DAVID HARDY, Applicant

ANDERSON CUSTOM PROCESSING INC, Employer

REGENT INSURANCE CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Dismissal Order issued on October 29, 2009. The dismissal was with prejudice. The applicant's claims were for left foot and right knee injuries allegedly arising out of and in the course of his employment with the employer in an incident occurring on June 1, 2008. Respondents submitted an answer to the petition and briefs were submitted by the parties.

The commission has carefully reviewed the arguments of the parties and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

On April 13, 2009, the applicant submitted a claim alleging left foot and right knee injuries arising out of and in the course of his employment with the employer, occurring in an incident on June 1, 2008. Respondents denied the claim and a hearing was scheduled for October 22, 2009. One of the respondents' defenses to the claim was a lack of medical support, based on the fact that the applicant's physician, Dr. Lance Sathoff, completed a WKC-16-B indicating that the applicant's injuries were sustained at home when his car fell off a jack and rolled across his legs. The applicant now alleges that this was an incorrect history that he gave to Dr. Sathoff because the coworker who allegedly hit the applicant with his automobile in the employer's parking lot did not have a valid operator's license, and that coworker persuaded the applicant to lie about how the injuries occurred. Allegedly, the applicant and the coworker subsequently agreed to tell the truth about what had occurred.

The applicant's attorney, rather than going directly to Dr. Sathoff with the allegedly accurate version of how the injuries occurred, chose to go to hearing with several witnesses who allegedly would give testimony supporting the fact that the applicant's injuries were work-related. The attorney believed that with the number of witnesses involved, there would be at least one additional hearing, and that between hearings he could present the testimony of the applicant's witnesses to Dr. Sathoff. He then planned to ask Dr. Sathoff to complete a revised WKC-16-B addressing the alleged actual facts of how the injuries occurred.

On the hearing date, the applicant and his attorney appeared with four witnesses, and respondents appeared with three witnesses. The administrative law judge accepted numerous exhibits into evidence, but declined to allow the testimony of the witnesses, citing the applicant's failure to submit a medical opinion linking the applicant's injuries to the alleged work incident. The administrative law judge thereafter dismissed the application with prejudice.

The commission need not dwell on the arguments supporting the administrative law judge's discretionary decisions to refuse to allow testimony, and to dismiss the application with prejudice. Those arguments are fully and forcefully set forth in the administrative law judge's decision of October 29, 2009. However, the case ultimately turns on how and where the applicant actually sustained his left foot and right knee injuries. Dr. Sathoff would very likely have needed to see evidence to support the applicant's changed version of events before revising his WKC-16-B. While the applicant may have been better served had an attempt been made to present such evidence to Dr. Sathoff prior to the hearing date, this was an unusual circumstance. Perhaps of greatest significance, it is apparent that the applicant's attorney's exercise of judgment on how to proceed did not involve any deliberate attempt to inconvenience or manipulate either the department or the respondents. There was no warning given prior to the hearing that there could be a dismissal with prejudice absent a revised WKC-16-B, and typically the department dismisses a claim without prejudice when it is found that additional medical evidence is required. The administrative law judge acknowledged at the hearing that with the number of witnesses present, if he had allowed their testimony the matter would have required two or possibly three hearings (Transcript page 10).

Considering all of these circumstances, the commission finds that the best exercise of discretion is to dismiss the applicant's application without prejudice. The applicant may refile an application within the statutory time limit, if he first obtains medical support for his claim.

NOW, THEREFORE, this

The administrative law judge's Findings and Order are affirmed in part and reversed in part. The applicant's claim is dismissed without prejudice.

Dated and mailed April 30, 2010
hardyda : 185 : 5 ND § 8.9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Robert Ward
Attorney Mark Ringsmuth

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2010/06/14