Gist v. Atlas Staffing, Inc., A17-0819

• Decision Date: 04 April 2018
• Docket Number: A17-0819,A17-1096
• Citation: 910 N.W.2d 24
• Parties: Anthony GIST, Respondent, v. ATLAS STAFFING, INC. and Meadowbrook Claims Service, Appellants/Cross-Respondents, and Fresenius Medical Care, Respondent/Cross-Appellant.
• Court: Minnesota Supreme Court

910 N.W.2d 24

Anthony GIST, Respondent,

v.ATLAS STAFFING, INC. and Meadowbrook Claims Service, Appellants/Cross-Respondents,andFresenius Medical Care, Respondent/Cross-Appellant.

A17-0819

A17-1096

Supreme Court of Minnesota.

Filed: April 4, 2018

Benjamin J. Heimerl, Heimerl & Lammers, Minneapolis, Minnesota, for respondent.

Brent Kleffman, Beth A. Butler, Peterson, Logren, & Kilbury, P.A., Saint Paul, Minnesota, for appellants/cross-respondents.

Mark A. Frederickson, Katie H. Storms, João C.J.G. de Medeiros, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for respondent/cross-appellant.

OPINION

LILLEHAUG, Justice.

Shortly after leaving his job at Atlas Staffing, Inc. ("Atlas"), respondent Anthony Gist was diagnosed with end stage renal disease

("ESRD")—kidney failure. His job with Atlas exposed him to silica, a known cause of ESRD. Gist sought workers’ compensation benefits from Atlas and its insurer, Meadowbrook Claims Services (collectively, "appellants"). Appellants denied coverage, and Gist began receiving treatment from respondent/cross-appellant Fresenius Medical Care ("Fresenius"). Fresenius billed Medicaid, Medicare, and private insurer Medica for the costs of Gist’s treatment, and accepted payments from each.

After a hearing, the compensation judge found that Gist’s silica exposure was a substantial contributing factor to his kidney disease

, and ordered that appellants pay workers’ compensation benefits. After dismissing Fresenius’s cross-appeal as untimely, the Workers’ Compensation Court of Appeals ("WCCA") largely upheld the compensation judge’s decision. In the consolidated appeals brought by appellants and Fresenius, we affirm in part, reverse in part, and remand to the WCCA.

FACTS

Gist worked for Atlas, a temporary staffing agency, from September 2011 through June 2013. Atlas assigned him to Waltek Casting Company, which creates casting molds for boats, planes, and farming equipment engines. Gist’s job at Waltek involved placing wax figures on a rack and then a conveyor, after which a robot would drop the figures into a silica-sand tank. He was also required to fill and clean the silica-sand tanks. Filling occurred 8 to 10 times per 8-hour shift, and the tanks were cleaned at least once per day.

Because exposure to silica sand is hazardous, Gist wore ear plugs, safety glasses, gloves, and a paper mask. Gist described the 2-hour cleaning process as hot, wet, and muddy. Silica sand got inside his pants and stuck to his skin.

Gist left the job on June 28, 2013, at age 50. About a month later, he was seen at Mercy Hospital "for evaluation of kidney concerns after being informed by his clinic that his blood work had evidence for kidney failure

." Thereafter, Gist saw a number of doctors. In November 2014, he filed a claim petition seeking workers’ compensation benefits from appellants.

The compensation judge held a hearing in August 2016, at which the sole issue relevant to this appeal was whether silica exposure was a "substantial contributing factor to [Gist’s] kidney failure

."¹ The parties stipulated that "[a]ll medical treatment to date has been reasonable and necessary" and that Gist was "permanently and total[ly] disabled." At the time of the hearing, approximately $1.5 million in medical bills and indemnity benefits were at issue.

A great deal of evidence regarding Gist’s medical history was presented at the hearing. We summarize that history as follows:

• In February 2008, Gist was diagnosed "as having a left foot wound

with cellulitis and elevated blood sugar, most likely diabetic."

• In June 2011, Gist was "diagnosed with hypertension, left-sided chest pain, mild anemia, and resolving diverticulitis."

• In July 2013, Gist was evaluated by Dr. James Lee and then hospitalized for acute renal failure. Gist told Dr. Lee that he believed that his kidney failure was due to silica exposure.

• An August 2013 biopsy showed that Gist had a condition "globally interpreted as irreversible, non-salvageable kidney failure."

• A week after his biopsy, Gist saw Dr. James Rusin, a family physician. Dr.

Rusin "did not feel silica had anything to do with [Gist’s] kidney problem."

• On August 27, 2013, Gist saw Stephanie Gordon, a nurse practitioner. Gordon told Gist that "the kidney biopsy results were not consistent with findings of some type of exposure."

• On November 4, 2013, Gist was evaluated by Dr. Arthur Ney, a surgeon. Dr. Ney noted that Gist had "a history of ESRD ... possibly hypertension

" and deemed him a "reasonable candidate for transplant." Gist was approved for a transplant.

• On November 12, 2013, Janet Andersen, a kidney transplant coordinator, "spoke with Dr. Kyle Onan, Nephrologist .... [Dr. Onam stated that it is] hard to say if the silica sand caused [Gist’s] renal failure."

• On November 26, 2013, Gist had a follow-up appointment with Dr. Lee, who noted that "[o]f the information I have at my disposal, silicosis can be a cause of chronic renal failure."

• In February 2014, Gist started dialysis treatment with Dr. George Canas, who later issued a report opining that "the most likely, and most reasonable, cause of [Gist’s kidney failure ] is through his exposure to silica as a result of his work through both a respiratory route and direct contact."

• In April 2014, Gist met with Dr. David Parker, an occupational medicine doctor, who advised him that silica exposure "was not the likely cause" of his kidney failure.

• In February 2015, Gist was examined by Dr. Merlin Brown, appellants’ expert, who opined that "silica exposure was not a substantial contributing factor in the cause of [his] chronic kidney disease."

Gist received treatment from Fresenius Medical Care in Coon Rapids from July 2014 until June 2015, and in Michigan from June 2015 through June 2016. Fresenius intervened in this case in October 2015, seeking reimbursement from appellants for the difference between the treatment costs that it had billed to Medicaid and Medicare and what it was actually paid.² When the hearing was held before the compensation judge, Gist had not yet received a kidney transplant

.

The compensation judge’s decision turned on whether she credited one of Gist’s treating physicians, Dr. Canas (a nephrologist), or the appellants’ examiner, Dr. Brown (an internal medicine specialist). The judge found the opinion of Dr. Canas "more persuasive" than the opinion of Dr. Brown, and concluded that "the silica [Gist] was exposed to while working ... was a substantial contributing cause of [his] ultimate development of end stage renal failure

." The judge also concluded that the Minnesota workers’ compensation fee schedules applied "to all charges for services provided to [Gist] for the work-related condition while in the state of Minnesota." For services provided in Michigan, the laws and fee schedules of Michigan applied. Finally, the judge concluded that she lacked jurisdiction to interpret the Medicaid and Medicare laws, and ordered that appellants "pay to [Fresenius] ... in accordance with all other state and federal laws, [its] outstanding intervention interests associated with the employee’s end stage renal disease." Appellants were also ordered to reimburse Medica and the Minnesota Department of Human Services ("DHS").

The compensation judge’s findings and order were served on the parties via U.S. mail on October 24, 2016. Fresenius’s counsel, but not Fresenius itself, was served. On November 8, 2016, appellants filed a notice of appeal. The notice had been served on Fresenius the day before. Fresenius served a notice of cross-appeal by mail on November 22, 2016, which was received by the Office of Administrative Hearings ("OAH") on November 28, 2016. On May 12, 2017, the WCCA dismissed Fresenius’s cross-appeal for lack of subject-matter jurisdiction, concluding that Fresenius’s notice should have been filed by November 23, 2016.³

On June 21, 2017, the WCCA largely affirmed the compensation judge’s decision. First, it held that "[s]ubstantial evidence, including medical expert opinion, supports the compensation judge’s finding that [Gist’s] exposure to silica sand ... was a substantial contributing factor to [his] kidney failure

." Gist v. Atlas Staffing, Inc. , No. WC16-6019, 2017 WL 3400792, at *7 (Minn. WCCA Jun. 21, 2017). Second, it concluded that "the compensation judge properly determined she lacked jurisdiction to interpret and apply Medicaid and Medicare statutes and rules." Id. at *8. Third, it concluded that "the compensation judge properly rejected [appellants’] argument that a medical provider that accepts payments from Medicaid and Medicare is barred from receiving workers’ compensation payment." Id. at *9. Fourth, it modified the compensation judge’s order, striking the language that ordered payment to be made "in accordance with all other state and federal laws" because that language was "contrary to the determination ... that [the judge] lacked jurisdiction to apply federal law" and was "too vague to be enforceable." Id.

On the same day that appellants petitioned for a writ of certiorari, Fresenius moved to lift the stay of its appeal and consolidate the two appeals. We granted Fresenius’s motion.

ANALYSIS

The parties raise five issues. First, appellants challenge the compensation judge’s finding of liability, arguing that Dr. Canas’s medical report lacked adequate foundation. Second, appellants argue that, under a federal Medicaid regulation, Fresenius may not obtain from them the amounts billed to, but not paid by, Medicaid.⁴ Third, Fresenius challenges the WCCA’s dismissal of its cross-appeal as untimely. Fourth, appellants argue that the WCCA erred by striking the "in accordance with all other state and federal laws" language from the compensation judge’s order. Fifth, Fresenius argues that the compensation judge erred by concluding that the Minnesota workers’ compensation fee schedules applied to its medical bills for treatment incurred prior to the finding that appellants were liable.

I.

We first...