David D. Wagner, II, Petitioner
Workers' Compensation Appeal Board (Ty Construction Co., Inc. and Erie Insurance), Respondents
Submitted: November 1, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
MARY HANNAH LEAVITT, Judge
David D. Wagner, II, (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) dismissing his claim petition because he did not present his medical evidence in accordance with the schedule set by the Workers' Compensation Judge (WCJ). The Board affirmed the WCJ's dismissal because Claimant did not meet the WCJ's deadline for making his expert available for deposition. Because the WCJ gave no consideration to the delays occasioned at the employer's request and because there was no evidence of prejudice to the employer, we reverse and remand for further proceedings.
On March 28, 2011, Claimant filed a claim petition alleging that his small cell lung cancer, diagnosed in January 2011, was caused by his exposure to paint chemicals while working for Ty Construction Co., Inc. (Employer). Claimant requested total disability benefits and payment of his medical expenses. Employer filed an answer denying the allegations.
The matter was assigned to a WCJ who held the initial hearing on April 11, 2011. The WCJ told the parties to "[s]tart getting your medicals done now, because it's going to be a long case." Reproduced Record at 19a (R.R. __). The case was then transferred to another WCJ, who held a hearing on June 14, 2011. At this hearing, Claimant's counsel reported that he was waiting for Claimant's treating oncologist to issue a report that Claimant's cancer was caused by his exposure to paint chemicals in the workplace. Employer agreed to provide documentation regarding the chemicals it uses so that Claimant's oncologist could review that information. The parties also agreed that Employer would not schedule an independent medical examination (IME) until it received the report from Claimant's oncologist.
One month later, at a July 19, 2011, hearing before the WCJ, Employer moved to dismiss the claim petition because Claimant had not produced the report from his oncologist. Claimant's counsel responded that he had learned only one week earlier that Claimant's oncologist "flatly refused to become involved in any legal matters" and, therefore, would not provide a medical report. R.R. 37a. Counsel stated that since learning of that fact, he began a search for an opinion from an industrial hygienist. The WCJ denied Employer's motion and directed Claimant's counsel to schedule a deposition within the month, i.e., by August 19, 2011. Claimant then testified in support of his petition, and the hearing adjourned.
At the next hearing on August 23, 2011, Employer renewed its motion to dismiss. However, the WCJ gave Claimant another 30 days to produce a medical report. Accordingly, the WCJ issued a written order directing Claimant's counsel to "submit medical evidence" no later than September 24, 2011, or his client would face a dismissal. R.R. 87a. Claimant produced a medical report on causation from a pulmonologist at Hershey Medical Center on September 22, 2011, and scheduled her deposition for October 2, 2011.
The next hearing before the WCJ was held on May 15, 2012.Counsel explained that Employer had requested a delay in the deposition scheduled for Claimant's expert so that Employer could first obtain an IME of Claimant. Employer's medical expert produced the IME report on January 5, 2012. Because the deposition of Claimant's expert had not yet been held, Employer moved to dismiss the claim petition.
Claimant's counsel responded that he had been "trying valiantly to reschedule" the deposition since receiving Employer's IME report in January, but he was having difficulty because his expert personally scheduled her depositions and she was a busy practitioner. He also noted that her deposition had been scheduled for October 2, 2011, but was postponed at Employer's request. Finally, Claimant's counsel noted that because Employer's owner would be offering testimony about the paints and chemicals used in his business, it would make sense to schedule the medical deposition after the deposition of Employer's owner.
The WCJ granted Employer's motion to dismiss because Claimant had failed "to produce supportive evidence within the time limit set by this [WCJ]." WCJ Decision, July 12, 2012, at 1; Order. Specifically, the WCJ found as follows:
On July 19, 2011, this [WCJ] ordered that the evidence in this case, in the form of a deposition, be produced by August 19, 2011. Said evidence was not produced within the time limit set by this [WCJ], pursuant to Act 147 [Act of November 9, 2006, P.L. 1362] and the Special Rules of Administrative Practice and Procedures before [WCJs] as ordered at trial.
WCJ Decision, July 12, 2012, at 1; Record No. 2 (emphasis added).
Claimant appealed, and the Board affirmed. Noting that a WCJ is permitted to close the evidentiary record when a party does not comply with time limits set by the WCJ, the Board affirmed the WCJ's exercise of discretion. The Board further noted that it was of no moment that Employer may not have been prejudiced by Claimant's failure to schedule the deposition because such a showing is not required where a claimant has ...