawrence v. Ford Motor Credit Co., 247 Ark. 1125, 449 S.W.2d 695 (1970); see also, South County Inc. v. First WesternLoan Co., 315 Ark. 722 (1994); Wood Construction Co. v.Ford, 258 Ark. 4-7, 522 S.W.2d 408 (1975).

[5] In general, a medical service provider has the right to bring an action for the costs of his services against the patient, one other than the patient who is legally obligated to provide the services to the patient, or both. Davis v.Baxter County Regional Hospital, 313 Ark. 388, 855 S.W.2d 303 (1993); Union County v. Brown Hospital, 297 Ark. 460, 762 S.W.2d 798 (1989); see also, Medlock v. Fort SmithService Finance Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). Under the Arkansas Workers’ Compensation Law, employers are legally obligated to provide all medical care that is reasonably necessary for treatment of the compensable injury. Ark. Code Ann. § 11-9-508 (a) (1987); ArtexHydrophonics v. Pippin, 267 Ark. 1014, 593 S.W.2d 473
(1980). Also, the normal rule is that the obligation to pay medical bills runs from the employer to the provider of the service. A. Larson, Larson’s Workmen’s Compensation Law, Vol. 2, § 61.12 (k) (1992). However, injured employees remain liable to the provider for those services in the event the expenses are not paid by the employer, and injured employees may be held personally liable for medical expenses found to be unreasonable or unnecessary by the Commission.Taggart v. Northeast Arkansas Rehabilitation Hospital, 316 Ark. 39, ___ S.W.2d ___ (1994); Savage v. GeneralIndustries, 23 Ark. App. 188, 745 S.W.2d 644 (1988).

[6] The rights of a medical service provider to recover fees in a workers’ compensation case are derived from the rights of a claimant. Consequently, the provider has no independent standing to initiate claims within the compensation system. Sloat Chiropractic Clinic v. SteveEvans Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986). Instead, there must have first been compensation claim proceedings initiated by the employee or employer before the rights of the provider can be considered. Id. However, once compensation proceedings have been initiated by the employee or employer, the provider may independently participate in those proceedings to establish the reasonableness and necessity of his fees. See, Hulvey v. Kellwood Co., 262 Ark. 564, 559 S.W.2d 153 (1977); Tracor/MBA v. BaptistMedical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989).

[7] This Commission has recognized the right of parties with an interest in the outcome of a claim to intervene once proceedings have been initiated by the employee or the employer, and we have permitted the intervention of such parties. See, Sandra K. Bearden v. Tracor/MBA, Full Workers’ Compensation Commission, Oct. 12, 1988 (Claim No. D400657); Helen Walker v. Sanyo Manufacturing Co., Full Workers’ Compensation Commission, Dec. 11, 1984 (Claim No. C804799); Wanda L. Foster v Waterloo Industries, Apr. 20, 1983 (Claim No. C478428); see also, Robert Cornelison v.Skil Corporation, Full Workers’ Compensation Commission, Jul. 15, 1992 (Claim E102118); Prince Eason v. ReynoldsMetals Co., Full Workers’ Compensation Commission, Jun. 4, 1991 (Claim No. 907422). We have also refused to act as a collection agency for unpaid doctors or group carriers who have mistakenly paid claims. See, Mooney v. HenrickBroadcasting Station, Full Workers’ Compensation Commission, Aug. 6, 1985 (Claim No. D409586); Yarbrough v. Steve EvansDatsun, Jul. 24, 1985 (Claim No. D400190); Williams v. RR. Construction Co., Aug. 14, 1986 (Claim No. D601957);Willie Perry v. Tune Concrete, Jan. 9, 1987 (Claim No. D512301). However, in these claims, the applicant was attempting to press a claim even though no proceedings had been initiated by the employee or the employer.

[8] In the present claim, we find that Dr. Bracy should be allowed to intervene and participate in any proceedings related to the reasonableness and necessity of his services and the associated expenses. If the Commission determines that the claimant’s claim for benefits related to his psychological condition is compensable, Dr. Bracy obviously has a direct and immediate interest in any proceedings related to the reasonableness and necessity of his services and the associated expenses. Furthermore, the respondents’ liability for those services can only be determined in proceedings before the Workers’ Compensation Commission. Therefore, if the Commission determines that all or part of the expenses are not reasonably necessary for treatment of the injury, Dr. Bracy will be denied any opportunity to present his claim against the employer unless he is allowed to intervene in any Workers’ Compensation Commission proceedings related to the reasonableness and necessity of these services and expenses. Therefore, the disposition of that issue by the Commission may, as a practical matter, impair or impede his ability to protect that interest. Furthermore, although claimant would remain liable for the expenses and should have an interest in diligently presenting the claim to avoid that liability, the claimant in the present claim has indicated that she was not willing to protect Dr. Bracy’s interest. Therefore, we conclude that Dr. Bracy’s interest is not adequately represented by existing parties, and we find that his motion to intervene should be granted.

[9] In reaching our decision, we note that the claimant and the respondents have filed a joint petition for a final settlement. In this regard, we point out that Dr. Bracy is not entitled to participate in the joint petition proceedings or any other proceedings unrelated to the reasonableness and necessity of his services and associated expenses. The Arkansas Workers’ Compensation Law expressly gives the employer or carrier and the injured employee the right to request Commission approval of a final settlement, and the Law mandates that the Commission “hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had.” Ark. Code Ann. § 11-9-805 (1987). Moreover, the intervention of other parties does not affect the right of the employer or carrier and the employee to request Commission approval of a final settlement. See, LibertyMutual Insurance v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974); International Paper Co. v. Wilson, 34 Ark. App. 87, 805 S.W.2d 668 (1991); see also, South County, Inc. v.First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993);Scalf v. Payne, 266 Ark. 231, 583 S.W.2d 51 (1979). Consequently, Dr. Bracy cannot prevent the claimant and the respondents from requesting approval of the final settlement, and he is not entitled to participate in proceedings related to the request for approval of the final settlement. Furthermore, if the joint petition is approved, this Commission loses all jurisdiction over any claim for the same injury or any results arising from it. Ark. Code Ann. § 11-9-805 (b). Since approval of the joint petition would extinguish the claimant’s right to proceed further with the claim, Dr. Bracy’s right to pursue his derivative claim before this Commission would also be extinguished.

[10] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that Dr. Bracy’s motion to intervene should be, and hereby is, granted. He is entitled to participate in any matters pertaining to the reasonableness and necessity of the services he provided and the associated charges. We also find that this claim must be remanded to the administrative law judge so that appropriate proceedings can be conducted and a determination made regarding the disposition of the parties’ joint petition for a final settlement or the pending claim if the joint petition is not approved.

[11] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[12] Commissioner Tatum dissents.

[13] DISSENTING OPINION
[14] I respectfully dissent from the majority’s opinion granting Dr. Lewis F. Bracy’s Motion to Intervene and denying the parties’ request for the Full Commission to remand this matter for a joint petition for final settlement.

[15] In my opinion, Dr. Bracy’s Motion to Intervene should be denied and the parties’ request to remand for a joint petition for final settlement hearing should be granted.

[16] Claimant sustained a work-related injury which was accepted as compensable by respondent. Eventually, claimant’s primary treating physician, Dr. Sorrells, referred claimant to Dr. Bracy for psychological counseling in the form of biofeedback. Respondent controverts the treatment of Dr. Bracy maintaining that it is not for a compensable injury and it is not reasonable or necessary. A January 11th hearing was scheduled on the issue of compensability for claimant’s psychological condition. However, that issue has not been determined by the Administrative Law Judge.

[17] Prior to the hearing, Dr. Bracy filed a Motion to Intervene. The Administrative Law Judge denied and dismissed Dr. Bracy’s motion. Dr. Bracy then appealed to the Full Commission. Subsequently, an agreement has been reached between the parties. The parties filed a request to the Full Commission to remand this matter back to an Administrative Law Judge for consideration of a joint petition for final settlement. As stated, the majority erroneously grants the Motion to Intervene and denies the request for remand for a joint petition hearing.

[18] It is well-established that this Commission has declined in the past to act as a collection agency for unpaid doctors or group carriers who have mistakenly paid claims. Mooney v. Henrick Broadcasting Station/Blue Cross-BlueShield, WCC D409586, FC Opinion 8/6/85; Yarbrough v.Sloat Chiropractor Clinic, WCC D400190, FC Opinion filed July 24, 1985 affirmed by the Court of Appeals in SloatChiropractic Clinic v. Steve Evans Datsun, 17 Ark. App. 161, 706 S.W.2d 181 (1986); and Williams v. R R Constr. Co./Dr.R. Ward, WCC D601957, D601958, FC Opinion 8/14/86. Although these cases are not directly on point, they make it clear that the Commission’s primary responsibility is to enforce the workers’ compensation code. Additionally, SloatChiropractic Clinic v. Steve Evans Datsun, supra, indicates that a provider’s rights are derivative in nature. Absent a specific statutory entitlement, a healthcare physician is entitled to payment for services only after a determination has been made that the underlying claim was compensable.

[19] The issue of compensability is not ripe. It has been raised but a determination has not been made. Although Dr. Bracy maintains that respondent has acknowledged that he is a referral, respondent has consistently controverted the care and treatment provided by him as unreasonable and unnecessary and for a noncompensable condition.

[20] Dr. Bracy maintains that if we do not grant his Motion to Intervene he will be in “no man’s land.” However, I am of the opinion that this is incorrect. If it is determined that Dr. Bracy’s care and treatment is reasonable, necessary and authorized medical treatment for claimant’s work-related injury or a condition related to the work-related injury then he will receive his fees pursuant to Rule 30 Fee Schedule. If the treatment is not related, reasonable and necessary, then according to the Supreme Court, he can look to claimant for payment. Taggert v.Northeast Ark. Rehabilitation Hospital, 316 Ark. 39, 870 S.W.2d 717 (1994). Thus, I would deny Dr. Bracy’s motion.

[21] Furthermore, and totally controlling in this case, in my opinion, is the fact that on or about July 21, 1994, the parties filed a joint Motion for an Order of Remand so that a joint petition for final settlement could be considered. The majority erroneously denied said motion. As noted by the majority, A.C.A. § 11-9-805 is the joint petition for final settlement statute. The majority quotes in part A.C.A. § 11-9-805 (a) which provides that “. . . the commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had.” However, while the majority chose the correct section of our law and, indeed, chose to quote the part that seems to fit the outcome they would like to reach in this case, unfortunately, my fellow Commissioners have neglected to follow A.C.A. § 11-9-805 (b) which provides:

If the commission decides that it is for the best interests of the claimant that a final award be made, it may order an award that shall be final as to the rights of all parties to the petition. . . (Emphasis added.)

[22] Clearly, when considering a joint petition for final settlement, the standard of determination is whether the joint petition for final settlement is in the bestinterest of the claimant. Here, by denying the joint Motion for an Order of Remand, the majority has put the bestinterests of Dr. Bracy before the best of the claimant. In my opinion, the majority’s action is erroneous and contrary to the letter and the spirit of the Arkansas Workers’ Compensation Code. Therefore, I would grant the joint Motion for an Order of Remand.

[23] Thus, I respectfully dissent from the majority’s decision.

[24] ALLYN C. TATUM, Commissioner