APPEALS - INTERLOCUTORY ORDER. The compensation judge’s order denying a motion to dismiss a medical request is not appealable as the order did not constitute a final decision on the merits.
PRACTICE & PROCEDURE – DISMISSAL. An order of dismissal without prejudice does not support a later assertion of collateral estoppel or res judicata because the dismissal order does not affect the merits of the case.
Compensation Judge: N. Amee Pham
Attorneys: Joshua E. Borken, Law Office of Joshua Borken, St. Paul, Minnesota, and Jeffery Schroeder, JD Schroeder Law, LLC, Lake Elmo, Minnesota, for the Appellant. Gina M. Uhrbom, Brown & Carlson, Minneapolis, Minnesota, for the Respondents.
Dismissed.
THOMAS J. CHRISTENSON, Judge
The employee, Allen McKissic, Jr., appeals from a compensation judge’s denial of his motion to dismiss the medical request of the employer, Bor-Son Construction, Inc., and insurer, AIG Insurance Company. The compensation judge’s dismissal order is not an appealable order. We dismiss the appeal.
The employee, Allen McKissic, Jr., sustained multiple admitted severe work injuries when he fell from scaffolding while working as a brick tender for the employer, Bor-Son Construction, Inc., on July 9, 1999.[1] On July 9, 2001, the employee was deemed entitled to permanent total disability benefits. The employee later filed a claim petition requesting payment of nursing services provided to him by his parents.
On October 4, 2005, a compensation judge issued a findings and order awarding part of the employee’s claim for nursing services. The compensation judge ordered that beginning on August 10, 2005, the employee required home health aide services of six hours per day being provided by his parents to be paid at $10.00 per hour, subject to the terms and conditions of the Minnesota Workers’ Compensation Act. No appeal was taken from this findings and order.
The employee received nursing services provided by his mother and father until their deaths in 2007 and 2018, respectively. Following the award of nursing services, the employee continued to experience significant symptoms including chronic pain, decreased mobility, bowel and bladder incontinence, and difficulty ambulating, which required assistance with dressing, bathing, meal preparation, house cleaning, transportation/shopping, laundry, toileting, and paperwork/bill paying.[2]
In 2018, the employee moved to Las Vegas, Nevada to reside with his brother, Anthony McKissic (Anthony), who had provided nursing services to the employee at times from 2005 through 2018 when the employee’s parents were unavailable. Since 2018, Anthony has provided nursing services to the employee.
After the death of the employee’s father in 2018, the employer and insurer discontinued paying for the employee’s needed nursing services.[3] On May 21, 2021, the employee filed a medical request for payment of nursing services provided to him by Anthony. In an April 11, 2022, findings and order, a compensation judge awarded the nursing services provided by Anthony from February 2018 to the present and continuing. The compensation judge remarked in the memorandum to that findings and order that since the time of the 2005 award of nursing service benefits, the employee’s condition and physical capabilities had not improved, and his medical condition was unchanged or worse. No appeal was taken by the parties from the April 11, 2022, findings and order.
On February 6, 2024, the employer and insurer filed a medical request (medical request I), seeking reimbursement of nursing services paid to Anthony. Medical request I was later amended to include discontinuance of the nursing services being provided by Anthony to the employee. Anthony filed a motion to dismiss medical request I on March 21, 2024. The employee, represented by separate counsel, joined Anthony’s motion on March 26, 2024. On April 4, 2024, Compensation Judge N. Amee Pham granted without prejudice the motion to dismiss the employer and insurer’s medical request I for failure to file a timely response. No hearing was held on medical request I. (Record index p. 82.)
On August 2, 2024, the employer and insurer filed a second medical request (medical request II) seeking discontinuance of nursing service payments and reimbursement of nursing services paid to Anthony from November 2023 through January 2024. The employee moved to dismiss the employer and insurer’s medical request II on August 14, 2024. Subsequently, Anthony filed a motion to intervene seeking payment for nursing services provided to the employee from January 1, 2024, to the present and continuing. Anthony also filed a motion to dismiss the employer and insurer’s medical request II. The employee and Anthony each asserted that the doctrines of res judicata and collateral estoppel preclude the employer and insurer from disputing payment of the nursing services for the same period sought in medical request I.
The motions to dismiss were heard by Compensation Judge Pham on October 29, 2024. In an order dated December 2, 2024, the compensation judge concluded that the doctrines of res judicata and collateral estoppel did not bar the employer and insurer from pursuing medical request II because the issues were not heard, litigated or decided in the prior proceeding that dismissed medical request I. The motions to dismiss medical request II were denied. The employee appeals.
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 jurisdiction of the Workers’ Compensation Court of Appeals (WCCA) is governed by statute. In reviewing the jurisdiction of this court, the Minnesota Supreme Court has held that appeals to the WCCA can only be taken from “an award or disallowance of compensation, or other order, affecting the merits of the case.” Minn. Stat. § 176.421, subd. 1; see Mierau v. Alcon Indus., Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986) (discussing appealable orders).
Only orders which determine the final rights of the parties and conclude the action are appealable. Zizak v. Despatch Indus., Inc., 427 N.W.2d 755, 756 (Minn. App. 1988). This prevents piecemeal appeals and protects the rights of all parties until all claims have been adjudicated in the trial court. Johnson v. Johnson, 363 N.W.2d 355, 357 (Minn. App. 1985) (citing Comment, Minn. R. Civ. App. P. 104.01), pet. for rev. denied (Minn. May 6, 1985).
The denial of a motion to dismiss is an interlocutory order.[4] This court has consistently held that such an order is not appealable pursuant to the language of Minn. Stat. § 176.421, subd. 1. “An order denying a motion to dismiss does not affect the merits of a case. The action is simply reserved for trial.” Lick v. State, Ah-Gwah-Ching Nursing Home, 40 W.C.D. 315, 316 (W.C.C.A. 1987) (denial of motion to dismiss is not appealable); Luther v. Indep. Sch. Dist. No. 535, No. WC20-6380 (W.C.C.A. May 5, 2021); Medina v. Paymasters, Inc., No. WC19-6322 (W.C.C.A. May 15, 2020); Profit v. HRT Holding d/b/a Doubletree Suites, No. WC19-6319 (W.C.C.A. Feb. 10, 2020). As the denial of the employee’s motion to dismiss medical request II is not a final order, that order is not appealable.
As to the employee’s res judicata and collateral estoppel argument, because medical request I was dismissed without prejudice, that dismissal does not affect the rights of the parties. Lowe v. Nw. Airlines Corp., No. WC17-6111, n. 2 (W.C.C.A. May 31, 2018) (claims dismissed without prejudice may be reasserted); Lick, 40 W.C.D. at 316. For this reason, the dismissal of medical request I has neither res judicata nor collateral estoppel effect.
Accordingly, we conclude that the compensation judge’s dismissal of medical request II is not an appealable order. This court lacks jurisdiction to review that order and the employee’s appeal is premature. The employee’s appeal is therefore dismissed.[5]
[1] Certain of the facts in this background are taken from McKissic v. Bor-Son Constr., 62 W.C.D. 30 (W.C.C.A. 2001) summarily aff’d (Minn. Jan. 17, 2002), and McKissic v. Bor-Son Constr., Inc., No. WC23-6528 (W.C.C.A. Feb. 14, 2024).
[2] In Findings and Order served and filed November 28, 2000, Compensation Judge Jennifer Patterson found the employee had also sustained consequential emotional injuries of anxiety and depression arising out of his work injury. This court affirmed that decision. McKissic, 62 W.C.D. at 40.
[3] The record is silent as to the reason for this discontinuance or whether the employer and insurer filed a petition to discontinue the nursing service benefits being provided to the employee.
[4] “Interlocutory” means “interim or temporary; not constituting a final resolution of the whole controversy.” An “interlocutory appeal” is “an appeal that occurs before the trial court’s final ruling on the entire case.” Black’s Law Dictionary 121 and 971 (12th ed. 2024); see, e.g., Mierau, 386 N.W.2d at 742, 38 W.C.D. at 653.
[5] The employee made a motion to this court to correct the record below by introducing documents that had not been submitted at the hearing on the motion to dismiss. Based upon our dismissal of the employee’s appeal, the motion to correct the record is moot and is denied.