PEGGY R. EK, Employee/Appellant, v. VIRGINIA REG’L MED. CTR. and MINNESOTA ASSIGNED RISK PLAN/RTW, INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 12, 2009
APPEALS - RECORD; PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS. Where a hearing was held on the employer and insurer’s motion to dismiss based on the running of the limitations period, the judge granted the motion, but the exhibits submitted at hearing were not available for review in connection with the employee’s appeal, the lack of complete record of the proceedings below made adequate review for appeal purposes impossible. The matter was therefore remanded for a full evidentiary hearing on the employer’s statute of limitations defenses and the employee’s claim of incapacity.
Vacated and remanded.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Peggy R. Ek, pro se. Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s order granting the employer and insurer’s motion to dismiss her claim petition with prejudice based on the statute of limitations. We vacate and remand for an evidentiary hearing on the issue.
The employee alleges that she sustained a work-related injury on September 15, 1986, while employed by Virginia Regional Medical Center [the employer]. For purposes of this appeal, it is undisputed that no first report of injury was filed with respect to that injury.
A claim petition was filed on September 11, 1989, claiming an injury in the nature of “multiple symptom complex due to work-related stress.” The employee was not represented by an attorney at that time. Two weeks later, on September 25, 1989, the employer and insurer filed a motion to dismiss, contending that there was no medical support attached to the claim petition to substantiate the employee’s claim that she sustained a compensable work injury.
On February 8, 1990, a settlement conference was held on the claim petition, and the employer and insurer moved to dismiss on grounds that the “employee has not alleged and the medical records do not substantiate any traumatic work related injury. Rather, they appear to allege a mental injury caused by alleged work-related mental stress.” The employee was represented by counsel at that time. The compensation judge issued an order dismissing the employee’s claim petition on February 13, 1990, finding that the employee had failed to state a claim and had failed to medically support her contention that her mental or emotional injury had caused a physical injury entitling her to workers’ compensation benefits.
The employee filed an appeal on March 7, 1990, seeking review by the Workers’ Compensation Court of Appeals. In a letter filed with the Workers’ Compensation Court of Appeals on May 22, 1990, the employee asked that her September 11, 1989, claim petition be dismissed, stating that she would be filing a new claim petition. The Workers’ Compensation Court of Appeals filed an order dismissing the appeal on May 23, 1990. A new claim petition was not filed until December 29, 1992, more than six years after the alleged date of injury. The same claim petition was subsequently refiled on January 12, 1993. In that claim petition, the employee again alleged that she had sustained an injury in the nature of “multiple symptom complex due to work related stress.” The employer and insurer again moved for dismissal based on lack of medical substantiation.
On March 10, 1993, a compensation judge issued an order striking the claim petition from the active trial calendar. The order further provided that the claim petition would remain stricken until the employee provided further medical support for her claim.
A notice of pending dismissal on stricken pleadings was served and filed on October 15, 2007, indicating that the matter would be dismissed if the employee took no action to reinstate within 60 days. On December 10, 2007, the employee filed a motion to reinstate, and a settlement conference was held several months later, on May 14, 2008. The employee was represented by counsel at that time. During the conference, the employer and insurer yet again requested dismissal of the claim petition, alleging that it lacked medical support and that the statute of limitations had run on the employee’s claim. The compensation judge issued an order on May 16, 2008, referring the matter to a special term hearing to address the motions to dismiss. Both parties were ordered to provide the court with a written memorandum in support of their positions in advance of that hearing. The employee’s attorney filed a notice of withdrawal of counsel on May 23, 2008. The employer and insurer filed the requested memorandum; the employee did not.
A special term hearing on the motion to dismiss took place on July 30, 2008. At that hearing, the employee presented fourteen exhibits to the court, which the compensation judge agreed to review. The record was left open for an additional thirty days for the employee to obtain a report from Dr. Kabbani and to submit “something in writing” to address the alleged lack of medical support and the alleged running of the statute of limitations.
In a findings and order filed on October 2, 2008, the compensation judge noted that the record had closed following submission of the employee’s post-hearing memorandum. The judge’s findings specifically referred to three exhibits and a medical report attached to the “employee’s post hearing memorandum,” and the judge found that the medical reports and records referenced in his findings “constitute medical support to meet the minimal requirements of Minn. Stat. § 176.291, subd. 5.” The judge went on to find, however, that the statute of limitations on the employee’s claim had expired as of September 15, 1992, that the employee’s first claim petition had been dismissed, and that her second claim petition had been filed after the statute of limitations had run. The judge therefore granted the employer and insurer’s motion to dismiss. The employee, pro se, appeals.
In a brief on appeal, the employee cites to Minn. Stat. § 176.151(3), which provides:
In case of physical or mental incapacity, other than minority, of the injured person or dependents to perform or cause to be performed any act required within the time specified in this section, the period of limitation in any such case shall be extended for three years from the date when the incapacity ceases.
We are unable, on the current record, to determine the potential applicability of this statute. The file transmitted to this court does not contain the fourteen exhibits that the employee submitted to the judge, the employee’s post-hearing memorandum, or the medical report attached to the post-hearing memorandum, which the judge referenced in his findings and order. Following an inquiry by this court, the Office of Administrative Hearings was unable to locate any of these documents within their office. It also appears that the exhibits and post-hearing memorandum were not imaged.
On appeal, it is this court’s function to review the evidence that was submitted to the compensation judge at hearing, and we must be able to determine what documents the judge considered in reaching his decision. Beckwith v. Sun Country Airlines, 63 W.C.D. 511 (W.C.C.A. 2003). We are unable to make that determination in the instant case, and, without the complete record to review, we cannot ascertain whether the employee raised the incapacity argument at the hearing, in her post-hearing brief, or whether the medical records submitted to the judge were such that the employee’s alleged incapacity would have been obvious.
Given the lack of a complete record and the employee’s suggestion of incapacity as a defense to the alleged late filing of her claim petition, we vacate the judge’s dismissal of the employee’s claim petition and remand the matter to the Office of Administrative Hearings for a full evidentiary hearing on the issue of the statute of limitations, including the employee’s claim of incapacity.
 Minn. Stat. § 176.151 (1) sets forth a six-year statute of limitation on claims arising out of work injuries where no first report of injury has been filed. The six-year period begins to run on the date of injury.
 Those exhibits are identified in the transcript, but there is no indication that they were ever formally received into evidence. However, we assume that the judge did consider and review all of those exhibits, because he did reference some in his findings.