The employee appeals from the compensation judge’s order dismissing with prejudice the employee’s claims for a June 22, 2001, work injury.  We reverse.

The employee filed a claim petition against Northwest Airlines Corporation [the employer] on June 16, 2005, listing eighteen dates of injury,^[1] plus a Gillette injury^[2] culminating on June 22, 2001.  The employee alleged that she had sustained injuries to the cervical, thoracic, and lumbar spine and to the right and left shoulders as well as a consequential emotional reaction to the injuries.  The employer and Liberty Mutual Insurance Company, the employer’s insurer for a March 5, 1988, injury and for the alleged June 22, 2001, Gillette injury, filed a motion to dismiss on January 17, 2006, alleging that the claim should be dismissed with prejudice because the employee had a pending claim in Michigan for the June 22, 2001, work injury.

The employee filed an amended claim petition on March 1, 2006, alleging entitlement to permanent partial disability benefits and medical expenses as a result of the March 5, 1988, injury to the low back and an alleged Gillette injury of June 22, 2001, to the cervical, thoracic, and lumbar spine.  The employer and insurer filed another motion to dismiss with prejudice on November 13, 2006, again alleging, in relevant part, that the employee was actively pursuing a claim in Michigan for the same injury (June 22, 2001) for which she was seeking benefits in Minnesota.^[3]

The employee responded to the motion with a fax indicating that there had been a Minnesota contract of hire; that Michigan law made no provision for permanent partial disability benefits, which were  the major part of the employee’s claim; that it was impossible to split the employee’s claims; that the employee had not made any claim for a back injury in Michigan; and that the employee’s testimony and the employer’s records and insurance claims records were necessary to address the motion to dismiss.

A hearing notice was sent, setting a pre-trial on the motion to dismiss for January 10, 2007, and the hearing on the claim petition for January 19, 2007.  Attorneys for both parties attended the pretrial, which was recorded on tape.  At the pre-trial, the employer and insurer alleged, in relevant part, that the employee had a claim pending in Michigan for the June 22, 2001 injury, that the claim had been pending for several years, and that the employee had not withdrawn it.  Therefore, the employer and insurer argued, the employee had chosen Michigan as the forum for her workers’ compensation claim, and, pursuant to Pauli v. Pneumatic Systems, Inc., 328 N.W.2d 743, 35 W.C.D. 551 (Minn. 1983), the employee’s alleged June 22, 2001, injury was not covered by the Minnesota Workers’ Compensation Act.

The employee’s attorney made a variety of claims during the pre-trial.  He originally contended, for example, that June 22, 2001, was not the correct date for the low back injury and that June 22, 2001, “has nothing to do with my claim.  It is irrelevant.”  He also stated near the beginning of the pre-trial (T.11) that it was his understanding that the employee had a claim for a June 22, 2001, injury pending in Michigan but that that claim was for bilateral shoulder injury and depression, asserting, “there’s never been a claim in Michigan for any orthopedics with the back.”  The employee’s attorney later asked to make a record on the issue of jurisdiction (T.22) and yet later in the pre-trial stated, “I don’t know that there is any claim pending yet in Michigan” (T.24).  At the end of the pre-trial, the compensation judge gave the parties until noon on January 12, 2007, for the employer and insurer to submit documentation concerning the alleged pending Michigan claim and for the employee to submit “some sort of affidavit” indicating that she had withdrawn the claim in Michigan.

On January 11, 2007, the employer and insurer sent a fax to the compensation judge.  That fax included documents from the Michigan Workers’ Compensation Agency regarding an injury that the employee had sustained in the course of her employment with the employer on June 22, 2001, in Detroit, Michigan.  The documents did not specify the nature of the alleged injury but included two Applications for Mediation or Hearing, including one dated March 2, 2005.

The employee did not submit any documentation to the compensation judge by the January 12, 2007, noon deadline.^[4]

On January 17, 2007, the compensation judge filed an Order Dismissing Claims for June 22, 2001, Work Injury.  In that decision, the judge indicated that the employer and insurer had submitted documents establishing that the employee had a pending claim for a June 22, 2001, work injury in Michigan.  The judge also stated that the employee had failed to file any additional documents, including the specifically requested affidavit indicating that the employee had chosen to forego any workers’ compensation claims in Michigan related to the June 22, 2001, injury.  The order indicated that the employee had made a choice of forum in another state and that the claims for injury and disability listed on the amended claim petition for the June 22, 2001, work injury were dismissed with prejudice.  In her memorandum, the compensation judge cited Pauli as support for her decision.  The employee appeals.

The employee makes three arguments on appeal: that the two affidavits attached to the employee’s appeal brief are the only evidence in the matter;^[5] that the compensation judge erred by not permitting a record to be made; and that, because the employee has dropped her Michigan claim, there is no reason to deny her Minnesota jurisdiction.  These arguments do not address the dispositive issue,^[6] that is, that the judge’s reliance on Pauli was misplaced.

Pauli involved application of Minn. Stat. § 176.041, subd. 4, a jurisdictional statute that provides in pertinent part as follows:

In the instant case, there are no findings, but the transcript suggests that the parties were in agreement that the employee resided in Washington, D.C., and that the June 22, 2001, injury occurred in Michigan.^[7]  The parties are also apparently in agreement that the employer is a Minnesota corporation.  Under these circumstances, Minn. Stat. § 176.041, subd. 4, and the Pauli case are not controlling.

Because the employer and insurer’s sole argument at the pre-trial was that Pauli was “directly on point” and was “virtually identical to our situation,” the compensation judge did not consider other jurisdictional arguments.  And, because Pauli and Minn. Stat. § 176.041, subd. 4, are not applicable, we must reverse.  Nothing in our decision should be read to preclude the employer and insurer from asserting other defenses.