JULIE M. BLOOM, Employee/Appellant, v. SLASH, INC., f/k/a GT INTERACTIVE SOFTWARE, and LUMBERMAN=S MUT. CAS. CO., Employer-Insurer, and WIZARD WORKS and MICHIGAN PHYSICIANS MUT. LIAB. CO., Employer-Insurer, and TIMELY TEMPORARIES and BERKLEY RISK ADM=RS CO., Employer-Insurer, and MEDICA/HRI and MN DEP=T OF HUMAN SERVS./BRS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 6, 2007
PRACTICE & PROCEDURE - DISMISSAL. Where the issue on appeal had to do with the employee=s repeated noncompliance with discovery requests and court orders and not with the nature of the employers= and insurers= defenses, and where the employee had clearly been afforded more than ample notice and opportunity to respond to the judge=s orders prior to the judge=s dismissal of her claim, the compensation judge=s order dismissing the employee=s claim with prejudice, after the claim had not progressed seven years after it was first filed and eleven years after the alleged injury, was neither factually unreasonable nor legally erroneous.
Determined by: Pederson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: James F. Cannon
Attorneys: The appellant employee appeared pro se. Devin J. Murphy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for Respondents Slash/Lumberman=s Mutual. Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for Respondents Wizard Works/Michigan Physicians Mutual. Patrick E. Mahoney, Mahoney, Dougherty and Mahoney, Minneapolis, MN, for Respondents Timely Temporaries/Berkley.
WILLIAM R. PEDERSON, Judge
The employee appeals pro se from the compensation judge's order dismissing the employee=s claim petition with prejudice. We affirm.
Litigation in this matter began on March 13, 2000, with the filing of a claim petition in which Julie Bloom [the employee] claimed entitlement to undetermined permanent partial disability benefits and to permanent total disability benefits commencing May 6, 1998, related to hepatitis C, chronic pain syndrome, generalized anxiety disorder, and depression consequent to a cut finger injury alleged to have occurred in the course of employment with GT Interactive Software on July 2, 1997. The employee had been thirty-three years old on that date and had been earning an alleged weekly wage of $332.80. By eventual amendment and joinder, the injury was subsequently alleged in the alternative to have occurred in the course of employment with Timely Temporaries on that same date or on January 1, 1996, in the course of employment with either Timely Temporaries or Slash, Inc., or Wizard Works. Issues in the course of this litigation have centered mainly on matters of employment relationship and causation.
The case was before this court three years ago pursuant to the employee=s appeal from a May 2004 order by Compensation Judge Rolf Hagen dismissing the matter Aby reason of employee=s failure to prosecute her claims and further by reason of employee=s failure to provide evidence in support of her employment relationship (with any/all of the above-named employers) or medical causation.@ No transcript had been made of the proceeding before Judge Hagen, however, and the judge had made no specific findings on what were clearly factual issues regarding the employee=s employment status on the date of her alleged injury or on the medical causation of her condition. Concluding that Ano meaningful review of the judge=s decision may be accomplished until a record is created and factual findings are made,@ this court, by a decision filed November 3, 2004, vacated and remanded Judge Hagen=s decision Afor further proceedings on the [alleged] employers= and insurers= motions@ to dismiss. We will not here review in any detail events in the case preceding that November 2004 decision but instead incorporate it by reference and focus on developments since its filing.
Subsequent to our remand in November of 2004, hearing was eventually held on February 16, 2006, before Compensation Judge James F. Cannon, on the alleged employers= and insurers= motions to dismiss. Issues at hearing were (1) which party has the burden of proof with respect to such motions for dismissal, (2) what is the standard of proof required to sustain that burden, and (3) whether or not the party with the burden of proof in this case had met that burden under that standard. The parties stipulated at that hearing that the only disputed element of the claim for purposes of the motions at issue was whether an employment relationship had existed between the employee and any of the three alleged employers at the time of the employee=s alleged injury. The issue of causation was left open. Evidence introduced by the employee at hearing included the employee=s testimony that, during the relevant period at issue, she had worked for Timely Temporaries at Wizard Works and/or Slash, Inc., f/k/a/GT Interactive Software, where she had sustained a cut working with box cutters, which cut ultimately resulted in an infection that led to her contracting hepatitis in January and/or May of 1996. Evidence introduced by the employee also included the testimony of a co-worker of the employee, Franz Parent, to the effect that he recalled the employee working for Timely Temporaries in January and May of 1996. Evidence submitted by the employee also included a calendar book with notations regarding her employment with Timely Temporaries between January and May of 1996.
On February 20, 2006, four days after conclusion of the hearing before Judge Cannon but prior to the judge=s issuance of any findings and order, Timely Temporaries and its insurer served a Demand for Discovery on the employee=s attorney, Richard C. Lund, the fifth attorney to represent the employee in this case, seeking disclosure, within thirty days, of nine elements of information or evidence, most of them pertaining to the employee=s relevant medical treatment and to potential witnesses in her case, all preparatory to litigation of the case on the merits. On May 9, 2006, prior to any response to that discovery demand, Judge Cannon issued his findings and order, concluding in part that the employee had the burden of proof in such dismissal matters but that that burden was only to establish a prima facie case. On those legal conclusions, the judge found that, by her own testimony, the testimony of Mr. Parent, and the calendar book that the employee had submitted into evidence, the employee had made a showing of Aminimally sufficient evidence to establish a prima facie case that an employer/employee relationship existed for the relevant period in issue, with one or more of the employers in this matter@ (underscoring in the original). No appeal was taken from Judge Cannon=s findings and order.
On May 10, 2006, the day after issuance of Judge Cannon=s findings and order, Timely Temporaries and its insurer served a Supplemental Demand for Discovery on Mr. Lund. The Supplemental Demand for Discovery was for disclosure, within thirty days, of all impeachment or rebuttal evidence and any and all exhibits that the employee might offer at hearing on the merits. About a month and a half later, on June 30, 2006, having received no response to either of their demands for discovery, Timely Temporaries and its insurer served on Mr. Lund a motion for an order compelling the employee to respond to the discovery demands or, failing the employee=s compliance, an order dismissing her claim. Subsequently, by letter to counsel for Timely Temporaries and its insurer dated July 6 and filed July 10, 2006, Mr. Lund indicated that he had withdrawn from representation of the employee in the case and that he would not be responding either to the discovery demands or to the motion to compel discovery. Mr. Lund evidently did, however, under cover of a letter to the employee dated July 11, 2006, provide to the employee copies of the motion papers regarding discovery, the Demand for Discovery, and the Supplemental Demand for Discovery, indicating that he was Aproviding these to you at the request of Judge Cannon.@ In his letter, Mr. Lund went on as follows:
As you know, we prepared a Response to the discovery and sent it to you, along with the [medical] authorizations, in February and again in June requesting your assistance in completing it and signing the authorizations. We did not receive a response.
I am enclosing another copy of the proposed Response, with our firm=s name removed, to assist you in completing a response to the discovery.
Mr. Lund=s letter was carbon copied to Judge Cannon and filed on July 13, 2006. On July 14, 2006, a staff attorney at the Office of Administrative Hearings wrote to the employee, indicating that she was aware that the employee was no longer represented by an attorney and Astrongly@ urging her to obtain another attorney in time for the pretrial in her case, set for August 14, 2006, and the hearing, scheduled for September 20, 2006.
On July 24, 2006, noting Timely Temporaries and its insurer=s Motion to Compel, filed July 5, 2006, Judge Cannon served and filed an Order Compelling Discovery, indicating that, if the employee failed to comply within twenty days with the discovery demands served February 21, 2006, and May 10, 2006, Aa Motion to Strike or Dismiss may be considered at the pre-trial set in this matter.@ The affidavit of service on the Order Compelling Discovery indicates that the order was served on attorneys for all three alleged insurers and on a former attorney of the employee, Dan K. Nelson, Afor lien,@ but it does not certify service on the employee or on any attorney actively representing her. Prior to her August 14, 2006, pretrial, the employee evidently advised the court that she would be unable to appear personally and that she was still seeking an attorney to represent her. On August 25, 2006, after summarizing the procedural posture of the employee=s case, including its history of the employee=s past representation by five different attorneys, all now withdrawn, Judge Cannon issued an Order Striking Employee=s Second Amended Claim Petition From Active Trial Calendar, Ato allow the employee additional time to retain an attorney and to comply with the Order to Compel Discovery issued in this matter.@ Having noted that the employee had first filed the case over six years ago and that there had been Anumerous motions, pleadings and Orders issued in this matter@ (emphasis in the original), the judge ordered further that,
if after 45 days from the date of the Order herein, the employee has not complied with the Order to Compel Discovery, and the employee and/or her attorney do not advise this office in writing that the employee is ready to have this case set for hearing, an Order Dismissing this case will be issued in this matter.
The affidavit of service on the August 25, 2006, order striking the employee=s claim petition indicates that the order was served on the employee personally. The employee neither complied with the Order Compelling Discovery nor advised the court of her willingness to proceed, and on October 19, 2006, Judge Cannon served and filed an order dismissing the employee=s claim petition with prejudice.
On November 20, 2006, the employee requested of this court an extension of time for filing an appeal, and on November 22, 2006, this court granted that request, subsequently denying Timely Temporaries and its insurer=s motion for reconsideration. On December 20, 2006, the employee filed a Notice of Appeal from Judge Cannon=s dismissal of her claim. On January 29, 2007, asserting that she had Anot had a chance to get started on my brief@ by reason of Athis illness that controls my life,@ the employee requested an extension of time for filing her brief, and on January 31, 2007, that extension was granted over the objection of Timely Temporaries and its insurer. On March 15, 2007, alleging that she had recently been hospitalized after being Aso sick I could not get out of bed@ and Ath[e]n fire dept inspection & Dr. appts, and bills and th[e]n getting admitted,@ the employee requested an extension of time for filing a reply brief, alleging that the testimony of adverse witnesses in her case had contained several Alies@ and that counsel for Timely Temporaries and its insurer Awrites the courts so many untrue details.@ On March 19, 2007, the employee=s request for an extension was granted. The employee eventually requested and was granted oral argument before this court, but she did not appear, calling in to assert illness on the morning of her scheduled argument only shortly before it was to begin.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The compensation judge=s August 25, 2006, Order Striking Employee=s Second Amended Claim Petition from Active Trial Calendar had clearly indicated that Aan Order Dismissing this case will be issued@ if the employee did not, within forty-five days, both comply with the July 24, 2006, Order to Compel Discovery and advise the Office of Administrative Hearings in writing that she was ready to have her case set for hearing. That order was served on the employee personally on the date of its filing. On October 19, 2006, noting that the employee had not yet - - well over forty-five days since being ordered to do so within forty-five days - - either complied with the Order Compelling Discovery or advised the court of her readiness to have her case set for hearing, the compensation judge dismissed the employee=s claim with prejudice.
The employee=s hand-completed notice of appeal from this dismissal on these grounds is difficult to read, but following is the employee=s statement of the issues that she is raising in regard to the order, as accurately as we can construe that statement:
I disagree because there are many things (records), that I feel are so important also in regards to the opposing sides response of May 9th, 2006 order Mr. Parent would gain for his testimony but left out had no claim as other person had no claim for his and also that the order of the 1st hearing from the Court of Appeals Nov. 4th, 2004 order File No. WC04-205 was not followed, I feel I was forced into a dismissal.
Attached to this notice of appeal is a three-page statement which begins as follows:
I am writing to you, because there are so many issues, in regards to this case, that I have been trying to get on record with the courts, the attorneys that I had did not think it was not important enough, when finally one did feel the info I showed him was very important in rega[r]ds to the case, that I have asked for so many years to get on the record, and this includes records from my 1996 work history that my mother gives the family every year at Christmas time.
The employee goes on in this attached statement to review at substantial length the history of her interaction with the alleged employers herein and to reiterate in some detail several pieces of evidence, both contested and admitted, that she has offered over the years in preserving thus far her entitlement to a formal hearing on the merits, frequently arguing also that she has been in poor health and undergoing treatment that has included Achemo[therapy].@ The employee concludes this statement by asserting, AI am getting we[a]k, my case got dismissed because of me being sick with no atty and demands, but to[o] little of time, fevers, fatigue.@ In her January 12, 2007, request for oral argument, the employee reiterates similarly,
I have many issues I really feel the court should know about how and what the attorne[y]s pulled and both compan[ie]s did and how false info given to Court of Appeals from Office of Administrat[ive Hearings] in regards to the case in question lead to a dismissal, I honestly feel I proved this case, if my attorneys through the years would of put [a lot] of things on record like I wanted and witnesses in w[h]ich I will put in my brief.
The employee=s appellate brief may be quoted in its entirety.
I think and honestly feel, I have proven my case, not by lies or typographical errors, unreadable records, or having Francois 3 family members lie in the[ir] depositions, tape record me in my own home and so much more, I am 100% elig[i]ble since 1998 for long term life disability ins[ur]ance, but GT Interactive Software would not give me the phone # I have my policy # but no phone # so I could not put a claim in, this case was dismissed without a hearing or atty, another point is everything from timely temps records on many many issues I have proof (documents) and the same goes for GT. I have been to court very ill I am not alone on being sick from being at that warehouse (told by GT supervisor[)], also witnesses told truth about lie in depositions to my attys also work history can prove & more for hearing date, twice my rights violated and 1st court of appeals order not followed.
In their responsive brief, Timely Temporaries and its insurer, joined in by Wizard Works and its insurer, argue that the employee has not identified what she believes to be improper about the judge=s order and does not offer any legal arguments regarding the issue before this court. They go on to contend that, although Athe courts have bent over backwards to accommodate her in this matter,@ the employee has repeatedly failed to comply with discovery demands and orders and Ahas shown no justification for her failure to provide the requested documentation.@ They argue that Minnesota Rule 1420.2200 mandates that discovery is to be responded to within thirty days of service, that sanctions for failure to do so may be imposed pursuant to subpart 5 of that rule, and that failure to comply with an order of a judge may include dismissal pursuant to Minnesota Rule 1420.3700, subparts E and G. See Minn. R. 1420.2200, subps. 1 & 5; Minn. R. 1420.3700, subps. 1E & 1G. They argue that AMinnesota courts have long recognized that public policy requires reasonable diligence in bringing litigation to a close@ A[s]ince witnesses die or disappear and memories fade@ and that A[c]onsequently, a trial court has the discretion to dismiss an action when a party=s failure to exercise reasonable diligence is unexcused and the nature of the claim requires the exercise of diligence.@ Citing DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 504, 30 W.C.D. 109, 114 (Minn. 1977). They argue further that A[t]his court does not [even] have authority to vacate a dismissal where the appropriate procedures were followed.@ Citing generally Becerra v. Pine Valley Meats, 54 W.C.D. 304 (W.C.C.A. 1999). Quoting the supreme court=s decision in Firoved v. General Motors Corporation, a civil law decision frequently referenced by our courts in these contexts, they acknowledge that dismissal for noncompliance with the rules or with an order of the court or for failure to prosecute a claim Ashould . . . be granted only under exceptional circumstances,@ the clear preference being for a full adjudication on the merits. Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (Minn. 1967). Citing several civil law precedents, however, they contend that the repeated failure of the employee to comply with discovery requests - - without explanation or justification - - rises to just such exceptional circumstances, resulting as it has in essentially de facto prejudice against the employer, the further in the past the alleged work injury - - over eleven years ago - - becomes.
In their responsive brief, GT Interactive Software and its insurer argue further that Athere are no issues raised in the employee=s Notice of Appeal which would allow this Court a meaningful review of the employee=s appellate brief@ and that A[t]he scope of review by this Court is limited to issues raised in the Notice of Appeal.@ See Minn. Stat. ' 176.421, subd. 6. Moreover, they argue, A[t]he issues raised in the employee=s Notice of Appeal were not addressed in her appellate brief,@ implying Minnesota Rule 9800.0900, subpart 2, which provides that A[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@ Minn. R. 9800.0900, subp. 2.
In her reply brief, the employee asserts that she Awould like to know@ why Timely Temporaries and Wizard Works Alied@ about matters pertaining to her unemployment compensation claim and her long-term disability claim, respectively, which she apparently considers material to her workers= compensation claim. She alleges further in that brief that she Anever rec[ei]ved any supp[l]ement[al] demand for discovery,@ service of which was certified to have been made upon her attorney, Mr. Lund. The employee alleges that that supplemental demand for discovery went to Mr. Nelson, whom she alleges represented her for only about two weeks, and that A[h]e never did forward any supplemental demand for discovery to me and he was not my attorney.@ She asserts that it was eventually from a staff attorney at the Office of Administrative Hearings that she eventually received the paperwork Aat the end of October 2006.@ Further, she indicates that she believes that all of the matters she raises in her brief are issues that Aare going to be brought up at the hearing,@ perhaps in reference to the then-prospective oral arguments in this matter. The employee did not, however, appear for her oral argument, calling in only shortly before its scheduled starting time to so advise the court. We are not persuaded that Judge Cannon=s dismissal of the case with prejudice was either factually unreasonable or legally erroneous.
Failure to comply with the order of a judge, or the willful failure to comply with an applicable provision of law, such as proper discovery demand, may subject a party to dismissal or other legal sanction. Minn. R. 1420.3700, subps. 1E and 1G. Dismissal with prejudice is a drastic sanction, however, which should not be imposed without compelling justification. Hanegmon v. Chisholm Health Ctr., No. WC07-100 (W.C.C.A. May 3, 2007), citing Michaelson v. Hamline Twin Cities Real Estate Co., 42 W.C.D. 964 (W.C.C.A. 1990), and Firoved, 277 Minn. at 283, 152 N.W.2d at 368. The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is the prejudicial effect of the order upon the parties to the action. Firoved, 277 Minn. at 283, 152 N.W.2d at 368. The supreme court has noted that it Ahas long recognized that public policy requires reasonable diligence in bringing litigation to a close and [that it] will not allow parties to delay suits for an unreasonable length of time,@ A[s]ince witnesses die or disappear and memories fade.@ DeMars, 256 N.W.2d at 504, 30 W.C.D. at 114. Unreasonable delays more often than not result in prejudice against the defending party. Indeed, the Minnesota Court of Appeals has held that a six year delay in prosecuting a claim is in effect de facto prejudice, leaving no need for a separate showing of prejudice by the defendant. See Belton v. City of Minneapolis, 393 N.W.2d 244, 246-47 (Minn. App. 1986); see also Reichert v. Union Fidelity Life Ins. Co., 360 N.W.2d 664, 667-68 (Minn. App. 1985).
The alleged injury in this case occurred about eleven years ago. The employee did not file a claim petition for benefits consequent to that alleged injury until about four years thereafter. Since filing her claim, the employee has been served by no fewer than five different attorneys, with whom she has still not brought any issue of the case to hearing on the merits. Since the commencement of litigation in 2000, there have been countless motions and delays, pursuant to which the case has been addressed by no fewer than six different compensation judges at the Office of Administrative Hearings, three of whom have ordered - - on March 10, 2003, February 11, 2005, and August 25, 2006 - - that the case should be stricken from the active calendar. Each time, the employee has been granted yet another opportunity to pursue her claim, and still the employee has neither disclosed to the opposing parties the medical and other evidence on which she intends to bring her case on for hearing on the merits, nor has she formally informed the Office of Administrative Hearings that she is ready to set a date for hearing of the matter. Moreover, this court, too, has now been compelled to consider a second time, with a new panel of three judges, issues once again centering around whether the employee has prosecuted her case with due diligence.
In her briefs and other correspondence with this court, the employee argues as if the issues before this court were issues as to the credibility of the employers= and insurers= positions and/or the veracity of their representations at the February 16, 2006, hearing before Judge Cannon and elsewhere. What the employee has repeatedly ignored, however - - for whatever reason - - is that those matters have never been at issue in the case since that hearing. In defining the issue before us, it is critical to note that the employee prevailed at the February 16, 2006, hearing on dismissal motions before Judge Cannon. What has been at issue ever since that hearing - - and, we would emphasize, what was problematic already in this case long before that hearing - - is that the employee simply has either intentionally refused or chronically neglected to comply with court requirements that she disclose to other parties in the case the evidence on which she intends to proceed with her claim. It is not the potential credibility of her case that has been at issue; it is her compliance with orders of the court and with the proper litigational requests of her opponents.
In all of her correspondence with this court, the employee does not directly - - and certainly not materially - - address her failure to comply with Judge Cannon=s August 25, 2006, order that, within forty-five days, she both (1) comply with the judge=s July 24, 2006, Order Compelling Discovery by responding to the two discovery demands and (2) indicate in writing to the judge her readiness to set a date for hearing of her case. She had well over the forty-five days allotted by Judge Cannon to comply with his order, and she either neglected to comply or elected not to comply with either of its two very straight-forward requirements. Nor has she addressed materially in any of her briefs to this court, in the over eight months since Judge Cannon=s October 19, 2006, dismissal order, the equally straight-forward issue now before us - - her failure to comply with that order of the court. Her repeated assertions that she has been ill cannot indefinitely excuse her from proceeding with her claim to the increased prejudice of defendants whose access to the original evidence grows daily more difficult. Her assertion that she never received the supplemental demand for discovery not only addresses only the second of the two discovery demands at issue but also contradicts Mr. Lund=s letter of July 11, 2006, which was filed with the court and purports to have enclosed not only both discovery demands but also Aanother copy of the proposed Response . . . to assist you in completing a response to the discovery.@ Moreover, the employee=s suggestion that the supplemental demand was served on Mr. Nelson alone - - and for that reason was not forwarded to her - - is belied by the fact that the affidavit attached to the supplemental demand clearly indicates that it was served on Mr. Lund as well as Mr. Nelson, supporting the evidence that Mr. Lund forwarded it to her as his letter attests. Finally, the credibility of the employee=s argument on this issue is further diminished by her claim that she eventually received the Apaper work@ at issue from Judge Cannon=s staff attorney Aat the end of October 2006.@ The record of filings in this matter clearly indicates that the staff attorney=s advisory mailing to the employee occurred, though without evidence of any enclosed Apaper work,@ on July 14, 2006, well in advance not only of Judge Cannon=s July 24, 2006, Order Compelling Discovery and his August 25, 2006, order requiring her to comply with that order within forty-five days, but fully three months in advance of the judge=s final dismissal of the employee=s claim.
Contrary to repeated suggestions of the employee here on appeal, the issue before us has nothing to do with the nature or quality of the employers= and insurers= defenses against the claims of the employee; it has all and only to do with the nature of the employee=s own compliance with court orders and other requirements of organized procedure, discovery requests in particular. Parties in a workers= compensation proceeding must be afforded reasonable notice and opportunity to respond before decisions affecting entitlement to benefits can be made, Becerra, 54 W.C.D. at 307, citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1990), and here the employee has clearly been afforded ample such opportunity. The compensation judge=s order dismissing the employee=s claim, now seven years after it was first filed and eleven years after the alleged injury on which it was based - - with still no meaningful response to discovery demands or other material progress toward hearing on the merits - - was neither factually unreasonable nor legally erroneous. And so it is affirmed. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 Perhaps by the employer/insurers use of a litigation format commenced earlier in the case, the document itself was actually directed in its text ATo the above-named employee and her attorney, Dan K. Nelson,@ an earlier, lien-holding attorney of the employee, but the attached affidavit indicates that it was also served on Mr. Lund, the most recent attorney for the employee.
 We note that the employee is maintaining that these matters Aare@ going to be brought up at the hearing rather than Awere@ to be brought up at the originally scheduled September 2006 hearing on the merits.
 Judges Gary Mesna, Cheryl LeClair Sommer, Carol Eckersen, Rolf Hagen, James Cannon, and Catherine Dallner.