MOHAMED AHMED, Employee/Appellant, v. ALLINA HEALTH SYS., and GALLAGHER BASSETT SERVS., INC., Self-Insured Employer/Respondent, and PRAXIS O/B/O PRUDENTIAL INS. CO. and SUMMIT ORTHOPEDICS, LTD., Intervenors.

JANUARY 3, 2022
No. WC21-6421

PRACTICE & PROCEDURE – RECORD; PRACTICE & PROCEDURE – DISMISSAL.  The compensation judge’s dismissal of the employee’s claim petition with prejudice for failure to comply with an order to attend an independent medical examination is vacated and the matter remanded for a hearing on the employer’s motion to dismiss.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge:  William J. Marshall

Attorneys:  Jeremy Brantingham, Brantingham Law Office, Minneapolis, Minnesota, for the Appellant. Douglas J. Brown, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondent.

Vacated and remanded.



The employee appeals the compensation judge’s order dismissing with prejudice the employee’s claim petition.  We vacate the order and remand for a hearing on the self-insured employer’s motion to dismiss.


Mohamed Ahmed, the employee, claimed a work injury on June 24, 2019, while employed by Allina Health System, the self-insured employer.  The employer admitted the claim and paid benefits.  On November 26, 2019, the employer filed a notice of intent to discontinue benefits, asserting that the employee had told different stories of how the injury occurred.  No objection was filed and benefits were discontinued.

Nine months later, on August 28, 2020, the employee filed a claim petition claiming entitlement to wage loss and medical benefits.  The employer filed a timely answer and set an independent medical examination (IME) for March 23, 2021, with Dr. Loren Vorlicky.  The employee failed to attend the IME with no explanation.

On April 1, 2021, the employer filed a motion to compel the employee to attend an IME.  The compensation judge ordered the employee to attend an IME scheduled on June 1, 2021, with Dr. Loren Vorlicky at 10:30 a.m.  However, the employee failed to arrive on time for the examination.  Citing his inability to locate the building, the employee claims to have been only five minutes late to the IME.  This was contradicted by communication from the IME firm, which indicated that the employee was twenty minutes late.  Because the employee was late, the IME did not go forward.

On June 10, 2021, the employer moved for dismissal of the employee’s claim petition based on the employee’s failure to cooperate with the IME process, his inconsistent explanations for failing to attend the two IME appointments, and for his failure to comply with the judge’s order to attend the second IME appointment.  The affidavit of service showed that the motion to dismiss was served on the employee’s attorney, but not on the employee.  No objection or response of any kind was served or filed by the employee’s attorney.

No conference or hearing was held on the employer’s motion.  By order dated June 28, 2021, the judge dismissed the employee’s claim petition with prejudice upon finding good cause existed for dismissal.  The June 28, 2021, order included no factual findings or supporting memorandum.  The employee appeals.


On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


On appeal, the employee argues that he was not afforded notice[1] or an opportunity to be heard, and therefore, the order dismissing the claim petition should be reversed.  Citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988), the employee argues that basic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.  In response, the self-insured employer argues that the employee disregarded the order to compel and dismissal was therefore warranted.  Should this court determine otherwise, the employer suggested a hearing on remand to determine whether the claim should be dismissed with prejudice.

Dismissal of a claim contradicts a primary objective of the law to dispose of cases on the merits.  Johnson v. Fluoroware, 70 W.C.D. 600, 603 (W.C.C.A. 2010) (citing Firoved v. General Motors Corp., 277 Minn. 278, 152 N.W.2d 364 (1967); Burd v. Halstad Lutheran Mem’l Home, 68 W.C.D. 637 (W.C.C.A. 2008), summarily aff’d (Minn. Dec. 16, 2008); Lamkin v. JWS Homes & Contracting, Inc., No. WC06-294 (W.C.C.A. Apr. 10, 2007)).  Because a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction that can be imposed for noncompliance with the rules or with an order of the court, or for failure to prosecute.  Id.  Therefore, it should be granted only under exceptional circumstances.  Id.

Here, there is no record to show what exceptional circumstance warranted a dismissal with prejudice.  The employee’s failure to attend the first IME, and upon an order to attend, showing up late for the second IME, are potential grounds for dismissal under Minn. R. 1420.3700.  Dismissal may be appropriate for willful failure to comply with a judge’s order, Michaelson v. Hamline Twin City Real Estate Co., 42 W.C.D. 964 (W.C.C.A. 1990), but we are not persuaded that the employee’s actions rose to the level of “willful failure.”

In similar cases, this court has reversed or vacated the dismissal of an employee’s claim petition in part because there was no evidentiary record of the proceedings and no way to determine what evidence the compensation judge had considered in granting the dismissal.  See Boggs-Rucktaeshel v. Northwest Airlines Corp., 72 W.C.D. 627 (W.C.C.A. 2012); Burd, 68 W.C.D. at 640-41, 643-44; Johnson, 70 W.C.D. at 603-04; Lamkin, No. WC06-294, slip op. at 2.  While dismissal of the employee’s claim petition may be warranted, no meaningful review of the order can occur until a record is created and factual findings are made.  Therefore, the June 28, 2021, order dismissing the employee’s claim petition is vacated, and the case is remanded to the Office of Administrative Hearings for a hearing on the motion to dismiss.

[1] In his brief, the employee alleges that he did not receive notice of the motion to dismiss.  The record, however, contains an affidavit of service showing service was made on the employee’s attorney.  Service on the employee’s attorney satisfies service on the party.  Minn. R. 1415.0700, subp. 2.