PAMELA A. WOLF, Employee/Appellant, v. BOSTON SCIENTIFIC CORP. and LIBERTY MUT. INS. COS., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 12, 2010
PRACTICE & PROCEDURE - DISMISSAL. Where there was no hearing and therefore no evidence or record for review, we are unable to perform our appellate review function in order to determine whether repeated orders to compel discovery were appropriate or whether the employee’s failure to request another pretrial hearing is an exceptional circumstance appropriate to justify dismissal with prejudice in this case.
Reversed and remanded.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Gary L. Manka, Katz, Manka, Teplinsky, Due & Sobol, Minneapolis, MN, for the Appellant. Mary E. Kohl, Johnson & Condon, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge’s order dismissing the employee’s claim petition with prejudice. We reverse the judge’s order to dismiss the employee’s claim petition with prejudice and remand for reinstatement of the claim on the active hearing calendar.
In approximately October 1995, Pamela Wolf (f/k/a Pamela Born), began working for Boston Scientific, the employer, as an assembler. She worked in a position involving working with a microscope and repetitive activities. The employee previously had been injured in a motor vehicle accident in February 1995, which resulted in neck complaints that worsened over time. Her neck symptoms increased and she eventually developed paresthesia in her right hand, for which she sought medical treatment. A June 1, 1997, MRI revealed a herniated disk at the C5-6 level. The employee evidently discussed treatment options with her treating physician, including surgery to her cervical spine. The employee chose not to have surgery at that time. By May 1999, however, the employee was unable to continue working and underwent cervical fusion surgery.
The employee made a liability claim against the at-fault party in the 1995 motor vehicle accident and its insurer, Illinois Farmers, which was settled in July 1999. The employee was represented in that claim by the same attorney representing her in this workers’ compensation matter. The employee later brought a claim against her automobile insurance carrier for underinsured motorist benefits; to avoid a potential conflict of interest, the employee apparently was represented in her underinsured claim by counsel separate from the attorney for her liability claim.
The employee resumed her work for the employer, and her neck and arm symptoms gradually worsened until she started missing work in March 2005. On March 23, 2005, a first report of injury was filed wherein the employee reported that she had missed days of work since March 4, 2005. On September 2, 2005, the employee filed a claim petition, listing a date of injury of March 4, 2005, for a Gillette injury to the neck and back. As medical support for her claim, the employee attached a report from Dr. Ana Patricia Groeschel of the Noran Neurological Clinic, in which she concluded that the employee had sustained a specific injury in 2005 and that her work activities had accelerated and aggravated her pre-existing condition, resulting in a Gillette injury. The employee’s claim petition was ultimately dismissed with prejudice; the employee contests that dismissal on appeal. To provide the context for the order for dismissal, we have outlined the procedural background of the employee’s workers’ compensation claim.
As part of the discovery process in the employee’s claim, the employer and its insurer, Liberty Mutual Insurance Companies, requested that the employee identify all medical providers who had treated the employee for injuries alleged in her claim petition and for injuries or conditions identical to or related to those alleged in the claim petition. In addition, the employer and insurer requested the employee to provide information and related records concerning her work, medical history, injury history, workers’ compensation claim and job search, in addition to insurance and social security records. Included in their discovery request was a request that the employee provide all documents and information related to the “liability, no fault and/or UIM claims arising from the employee’s 1995 motor vehicle accident.” In November 2005, the employee provided a response to the employer and insurer’s demand for discovery, and provided signed authorizations for the release of medical records. The employee, however, objected to the request for all records related to her 1995 motor vehicle accident as being beyond the scope of discovery.
In December 2005, the employer and insurer filed a motion to compel the employee to produce the medical and insurance information related to the employee’s motor vehicle accident, and the employee filed a letter objecting to the motion, outlining her argument that medical authorizations should be limited to a relevant time and relevant conditions; that the employee would agree to provide the no-fault payment log that identified all medical providers who provided treatment for accident-related injuries, and signed authorizations for the release of those records; and that other requested information was protected by attorney work-product privilege. The employee also argued that the employer and insurer were not entitled to the no-fault adverse examining expert’s opinion, as such would provide an additional adverse medical examination and was not a medical record made in conjunction with treatment. The employee offered to provide a copy of the no-fault expert report, if needed to identify all medical providers with whom the employee had treated, contingent on a stipulation that the employer and insurer agree not to show or disclose the report or opinions contained therein to any medical expert. A special term hearing was held before a compensation judge to address the employer and insurer’s motion to compel; no record was made of the discussions held at that hearing. In an order served and filed January 27, 2006, Compensation Judge Jane Gordon Ertl found that the requested information was discoverable and that “the employee’s attorney shall produce the no fault claim file, including medical records and reports, statements, investigation, and benefits paid, and excluding privileged information.”
It appears from later pleadings that in February 2006 the employer and insurer filed a motion to strike the claim from the active trial calendar pending receipt of authorizations. The employee asserts that she provided authorizations for the release of information to the employer and insurer, and that neither she nor her attorney possessed the no-fault insurance claim file requested by the employer and insurer. In an order served and filed March 1, 2006, Compensation Judge Ertl granted the employer and insurer’s motion to strike the claim from the active trial calendar until the employee “responds to all demands for discovery including execution of medical authorizations, release of insurance records and copies of medical records.”
On or about September 20, 2006, the employee filed a motion to reinstate the claim petition. The employer and insurer objected, claiming that the employee had not provided the requested documents earlier ordered by the compensation judge. A pretrial conference by telephone was held on November 9, 2006. The employee argues, on appeal, that she advised the court she was ready to proceed to trial, and referred to a potential intervenor recently served with a notice of intervention. Discovery continued, and, according to the employee’s appellate brief, a telephone pretrial conference was held on January 3, 2007. According to an order served and filed by another compensation judge on January 5, 2007, the employee’s earlier motion for reinstatement was denied, on the basis that there was “no evidence that the employee had complied with the discovery order.”
The employee filed another motion for reinstatement in April 2007. In her motion, the employee asserted that she had provided authorizations for the release of the insurance information, including the no-fault claim file, and that the employee’s counsel had received verification that the employer and insurer’s counsel had received the no-fault insurance file. The employer and insurer advised that they did not object to the employee’s motion for reinstatement, provided there was adequate time to complete the outstanding discovery. The employee’s claim petition was reinstated by an order issued by the calendar judge on May 16, 2007.
A settlement conference was held on August 9, 2007. The matter was delayed several more times due to rescheduled depositions. In December 2007, the employer and insurer filed another motion to compel discovery. That motion dealt with the employer and insurer’s continuing request for medical records generated since 2006, issues concerning the employee’s failure to attend an independent medical examination, and issues concerning completion of the deposition of a medical expert. In February 2008, the employee filed an amended claim petition. By order issued by another compensation judge on March 4, 2008, the employee’s claim petition was stricken from the active calendar, by agreement of the parties, for time to mediate the claim. After reinstatement, in an April 21, 2008, order, Compensation Judge Penny Johnson found that the employer and insurer were entitled to the employee’s complete personal injury file, presumably regarding the 1995 motor vehicle accident, including “all pleadings, notices, payments, and settlement documentation.” The matter was later assigned to Compensation Judge Peggy Brenden, who, in June 2008, issued an order compelling discovery for documents relating to the employee’s 1995 motor vehicle accident.
A pretrial conference was scheduled for February 9, 2009, and hearing on March 3, 2009. The employer and insurer’s attorney requested by letter dated January 13, 2009, that the matter be stricken from the active calendar, claiming that the employee had not complied with the June 2008, order compelling discovery of documents related to the employee’s third party action. A telephone pretrial conference was held on February 9, 2009; there is no transcript of the discussions held during the pretrial hearing, although the compensation judge’s order issued thereafter outlined the arguments presented by the parties’ counsel.
In an Order After Pretrial issued on February 10, 2009, the compensation judge struck the hearing set for March 3, 2009. In that order, the compensation judge outlined the arguments presented by counsel, including that counsel for the employer and insurer objected to proceeding to hearing because the employee had failed to provide any of the discovery compelled by the June 2008 order. Counsel for the employee advised that although he had represented the employee in her third party action a number of years ago, he no longer had any documents related to the third party claim. The judge stated that it was unclear whether the employee had any documentation in her possession, and also referred to the history of the claim and the multiple contested motions brought during the pendency of litigation.
In the order, the judge stated that the matter would be reinstated on the active calendar only if the judge was advised in writing by both parties that they had completed all discovery and were prepared to proceed to hearing. The judge ordered that if a joint request for reinstatement was not filed within 120 days of the order, the court would set a pretrial hearing at the written request of either party “to determine what obstacles to hearing remain.” The judge specifically ordered that “if a written request for a pretrial hearing is not filed on or before July 28, 2009, all pending pleadings will be dismissed with prejudice.” (Emphasis in original.) In an order for dismissal served and filed August 10, 2009, the compensation judge noted that no written request for a pretrial hearing had been filed in this matter, and ordered that “all pending pleadings in this matter are dismissed with prejudice.” The employee appeals from the dismissal.
The employee argues that the compensation judge abused her discretion by dismissing the employee’s claim petition with prejudice for not complying with discovery orders, arguing that neither the employee nor the employee’s attorney has the documents requested by the employer and insurer. The employee argues that there has been no hearing to address the employee’s claims that she cannot comply with the discovery request.
A compensation judge may impose sanctions, including the dismissal of a proceeding, pursuant to Minn. R. 1420.3700. In Firoved v. General Motors Corp., 277 Minn. 278, 283, 151 N.W.2d 364, 368 (1967), the Minnesota Supreme Court explained that
[a]n order of dismissal on procedural grounds runs counter to the primary objective of the law to dispose of cases on their merits. Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction which 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. The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is a prejudicial effect of the order upon the parties to the action.
“Due process fundamentally means notice and an opportunity to be heard.” Collins v. Cochrane & Bresnahan, P.A., 415 N.W.2d 715, 718 (Minn. App. 1987). Basic fairness requires that parties be afforded reasonable notice and opportunity to be heard before decisions concerning entitlement to benefits are made. Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988). This court has indicated that it “will carefully scrutinize dismissal orders when no hearing has been held, and the absence of a record in such cases may very well prompt us to reverse if the dismissed claim appears otherwise meritorious.” O’Neil v. Cemstone Prods. Co., slip op, (W.C.C.A. Dec. 5, 1995).
This matter has been the subject of repeated pretrial conferences and various pleadings related to discovery disputes. Following the latest pretrial conference, the compensation judge issued an order striking the March 3, 2009, hearing date and setting specific deadlines for the parties to request reinstatement of the claim on the active trial calendar. Once those deadlines passed, the compensation judge issued an order for dismissal with prejudice. While the employee was warned that failure to comply with the court’s order issued after the February 9, 2009, pretrial hearing - - which required the parties to submit a joint request for reinstatement or for one party to submit a written request for a pretrial hearing - - would result in dismissal of her claim with prejudice, no hearing was held before that order for dismissal to address the employee’s argument that she was unable to comply with the discovery request, nor was any decision issued concerning that argument.
We acknowledge the employer and insurer raise legitimate concerns related to discovery requests, attendance at an independent examination, and deposition scheduling, concerns which continued even after repeated pretrial conferences and motion hearings. We are mindful, however, of the prejudicial effect of the dismissal order with prejudice upon the employee. We also acknowledge the employee raises legitimate arguments, that she has complied with discovery requests, that she no longer has certain requested documents in her possession, that she was ready to proceed to hearing, and that the employer and insurer had not sought a dismissal with prejudice. However, since there is no evidence or record from either the pretrial conferences or special term hearings for our review, we are unable to perform our appellate review function in order to determine whether repeated orders to compel discovery were appropriate, whether the employee has complied with those orders, or whether the employee’s failure to request another pretrial hearing is an exceptional circumstance appropriate to justify dismissal with prejudice in this case. See Minn. Stat. § 176.421, subd. 6; Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. Jan. 24, 2001).
We conclude that, on balance, the prejudicial effect on the employee outweighs the concerns presented by the employer and insurer. Lamkin v. JWS Homes and Contracting, Inc., No. WC06-294 (W.C.C.A. Apr. 10, 2007). We therefore reverse the compensation judge’s dismissal of the employee’s claim petition with prejudice, and remand for reinstatement of the claim on the active hearing calendar.
 The parties’ briefs contain contradictory information on the employee’s date of hire with the employer; there are references to both October 1995 and February 20, 1996.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 As there has been no evidentiary hearing on this matter, nor has there been any record made of various hearings held on this matter, we have gleaned the background information from the parties’ appellate briefs and their attachments.
 It is unclear from available documents just what insurance records had not yet been obtained by either the employee or the employer and insurer. The employee maintained that neither the employee nor her attorney had the requested insurance file, nor could they obtain this file. In an earlier pleading, counsel for the employee stated that “on April 13, 2007, our office verified that defense attorney’s office had received the No-fault file.” By contrast, the employer and insurer assert that the employee has not complied with discovery requests.
 Minn. Rule 1420.3700, subps. 1 and 2, provide:
Subpart 1. Generally. Failure to comply with the order of a judge, or the willful failure to comply with the applicable provisions of this chapter or other applicable law, may subject a party or attorney to any of the following sanctions:
A. continuance of the proceeding;
B. striking of pleadings;
C. preclusion of evidence;
D. evidence sought deemed proven, where a party fails to comply with an order compelling discovery;
E. dismissal of proceedings;
F. to pay the reasonable expenses, including attorney fees, incurred by the other parties due to failure to appear, prepare, or participate in good faith; or
G. other sanction permitted by rule, statute, or case law, as the judge deems just or appropriate under the circumstances.
Subp. 2. Procedures. A motion to impose sanctions may be brought by a party under part 1420.2250 or upon the judge’s own motion. An order for sanctions issued without a hearing is a summary decision under Minnesota Statutes, section 176.305, subdivision 1a.
 Even a dismissal without prejudice may well bar the employee’s claim pursuant to Minn. Stat. § 176.141.