The Tennessee Workers’ Compensation Appeals Board affirmed the order of the Hon. Audrey Headrick, Chattanooga, on Monday in Lightfoot v. Xerox Business Services.

In a 2-1 opinion, Presiding Judge Marshall Davidson found Judge Headrick did not abuse her discretion in dismissing the case with prejudice for failure to prosecute.

The case sat on Judge Headrick’s docket for over four months after continuing the expedited hearing to obtain an evaluation of Ms. Lightfoot’s competency. During that time, Ms. Lightfoot’s attorney missed court appearances or appeared but provided a series of explanations for his inaction, including computer mishaps and personal health problems.

In a 12-page opinion, Judge Davidson, joined by Judge David Hensley, found it significant that Ms. Lightfoot took the initiative to file documents with the court on her own while maintaining that her attorney continued to represent her.

Judge Davidson wrote, “A party engaged in litigation may choose to proceed with or without representation. However, a party cannot logically waive or assert both rights.” The inherent danger would be the possibility of a litigant manipulating her choice so that she can claim reversible error on appeal, he reasoned, and conflicts are likely to arise between the litigant and her lawyer.

“This case is a prime example of that very concern,” Davidson wrote. “Moreover, an opposing party may incur unnecessary time and expense, just as Employer in this case was put in the untenable position of having to respond to multiple, competing briefs from the same side of the case making different assertions.”

The Board found no abuse of discretion regarding Judge Headrick’s dismissal of the case, in light of the advance warnings she gave of that possibility.

“The more difficult aspect,” per the opinion, was whether it should been with prejudice.

The judges concluded Judge Headrick acted within her discretion, “[T]hough, admittedly, we may have settled upon a less drastic alternative had we been the trial judge. But we are not, and we will not substitute our judgment for that of the judge whose directives were ignored when, as here, the trial court’s actions are within an acceptable range of alternatives.”

Judge Timothy Conner filed a three-page dissent. He wrote: “In this case, approximately four-and-a-half months elapsed between the date of the aborted expedited hearing and the date the trial court dismissed Employee’s claim with prejudice, thereby denying Employee the opportunity to have her claim adjudicated at a full hearing on the merits. During that four-and-a-half month period, Employee and/or her attorney failed to timely respond to two orders of the court but, following the final status conference, arguably complied with the court’s order and moved to set the case for trial.

“While such conduct is not to be condoned, I disagree that it constituted ‘such extreme neglect’ that a dismissal with prejudice was within the range of acceptable alternatives for the trial court’s consideration.”

Because the Appeals Board affirmed and certified Judge Headrick’s order as final, it is immediately appealable to the Tennessee Supreme Court.