WINIFRED WHITAKER, Employee/Appellant, v. WALMART, INC., and WALMART CLAIMS SERVS., INC., Employer-Insurer/Respondents, and AM. ACCT’S, C/O DIAGNOSTIC IMAGING SPECIALISTS, Intervenor.

MARCH 23, 2022
No. WC21-6439

PRACTICE & PROCEDURE – DISMISSAL.  The compensation judge did not abuse her discretion in dismissing the employee’s claim with prejudice for failure to prosecute her claim, failure to comply with court orders, and failure to cooperate with discovery, which resulted in prejudice to the employer and insurer.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  Sandra J. Grove

Attorneys:  Michael Garbow, Garbow Law Office, Bemidji, Minnesota, for the Appellant.  Julie R. Benfield, Trial Group North, Duluth, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s order dismissing with prejudice her claim for workers’ compensation benefits.  We affirm.


The employee, Winifred Whitaker, claims entitlement to workers’ compensation benefits arising out of an injury to her left knee on April 17, 2008.  Nearly four years after the date of injury, on February 9, 2012, the employee filed a claim petition seeking benefits.  At her request, the case was stricken from the active trial calendar for two years, when in March 2014, she requested reinstatement.  One year later in March 2015, she requested that it again be stricken.  In March 2016, the employee requested reinstatement.  Six months later, the employee requested that the case again be stricken.  Discovery disputes were ongoing and the matter remained stricken for over a year upon repeated requests by the employee’s counsel.

On May 16, 2018, more than ten years after the date of injury, the claim petition was dismissed without prejudice.  Approximately eight months later, in January 2019, the employee filed a new claim petition seeking various benefits related to her April 17, 2008, date of injury.[1]  For nearly two years thereafter, the employee made continued objections to medical authorizations resulting in numerous motions to compel discovery responses and motions to dismiss the claim filed by the employer and insurer.  An order to compel discovery was issued in May 2019.  Another order to compel discovery was issued in February 2020.  In September 2020, the case was stricken from the calendar upon the employee’s refusal to submit for a deposition or for medical and vocational expert examinations.  In early 2021, the employee agreed to engage in discovery but again refused to execute updated authorizations or to cooperate with expert examinations.

The employer and insurer then filed a motion seeking dismissal of the employee’s claims with prejudice.  No response was submitted on behalf of the employee.  A special term conference was held on the record, at which the employee was represented by counsel.  Through her counsel, the employee refused to execute requested medical authorizations.  On July 23, 2021, the compensation judge granted the employer and insurer’s motion and dismissed the employee’s petition with prejudice.  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).


The employee appeals from the compensation judge’s dismissal of her claim petition with prejudice.  Because the compensation judge’s dismissal of the employee’s claim petition was not an abuse of her discretion, we affirm.

The dismissal of a claim contradicts a primary objective of the law, which is 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 a court order, or for failure to prosecute.  Id.  As such, cases should be dismissed with prejudice only under exceptional circumstances.  Id.  This court reviews a dismissal with prejudice for an abuse of discretion.  See Ford v. Road Runner, 48 W.C.D. 251 (W.C.C.A. 1993).

In dismissing the employee’s claim petition with prejudice, the compensation judge found that, “[t]he employee has unreasonably delayed these proceedings, failed to cooperate with reasonable discovery, failed to comply with the Court’s orders regarding discovery, and failed to prosecute her claims, all resulting in prejudice to the employer and insurer.”  (Finding 18.)  She further explained that the employee had been given multiple opportunities to prepare for trial and to participate in the discovery process, including a previous dismissal without prejudice.  The compensation judge rejected the employee’s current promises that she would now comply, as prior assurances resulted in continued disputes and motions to dismiss, which in turn “resulted in significant unnecessary expenditure of time and resources of both the Court and the employer and insurer.”  (Mem. at 4.)

The litigation in this case is governed by the rules promulgated by the Office of Administrative Hearings in Chapter 1420 of the Minnesota Rules.  Discovery is addressed in rule 1420.2200, and subpart 1 requires that an employee provide information relevant to the claim.  This subpart also states that, “[m]edical privilege is waived as to the injuries or conditions alleged in the petition by the filing of the petition alleging injury or occupational disease.”  Subpart 7 provides that an employee “must submit to a physical and verbal examination by the employer’s or insurer’s expert.”  Under Minn. R. 1420.3700, a compensation judge may impose sanctions for “failure to comply with the order of a judge or the willful failure to comply with the applicable provisions of this chapter.”  Dismissal of proceedings is also allowed.  Minn. R. 1420.3700, subp. 1E.  This court has affirmed orders to dismiss with prejudice where, as here, the employee has repeatedly and without justification refused to comply with discovery requests or court orders.  See Bloom v. Slash, Inc., No. WC06-306 (W.C.C.A. July 6, 2007); see also Hanegmon v. Chisholm Health Ctr., No. WC07-100 (W.C.C.A. May 3, 2007).

The employee does not dispute the facts regarding her past behavior, nor does she claim that the rules require something other than the non-cooperation she has demonstrated in the years since her work injury.  Instead, facing dismissal, she asserts that she will now cooperate in these matters.  The record shows that the employee, through her attorney, has made these assertions in the past, but she has consistently failed to advance her claim and has refused to respond to discovery or comply with court orders since the present claim petition was filed three years ago.  The work injury occurred more than fourteen years ago and her initial claim petition was filed more than ten years ago.  At this point, due to the employee’s own actions, this matter is no closer to resolution now than it was then.  In reviewing this appeal, we are not considering the employee’s failure to proceed with her claim for six years between the filing of her first claim petition in 2012 through its dismissal in 2018.  Instead, we are addressing the employee’s failure to cooperate with discovery, specifically her repeated refusal to provide medical authorizations, her disregard of court orders, and her refusal to cooperate and attend a deposition, an independent medical evaluation, or an independent vocational evaluation.

The compensation judge reasonably concluded that the employee’s delays and refusals have prejudiced the ability of the employer and insurer to defend the matter.  The compensation judge’s determination that exceptional circumstances exist so as to justify dismissal with prejudice was not an abuse of her discretion.  We affirm.

[1] The employee’s 2019 claim petition alleged injury not only to the employee’s left lower extremity, but also alleged injury to her back and depression.