JOAN E. JOHNSON, Employee/Appellant, v. FLUOROWARE n/k/a ENTEGRIS, INC., and CHUBB & SON GROUP OF INS. COS., Employer-Insurer, BLUE CROSS BLUE SHIELD OF MINN. and MINNESOTA DEP’T OF HUMAN SERVS./BRS, Intervenors, and SPECIAL COMP. FUND.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 2, 2010
PRACTICE & PROCEDURE - DISMISSAL; PRACTICE & PROCEDURE - RECORD. In the absence of an evidentiary record, this court is unable to determine what documents the judge may or may not have considered in dismissing the employee’s claim. Absent a record and factual findings by the judge, this court is unable to review the judge’s consideration of, or balance of, the prejudice to each party. The dismissal is vacated and the case remanded for further proceedings.
Vacated and remanded.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Gary M. Hall
Attorneys: Donald C. Erickson, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Appellant. Craig A. Larsen, Cousineau McGuire, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the order of Compensation Judge Gary M. Hall dismissing her claim petition. We vacate the dismissal order and remand the matter to the Office of Administrative Hearings for further proceedings.
Litigation began in this mater with the filing of a claim petition in January 1991 in which Joan E. Johnson, the employee, alleged a personal injury in the nature of chemical toxicity/environmental illness while working for Fluoroware, the employer. The employer and its insurer, Chubb Group of Insurance Companies, filed an answer denying liability for the claimed injury and benefits. Discovery was commenced and the case was scheduled for a hearing. On May 12, 1992, the claim petition was stricken from the calendar at the employee’s request. On December 11, 2006, an amended claim petition was filed. In their answer to the amended claim petition, the employer and insurer again denied primary liability and asserted defenses of the statute of limitations and laches. A hearing was scheduled for September 2008 but was continued to allow the parties to mediate the dispute. The mediation apparently did not take place because the employee discharged her attorney the day before the scheduled mediation.
On June 1, 2009, the employer and insurer filed a motion to dismiss the employee’s claim petition based on a failure to prosecute the claim. By order dated June 10, 2009, the motion to dismiss was denied. By letters dated September 25, 2009, December 8, 2009, and December 22, 2009, counsel for the employer and insurer renewed the motion to dismiss the employee’s petition for failure to prosecute the claim. By letter dated December 15, 2009, the employee requested that Judge Hall deny the motion because she was seeking counsel to represent her. A pretrial on the motion to dismiss was scheduled for January 11, 2010. By letter dated January 4, 2010, to Judge Hall, the employee asked that her case be removed from the active calendar until she retained counsel to represent her. On January 28, 2010, Judge Hall issued an Order for Hearing and Notice of Pending Dismissal, scheduling a hearing on the employee’s claim petition for May 10, 2010, ordering that the employee appear in person, with or without counsel, and ordering that no further continuances would be permitted.
By letter dated March 25, 2010, a claims adjuster for the insurer wrote the employee advising her that an independent medical evaluation had been scheduled for the employee with Dr. James Youngjohn, a neuropsychologist. The examination was scheduled for April 13, 2010, at the doctor’s office in Scottsdale, Arizona, a distance of approximately 125 miles from the employee’s residence in Sedona, Arizona. By letter dated April 1, 2010, the employee responded to the insurer stating she would not attend the scheduled examination with Dr. Youngjohn because she did not have counsel to advise her. The employee did not attend the scheduled examination.
By letter dated April 23, 2010, counsel for the employer and insurer wrote the compensation judge renewing the motion to dismiss and including an affidavit stating the employee failed to attend the scheduled examination with Dr. Youngjohn. By Order for Dismissal served and filed April 30, 2010, the compensation judge stated he reviewed the motion and the pleadings, determined that the employee’s claim petition should be dismissed, and ordered the dismissal of the claim petition. The employee appeals.
The employee argues the compensation judge’s dismissal of the employee’s claim petition without the benefit of a hearing is contrary to the basic tenents of due process. Further, the employee contends a dismissal of her claim petition is, in effect, a dismissal with prejudice and the compensation judge failed to make factual findings regarding the prejudicial effect of a dismissal upon the parties. Finally, the employee contends the compensation judge failed to make a record for review by this court. For these reasons, the employee contends the compensation judge’s order should be reversed.
The respondents argue the workers’ compensation act does not require a compensation judge to hold a hearing on a motion to dismiss so long as the employee is provided adequate notice of the proposed dismissal. Further, the respondents contend the employee’s case is nearly 20 years old with a significant prejudicial effect on their ability to defend the claim. Respondents contend the compensation judge’s dismissal order should be affirmed.
The respondents cite Minn. Stat. § 176.305 which allows a compensation judge to dismiss a claim petition after a case has been stricken from the calendar for one year or more. In this case, the employee’s amended claim petition filed December 11, 2006, has never been stricken from the calendar. Accordingly, Minn. Stat. § 176.305 is inapplicable.
The respondents further contend that they have been prejudiced by the employee’s failure to prosecute her claim in that over 20 years have now elapsed since the date of the alleged injury. They assert that much of the information regarding the employee’s claim has been purged from various systems including some of the employee’s medical records. Finally, they contend they have expended significant sums in defense of this claim. They argue the compensation judge has given the employee every opportunity to proceed with her claim and she has failed to do so. For these reasons, the respondents contend the compensation judge’s dismissal of the employee’s claim is appropriate and should be affirmed.
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 non-compliance 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); Burd v. Halstad Lutheran Mem’l Home, No. WC08-134 (W.C.C.A. July 30, 2008); Lamkin v. JWS Homes & Contracting, Inc., No. WC06-294 (W.C.C.A. Apr. 10, 2007).
The compensation judge did not hold a hearing prior to issuing the dismissal order. Accordingly, there is no record for this court to review. In his order, the judge states he “reviewed the Motion and the pleadings and has determined that the Claim Petition shall be dismissed.” The judge did not specify what pleadings he reviewed in reaching the decision to dismiss the claim petition. Each party attached to their appeal brief as exhibits a number of documents taken from the imaged file. None of these documents, however, were introduced at the hearing and the imaged file contains numerous other pleadings and documents.
On appeal, it is this court’s function to review the evidence submitted to the compensation judge at hearing and to do so 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). In performing our appellate function, this court will not wade through numerous imaged documents to determine which documents may be 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 his decision.
A 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 dismissal with prejudice. Prejudice should not be presumed nor inferred from the mere fact of delay. Firoved at 368. Admittedly, this case is old and has been pending for a significant period of time without resolution. However, a dismissal would be a dismissal with prejudice and the effect on the employee is obvious and permanent. Absent a record and factual findings by the compensation judge, this court is unable to consider or balance the prejudice to each party.
The employee’s claim petition was dismissed without a factual hearing leaving this court with no record to review on appeal. The compensation judge’s order for dismissal is vacated and the matter is remanded to the Office of Administrative Hearings.
 The background facts in this decision are taken from the imaged file and the parties’ briefs on appeal. No documentary evidence was submitted or testimony taken by the compensation judge.
 See DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 30 W.C.D. 109 (Minn. 1977).