Case Law Update | Northtec v. WCAB (Pa. Cmwlth. September 16, 2016) | PA Work Injury

September 16, 2016

By way of background, on 11/25/2013, claimant filed a petition for a 5/16/2012 work injury. Claimant’s counsel withdrew the petition and WCJ subsequently marked it as withdrawn without prejudice. Then, on 8/19/2014, claimant again filed the petition. Claimant’s counsel once again requested the petition be withdrawn without prejudice explaining that their medical expert had no yet been scheduled. WCJ found employer’s two fact witnesses on the issue of notice no longer available for employer’s defense as they were no longer employed. As such, WCJ determined employer would be prejudiced if claimant was afforded another opportunity to file and dismissed the petition with prejudice. The Board, relying on Wagner v. Workers’ Compensation Appeal Board (Ty Construction Co. Inc.), 83 A.3d 1095 (Pa. Cmwlth. 2014), determined claimant’s delay in obtaining an expert opinion was due to circumstances beyond his control and modified WCJ’s order by dismissing the petition without prejudice. 


Employer’s Two Issues for Review: (1) Whether WCAB erred by determining claimant’s delay in obtaining an expert opinion was due to circumstances beyond his control; and (2) Whether WCAB erred by not considering employer’s ability to defend the claim.

As for the first issue, the court, in reliance on Wagner, held WCAB did not err in determining claimant’s delay in obtaining an expert opinion was due to circumstances beyond his control. The court explained claimant’s counsel withdrew the petition, rather than delay the proceedings, and as a result should not be punished for the acts of a third party expert.


Regarding the second issue, the court, distinguishing claimant’s case from 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), held that any prejudice employer faced resulting from claimant withdrawing the petition was not the result of claimant’s disregard of a WCJ’s deadlines or orders. While those cases appeared to imply that prejudice to employer is grounds for a dismissal with prejudice (see US Airways; Cipollini), the court concluded that given the circumstances, claimant’s request for withdrawal of his petition was reasonable, and he should not be punished for taking such action.


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