In an article published last fall, we reported that the Standing Order Regarding Required Appearance by Intervenors in Workers’ Compensation Matters had been issued by the Chief Administrative Law Judge at the Office of Administrative Hearings (“OAH”), which, in effect, required representatives for medical intervenors in workers’ compensation cases to personally appear at hearings or settlement conferences.
The exception to the new rule in the Standing Order was that if an intervenor served and filed a Notice of Election to Appear by Telephone at a proceeding along with its intervention application, or otherwise set forth required contact information for its representative within its moving papers, then its representative did not need to attend the conference or hearing in person.
The terms of the Standing Order, in part attributable to the Minnesota Supreme Court’s holding in Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706 (Minn. 2015), were advantageous to defense counsel in that if an intervenor failed to appear in person where no Notice of Election to Appear by Telephone was filed, or, on the other hand, failed to be present by phone when contacted by a compensation judge during a proceeding, the intervenor’s claim could, potentially, be denied by order of the Chief Judge.
In the most recent legislative session, the pertinent statute, Minn. Stat. § 176.361, subd. 4, was amended to allow intervenors more leeway in asserting and advancing their interests. Nevertheless, the amended statute does confirm compensation judges’ discretion in granting or denying motions to require an intervenor’s attendance at a proceeding in a case.
The amendment to the statute provides, in pertinent part:
“A person who has submitted a timely written motion to intervene … is not required to attend settlement or pretrial conferences or the hearing, unless attendance is ordered by the compensation judge assigned to the case, pursuant to a motion to require the intervenor’s attendance filed by a party or as a matter of the judge’s discretion.”
Minn. Stat. § 176.361, subd. 4.
Under the amended statute, a motion to require that an intervenor attend a proceeding must be served and filed twenty days or more before a hearing or conference and the presiding compensation judge must issue an order on the motion at least ten days before the proceeding. Id.
Although intervenors frequently choose to avoid attending settlement conferences and hearings, under the amended Minn. Stat. § 176.361, subd. 4, where a compensation judge has not ordered that an intervenor appear at a proceeding, that party may still attend in person, or request that the compensation judge allow its representative to attend by telephone.
The new statutory language does caution: “If attendance is ordered, failure of the intervenor to attend a proceeding either in person or, if approved by the compensation judge, by telephone or some other electronic medium, shall result in the denial of the claim for reimbursement.” Id. That is, unless there is a showing of good cause by the intervenor.
OAH views “good cause” as including events outside the control of an intervenor, including lack of timely notice of a scheduled hearing or conference. An intervenor’s own scheduling issues, though, are not typically deemed good cause for a failure to appear.
The recent amendment to Minn. Stat. § 176.361, subd. 4 is less strict than the mandate for personal appearance previously imposed by the Standing Order issued in 2015.
Still, defense attorneys and their clients can take heart knowing that under the new language, if the defense is successful in bringing a motion to require an intervenor to attend a proceeding, or a compensation judge orders such personal appearance on her own volition, and the intervenor fails to attend, then the claim for reimbursement may be denied.
The amendment to Minn. Stat. § 176.361, subd. 4 will take effect August 1, 2016. However, since the new statutory requirements seem to be primarily procedural in nature, the application of § 176.361, subd. 4, as amended, will likely be retroactive for any intervention motions pending at the Workers’ Compensation Division and/or OAH.
For more information please contact our office.