The WCCA found that 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.
This case involved the Employee who claimed entitlement to workers’ compensation benefits arising out of an April 17, 2008 injury. The Employee first filed a claim petition on February 9, 2012. At the Employee’s request, the case was stricken from the active trial calendar for two years. In March 2014, the case was reinstated and again stricken in March 2015. A year later, the Employee requested reinstatement. Six months later, the Employee requested that the case again be stricken. In addition, discovery disputes were ongoing and the matter remained stricken.
On May 16, 2018, the Employee’s claim petition was dismissed without prejudice. Eventually, in January 2019, the Employee filed a new claim petition seeking various benefits related to her April 17, 2008 injury. For nearly two years thereafter, the Employee made continued objections to medical authorizations resulting in motions to compel discovery responses and motions to dismiss the claim filed by the Employer and Insurer. A number of orders to compel were issued from 2019 to 2020. In September 2020, the case was again 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.
Eventually, the Employer and Insurer filed a motion seeking dismissal of the Employee’s claims with prejudice. The Employee did not submit a response and a special term conference was held at which the Employee was represented by counsel. Through her counsel, the Employee refused to execute requested medical authorizations. As a result, in July 2021, the compensation judge granted the Employer and Insurer’s motion and dismissed the Employee’s petition with prejudice. The Employee appealed the decision.
The WCCA noted that cases should be dismissed with prejudice only under exceptional circumstances and WCCA reviews a dismissal with prejudice for an abuse of discretion. According to WCCA, the Employee did not dispute the facts regarding her past behavior. However, the Employee asserted that she will now cooperate in these matters. Nonetheless, the record did show that the Employee has made similar assertions in the past, but has consistently failed to advance her claim and has refused to respond to discovery or comply with court orders.
According to WCCA, 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 and exceptional circumstances existed to justify dismissal with prejudice.
Takeaway: The compensation judge will dismiss a case with prejudice if there is clear evidence of the Employee not cooperating with discovery and court orders.