                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                             CORRETJER V. PRINCIPAL LIFE INS. CO.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               ENRIQUE J. CORRETJER, APPELLANT,
                                                V.

                           PRINCIPAL LIFE INSURANCE CO., APPELLEE.


                            Filed October 18, 2016.    No. A-16-184.


       Appeal from the Workers’ Compensation Court: JOHN R. HOFFERT, Judge. Affirmed.
       Jerry J. Milner, of Milner Law Office, for appellant.
        Jill Gradwohl Schroeder and Michael D. Sands, of Baylor, Evnen, Curtiss, Grimit & Witt,
L.L.P., for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
       Enrique J. Corretjer appeals from an order of the Nebraska Workers’ Compensation Court,
which granted a motion for discovery sanctions filed by Corretjer’s former employer, Principal
Life Insurance Co. (Principal), and dismissed with prejudice Corretjer’s claim for workers’
compensation benefits. Because we find no abuse of discretion by the trial court, we affirm.
                                        BACKGROUND
Corretjer’s Petition.
        On January 9, 2015, Corretjer filed the operative petition in the compensation court. He
alleged that he sustained an accident and injury arising out of and in the course of his employment
with Principal, which manifested itself on or about February 25, 2014. At the time of the accident,



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Corretjer was employed as an individual investment specialist. Corretjer alleged that he sustained
“epileptic seizures as a result of external stimuli occurring while in the course of his employment”
with Principal. He sought an award of medical expenses, temporary and permanent disability
benefits, vocational rehabilitation, and attorney fees and penalties.
Initial Trial Date and Continuance.
         In May 2015, the compensation court issued notice that a trial on Corretjer’s petition was
set for August 26. The court subsequently continued trial to October 14 and ordered the parties to
file pretrial statements, including, among other things, a list of expected witnesses, and to exchange
exhibit lists.
First Motion to Compel and Second Continuance.
        On September 23, 2015, Principal filed a motion for continuance of trial and to compel
medical examination of Corretjer. In support of its motion for continuance, Principal alleged that
Corretjer had been scheduled for an independent medical examination by Dr. Terry Davis and Dr.
Rosanna Thurman on September 16 at Principal’s request and that Corretjer had failed to appear.
Principal stated that, due to the necessity of scheduling both examinations on the same day, it had
been unable to reschedule the examination until October 16.
        In support of the motion to compel, Principal alleged that Corretjer’s attorney had been
notified of the examination previously scheduled for September 16, 2015 with Davis and Thurman
by letter on September 4 and that Corretjer failed to keep the September 16 examination
appointment without reasonable cause. Principal alleged that Corretjer’s attorney had been notified
of the rescheduled examination by letter on September 22. Principal also stated that transportation
to and from the rescheduled examination for Corretjer and one additional rider would be provided
by Principal through a third-party vendor. Principal asked the compensation court to compel
Corretjer to appear at the October 16 examination by Davis and Thurman and asked that Corretjer’s
petition be subject to dismissal if he failed or refused to attend.
        On October 8, 2015, the compensation court entered an order granting Principal’s motions.
The court ordered Corretjer to attend the October 16 independent medical examination by Davis
and Thurman and continued trial to January 20, 2016. The court found that if Corretjer failed or
refused to submit to the examination, his petition “shall be subject to dismissal.”
Second Motion to Compel and Third Continuance.
        On November 17, 2015, Principal filed another motion for continuance of trial and motion
to compel medical evaluation. Principal alleged that Corretjer had failed to appear for the October
16 examination with Davis and Thurman as ordered. Principal also alleged that, when it attempted
to take Corretjer’s deposition on October 14, he claimed to be unable to complete the deposition
and that he subsequently gave notice he would be unable to attend the October 16 examination.
Principal alleged that due to these events, it would need additional time to obtain medial opinions
from Davis and Thurman and to take Corretjer’s deposition. Principal asked the court to continue
trial for 90 days. Principal also asked the court to order Corretjer to appear at a medical
examination by Dr. Joel Cotton scheduled for January 4, 2016. It stated that Corretjer had been




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notified by faxed correspondence on November 17 of the examination by Cotton scheduled for
January 4. It asked that Corretjer’s petition be subject to dismissal if he failed or refused to attend
the examination by Cotton.
        The compensation court granted Principal’s motions on November 23, 2015. It ordered
Corretjer to attend the January 4, 2016 examination by Cotton, with transportation again to be
provided by Principal through a third-party vendor. As before, the court stated that if Corretjer
failed or refused to submit to the examination his petition “shall be subject to dismissal with
prejudice.” The court ordered that trial scheduled for January 20 be continued to a telephonic status
conference on March 24.
Third Motion to Compel and Related Correspondence.
        On December 28, 2015, Principal filed a motion asking the compensation court to order
Corretjer to attend a rescheduled medical examination by Davis and Thurman on January 22, 2016,
with transportation to be provided by Principal through a third-party vendor. Principal again asked
that Corretjer’s petition be subject to dismissal if he failed or refused to attend. A hearing on the
third motion to compel was set for January 14, 2016 in Lincoln, Nebraska.
        In its third motion to compel, Principal outlined and attached copies of correspondence
between the parties in October, November, and December, which we summarize briefly. On
October 14, 2015, Corretjer’s attorney asked Principal to move the compelled October 16
examination with Davis and Thurman to a new date and submit a new order to the court compelling
Corretjer to attend. On November 17, Principal notified Corretjer of the rescheduled examination
by Davis and Thurman set for December 18 and provided his attorney with a revised order
compelling Corretjer’s attendance. On November 25, Corretjer’s attorney stated he had no
objection to submitting the revised order to the court. On December 16, Corretjer’s attorney
requested that the examination by Davis and Thurman be continued “until such time as [Corretjer]
feels capable of proceeding with this litigation.” He also noted that counseling had been set up for
Corretjer who would “like to have treatment for his anxiety before he proceeds with the defense
examination.” In its third motion to compel, Principal alleged that because it inadvertently failed
to provide the compensation court with the revised order compelling attendance on December 18,
it agreed to reschedule the examination. On December 17, Principal provided written notice that
the December 18 examination would be rescheduled, and on December 18, it provided written
notice that the examination was set for January 22, 2016.
Additional Proceedings in January 2016.
        On January 6, 2016, Corretjer filed a motion seeking to change the venue for the hearing
on Principal’s third motion to compel from Lincoln to Grand Island. Corretjer’s attorney alleged
that a change of venue was proper because he had a scheduling conflict and because Corretjer’s
injury had been sustained in Grand Island. Alternatively, Corretjer asked for a continuance. In
support of the request for a continuance, he alleged that his medical care and treatment terminated
in February 2015 as he no longer had insurance; that after receiving approval for Medicaid, he
submitted to a medical examination by a neurologist on December 2, but despite having requested
these medical reports, his counsel had not received the records as of the date of his motion; and




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that Corretjer “has reason to believe that he has been referred to [Dr.] Jerry Denton, a mental health
counselor,” who was currently out of state and would not begin counseling sessions until the end
of January 2016.
         A telephonic hearing on Corretjer’s motion for change of venue or, in the alternative, to
continue was held on January 6, 2016. The only exhibit received into evidence at this hearing was
a copy of the curriculum vitae of Denton, the licensed clinical psychologist to whom Corretjer had
been referred after his December 2015 neurologist appointment. In addition to discussing the
venue change for hearing on the third motion to compel, to which Principal did not object, the
parties discussed with the compensation court their concerns about the scope of the upcoming
hearing on Principal’s third motion to compel.
         Principal’s attorney expressed concern about being subjected to an evidentiary hearing on
its third motion to compel while not being allowed to conduct proper discovery. She also alerted
the court that Corretjer had failed to attend the compelled examination by Cotton on January 4 and
that she intended to file a motion for sanctions.
         Corretjer’s attorney referenced an occasion in September 2015 when Corretjer was unable
to participate in a “defense examination” because he started having seizures, noted that Corretjer
also experienced a seizure during his deposition, and explained that he had some concern with
“what to do as far as safely presenting my client for these purposes.” He also told the court:
         [I]t’s my opinion . . . that [Corretjer] needs some counseling. He has gotten to the point
         where he has an unreasonable fear about proceeding at this time. Every time he starts to
         talk about this incident, he starts having issues. Neurosis is what my concern is.

          Corretjer’s attorney further expressed concern that it was not in Corretjer’s best interest
from a health standpoint to proceed until he had some counseling and stated, “[M]y concern is
. . . to have an evidentiary hearing because . . . the court certainly could dismiss this action with
prejudice because my client will not submit to a defense examination.” Corretjer’s attorney was
also “concerned about [Corretjer’s] medical stability to even go through these kinds of
examinations.” Corretjer’s attorney told the court that Corretjer’s last treatment for the alleged
work-related seizure disorder was in February 2015 and that he still had not received a report from
the December 2015 neurologist examination. Finally, in connection with his alternate request to
continue the hearing on Principal’s third motion to compel, Corretjer’s attorney expressed his
preference “to wait until [Corretjer’s] had some counseling before we even have this hearing on
the motion to compel so that we just have a better idea of if it’s going to be safe for him or not.”
          In connection with Corretjer’s request for a continuance, the compensation court observed
that it could only decide cases on the evidence it had before it, although it noted, “There is a history
to this case, which is concerning, and . . . I’d like to know more.”
Motion for Sanctions and Hearing.
       On January 8, 2016, Principal filed a motion for sanctions, asking the compensation court
to dismiss Corretjer’s petition with prejudice. Principal alleged that Corretjer had failed to attend
the compelled examination by Cotton on January 4, and, as with its third motion to compel, it




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outlined and attached copies of the parties’ correspondence exchanged in December 2015 after
entry of the court’s order compelling Corretjer to submit to the examination by Cotton.
        In Principal’s motion for sanctions, it indicated that on December 21, 2015, Corretjer’s
attorney sent correspondence requesting cancellation of the Cotton examination due to Corretjer’s
“unresolved anxiety regarding his current medical condition,” which Principal declined to do via
communications sent to Corretjer’s attorney on December 28 and 29. Additional correspondence
was exchanged by the parties’ attorneys on December 30 and 31, and apparently some
miscommunication ensued with respect to whether Corretjer intended to attend the examination
by Cotton. Principal alleged in its motion for sanctions that when the arranged transportation
company contacted Corretjer to pick him up, he stated he was not going to the January 4, 2016
appointment. On January 6, Principal’s attorney received correspondence from Cotton stating that
Corretjer did not present for the scheduled appointment.
        On January 14, 2016, a telephonic hearing was held on Principal’s third motion to compel
and its motion for sanctions as well as Corretjer’s motion for a continuance, which he indicated
was directed at both of Principal’s motions. In support of all three motions, Corretjer offered a
copy of Denton’s curriculum vitae, an affidavit from his attorney, an affidavit from his wife
concerning communications she received about transportation for appointments in January, and
his own affidavit. In support of its motion to compel, Principal offered copies of correspondence
between the parties’ attorneys and staff between November 17 and December 18, 2015. In support
of its motion for sanctions, Principal offered copies of correspondence between the parties’
attorneys and staff between December 21 and 31, 2015, a copy of Cotton’s letter confirming that
Corretjer did not attend the appointment scheduled for January 4, 2016, and affidavits from the
individuals who had been responsible for arranging and providing the third-party transportation
for the January 4 appointment.
        In his affidavit, Corretjer stated that he had medical treatment for his February 2014
work-related injury with Dr. Colin Sanner, a neurologist, which was ended in February 2015 when
his health insurance was cancelled upon termination of his employment. Corretjer stated that he
traveled to Omaha for an examination by Davis and Thurman on September 16, but that he
“experienced symptoms,” just prior to the appointment, which prevented him from attending. He
also stated that he was scheduled to give a deposition on October 15 and that within 10 minutes of
starting the deposition, he “experienced a medical condition which resulted in calling emergency
medical technicians” and transport to the hospital. Corretjer stated that upon being approved for
Medicaid, he contacted Sanner’s office for an appointment, obtained an appointment with Dr.
Catherine Brignoni, a neurologist in the same office, and after seeing Brignoni on December 2, he
was referred to Denton for his “unresolved anxiety.” According to Corretjer, Denton was
scheduled to return from vacation later in January and was willing to provide counseling for
Corretjer “due to this unresolved medical condition.” Corretjer also stated that he had advised he
would not be attending the January 4, 2016 appointment with Cotton “due to [his] unresolved
anxiety.” He asked the compensation court to suspend discovery “until such time that I have an
opportunity to meet with a counselor and submit to medical and psychological treatment for this
condition.”




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        Attached to Corretjer’s affidavit were copies of emergency room reports, showing that he
was transported to the hospital and treated for seizures on the date of his deposition. Also attached
were notes from his examination by Brignoni on December 2, 2015. Corretjer reported to Brignoni
that he had had seizures on three occasions, the first time in February 2014, the second time in July
2014, and the third time on the occasion of his deposition in October 2015. Corretjer’s wife also
reported that he was experiencing increased anxiety. During the examination, Brignoni noted that
Corretjer appeared “very calm,” however, “we talk about his work-related events, he gets very
anxious and developed some form of anxiety with possible panic contributions. He has difficulty
following through on completed sentences when this occurs.” Brignoni recommended that
Corretjer follow through on a previous recommendation by Sanner to see Denton and continue
seizure precautions. She again noted that Corretjer had “some notable anxiety” during the visit.
She recommended that Corretjer see a psychiatrist for the treatment of anxiety and depression and
indicated that she would continue seeing Corretjer “with hopes of resolving his seizure concerns.”
She indicated she would be happy to provide any additional information to Corretjer or his attorney
if necessary. Corretjer’s attorney stated in his affidavit that he did not receive Brignoni’s medical
notes from the December 2 visit until January 7, 2016.
        One of the exhibits offered by Principal in support of its motion for sanctions was a letter
from Corretjer’s attorney to Principal’s attorney dated December 21, 2015. This letter was also
referenced in the affidavit of Corretjer’s attorney. In the December 21 letter, Corretjer’s attorney
stated:
        As you know, Mr. Corretjer is continuing to suffer from unresolved anxiety regarding his
        current medical condition. For this reason, my client has asked to cancel the defense
        examination with Dr. Cotton on January 4, 2016 until such time he is provided with
        counseling therapy to deal with his anxiety issues. As I further explained to you over the
        phone, I am requesting an evidentiary hearing to explain to the Court that Mr. Corretjer is
        not mentally prepared to proceed with the litigation due to the fact that he had a previous
        seizure while you were taking his deposition on October 14, 2015. Therefore, we are asking
        that we suspend the discovery process until such time as Mr. Corretjer is mentally prepared
        to proceed with his deposition and medical examinations. As you further know, this matter
        has already been presented to the Judge and I agreed to a continuance of the trial in this
        matter for this very reason. In addition, the Court did set this matter for a status conference
        on March 24, 2016 at which time I will again explain to the Court the basis for suspending
        the discovery proceedings as I have previously outlined above. Again, I apologize for any
        undue delay or hardship this may cause your client. However, I must place the mental
        health of my client above all else.

        Principal’s attorney replied on December 28, indicating that Principal felt it was being
prohibited from gathering the information it needed to evaluate the claims alleged in Corretjer’s
petition, that Principal was not willing to voluntarily cancel the examination by Cotton and
expected Corretjer to present for that examination, and that if Corretjer failed to appear, it would
seek sanctions against him. The letter also advised that Principal was unwilling to agree that
Corretjer had a seizure at the time of his deposition.



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        During the January 14, 2016 hearing, the compensation court inquired whether Corretjer
had an appointment scheduled with Denton or “anyone else that could opine on this matter.”
Corretjer’s counsel advised that a specific appointment had not been scheduled as Denton had not
indicated the exact date at the end of January when he would return to his office. He stated further
that while Denton was willing to “start over the telephone,” this was “a concern [Corretjer] has at
this point.” The court took all three motions under advisement.
Dismissal With Prejudice.
         On January 20, 2016, the compensation court entered an order granting Principal’s motion
for sanctions and dismissing Corretjer’s petition with prejudice. Given its ruling on the motion for
sanctions, the court determined that Corretjer’s motion for continuance and Principal’s third
motion to compel were moot.
         The compensation court noted that in its orders of October 8 and November 23, 2015 ruling
on Principal’s previous motions to compel, Corretjer had been advised that a failure to submit to
the medical examinations in question could subject his petition to dismissal. The court determined
that, in connection with Principal’s motion for sanctions, only “vague and cryptic reasons” were
advanced by Corretjer for his refusal to attend the court-ordered examinations. Specifically, the
court noted Corretjer’s claims of anxiety and his counsel’s representation in the December 21,
2015 letter that Corretjer was not mentally prepared to proceed with the litigation. The court noted,
however, that Corretjer had been able to undergo examinations by his treating physicians, Sanner
and Brignoni, but that the court “was not favored with any opinion from either expert or any other
care provider touching upon any claimed inability of [Corretjer] to proceed with the litigation.”
The court stated that it was “naturally left to wonder why [Corretjer] was able to undergo
examinations by his health care providers but now claims an inability to attend examinations by
[Principal’s] experts.” The court concluded:
                In the end, the Court was left looking in vain for support for [Corretjer’s] claim of
         an inability to attend the ordered medical examinations. If a scintilla of medical evidence
         had been offered[,] the present order likely would not have been entered.
                Absent some justification for ignoring them, the earlier orders of the Court simply
         must stand for something. Otherwise, they can be disregarded with impunity. [Principal]
         has an established right under Nebraska law to engage in discovery [to] include the right
         to have a claimant examined. The net result of [Corretjer’s] non-compliance is foretold.

The court granted Principal’s motion for sanctions and dismissed Corretjer’s petition with
prejudice.
                                   ASSIGNMENT OF ERROR
       Corretjer asserts that the compensation court abused its discretion in imposing the sanction
of dismissal with prejudice for his discovery violation.




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                                     STANDARD OF REVIEW
        Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation
court acted without or in excess of its powers; (2) the judgment, order, or award was procured by
fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensation court do not support the
order or award. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (2016).
Determinations by a trial judge of the Workers’ Compensation Court will not be disturbed on
appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence. Id.
                                             ANALYSIS
        Corretjer asserts that the compensation court abused its discretion in imposing the sanction
of dismissal with prejudice for his discovery violation. He does not dispute that he failed to comply
with the court’s order of November 23, 2015 compelling him to submit to the examination by
Cotton, and he concedes that the record “did not necessarily contain compelling medical evidence
explaining why he could not attend or the jeopardizing effects that such attendance could have had
on his mental or physical health.” Brief for appellant at 11. Corretjer argues, however, that the
court should have imposed a lesser penalty that would have addressed the court’s concerns about
the meaningfulness of its orders but still allowed him to seek redress for his work-related injury.
        The Nebraska Workers’ Compensation Court is not bound by the usual common-law or
statutory rules of evidence or by any technical or formal rules of procedure. Interiano-Lopez v.
Tyson Fresh Meats, supra. The compensation court has, however, specifically adopted the
discovery rules found in Neb. Ct. R. Disc. §§ 6-301 to 6-337, which permit the court to sanction
noncompliance with a discovery order by methods including dismissal of the action. See Neb.
Workers’ Compensation Ct. R. 4. Specifically, with respect to noncompliance with a discovery
order, Neb. Ct. R. Disc. § 6-337(b)(2)(C) provides that if a party “fails to obey an order to provide
or permit discovery . . . the court in which the action is pending may make such orders in regard
to the failure as are just” including an order “dismissing the action or proceeding or any part
thereof.”
        The determination of an appropriate discovery sanction rests within the discretion of the
trial court, and an appellate court will not disturb it absent an abuse of discretion. Hill v. Tevogt,
293 Neb. 429, 879 N.W.2d 369 (2016). A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. Id.
        “Rule 37 sanctions serve several purposes. First, they punish a litigant or counsel who
might be inclined to frustrate the discovery process. Second, they deter those who are tempted to
break the rules. Finally, they prevent parties who have failed to meet their discovery obligations
from profiting from their misconduct.” Hill v. Tevogt, 293 Neb. at 436 (citations omitted).
        The appropriate sanction under § 6-337 depends on the facts. Hill v. Tevogt, supra. Factors
which are relevant to sanctions under § 6-337 include the prejudice or unfair surprise suffered by
the party seeking sanctions, the importance of the evidence which is the root of the misconduct,



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whether the court warned the sanctioned party about the consequences of its misconduct, whether
the court considered less drastic sanctions, the sanctioned party’s history of discovery abuse, and
whether the sanctioned party acted willfully or in bad faith. Hill v. Tevogt, supra.
         This court has stated that there is a difference between noncompliance with one of the
discovery rules and noncompliance with an order of the trial court on a discovery matter, and this
difference may impact the allowable sanction. Pope-Gonzalez v. Husker Concrete, 21 Neb. App.
575, 842 N.W.2d 135 (2013) (finding dismissal appropriate sanction where plaintiff repeatedly
failed to respond to discovery requests despite extended deadlines and warning that failure to
comply would subject her to sanctions). Dismissal or default judgment is an appropriate sanction
for failing to comply with a discovery order. Id. See Stanko v. Chaloupka, 239 Neb. 101, 474
N.W.2d 470 (1991) (dismissal may be appropriate sanction for “inexcusably recalcitrant” party).
         In this case, Corretjer has so far proven unwilling or unable to attend independent medical
examinations requested by Principal. In response to the court’s determination that Corretjer did
not provide “a scintilla of medical evidence” in support of his claimed inability to attend the
ordered medical examinations, Corretjer argues that he did in fact provide medical evidence via
the emergency room reports following the seizures he suffered at the time of his deposition and
the notes from his December 2015 office visit to Brignoni. While these exhibits provide some
evidence that Corretjer suffers from seizures and anxiety, Corretjer provided no medical evidence
to explain how either of these conditions have prevented him from attending the defense medical
examinations. Despite Brignoni’s expressed willingness to provide further assistance, Corretjer
apparently did not seek an opinion from her on whether Corretjer could undergo medical
examination by Principal’s experts. Nor did Corretjer present evidence that he was pursuing such
an opinion. And, while Corretjer might not have been able to obtain an appointment with Denton
until the end of January, he apparently declined Denton’s offer of a telephone appointment prior
to that time. Further, a review of Brignoni’s report shows that Corretjer had been referred to Denton
by Brignoni’s predecessor Sanner at some point prior to the December 2015 visit with Brignoni
and had not yet followed through on that earlier referral.
         In considering the evidence in this case in light of the factors outlined in Hill v. Tevogt
above, we conclude that the compensation court did not abuse its discretion in granting the sanction
of dismissal. Principal was clearly prejudiced by its inability to conduct independent medical
examinations and discovery in order to defend against the allegations set forth in Corretjer’s
petition. The medical examinations presumably would have led to important evidence relevant to
Corretjer’s claim. The court, in its October and November 2015 orders, warned Corretjer twice
that failure to attend the examinations “shall” subject his petition to dismissal. The court’s
continuances of the trial in an effort to allow for the rescheduled examinations were a tacit
provision of less drastic sanctions prior to dismissal. Finally, Corretjer missed several medical
examinations showing a pattern of willful disregard of the discovery process and the trial court’s
orders.
         Under these circumstances, dismissal of Corretjer’s petition with prejudice was an
appropriate sanction under § 6-337. We can find no abuse of discretion by the trial court.




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                                       CONCLUSION
       The worker’s compensation court did not abuse its discretion in granting the sanction of
dismissal of Corretjer’s petition. We affirm.
                                                                                    AFFIRMED.




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