Mann v. Unity Medical Center/Health Central

COYNE, Justice

(dissenting).

I respectfully dissent. As we observed in Johnson v. Blue Cross & Blue Shield, 329 N.W.2d 49 (Minn.1983), Minn.Stat. § 176.191, subd. 3 (1988), imposes on a health or disability insurer the obligation to make medical or disability payments whenever there is a dispute about the compensa-bility of an employee’s injury. Id. at 52. That statute goes on to provide that “[i]f the injury is subsequently determined to be compensable pursuant to [the Worker’s Compensation Act], the workers’ compensation insurer shall be ordered to reimburse the [health] insurer that made the payments for all payments made under this subdivision by the [health] insurer, including interest at a rate of 12 percent a year.” Minn.Stat. § 176.191, subd. 3 (1988).

In Johnson we went on to point out that the statute and case law disclose two policy considerations: first, industry, not health or disability insurers, is to bear the burden of economic loss from work-related injuries; and second, health and disability insurers must make payments while primary liability is disputed so that the injured employee does not suffer. Johnson, 329 N.W.2d at 52. In return for the imposition of this immediate responsibility on the health or disability carrier, however, section 176.-191, subd. 3, directly protects the health and disability insurer’s interest by requiring the inclusion of an order of reimbursement in any determination that the injury is compensable under the Worker’s Compensation Act.

Under this statutory plan, the passivity of the health or disability insurer’s part in the workers’ compensation proceedings is assured. It need not demonstrate a common law right of subrogation, and while it must make its presence known in the workers’ compensation proceeding, the right to reimbursement is guaranteed by the statute. Moreover, since the statute provides that the workers’ compensation carrier shall be ordered to reimburse the health or disability insurer directly, that amount never becomes part of the “compensation awarded to the employee” within the meaning of Minn.Stat. § 176.081 (1988), which awards attorney fees.

It seems to me that the only rationale for the position adopted by the court in the Johnson case is the coordinated statutory structure for payment and reimbursement of medical and disability benefits without regard to the relative merits of the competing positions of workers’ compensation carrier and health and disability insurers. Unlike the intervening commissioner of department of economic security, claiming reimbursement for unemployment compensation paid an injured employee, Edquist v. Browning-Ferris, 380 N.W.2d 787 (Minn.1986), a health or disability insurer has no obligation to demonstrate a common law right of subrogation. Neither, however, does a health or disability insurer have any discretion to refuse payment on the ground that primary liability rests on the workers’ compensation carrier; the obligation is imposed on the health or disability insurer by statute.

In summary, then, I am unable to distinguish the claim pursuant to section 176.-191, subd. 3, of the disability insurer from that of the health insurer. If the obligation imposed on the health insurer by statute insulates the health insurer from the obligation to pay attorney fees to the injured employee’s attorney, I see no justification for depriving the disability insurer of the same immunity. In my opinion Johnson controls the disposition of this case, and we must either follow it or overrule it.