K-Mart/Berkley appeals from an order of the compensation judge dismissing K-Mart/Sedgwick from the pending litigation.^[1]

Denise Lomax was employed at K-Mart when she sustained work injuries to her low back on March 11, 1997, December 18, 2000, and July 21, 2006.

The employee’s claim for rehabilitation services and payment of medical expenses was heard by a compensation judge on January 7, 2009.  In his findings and order issued February 11, 2009, the compensation judge determined that the 1997 and 2006 injuries were temporary injuries, and that the 2006 injury had resolved within three months of its occurrence.  K-Mart/Berkley was ordered to pay the employee’s claims.  K-Mart/Berkley appealed to this court, and we affirmed the compensation judge’s decision.^[2]  In May 2012 the employee filed a claim petition seeking permanent total disability from March 19, 2012, and continuing.  The claim was made against K-Mart/Berkley for the 1997 and 2000 injuries, and against K-Mart/Sedgwick for the 2006 injury.  In its answer, K-Mart/Sedgwick alleged that the 2006 injury had been previously determined to be a temporary injury and, as a result, it was not liable for the employee’s claimed disability.

On November 7, 2012, K-Mart/Sedgwick filed a motion for dismissal, alleging that the 2006 injury had been adjudicated to be a temporary injury.  The motion also stated that there had been an IME with Dr. Randall Norgard on behalf of K-Mart/Berkley and that there was no evidence that there had been a Gillette injury at any time since July 2009 and no substantial change in the employee’s condition since that time.^[3]  Based on the lack of any medical support for a Gillette, and on the previous determination as to the 2006 injury, K-Mart/Sedgwick requested an order dismissing them from the ongoing litigation.

K-Mark/Berkley filed a response objecting to K-Mart/Sedgwick’s motion to be dismissed.  In its objection, K-Mart/Berkley alleged that Dr. Hearn, the employee’s treating doctor, could supply the necessary support for a Gillette injury claim, and that K-Mart/Sedgwick’s motion was premature.  K-Mart/Berkley subsequently took the deposition of Dr. Hearn on January 10, 2013.

A special term conference was held by telephone with a compensation judge on January 14, 2013.  No record was made of the conference; the parties made their arguments, and after the conference, Dr. Hearn’s deposition was submitted to the compensation judge.  The compensation judge issued his “Order Approving Motion for Dismissal of Party, and Order Referring Case for Hearing,” on February 7, 2013.

The compensation judge’s order actually contained two orders:  1) “the employer and Sedgwick Claim Management Services, Inc.’s Motion for Dismissal is approved, and they are dismissed as a party in this matter,” and 2) “IT IS FURTHER ORDERED that with respect to the July 21, 2006 date of injury . . . the date of injury of July 21, 2006 is dismissed from the Employee’s Claim Petition, based on the doctrine of res judicata.”

In his memorandum, the compensation judge discussed at length whether the employee sustained a Gillette injury culminating on or about March 19, 2012.  After reviewing his conclusions as to the medical reports and Dr. Hearn’s deposition, the compensation judge concluded a claim for a Gillette injury did not exist.

K-Mart/Berkley has appealed the compensation judge’s order.

We consider first whether the compensation judge’s order is appealable to this court.  We have jurisdiction to consider appeals from an “order affecting the merits of the case.”  Minn. Stat. § 176.421, subd. 1.  An order dismissing a claim with prejudice is an order affecting the merits of the case.  DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 30 W.C.D. 109 (Minn. 1977); Roberts v. University of Minn. Hosp. and Clinic, 63 W.C.D. 41 (W.C.C.A. 2002).

K-Mart/Sedgwick argues that the order affects only the claims involved in the 2006 injury and that the order is appropriate given this court’s affirmance in 2009 of the finding that the 2006 injury was temporary and had resolved.  K-Mart/Berkley claims, however, that the order dismisses with prejudice any claim for a Gillette injury subsequent to July 21, 2006, and exceeded the authority of the compensation judge.  K-Mart/Berkley argues that if the purpose of the compensation judge’s order was to dismiss only the 2006 injury, the first specific order would be redundant and meaningless.  They contend that the first order must have been meant to mean something, and the only possible meaning of the first order was to dismiss any possible Gillette injury claims.

We also note that the first order states that the motion filed by K-Mart/Sedgwick as being granted.  The motion of K-Mart/Sedgwick sought an order or dismissal not only on the basis of the 2006 injury, but also because there was no medical support for a subsequent Gillette injury.  A conclusion that the compensation judge’s order was broader than simply a dismissal of claims against the 2006 injury is also supported by the compensation judge’s memorandum, in which the only issue addressed is the viability of a Gillette injury claim.

We conclude the compensation judge’s order dismissed not only claims against the 2006 injury but also barred any claims alleging a Gillette injury.  Since there has been no claim filed alleging such an injury, and since a special term telephone conference is not an evidentiary hearing, we also conclude a dismissal of potential Gillette injuries is not appropriate at this time.  We affirm the compensation judge’s dismissal of claims brought against the 2006 injury, but vacate the order to the extent that it bars possible future Gillette injury claims.

We are not, in this decision, considering the merits of a Gillette claim in this case, nor are we reviewing the compensation judge’s legal analysis of Gillette claims.