TERRY BURD, Employee/Appellant, v. HALSTAD LUTHERAN MEM’L HOME and MINNESOTA HEALTH CARE ASS’N/GAB ROBINS, INC., Employer-Insurer, and HILLSBORO MED. CTR., CENTER FOR PAIN MGMT., WEST FARGO CHIROPRACTIC, INJURED WORKERS PHARMACY, MERITCARE HOSP., MINNESOTA DEP’T OF LABOR & INDUS./VRU, and MINNESOTA DEP’T OF HUMAN SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 30, 2008
PRACTICE & PROCEDURE - RECORD. In the absence of an evidentiary record, that is, testimony and/or documentary evidence submitted or specifically identified at the hearing, this court has no way to determine just what documents the judge may or may not have considered in making the decision to dismiss the employee’s claim.
PRACTICE & PROCEDURE - DISMISSAL. Based on the procedural history of this case as reflected in the compensation judge’s decision and the briefs of counsel, the judge’s dismissal of the employee’s claim petition was not appropriate. The dismissal is reversed and the case remanded for further proceedings.
Reversed and remanded.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Mark L. Rodgers, Rodgers Law Office, Bemidji, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s Findings and Order dismissing his claim petition with prejudice. We reverse the dismissal and remand the matter to the Office of Administrative Hearings for further proceedings.
Litigation began in this matter with the filing of a claim petition on November 6, 2002, in which the employee alleged an injury to his head and neck on November 6, 2000, while working for Halstad Lutheran Memorial Home. The employer and its insurer, Minnesota Health Care Association/GAB Robins, Inc., filed an answer on November 25, 2002, denying an injury to the head or neck and asserting that any injury sustained on that date was minor and temporary. Discovery commenced, and by April 2003, medical authorizations had been provided to the employer and insurer and the employee’s deposition was taken. An independent medical examination (IME) was completed by Dr. James Allen, on behalf of the employer and insurer, in August 2003. The employee’s treating chiropractor, Dr. Larry Stember, provided a report in support of the employee’s claims in November 2003.
The case was assigned to Compensation Judge Eckersen on February 6, 2004. A telephone pretrial, originally scheduled in March 2004, was rescheduled for July 26, 2004, at the request of the parties. At the July 2004 pretrial, counsel for the employee moved to strike the case. The judge found the matter was not ready to proceed to trial and issued an order striking the case from the active trial calendar.
On September 8, 2005, the employer and insurer filed a motion to dismiss the employee’s claim petition for failure to prosecute. Counsel for the employee objected to the motion stating an additional medical evaluation was scheduled in the near future and the employee was attempting limited self-employment in a family business. A pretrial on the motion to dismiss was set for November 21, 2005.
Just prior to the pretrial, counsel for the employee filed a report from Dr. Ross Mangiamele, dated September 27, 2005, and indicated he was ready to proceed with the claim. The pretrial hearing on the motion to dismiss was rescheduled to January 17, 2006, and the employer and insurer sought additional discovery. In December 2005, the employee was seen by a speech pathologist who recommended evaluation by a neuropsychologist. Counsel for the employee then sought a continuance. On January 18, 2006, the compensation judge issued an Order Denying Motion for Dismissal. The judge ordered the employee to obtain “all necessary evaluations and investigation required” and file an Amended Claim Petition on or before February 28, 2006. The employer and insurer were given 120 days from the filing of the Amended Claim Petition to depose the employee and obtain and file an IME or other evaluations as necessary. The judge further provided that the employee “may file a Motion to Reinstate this matter on the active trial calendar when all discovery is completed, all reports of health care providers, vocation[al] experts or other experts have been obtained and filed, all wage loss claims have been itemized and supporting wage records disclosed and settlement discussions have been attempted in good faith.” (Order Denying Motion for Dismissal, Jan. 18, 2006.)
The employee was seen by Dr. Rodney Swenson, a neuropsychologist, on January 31 and completed testing on February 1, 2006. An Amended Claim Petition was filed on February 28, 2006, adding an injury on January 8, 2001, and describing the nature of the employee’s injuries as “head, neck, left shoulder, left knee, left hip, headaches, speech difficulty, chronic pain syndrome, and cervical/thoracic/lumbar spine; depression; brain injury; and consequential injury from ingestion of Thorazine.” The employee sought, in the alternative, temporary total disability, temporary partial disability, or permanent total disability benefits, permanent partial disability benefits, and payment of medical expenses. The employer and insurer renewed their discovery request of November 22, 2005, along with a supplementary discovery demand and a request for updated authorizations, and scheduled an IME with a psychological expert. The employee was re-deposed on September 19, 2006, and the IME was completed on October 4, 2006. In March 2007, counsel for the employee stated he was getting ready to request the case be set back on the trial calendar, and inquired whether the employer and insurer wished to engage in mediation. The employer and insurer requested additional clarification and itemization of the claim, along with previously requested discovery, before proceeding with mediation, and reserved the right to an updated IME once the case was back on the calendar.
On November 14, 2007, the employer and insurer filed another motion to dismiss the claim petition with prejudice on the basis that the employee had failed to diligently prosecute his claim. The employee objected to the motion, and a telephone pretrial was scheduled for January 7, 2008, before Compensation Judge Eckersen. On January 30, 2008, the compensation judge issued an order finding the employee had inexcusably delayed bringing litigation of the claim to a close and that the delay had resulted in prejudice to the employer and insurer. The claim petition was dismissed with prejudice. The employee appeals.
We note, initially, that no evidentiary record was made in this proceeding. A pretrial was held on the employer and insurer’s motion by telephone on January 7, 2008. The compensation judge heard oral arguments by counsel for the parties for and against the motion to dismiss, but no testimony was taken and no documentary exhibits were submitted or identified.
This court has observed on a number of occasions that the workers’ compensation optical document imaging system has complicated the question of just what constitutes “the record” in a proceeding. See, e.g., Beckwith v. Sun County Airlines, 63 W.C.D. 511 (W.C.C.A. 2003); Bloom v. Slash, Inc., No. WC04-205 (W.C.C.A. Nov. 3, 2004); Zuehlke by Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. Jan. 24, 2001). In this case, no documents were identified or submitted at the hearing before the compensation judge on the motion. Arguments by counsel are not evidence. Compare, e.g., State of Minnesota v. St. Paul Fire and Marine Ins. Co., 434 N.W.2d 6 (Ct. App. 1989)(written summary of settlement negotiations in appellant’s counsel’s brief was not a part of the trial court record and was not part of the record for the court’s review).
In Moore v. University of Minn., No. WC07-195 (W.C.C.A. Nov. 30, 2007) this court stated:
We cannot emphasize strongly enough that it is preferable for parties in a workers’ compensation proceeding to submit paper copies of all exhibits to the compensation judge in order to clearly define the scope and contents of the record. (Citation omitted.) . . . [I]n future appeals, this court reserves the option of considering only those paper exhibits formally submitted and accepted into evidence at hearing and those documents in the division file which are specifically identified at hearing by filing date, title and content (emphasis omitted). Litigants are advised to develop the record for appeal purposes accordingly.
The imaging system index for this case lists more than 115 imaged documents filed between January 22, 2001, and April 30, 2008. In hearing and deciding the motion to dismiss, the compensation judge of necessity made factual determinations about the procedural history of this case. We have no desire to “wade through multiple imaged documents to find the part of ‘the record’ relevant to the issues” before us. More importantly, we, as a reviewing court, have no way to determine just what documents the judge may or may not have considered in reaching her decision. Beckwith at 516.
An order dismissing a claim runs counter to the primary objective of the law to dispose of cases on the merits. Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction that can be imposed for noncompliance with the rules or order of the court or for failure to prosecute. It should therefore be granted only under exceptional circumstances. Firoved v. General Motors Corp., 152 N.W.2d 364 (Minn. 1967); Lamkin v. JWS Homes & Contracting, Inc., No. WC06-294 (W.C.C.A. Apr. 10, 2007); Burnsed v. Vehicular Testing Serv., No. WC04-181 (W.C.C.A. Nov. 9, 2004).
The employer and insurer and the compensation judge recite the fact that an order to compel attendance was required for both independent medical examinations scheduled by the employer and insurer. In both instances, however, the examination was scheduled to take place in the Twin Cities, more than 150 miles from the employee’s home. Minn. Stat. § 176.155, subd. 1, provides that “[t]he examination must be scheduled at a location within 150 miles of the employee’s residence unless the employer can show cause . . . to order an examination at a location further from the employee’s residence.” It is the employer’s obligation to establish cause, and the employee’s objection to an examination on basis of this statute cannot be a basis for finding unreasonable or inexcusable delay. There is no evidence the employee failed to attend either IME in violation of the orders.
The compensation judge also references the employee’s failure to respond to the employer and insurer’s discovery demands in a timely manner. Penalties for failure to comply with a discovery demand are specifically provided in Minn. R. 1420.2200. Dismissal is not included as a sanction under this rule. This court has held that dismissal of a claim petition is not an appropriate sanction for failure to comply with a party request for discovery. The proper procedure in such instances is a motion and the issuance of an order compelling the specifically requested discovery by a specified date. A dismissal may be appropriate for willful failure to comply with the judge’s order. Michaelson v. Hamline Twin City Real Estate Co., 42 W.C.D. 964 (W.C.C.A. 1990); Minn. R. 1420.3700. In this case, we find no motion to compel discovery of the documents sought by the employer and insurer, nor is there evidence of failure on the part of the employee to comply with an order compelling discovery of specific items with a specific date for compliance. We acknowledge that counsel for the employee has been less than diligent in responding to the employer and insurer’s discovery requests. Courts have generally, however, been reluctant to penalize a party for conduct attributable primarily to the attorney, imposing less drastic sanctions in such circumstances. See, e.g., Firoved, 152 N.W.2d at 368 n.8; Scherer v. Hanson, 270 N.W.2d 23, 25 (Minn. 1978).
The compensation judge observed it had been seven years since the date of injury and more than three years from the date the case was first set to go to trial. This litigation was initiated by the filing of a claim petition in November 2002. The claim was filed within the statute of limitations for a workers’ compensation claim. Until the motion to dismiss at issue, the delays in proceeding to hearing were either requested or agreed to by both parties, or were permitted by order of the trial court. As such, it is inaccurate to label what occurred during that time as an inexcusable delay or a lack of prosecution.
The compensation judge also found the case sat dormant from February 2006 to January 2008. We disagree. Following the January 18, 2006, Order Denying Motion for Dismissal, the employee completed an examination and testing by Dr. Swenson, a neuropsychologist. An Amended Claim Petition was filed on February 28, 2006, as required by the order. The employer and insurer raised no objection to the amended petition. The employer and insurer then scheduled an independent medical examination with Dr. Gratzer in May 2006, and on June 5, 2006, filed a motion to compel attendance at the IME. An Order Compelling IME was issued in July 2006, and the IME was completed in October 2006. The employer and insurer re-deposed the employee in September 2006. In March 2007, the employee’s attorney advised counsel for the employer and insurer that he was getting ready to ask that the case be set back on the trial calendar, and inquired about mediation. The attorney for the employer and insurer replied he would be interested in mediation if a specific itemization of the employee’s claims was provided and the issues set forth, along with itemization of all wages received and benefits sought, including medical expenses and the intervenors involved. The employer and insurer further reserved an updated IME once the case was back on the calendar. Counsel for the employee apparently did not respond, nor did counsel provide documents requested at the September 2006 deposition. Rather than seeking an order to compel production of documents or other less drastic sanction, or requesting the case be set on for a settlement conference or mediation, on November 14, 2007, the employer and insurer filed a motion to dismiss with prejudice.
The primary factor to be considered in determining whether to dismiss a claim petition is the prejudicial effect of the order upon both parties. Normally, the ordinary expense and inconvenience of preparation and readiness for trial is not prejudice of the character that would justify a dismissal with prejudice. Prejudice should not be presumed nor inferred from the mere fact of delay. Firoved at 368. The prejudicial effect of the compensation judge’s order on the employee is obvious and permanent. In our view, the prejudice to the employee outweighs the inconvenience and expense argued by the employer and insurer. A substantial amount of discovery has been completed, including two depositions of the employee, the collection of hundreds of pages of medical records from over 15 medical providers, two IME reports, and three medical expert reports on behalf of the employee, much of it completed at a time when records and memories were relatively fresh. Counsel for the employee provided at least part of the itemizations and discovery requested by the employer and insurer at the pretrial on the motion to dismiss, and stated the case could be set back on the trial calendar in fairly short order. While we do not condone the employee’s attorney’s laggardly handling of the employee’s claim in this matter, we do not believe this case reflects the kind of exceptional circumstances that call for imposition of such a punitive sanction. We, therefore, reverse the order of dismissal and remand the case to the compensation judge for further proceedings.
 The background facts included in this decision are taken from the imaged file and the parties’ briefs on appeal. No documentary evidence was submitted or testimony taken at the hearing on the motion.
 We note dismissal of the employee’s claim petition may raise statute of limitations issues. See, e.g., DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501 (Minn. 1977); Becerra v. Pine Valley Meats, 54 W.C.D. 304 (Jan. 9, 1996)