LORRAI WIIRRE, Employee/Appellant, v. HEALTH PERSONNEL OPTIONS and RTW, INC., Employer-Insurer, and INJURED WORKERS’ PHARMACY, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 6, 2012
PRACTICE & PROCEDURE - DISMISSAL; STATUTES CONSTRUED - MINN. STAT. § 176.305, SUBD. 4. Where the employee failed to request reinstatement of her claim in the year after it was stricken from the calendar or after receiving notice that it would be dismissed, an order dismissing the stricken pleadings was appropriate.
Determined by: Stofferahn, J., Wilson, J., and Johnson, J.
Compensation Judge: Timothy J. O'Malley
Attorneys: Thomas R. Longfellow, Longfellow Law Office, Saint Paul Park, MN, for the Appellant. Douglas J. Brown and Elizabeth Chambers-Brown, Brown & Carlson, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from an order dismissing her request for formal hearing without prejudice. We affirm the order and dismiss the employee’s appeal.
Lorrai Wiirre sustained an admitted low back injury in 1998 while working as a nurse for the employer, Health Personnel Options. In 2004, a compensation judge found that the employee had been permanently and totally disabled since the date of injury.
Over the years there have been a series of disputes between the parties over the employee's medications, particularly over opioid medications prescribed by various physicians for the employee's chronic pain. In the fall of 2009, the employee moved to New Mexico and transferred her medical care to a physician at the Sierra Vista Community Health Care Center, Dr. Robert George, who continued to prescribe medications for which the employer and insurer had denied payment. The employee filed a medical request on January 26, 2010, seeking payment for Adderall and Oxycodone prescribed by Dr. George.
On March 18, 2010, a mediator at the Department of Labor & Industry [DOLI] served and filed a decision and order pursuant to Minn. Stat. § 176.106, denying the employee's medical request. The employee filed a request for formal hearing on April 9, 2010.
The employee's request for formal hearing was scheduled for hearing before Compensation Judge Paul V. Rieke at the Office of Administrative Hearings on June 9, 2010. The employee apparently was unable to come to Minnesota from New Mexico for the hearing and the employee's attorney requested that the matter be continued or stricken from the active calendar. On June 10, 2010, Judge Rieke issued an order striking the request for formal hearing from the calendar, subject to reinstatement upon filing of a motion indicating that the parties were ready to proceed. No such motion was filed thereafter.
On June 13, 2011, the Office of Administrative Hearings served the parties with a notice of pending dismissal on stricken pleadings. The notice stated that it had been more than one year since the employee's April 9, 2010, request for formal hearing had been stricken from the active calendar and that the record showed no action taken to reinstate the matter. The notice advised that the matter would be dismissed if no request for reinstatement was made within the next 60 days. The employee made no request to reinstate and on August 23, 2011, Assistant Chief Administrative Law Judge Timothy O'Malley served and filed an order dismissing the stricken pleadings without prejudice.
The employee filed an appeal with this court from Judge O'Malley's August 23, 2011, order on September 21, 2011.
Minn. Stat. § 176.305, subd. 4, provides that “If a case has been stricken from the calendar for one year or more and no corrective action has been taken, the commissioner or a compensation judge may, upon the commissioner’s or the judge’s own motion or a motion of a party which is properly served on all parties, dismiss the case.” On appeal the employee does not contend that the order dismissing her request for formal hearing was not issued in compliance with this statute. Rather, she argues that the order should not have been issued when the “standing order” in this case allowed for the coordination of scheduling of a hearing where the employee is an out-of-state resident. We are not convinced.
The employee’s request for formal hearing was stricken from the calendar on June 10, 2010. On June 13, 2011, over one year later, the parties were advised that the request for formal hearing would be dismissed if no request for reinstatement was filed within 60 days. No such request was made and the request for formal hearing was dismissed on August 23, 2011. The employee provides no explanation why schedules could not be coordinated during this time. Indeed, the June 2011 order did not require that the employee provide a date when she could be back in Minnesota, only that this matter was ready to proceed to hearing.
The statute is clear and the employee does not argue that the order dismissing the request for formal hearing did not comply with the statute. Accordingly, we affirm the order dismissing stricken pleadings issued on August 23, 2011. The employee’s appeal form that order is dismissed.