                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Northtec, LLC and American                     :
Zurich Insurance Company,                      :
                       Petitioners             :
                                               :
                         v.                    :
                                               :
Workers’ Compensation Appeal                   :
Board (Skaria),                                :   No. 2488 C.D. 2015
                      Respondent               :   Submitted: May 13, 2016


BEFORE:            HONORABLE ROBERT SIMPSON, Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COVEY                                        FILED: September 14, 2016

                   Northtec, LLC and American Insurance Company1 (collectively,
Employer) petition this Court for review of the Workers’ Compensation (WC)
Appeal Board’s (Board) November 6, 2015 order which modified the Workers’
Compensation Judge’s (WCJ) decision dismissing Kurian T. Skaria’s (Claimant)
claim petition (Petition) with prejudice to dismissing the Petition without prejudice.
Employer presents two issues for this Court’s review: (1) whether the Board erred by
determining that Claimant’s delay in obtaining an expert opinion was due to
circumstances beyond his control; and (2) whether the Board erred by not considering
Employer’s ability to defend the claim. After review, we affirm.
                   On November 25, 2013, Claimant filed a claim petition and a penalty
petition seeking total disability benefits due to a May 16, 2012 work injury described
as: interstitial lung disease, chronic inhalation injury, hypersensitivity, lung disease,


           1
               American Insurance Company is Northtec, LLC’s workers’ compensation insurance
carrier.
eosinophilic lung disease, and interstitial pneumonitis. The petitions were assigned to
a WCJ. At the final hearing on July 23, 2014, Claimant’s counsel withdrew both
petitions. In a July 31, 2014 decision, the WCJ marked the petitions withdrawn
without prejudice, and noted in the decision that Claimant had not submitted any
evidence.
            On August 19, 2014, Claimant filed the Petition, again seeking total
disability benefits as of May 16, 2012. WCJ hearings were conducted. At the
October 7, 2014 hearing, Claimant’s counsel submitted into evidence Claimant’s
March 24, 2014 deposition testimony, and the WCJ scheduled the next hearing within
90 days thereafter for Claimant to present his medical evidence. At the January 13,
2015 hearing, Claimant’s counsel stated that Claimant’s medical expert had not yet
been scheduled, and requested that the Petition be withdrawn without prejudice.
Employer’s counsel asserted in her letter brief to the WCJ that Employer had been
prepared to present fact witnesses on the issue of injury notice before the former
WCJ, but both witnesses have since left Employer’s employment.
            The WCJ determined that Employer would be prejudiced if Claimant
was afforded an opportunity to file another petition. The WCJ concluded that, given
the nature of the allegations of the occupational disease, Claimant would have to
provide a medical expert’s deposition to prove causation.           However, despite
Claimant’s 2013 and 2014 claims alleging a May 16, 2012 injury, Claimant still had
not scheduled his medical expert’s deposition. The WCJ further found as a fact that
Employer’s witnesses are no longer readily available for Employer’s defense. Thus,
the WCJ dismissed Claimant’s Petition with prejudice. Claimant appealed to the
Board. The Board determined that Claimant’s delay in obtaining an expert opinion
was due to circumstances beyond his control.        Relying on Wagner v. Workers’
Compensation Appeal Board (Ty Construction Co. Inc.), 83 A.3d 1095 (Pa. Cmwlth.


                                          2
2014), the Board modified the WCJ’s order by dismissing the Petition without
prejudice. Employer appealed to this Court.2
              Initially, “we keep in mind that the Workers’ Compensation Act[3] is
remedial in nature and intended to benefit the worker, and, thus, should be construed
liberally to effectuate its humanitarian objectives.” Sch. Dist. of Phila. v. Workers’
Comp. Appeal Bd. (Hilton), 117 A.3d 232, 241-42 (Pa. 2015).
              In Wagner,

              [the c]laimant’s counsel encountered an unforeseen hurdle
              when he learned in July 2011 that [the c]laimant’s treating
              oncologist would not participate in litigation in any way.
              [The c]laimant was given one month to schedule a medical
              deposition, which was a tight schedule, considering that [the
              c]laimant had, first, to find a new expert, who cannot be
              expected to author a reliable medical report overnight.
              The WCJ’s sole factual finding to support his dismissal was
              that [the c]laimant did not abide by the WCJ’s order to have
              a medical deposition by August 19, 2011. This finding is
              inconsistent with the record. The WCJ seems to have
              forgotten that he extended this deadline to September 24,
              2011,      and    he      overlooked      [the  e]mployer’s
              acknowledgement that [the c]laimant’s medical report met
              that deadline. The WCJ also overlooked the fact that [the
              c]laimant had arranged for the deposition of his expert for
              October 2, 2011. That deposition did not take place only
              because [the e]mployer requested a continuance. In fact,
              the deposition had to be delayed for three months while the
              parties waited for [the e]mployer’s physician to produce an
              [independent medical examination (]IME[)] report. [The
              c]laimant’s counsel told the WCJ that he was working
              diligently to reschedule the deposition of [the c]laimant’s
              expert, and [the e]mployer did not dispute this
              representation of [the c]laimant’s efforts.

       2
         “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
       3
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
                                                 3
Id. at 1100. Based on the foregoing, the Wagner Court opined: “[The c]laimant’s
counsel attempted to reschedule the deposition of his medical expert, a point
conceded by [the e]mployer. . . . Given the lack of any prejudice to [the e]mployer,
we hold that the WCJ abused his discretion by dismissing the claim petition.” Id. at
1101.
              Employer first argues that the Board erred by determining that
Claimant’s delay in obtaining an expert opinion was due to circumstances beyond his
control. Specifically, Employer contends that although the WCJ gave Claimant 90
days to schedule and complete Dr. Alonzo’s4 deposition, at the January 15, 2015
hearing, Claimant did not produce the medical evidence needed to support his claim.
              Here, as in Wagner, the WCJ and Employer overlook the reason that
Claimant failed to obtain Dr. Alonzo’s deposition. Quoting from Claimant’s brief,
the Board acknowledged:5

              Here, a good faith effort was made to advance the case
              and to obtain the opinions of Claimant’s medical expert to
              substantiate the allegations contained within the [] Petition.
              However, Claimant’s medical expert advised that
              Claimant needed to undergo an invasive procedure to
              further refine his causal opinions.[6] Rather than delay the
              trial schedule, Claimant’s counsel motioned to withdraw the
              [] Petition without prejudice.
              (Claimant’s Brief to the Board, p. 3).

Board Dec. at 4 (emphasis added). Based on the above, the Board concluded:


        4
          A review of the record does not reveal the doctor’s full name.
        5
          Employer acknowledged herein the statements the Board quoted from Claimant’s brief.
See Employer Br. at 6, 11.
        6
          “Claimant notes that the testing was not just invasive in nature; it could have been life-
threatening and Claimant’s hope was to gain some time in an effort to prove causation without
putting his life at further risk.” Claimant Br. at 5. Because there is no record of the January 15,
2015 hearing and the briefs to the Board are not included in the certified record, this Court cannot
determine whether the quoted assertion was before the WCJ when he made his determination.
                                                 4
              Under these circumstances, although a dismissal of the []
              Petition pursuant to Claimant’s request to withdraw that
              Petition is supported, a dismissal with prejudice is not. As
              in Wagner[,] Claimant’s ability to schedule medical
              testimony was delayed by circumstances that were not
              under his control. Claimant’s counsel then withdrew th[e]
              Petition rather than delay the proceedings any further. We
              don’t believe Claimant should be punished for the acts of a
              third party expert[,] and that some flexibility should be
              allowed. Therefore, we believe it is necessary to modify the
              [WCJ’s] Decision to dismiss the [] Petition without
              prejudice.

Board Dec. at 4. We discern no error in the Board’s conclusion. Accordingly, we
hold that the Board did not err in determining that Claimant’s delay in obtaining an
expert opinion was due to circumstances beyond his control.
              Employer next argues that the Board erred by not considering
Employer’s ability to defend the claim. Specifically, Employer contends that the
Board should have considered the fact that its two injury notice witnesses no longer
work for Employer.7 Employer cites US Airways v. Workers’ Compensation Appeal
Board (McConnell), 870 A.2d 418 (Pa. Cmwlth. 2005) and Cipollini v. Workmen’s
Compensation Appeal Board (Philadelphia Electric Co.), 647 A.2d 608 (Pa. Cmwlth.
1994), to support its position.
              Here, the WCJ found:

              6. [Employer’s] counsel indicates in her letter brief that
              notice of the alleged injury is at issue. She was prepared to
              present fact witnesses on the issue before [the first WCJ].
              She notes that both fact witnesses have since left Employer.
              7. This [WCJ] finds that [Employer] would be prejudiced if
              Claimant was permitted another opportunity to file his []
              Petition. This [WCJ] finds that despite filing his [] Petition

       7
         “Claimant identified two people he purportedly told he was leaving work. One of those
witnesses resigned his position with [E]mployer. In addition, the human resource manager who
handled [C]laimant’s leave in May 2012 had also left. As a result, [Employer] lost the opportunity
to present their testimony.” Employer Br. at 13.
                                                5
            for the first time on November 25, 2013, alleging a May 16,
            2012 injury, that Claimant has not scheduled his medical
            expert’s deposition. Significantly, given the nature of the
            allegations of the occupational disease Claimant would
            have to provide a medical expert’s deposition and not
            medical reports in order to prove causation. This WCJ
            further finds that [Employer’s] witnesses are no longer
            readily available to [Employer].

WCJ Dec. at 3-4. Based thereon, the WCJ concluded: “Claimant’s [] Petition shall be
dismissed with prejudice, as there would be prejudice to [Employer] if Claimant was
permitted a third opportunity to file the [P]etition.” Id. at 4. The Board did not
address the WCJ’s finding of prejudice to Employer.
            In US Airways,

            [t]he WCJ, in his adjudication dismissing the [c]laim
            [p]etitions with prejudice, made the following finding:
              This [WCJ] finds it unreasonable that the claimant
              failed to attend several scheduled [IMEs], although
              claimant’s counsel had originally agreed that she
              would attend the scheduled exams. This [WCJ] also
              finds it to be prejudicial to [the employer] to have
              the exam held after [the claimant’s] surgery, due to
              the extensive time delay after the filing of the
              petitions, and the expected change of circumstances of
              the claimant. This [WCJ] believes and finds that [the
              e]mployer has[] gone to considerable expense to
              schedule exams and [has] incurred cancellation fees of
              several exams and yet the claimant failed to attend
              them, although her counselors originally agreed to the
              scheduled exams and in spite of special
              accommodations made originally for claimant’s travel
              schedule to be able to go to Pittsburgh for the exam
              and return on the same day. The claimant also failed
              to comply with scheduling orders by the [WCJ] to
              attend an [IME]. The claimant’s excuse is not
              satisfactory and did not explain why she couldn’t
              travel prior to the planned surgery. It is also not clear
              whether the hip surgery was related to the alleged
              injuries or not. Due warnings were given to the


                                         6
               claimant prior to deciding that the petitions should
               be dismissed for a failure to timely prosecute them.
            (FOF ¶ 15) (emphasis added).

Id. at 420 (bold emphasis added). Based thereon, the US Airways WCJ ordered the
claimant’s petitions dismissed with prejudice. The claimant appealed and the Board
modified the WCJ’s decision by ordering that the claimant’s petitions be dismissed
without prejudice. The employer appealed to this Court, which concluded:

            [T]he WCJ’s specific finding of ‘prejudice’ was
            premised upon the passage of time since the filing of the
            original petitions and the difficulty of proving work-
            related causation, given [the c]laimant’s imminent hip-
            replacement surgery. . . . The WCJ’s findings of prejudice
            are supported by the record. Moreover, the WCJ did not
            abuse his discretion in dismissing the petitions with
            prejudice when [the c]laimant, after receiving two
            warnings, and a request to show cause why the petitions
            should not be dismissed, failed to comply with the
            deadlines imposed by the WCJ or to respond. In
            addition, Claimant violated WCJ Special Rules 131.13 and
            131.53, 34 Pa. Code §§ 131.13 and 131.53, by not
            complying with the WCJ’s deadlines, orders and warnings.

Id. at 423 (citation omitted; bold emphasis added). The US Airways Court held:

            [B]ecause the WCJ properly found that the ongoing delay
            caused by [the c]laimant was prejudicial to [the
            e]mployer, and because it is within the WCJ’s discretion
            to control his docket by ordering parties to comply with
            litigation in a timely manner, we hold that the Board erred
            in ordering the deletion of the words ‘with prejudice’ from
            the WCJ’s order.

Id. (footnote omitted; emphasis added).
            The facts in Cipollini are as follows:

            On February 18, 1992, [the claimant] testified before a
            referee. At [the claimant’s] request, the referee then
            continued the hearing for 90 days to enable [the claimant’s]
            counsel to depose [the claimant’s] fact witness and medical
            expert. Subsequent hearings, scheduled for May 28, 1992
                                          7
            and June 25, 1992, also were continued at [the claimant’s]
            request as counsel for [the claimant] was attached for trial.
            During a conference call on June 24, 1992, the referee
            granted [the claimant] another 45[-]day continuance to
            submit the deposition transcript of her fact witness and to
            schedule the deposition of her medical expert. At an
            August 11, 1992 hearing, [the claimant’s] counsel
            represented that he had been unable to take any depositions
            and requested a further continuance.            Over [the
            employer’s] objections, the referee granted [the
            claimant] one final continuance for 60 days; however,
            the referee indicated that after that period, the record
            would be closed as to [the claimant]. The next hearing
            was scheduled for November 17, 1992. [The claimant] did
            not act within the 60[-]day period imposed by the
            referee; rather, on October 15, 1992, [the claimant’s]
            counsel first attempted to schedule the deposition of a fact
            witness. [The employer] objected to [the claimant’s]
            scheduling of the deposition more than 60 days after the
            August 11, 1992 hearing. During another conference call
            on November 5, 1992, the referee sustained [the
            employer’s] objections and advised counsel that [the
            claimant’s] case would be closed at the November 17,
            1992 hearing. By letter dated November 10, 1992, [the
            claimant] requested that her petition be marked withdrawn
            without prejudice. Also by letter dated November 10, 1992,
            [the employer] objected to the petition being marked
            withdrawn without prejudice.
            Based on his findings, the referee concluded that (1) [the
            claimant] failed to submit any medical evidence
            establishing that she suffered a disabling work-related
            injury on February 15, 1991 and (2) [the claimant’s] claim
            petition should be marked withdrawn with prejudice for
            failure to prosecute.

Id. at 608-09 (footnote omitted; emphasis added). The Cipollini claimant appealed to
the Board, and the Board affirmed the referee’s decision. The claimant appealed to
this Court, which concluded:

            [T]he referee accommodated [the claimant] by continuing
            the case several times to allow [the claimant’s] counsel to
            depose its [sic] witnesses; however, in the almost 9 months
            which elapsed from the time of the February 18, 1992
                                         8
             hearing until the November 17, 1992 hearing, [the claimant]
             failed to take those depositions. In fact, [the claimant]
             never even scheduled the deposition of its [sic] medical
             witness even though the referee specifically warned him
             [sic] that the record would be closed.
Id. at 611. The Cipollini Court further held:
            The referee based his decision to close the record and
            dismiss the case on [the claimant’s] continued disregard
            for the deadlines imposed by the referee coupled with
            [the employer’s] objections to [the claimant’s] request to
            withdraw her petition without prejudice so that she could
            refile her claim. Under the circumstances here, we cannot
            conclude that the referee erred and, accordingly, we affirm.
Id. (emphasis added).
               The facts in US Airways and Cipollini are distinguishable from the case
sub judice. In both of those cases, the claimants failed to comply with specific
deadlines established by the WCJ/referee, the claimants were expressly warned that
their claims would be dismissed or the record closed if their inaction persisted, and
claimants’ employers were prejudiced. Finally, neither of those claimants presented
any cause for their failure to comply with the established deadlines. Accordingly, we
hold that US Airways and Cipollini are inapposite in deciding the instant matter.
               Although case law appears to imply that prejudice to Employer is
grounds for a dismissal with prejudice, see US Airways; Cipollini, we hold that since
whatever prejudice Employer faced due to Claimant withdrawing the Petition in the
instant case8 was not the result of Claimant’s disregard of a WCJ’s deadlines or

       8
          This Court notes that the prejudice alleged by Employer, i.e., the two witnesses who left
Employer’s employ, appear to be the result of the original petitions being withdrawn, rather than the
instant Petition’s withdraw. The witnesses were available to testify before the former WCJ, but had
left by the time Employer drafted its brief to the Board in the instant case. In fact, in its brief
herein, Employer stated that it was “ready to present a single witness because in the interim, two of
its witnesses left the employ of [Employer].” Employer Br. at 6. More importantly, “[u]pon written
or electronic request of a party or counsel of record in a pending proceeding, the [WCJ] will issue a
subpoena to compel the attendance of a witness[.]” Section 131.81 of the Bureau’s Regulations, 34
Pa.Code § 131.81. Thus, notwithstanding the fact that the witnesses had left Employer’s employ,
Employer can request the WCJ to subpoena them to testify.
                                                 9
orders, a dismissal with prejudice is not warranted. Accordingly, we agree with the
Board that, given the circumstances, Claimant’s request for withdrawal of his Petition
was reasonable, and he should not be punished for taking such action.
            For all of the above reasons, the Board’s order is affirmed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Northtec, LLC and American            :
Zurich Insurance Company,             :
                       Petitioners    :
                                      :
                  v.                  :
                                      :
Workers’ Compensation Appeal          :
Board (Skaria),                       :   No. 2488 C.D. 2015
                      Respondent      :



                                     ORDER


            AND NOW, this 14th day of September, 2016, the Workers’
Compensation Appeal Board’s November 6, 2015 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
