147 A.3d 63
Pa. Commw. Ct.2016Background
- Claimant (Skaria) filed WC petitions seeking total disability from a May 16, 2012 occupational lung disease; original petitions filed Nov. 25, 2013 were withdrawn at hearing and marked withdrawn without prejudice.
- Claimant refiled a new petition Aug. 19, 2014; WCJ ordered Claimant to present medical expert testimony within 90 days but the expert deposition was not scheduled by Jan. 13, 2015.
- Claimant’s medical expert required an invasive (potentially life‑threatening) procedure to refine causal opinions, which delayed scheduling; Claimant’s counsel moved to withdraw the petition without prejudice rather than further delay proceedings.
- The WCJ found Employer would be prejudiced by another refiling because two fact‑witnesses had left Employer’s employment and dismissed the petition with prejudice for failure to prosecute.
- The Workers’ Compensation Appeal Board modified the WCJ’s order, holding the expert‑scheduling delay was beyond Claimant’s control and ordered dismissal without prejudice, relying on Wagner.
- This Court affirmed the Board, concluding Claimant’s delay was excused, Employer’s cited authority was distinguishable, and Employer could seek subpoenas for former employees if needed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Claimant’s delay in obtaining an expert opinion was due to circumstances beyond his control | Claimant: expert required an invasive, potentially life‑threatening procedure that delayed issuance of causal opinions; counsel acted in good faith and withdrew rather than risk Claimant’s health | Employer: Claimant failed to comply with the WCJ’s 90‑day scheduling order and produced no medical evidence by Jan. 2015 | Court: Delay excused; Board properly found the delay was beyond Claimant’s control and modified dismissal to without prejudice |
| Whether Board erred by not giving weight to Employer’s prejudice/ability to defend (lost witnesses) | Claimant: withdrawal was reasonable; prejudice resulted from prior withdrawal, not Claimant’s failure to comply with WCJ deadlines | Employer: lost two essential witnesses and thus would be prejudiced by allowing another refiling; WCJ properly dismissed with prejudice | Court: Employer’s cited cases (where claimants ignored deadlines and received warnings) are distinguishable; Employer’s prejudice did not result from Claimant’s willful disregard of WCJ orders, and Employer can subpoena former employees; affirm Board |
Key Cases Cited
- Wagner v. Workers’ Compensation Appeal Board (Ty Construction Co. Inc.), 83 A.3d 1095 (Pa. Cmwlth. 2014) (delay caused by need to secure a new/available medical expert can excuse dismissal when employer not prejudiced)
- US Airways v. Workers’ Compensation Appeal Board (McConnell), 870 A.2d 418 (Pa. Cmwlth. 2005) (WCJ may dismiss with prejudice where claimant repeatedly disregards deadlines, receives warnings, and employer shows prejudice)
- Cipollini v. Workmen’s Compensation Appeal Board (Philadelphia Electric Co.), 647 A.2d 608 (Pa. Cmwlth. 1994) (referee may dismiss with prejudice when claimant repeatedly fails to comply with continuances and deadlines)
- School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), 117 A.3d 232 (Pa. 2015) (Workers’ Compensation Act construed liberally to effectuate remedial, humanitarian objectives)