U.S. Dep't of Veterans Affairs v. Boresi

• Decision Date: 30 April 2013
• Docket Number: No. SC 92541.,SC 92541.
• Citation: 396 S.W.3d 356
• Parties: UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Appellant, v. Karla O. BORESI, Chief Administrative Law Judge, Respondent.
• Court: Missouri Supreme Court

396 S.W.3d 356

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Appellant,

v.Karla O. BORESI, Chief Administrative Law Judge, Respondent.

No. SC 92541.

Supreme Court of Missouri, En Banc.

April 30, 2013.

Paul Petraborg, Richard G. Callahan, Nicholas P. Llewellyn, U.S. Attorney's Office, St. Louis, for VA.

James R. Layton, Solicitor General, Attorney General's Office, Jefferson City, for the administrative law judge.

PATRICIA BRECKENRIDGE, Judge.

The United States Department of Veterans Affairs (VA) appeals the circuit court's denial of its petition for a writ of mandamus. The VA petitioned for a writ to compel the chief administrative law judge to allow the VA's intervention in the workers' compensation proceeding of veteran Mark Hollis to seek payment for medical care the VA provided Mr. Hollis' for his work-related injury. In its motion to intervene, the VA claimed entitlement to intervene in the workers' compensation proceeding as a matter of right under 38 U.S.C. § 1729 and the supremacy clause of the United States Constitution. Because 38 U.S.C. § 1729 gives the VA the right to intervene, the circuit court's judgment is reversed, and a permanent writ of mandamus is issued.

Factual and Procedural Background

Veteran Mark Hollis filed a claim for workers' compensation benefits that is pending before the Missouri Labor and Industrial Relations Commission, Division of Workers' Compensation. In his claim, he alleged that he sustained an injury during the course of his employment with United Homecraft, Inc., on November 20, 2002. Mr. Hollis received care and treatment for that injury, totaling $18,958.53, at a VA medical facility.

It is undisputed that United Homecraft did not authorize the care Mr. Hollis received from the VA. The VA filed a motion in Mr. Hollis' workers' compensation proceeding asserting its right, under 38 U.S.C. § 1729 (2006), to “intervene or join in any action or proceeding brought by the veteran ... against a third party” to “recover charges ‘incurred incident to the veteran's employment and ... covered under a workers' compensation law or plan.’ ” The administrative law judge overruled the VA's motion on the ground that she “had no authority to permit intervention.” The VA then filed a petition for a writ of mandamus in the city of St. Louis circuit court requesting the administrative law judge be directed to allow the VA to intervene as a party in Mr. Hollis' workers' compensation proceeding. The circuit court issued a summons to the ALJ, who filed a response and suggestions in opposition to the VA's writ petition. After a hearing, the circuit court denied the VA's petition for a writ of mandamus by order and judgment. The VA appealed. Following an opinion by the court of appeals, this Court granted transfer. Rule 83.04.

Standard of Review

The VA seeks appellate review of the circuit court's denial of its petition for a writ of mandamus rather than filing a petition for an original writ in the court of appeals or this Court. See Rules 84.22 to 84.26 and 94.01 et seq. An appeal will lie from the denial of a writ petition when a lower court has issued a preliminary order in mandamus but then denies a permanent writ. See State ex rel. Ashby Road Partners, LLC v. State Tax Com'n, 297 S.W.3d 80, 83 (Mo. banc 2009) (expressing the rule in the context of a writ of prohibition). Likewise, when the lower court issues a summons, the functional equivalent of a preliminary order, and then denies a permanent writ, appellate review is available.¹See id. at 84.

To be entitled to a writ, “ ‘a litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed.’ ” State ex rel. Office of Pub. Counsel v. Pub. Serv. Com'n of State, 236 S.W.3d 632, 635 (Mo. banc 2007) (quoting Furlong Companies v. City of Kansas City, 189 S.W.3d 157, 165–66 (Mo. banc 2000)). An appellate court reviews the denial of a petition for a writ of mandamus for an abuse of discretion. See State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007). See also State ex rel. Taylor v. Meiners, 309 S.W.3d 392, 394 (Mo.App.2010); State ex rel. Rosenberg v. Jarrett, 233 S.W.3d 757, (Mo.App.2007). An abuse of discretion in denying a writ occurs when the circuit court misapplies the applicable statutes. Id.

Federal Law Compels Intervention

The VA claims, on appeal, that the circuit court erred in failing to issue a writ of mandamus. The requested writ would have compelled the administrative law judge to permit the VA to intervene in Mr. Hollis' workers' compensation proceeding. The VA asserts that a federal statute, 38 U.S.C. § 1729, and the supremacy clause of the United States Constitution give it the right to intervene in a Missouri workers' compensation proceeding to obtain payment for care it provided to an injured veteran, Mr. Hollis, if he is eligible for payment under chapter 287, Missouri's workers' compensation law. ²

The administrative law judge in Mr. Hollis' workers' compensation proceeding denied the VA's petition for intervention because she found that the Missouri workers' compensation statutes do not allow such intervention. The procedure for intervention in civil cases set out in Rule 52.12 does not apply to workers' compensation proceedings. State ex rel. Treasurer of State v. Siedlik, 851 S.W.2d 80, 81 (Mo.App.1993) (noting that the Missouri rules are not applicable to workers' compensation proceedings). “The Compensation Act itself is an exclusive and complete code and provides for its own procedure.” Groce v. Pyle, 315 S.W.2d 482, 492 (Mo.App.1958). Neither chapter 287 nor its applicable regulations provide for intervention by third parties.

Under chapter 287, a claimant seeks compensation for injuries incurred in the course and scope of the claimant's employment. Section 287.120. In addition to disability benefits, sections 287.149, RSMo 2000, and 287.170, an injured claimant is entitled to receive “medical, surgical, chiropractic, and hospital treatment ... as may reasonably be required after the injury or disability, to cure and relieve the effects of the injury.” Section 287.140.1. Unless a claimant desires to select and pay for the claimant's own health care providers, the employer has the right to select the health care providers at the employer's expense. Id. Only when the employer refuses to provide care can the claimant recover the cost of care provided without authorization. E.g., Durbin v. Ford Motor Co., 370 S.W.3d 305, 312 (Mo.App.2012); Wilson v. Emery Bird Thayer Co., 403 S.W.2d 953, 957–58 (Mo.App.1966), superseded by statute on other grounds as recognized by Pace v. City of St. Joseph, 367 S.W.3d 137, 146–47 (Mo.App.2012).

While chapter 287 does not include a procedure for intervention by a health care provider seeking payment, there is a procedure for a health care provider to file notice of its claim and request the administrative law judge to order direct payment from settlement proceeds or the claimant's award. A provider of health care to an injured claimant may “file an application for direct payment with the division” in a case where “an employer or insurer fails to make payment for authorized services provided to an employee ... due to a work-related injury that is covered under the Missouri Workers' Compensation Law....” 8 CSR 50–2.030(2)(A); see also section 287.140.13(6). This application for direct payment becomes “part of the underlying workers' compensation case” and requires the division to “notify the health care provider of all proceedings relating to the underlying workers' compensation case.” 8 CSR 50–2.030(2)(G); section 287.140.13. The care provider then is “granted standing to appear as a party in the underlying workers' compensation case for the limited purpose of establishing that the health care provider is entitled to payment for services rendered.” ³8 CSR 50–2.030(2)(G). Disputes regarding whether an employer authorized the care or refused to provide care can be resolved during proceedings regarding a health care provider's claim. See Curry v. Ozarks Elec. Corp., 39 S.W.3d 494, 496 (Mo. banc 2001), overruled on different grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Instead of filing an application for direct payment and proceeding as a care provider as authorized by section 287.140.13, the VA sought to intervene in the workers' compensation case, asserting it is authorized to do so by 38 U.S.C. § 1729. Pursuant to that statute, the VA has right to obtain payment for the cost of medical care furnished by the VA

in any case in which a veteran is furnished care or services under this chapter for a non-service-connected disability ... [and] to the extent that the veteran (or the provider of the care or services) would be eligible to receive payment for such care or services ... from a third party to the extent that the veteran (or the provider of the care or services) would be eligible to receive payment for such care or services from such third party if the care or services had not been furnished by a department or agency of the United States.

Id. at § 1729(a)(1). The provision specifically applies to a non-service disability “that is incurred incident to the veteran's employment and is covered under a workers' compensation law or plan that provides for payment for the cost of health care and services provided to the veteran by reason of the disability.” 38 U.S.C. § 1729(a)(2)(A). The law allows the VA to recover from a third party the costs of the care it gives to veterans with a non-service-connected disability to the same extent that (1) an injured party or (2) a private care provider would have received payment if the care or services had not been provided by the VA. United States v. Blue Cross/Blue Shield, 999 F.2d 1542, 1545 (11th Cir.1993). The accompanying regulations define “third parties” to include workers' compensation programs. 38 C.F.R. §...