JURISDICTION; PRACTICE & PROCEDURE – DISMISSAL. This court lacks jurisdiction to consider an appeal of an order of dismissal without prejudice because the order does not affect the merits of the case.
Compensation Judge: Jerome Arnold
Attorneys: Pro Se Employee, Atlanta, Georgia, for the Appellant. Robin D. Simpson, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.
Dismissed.
GARY M. HALL, Judge
The pro se employee appeals from an order dismissing, without prejudice, her request for formal hearing. We dismiss the appeal for lack of jurisdiction.
The employee, Burdette Lowe, was employed by Northwest Airlines as a flight attendant. She suffered a work-related injury to her left ankle on November 2, 2005, as well as an inhalation injury on April 22, 2006, as a result of exposure to chemicals from a fire extinguisher. Thereafter, the employee claimed consequential psychological injuries in the nature of anxiety and depression which were determined to be causally related to her 2006 inhalation injury. This determination was affirmed by this court in 2010.[1]
The employee’s employment with the airline ended in July 2013. In November 2013, the insurer informed the employee’s treating psychologist, Dr. Edith Fresh, that it would no longer authorize or pay for ongoing psychological or psychiatric counseling, citing the treatment parameters. The employer and insurer had paid for mental health treatment from 2011 to 2013.
On March 12, 2015, the employee filed a medical request seeking approval for ongoing mental health treatment with Dr. Fresh, who herself had filed a medical request in 2014 seeking payment for an outstanding bill. The issues were certified and considered by a mediator/arbitrator at the Department of Labor and Industry, who concluded that the treatment sought by the employee and the payment sought by Dr. Fresh were beyond what is allowed under the treatment parameters, that a departure from the treatment parameters was not appropriate, and that further treatment was not reasonable or necessary.
The employee, acting pro se, filed a timely request for formal hearing. In July 2015, the employee retained a new attorney who requested a continuance of an upcoming hearing on the employee’s request for formal hearing. This request was granted and the hearing was continued to October 2015. It appears that the parties engaged in settlement discussions which delayed the matter until the following spring. In March 2016, the employee’s attorney withdrew and no settlement agreement was filed.
On March 11, 2016, the assigned compensation judge wrote the pro se employee requesting a response within two weeks as to whether she had retained counsel. He further stated that failure to respond would result in the matter being stricken from the active trial calendar.
The employee did not respond within the proscribed two weeks. By order dated March 31, 2016, the compensation judge struck the matter from the active trial calendar. The employee retained new counsel, however, a notice of appearance was not filed until May 16, 2016.
The matter had been stricken for more than a year when, on April 3, 2017, the compensation judge issued a notice of pending dismissal to the parties, serving a copy on both the employee and her retained counsel. The notice indicated that a written request for reinstatement was required within 60 days to avoid dismissal.
By letter to the compensation judge dated May 31, 2017, the employee asked that her case not be dismissed and that she required an extension to determine whether she would continue with her current lawyer or retain a new one. The employer and insurer objected to the employee’s written request for reinstatement on the basis that no new evidence had been provided and her representation status was not clear.
On June 12, 2017, the compensation issued a notice for a special term conference on his motion to dismiss to be held three months later. On September 18, 2017, a special term conference was held by the compensation judge. The employee appeared pro se by telephone, as did counsel for the employer and insurer. No evidence was received and no record was made of the conference. By order dated September 20, 2017, the compensation judge dismissed the employee’s request for formal hearing and underlying medical request on the basis that the employee failed to prosecute her claim for more than two years.
The pro se employee appeals.
The employee’s request for formal hearing was dismissed without prejudice on the compensation judge’s own motion for failure to prosecute the claim pursuant to his statutory authority under Minn. Stat. § 176.305, subd. 4. The compensation judge cited ongoing delays. We note that while the employee did request reinstatement, she also requested another extension of time, which indicates she was still not ready to proceed at that time.
The jurisdiction of this court is limited and statutorily mandated. Pursuant to Minn. Stat. § 176.421, subd. 1, this court is limited to hearing appeals from “an award or disallowance of compensation or other order affecting the merits of the case.” An order affecting the merits of the case is one that “finally determines the rights of the parties or concludes the action,” “preventing a later determination on the merits.” Herbst v. Jones Truck Lines, 59 W.C.D. 442 (W.C.C.A. 1999) (quoting Hagen v. Hoffman Aseptic Packaging, slip op. (W.C.C.A. May 8, 1997) and Mierau v. Alcon Indus. Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986)) (internal citations omitted).
The employee’s request for formal hearing was dismissed without prejudice.[2] Because it was dismissed without prejudice, it does not affect the merits of the case. Accordingly, we lack jurisdiction to consider the appeal.
[1] Lowe v. Northwest Airlines Corp., slip op. (W.C.C.A. Aug. 26, 2010) (affirmed issue of causation for consequential injuries in nature of anxiety and depression, remanded on other grounds).
[2] We note that the employee is not without remedy. Because her claims were dismissed without prejudice, she may reassert those claims when she is ready to proceed. See, e.g., Dahlquist v. Maxwell Graphics, slip op. (W.C.C.A. Sept. 21, 1992).