          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luis Martinez,                                 :
                              Petitioner       :
                                               :
               v.                              :    No. 1575 C.D. 2015
                                               :    Submitted: March 11, 2016
Workers' Compensation Appeal                   :
Board (Roman Catholic Archdiocese              :
of Philadelphia),                              :
                       Respondent              :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: May 12, 2016

               Luiz Martinez (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) affirming a decision of a workers’
compensation judge (WCJ) that granted Claimant’s claim petition and awarded
him wage loss benefits under the Workers' Compensation Act1 (Act) for a closed
period of approximately five months. Claimant contends the WCJ erred in closing
the record and precluding the deposition testimony of Claimant’s treating
physician, which Claimant scheduled for eight days after the final (fourth) hearing.
Claimant asserts the WCJ should have allowed the deposition in rebuttal to the
employer’s medical evidence.           Claimant further asserts this medical evidence
would have altered the WCJ’s findings regarding the diagnosis of his work injury
and the resulting period of disability. For the reasons that follow, we affirm.

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
                                 I. Background
            Since 2008, Claimant worked for the Roman Catholic Archdiocese of
Philadelphia (Employer) as a landskeeper at its Immaculate Heart of Mary
Cemetery. His duties involved “cutting the grass, picking up wood and trash,
picking up tombstones, weed-whacking around the graves and digging cemetery
plots.” WCJ’s Op., 9/12/14, Finding of Fact (F.F.) No. 1a. He frequently lifted
more than 50 pounds. Id.


            On Friday, February 1, 2013, Claimant sustained an injury while
picking up a heavy piece of frozen plywood and loading it into a jeep. F.F. No. 1b.
In attempting to load the wood onto the vehicle, Claimant tripped, twisted and fell
backwards. Id. Claimant’s lower back hit the ground and the plywood hit the right
side of his leg, shoulder and arm. Id. Claimant’s supervisor, Michael Bellapigna
(Supervisor) heard the loud noise, came over, and asked Claimant what happened.
Id.   Claimant told Supervisor he tripped and fell.      Id.    However, Claimant
continued working in pain because he feared Supervisor would fire him. Id.


            On the day after his fall, Claimant visited his family physician, Dr.
Hollinger (Family Physician). F.F. No. 1c. After the visit, Claimant understood
that he could not return to full duty. Id. On Monday, February 4, Claimant
provided Supervisor with Family Physician’s note.       Id.    Supervisor then sent
Claimant to a workers’ compensation panel physician, Dr. Bonner (Panel
Physician). Id. Following his visit to Panel Physician, Claimant understood that
he could not return to work. Id. Claimant provided Supervisor with these papers.




                                        2
Id.   Thereafter, Employer issued a notice of compensation denial asserting
Claimant did not sustain a work-related injury on February 1, 2013.


            In March 2013, Claimant filed a claim petition alleging he sustained a
work-related low back injury in the nature of disc pathology and radicular
complaints as a result of the February 2013 work incident. Employer filed a timely
answer denying Claimant’s material allegations.


            In support of his claim petition, Claimant submitted the deposition
testimony of Dr. Sofia Lam (Claimant’s Physician), who is board certified in
anesthesiology and pain management. She diagnosed Claimant’s February 2013
injuries as: lumbar strain and sprain; discogenic lumbar radiculopathy focusing in
the right L5-S1 nerve root distribution; aggravation of degenerative disc disease
and facet arthropathy; and, right sacroiliac pathology. F.F. No. 4c. Claimant’s
Physician related these diagnoses to Claimant’s February 2013 work accident. Id.


            In opposition to the claim petition, Employer submitted the deposition
testimony of a board certified orthopedic surgeon, Dr. Armando Mendez (IME
Physician), who performed an independent medical evaluation (IME) of Claimant,
which included a physical examination and a review his medical records. F.F.
Nos. 5a-5c. Ultimately, IME Physician opined Claimant sustained a lumbar strain
and sprain as a result of the February 2013 work incident. F.F. No. 5e. IME
Physician further opined Claimant fully and completely recovered from that injury
as of his July 3, 2013 evaluation. Id. In addition, IME Physician opined Claimant




                                        3
could return to work without restrictions and required no further medical treatment
for that injury. Id.


             Thereafter, Claimant scheduled a rebuttal deposition of Dr. Daisy
Rodriguez (Rebuttal Physician), Claimant’s primary treating physician, to be held
on March 19, 2014. At the fourth and final hearing on March 11, 2014, Employer
objected to the rebuttal deposition. The WCJ sustained Employer’s objection and
denied Claimant’s request for the deposition. As reasons for her denial, the WCJ
noted the first hearing occurred nearly a year ago and “that Claimant is out of time
to take additional evidence.”    See Notes of Testimony (N.T.), 3/11/14, at 6;
Reproduced Record (R.R.) at 50a. The WCJ further stated that Claimant failed to
provide a sufficient reason why Claimant’s Physician’s testimony was insufficient.
In this regard, the WCJ stated that Rebuttal Physician referred Claimant to
Claimant’s Physician, and Claimant’s Physician reviewed Rebuttal Physician’s
treatment records. N.T. at 7; R.R. at 51a. In addition, the WCJ observed, the
rebuttal deposition may result in Employer’s need to present additional medical
testimony, which would further delay the case. Id.


             Following the close of the record, the WCJ circulated a decision
granting Claimant’s claim petition for the period of February 1, 2013 to July 3,
2013. See WCJ’s Order, 9/2/14. With regard to the medical evidence, the WCJ
found IME Physician’s testimony more credible than that of Claimant’s Physician
regarding Claimant’s condition after July 3, 2013. See F.F No. 9(a) – (e).




                                         4
              Claimant appealed, and the Board affirmed. In its decision, the Board
rejected Claimant’s argument that the WCJ erred in denying Claimant’s request for
a rebuttal deposition.      In doing so, the Board noted it is within the WCJ’s
discretion to control her docket by ordering the parties to proceed in a timely
manner. US Airways v. Workers' Comp. Appeal Bd. (McConnell), 870 A.2d 418
(Pa. Cmwlth. 2005). Claimant petitions for review.2


                                       II. Discussion
                                       A. Argument
              Claimant contends the WCJ erred in precluding the deposition
testimony of Rebuttal Physician, which he scheduled for eight days after the final
hearing. Claimant asserts this medical evidence would have potentially altered the
WCJ’s findings regarding the diagnosis of his work injury and the resulting period
of disability. In particular, Claimant observed, the WCJ discredited Claimant’s
Physician’s testimony partly because she only saw Claimant three times.


              As support for his position, Claimant cites Section 131.63 of the
Special Rules of Administrative Practice and Procedure Before WCJs (Judges’
Rules), relating to the time for taking oral depositions, which provides (with
emphasis added):




       2
          This Court’s review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated. 2 Pa. C.S. §704; Phoenixville Hosp. v. Workers' Comp.
Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).



                                              5
            (a) An oral deposition may be taken at any time
            subsequent to 30 days after the date of assignment of the
            petition by the Department.

            (b) Oral depositions shall be completed so as to not to
            delay unreasonably the conclusion of the proceedings,
            and within a time schedule agreed upon by the parties
            and approved by the judge provided that medical
            depositions shall be completed by as specified in
            subsections (c) and (e).

            (c) The deposition of a medical expert testifying for the
            moving party shall be taken within 90 days of the date of
            the first hearing scheduled unless the time is extended or
            shortened by the judge for good cause shown. The
            deposition of a medical expert testifying for the
            responding party shall be taken within 90 days of the date
            of the deposition of the last medical expert testifying on
            behalf of the moving party.

            (d) A party wishing to present depositions for rebuttal or
            surrebuttal shall notify the judge in writing within 21
            days after the conduct of the hearing or deposition at
            which the testimony to be rebutted or surrebutted has
            been given.

            (e) Depositions for rebuttal or surrebuttal shall be taken
            in accordance with §131.53(e) (relating to procedures
            subsequent to the first hearing).

            (f) If a party fails to abide by the time limits established
            by this section for submitting evidence, the evidence will
            not be admitted, relied upon or utilized in the
            proceedings or the judge’s rulings.

34 Pa. Code §131.63(a)—(f).


            Claimant also cites Section 131.12 of the Judges’ Rules, relating to
modification of time, which provides:



                                         6
             (a) Except for answers to petitions as set forth in §131.33
             … the time fixed or the period of time prescribed in this
             chapter may, in the exercise of sound discretion and for
             good cause, be shortened or extended by the judge upon
             the judge’s motion or at the request of a party.

             (b) Modifications of time, other than continuances or
             postponements of hearings, will be governed by the
             following:

               (1) Requests for extensions of time shall be filed at least
             3 days before the time specified as shortened or
             extended. Requests made within 3 days prior to the time
             specified or as shortened or extended may be considered
             if the judge is satisfied that the circumstances relating to
             the request occurred within those 3 days. After the
             expiration of the time specified, the act may be permitted
             to be done if reasonable grounds are shown for the failure
             to act within the time specified or as previously shortened
             or extended.

              (2) Requests for extensions of time shall be made in
             writing and state the facts upon which the request rests.
             During the course of a hearing, the request may be made
             by oral motion to the judge.

               (3) Requests for extensions of time, except those made
             orally at a hearing, shall be filed with the judge, served
             upon all parties, and a proof of service of same shall be
             filed with the judge.

34 Pa. Code §131.12(a)—(b).


             In addition, Section 131.53 of the Judges’ Rules, relating to
procedures subsequent to the first hearing, pertinently provides:

             (e) A party wishing to present testimony in the form of
             rebuttal or surrebuttal shall notify the judge in writing
             within 21 days after conduct of the hearing or deposition
             at which the testimony to be rebutted has been given.


                                          7
              (f) Following a request to present rebuttal or surrebuttal
              testimony, the testimony shall be presented at a hearing
              or deposition provided the testimony shall be taken no
              later than 45 days after the conclusion of the case of the
              party presenting the testimony or evidence to be rebutted
              or submitted.

              (g) Dates of the medical examinations, if not scheduled
              prior to the first hearing actually held, shall be scheduled
              within 45 days after the first hearing actually held.

34 Pa. Code §131.53(e)—(g).


              Claimant argues the Judges’ Rules contain definite time limitations
for the scheduling of medical depositions and for the taking of rebuttal/surrebuttal
evidence. Further, Claimant argues, WCJs do not enjoy broad discretion to modify
the time limitations based on a showing of good cause. To that end, Claimant
asserts the Judges’ Rules provide that a rebuttal deposition may be completed up to
45 days after the submission of the evidence to be rebutted. See 34 Pa. Code
§131.53(f).


              In the present case, Claimant argues Employer timely deposed IME
Physician on February 10, 2014. Claimant noticed the rebuttal deposition by letter
dated February 26, 2014, to take place on March 19, 2014, within 45 days of IME
Physician’s deposition and within 8 days of the final hearing. Therefore, Claimant
argues, the WCJ committed reversible error by precluding rebuttal testimony
which was timely noticed and scheduled.


              Further, Claimant notes, the WCJ rejected Claimant’s Physician’s
testimony because she saw Claimant only three times and not until after IME


                                           8
Physician examined Claimant in July, 2013. See F.F. No. 9(e). The WCJ then
accepted IME Physician’s opinion as to Claimant’s diagnosis and recovery despite
the fact that IME Physician only saw Claimant once. Claimant asserts Rebuttal
Physician would have testified that she treated Claimant since 2013 and examined
him many times. Thus, Claimant argues Rebuttal Physician’s testimony would
have directly rebutted IME Physician’s opinions.


            Because the WCJ erred in forcing the cancellation of Rebuttal
Physician’s deposition, Claimant requests that the portion of the WCJ’s decision
setting forth Claimant’s diagnosis and terminating his benefits as of July 3, 2013
be vacated and the case remanded for additional hearings. Claimant further asserts
that if any additional benefits are awarded to him, a 20% attorney fee should be
paid to his present attorney, Larry Pitt and Associates, rather than his prior
attorney, who was not involved in the litigation since December 2013.


                                   B. Analysis
            Preliminarily, Employer contends this Court should quash or dismiss
Claimant’s appeal, or deem all issues waived because of various defects in
Claimant’s brief and his failure to develop his arguments in a meaningful fashion.
We disagree. Claimant’s arguments are readily discernible and are supported by
citations to the Judges’ Rules. As such, we are not precluded from conducting
proper appellate review. See Russell v. Unemployment Comp. Bd. of Review, 812
A.2d 780 (Pa. Cmwlth. 2002) (this Court will consider the merits of a case where
the defects in the brief do not preclude meaningful appellate review). Therefore,
we address the merits of Claimant’s appeal.



                                        9
             As to the merits, a WCJ’s decision to waive any of the Judges’ Rules
is a matter committed to the WCJ’s sound discretion. Atkins v. Workers' Comp.
Appeal Bd. (Stapley in Germantown), 735 A.2d 196 (Pa. Cmwlth. 1999). In
particular, evidentiary matters, including the taking and the admission of testimony
and exhibits, fall within the discretion of the hearing body. Id. (citing Pa. Game
Comm’n v. Dep’t of Envtl. Res., 509 A.2d 877 (Pa. Cmwlth. 1986), aff’d, 555
A.2d 812 (Pa. 1986)). In short, the admission of evidence falls within the WCJ’s
discretion and will not be disturbed absent a showing of an abuse of that discretion.
Id.


             It is within the WCJ’s discretion to control her docket by ordering the
parties to proceed in a timely manner. McConnell. Here, the WCJ held the first
hearing on April 23, 2013. The Judges’ Rules require that the deposition of a
medical expert testifying for the moving party be taken within 90 days of the first
hearing unless the time is extended for good cause shown.             34 Pa. Code
§131.63(b). At the August 2013 hearing in this case, the WCJ granted Claimant a
60-day extension to file a medical deposition. N.T., 8/27/13, at 4. The WCJ also
noted Employer would have 90 days from Claimant’s medical expert’s deposition
to take its own medical deposition. Id.


             At the November 2013 hearing, the WCJ noted that Claimant’s
Physician cancelled her medical deposition scheduled for November 7, 2013.
N.T., 11/26/13, at 3. The parties rescheduled that deposition for January 7, 2014.
Id. The WCJ then relisted the final hearing for March 2014. Id.




                                          10
                On March 11, 2014, the WCJ held the fourth3 and final hearing in the
case.       At the hearing, the WCJ noted a discussion off the record regarding
Claimant’s notice of a rebuttal deposition scheduled after the final hearing and
Employer’s objection to it. See N.T., 3/11/14 at 5; R.R. at 49a. Employer argued
Claimant’s Physician’s testimony was fully sufficient. Id. Rebuttal Physician
referred Claimant to Claimant’s Physician, who reviewed Rebuttal Physician’s
records. Id. Therefore, Employer argued, Rebuttal Physician’s testimony would
be cumulative and expose Employer to another deposition fee without adding any
new information. Id. In addition, Employer noted Claimant already received an
extension to take Claimant’s Physician’s deposition. Id.


                In response, Claimant argued he had the right to present the testimony
of more than one medical witness. N.T., 3/11/14 at 6; R.R. at 50a. Further,
Claimant asserted Employer would suffer no prejudice because it already reviewed
Rebuttal Physician’s records. Id. Claimant also remarked that little time would be
lost because the deposition would take place in eight days. Id.


                Ultimately, the WCJ determined Claimant did not have the time to
take additional evidence. Id. The WCJ further determined Claimant’s Physician’s
testimony was sufficient because she reviewed Rebuttal’s Physician’s records.
N.T., 3/11/14 at 7; R.R. at 51a.




        3
          The WCJ’s decision references another hearing conducted on December 11, 2013, but
there is no transcript for such a hearing in the certified record.



                                            11
             As noted above, the admission of evidence is committed to the sound
discretion of the WCJ. Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.),
942 A.2d 939 (Pa. Cmwlth. 2008); Atkins. The WCJ’s duty is to resolve the
claims before her in a fair and efficient manner. Coyne. Based on our review of
the record, we discern no abuse of discretion in the WCJ’s decision to deny
Claimant’s request to keep the record open in order for him to depose Rebuttal
Physician.


             First, the WCJ properly determined Claimant’s deposition would have
unreasonably delayed the disposition of the case. Section 131.63(c) of the Judges’
Rules provides that a moving party depose its medical expert within 90 days of the
first hearing. 34 Pa. Code §131.63(c). Here, the first hearing occurred on April
23, 2013. At the August 27, 2013 hearing four months later, the WCJ granted
Claimant a 60-day extension to depose Claimant’s Physician.               However,
Claimant’s Physician canceled the scheduled November deposition and
rescheduled it for January 7, 2014. At the November 2013 hearing this untimely
rescheduling was acknowledged. Also, the WCJ advised the parties that the final
hearing would be in early March 2014. See N.T., 11/16/13 at 3.


             Section 131.63(c) of the Judges’ Rules also provides that a responding
party shall depose its medical expert within 90 days of the date of the deposition of
the moving party’s expert. Here, Employer timely deposed IME Physician on
February 26, 2014, well within the 90-day period after the January 2014 deposition
of Claimant’s Physician.




                                         12
             Thereafter, without notice to the WCJ that he needed a rebuttal
witness or an extension, and without agreement of opposing counsel, Claimant
scheduled the deposition of Rebuttal Physician for March 19, 2014. Recognizing
that nearly a year passed since the first hearing, the WCJ determined Claimant did
not have the time to present additional evidence.


             Claimant had ample time to depose Claimant’s Physician and Rebuttal
Physician; therefore, we conclude that the close of the record at the fourth hearing
on March 11, 2014, consistent with the WCJ’s announcement at the November
2013 hearing, did not violate Claimant’s due process rights. City of Phila. v.
Workers' Comp. Appeal Bd. (Rooney), 730 A.2d 1051 (Pa. Cmwlth. 1999). To
that end, this litigation covered almost a year, including at least four hearings.
During that time, Claimant received extensions to depose his medical expert.
Given the WCJ’s duty to resolve the case in a fair and efficient manner, the WCJ
did not abuse her discretion in finding Claimant’s deposition of Rebuttal Physician
after the fourth hearing untimely. See Cipollini v. Workmen's Comp. Appeal Bd.
(Phila. Elec. Co.), 647 A.2d 608 (Pa. Cmwlth. 1994) (WCJ did not err or abuse his
discretion by closing the record and precluding a medical expert’s deposition
where the claimant disregarded the WCJ’s instructions and failed to take the
deposition over a nine-month period between hearings).


             Moreover, as the WCJ noted, Employer’s medical deposition already
took place. Id. Therefore, Rebuttal Physician’s testimony could result in the need
for Employer to also take additional medical testimony. Id. This would further
delay the case.



                                        13
             Second, the WCJ determined Claimant failed to offer any compelling
reason why Claimant’s Physician’s testimony was not sufficient. N.T., 3/11/14, at
7; R.R. at 51a. The WCJ observed that Rebuttal Physician referred Claimant to
Claimant’s Physician.      Id.   In addition Claimant’s Physician had Rebuttal
Physician’s records. Id.


             Claimant argued that Rebuttal Physician was Claimant’s treating
physician, practiced a different specialty, and could testify as to Claimant’s
condition from the beginning.      N.T., 3/11/14, at 7; R.R. at 51a.   However,
Claimant’s Physician testified she reviewed Claimant’s prior treatment records.
See Dep. of Dr. Lam, 1/7/14, at 13-14; R.R. at 12a-13a.             Given these
circumstances, we see no abuse of discretion in the WCJ’s determination that
Claimant failed to offer any compelling reasons why Claimant’s Physician’s
testimony was not sufficient. See Fremont Farms v. Workmen's Comp. Appeal
Bd. (Phillips), 608 A.2d 603 (Pa. Cmwlth. 1992) (WCJ did not err or abuse his
discretion by closing the record without taking employer’s evidence regarding
notice and the claimant’s wages where employer had ample opportunity to present
such evidence and knew the WCJ was about to close the record).


             For these reasons, we detect no abuse of discretion by the WCJ in
sustaining Employer’s objection to Claimant’s scheduled deposition and closing
the record. Accordingly, we affirm the Board’s order.



                                       ROBERT SIMPSON, Judge

Judge Brobson did not participate in the decision in this case.


                                         14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luis Martinez,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 1575 C.D. 2015
                                       :
Workers' Compensation Appeal           :
Board (Roman Catholic Archdiocese      :
of Philadelphia),                      :
                       Respondent      :


                                     ORDER

            AND NOW, this 12th day of May, 2016, for the reasons stated in the
foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.




                                      ROBERT SIMPSON, Judge
