PENNSYLVANIA RECORD

A three-judge Commonwealth Court panel has overturned a decision by the

Workers’ Compensation Appeal Board that upheld a workers’ compensation judge’s decision to dismiss a petition filed by a man who alleged his lung cancer was caused by his exposure to paint chemicals while on the job.

In a Jan. 3 decision, the three appellate judges on Commonwealth Court, a lower-tier state appeals court, determined that a claim by David D. Wagner, II, shouldn’t have been tossed by the workers’ compensation judge because Wagner failed to present his medical evidence in accordance with a schedule set by the judge.

Wagner, who worked for Ty Construction Co., was diagnosed with lung cancer in January 2011, after which he requested total disability benefits and payment of his medical expenses.

An initial hearing was held in mid-June 2011, at which time Wagner’s lawyer said he was waiting for Wagner’s oncologist to issue a report stating that his patient’s lung cancer was caused by exposure to paint chemicals in the workplace.

A month later, Ty Construction moved to dismiss the petition because the report from the oncologist had not yet been produced, records show.

Wagner’s lawyer notified the workers’ compensation judge that the doctor “flatly refused to become involved in any legal matters,” and would therefore not produce a medical report, the Commonwealth Court ruling states.

The attorney then began searching for an opinion by an industrial hygienist.

Meanwhile, the workers’ compensation judge ordered Wagner’s lawyer to schedule a deposition by Aug. 19, 2011.

Following an Aug. 23, 2011, hearing, the judge gave Wagner another month to produce a medical report, the record shows.

Wagner was able to secure a medical report on causation from a pulmonologist at Hershey Medical Center, and subsequently scheduled the doctor’s deposition for early October 2011.

Ty Construction then requested a delay in the deposition so that it could obtain an independent medical examination of Wagner, the court decision states.

The IME report was produced in early January 2012, after which the employer sought dismissal of Wagner’s petition because he had not yet obtained the deposition of the physician.

Wagner’s lawyer argued that he had been “trying valiantly to reschedule” the deposition, but that he was having trouble because the pulmonologist was a “busy practitioner,” the court ruling notes.

Wagner’s attorney also argued that because Ty Construction’s owner would be offering testimony about the paints and chemicals used in the business, it would make sense to schedule the medical deposition after the deposition of the business owner.

The workers’ compensation judge ended up granting the employer’s motion to dismiss because Wagner had failed to produce “supportive evidence” within a time frame set by the judge.

In its 11-page ruling, the Commonwealth Court panel noted that Wagner’s lawyer encountered an “unforeseen hurdle” when he found out the oncologist would not participate in the litigation in any way.

“Claimant was given one month to schedule a medical deposition, which was a tight schedule, considering that Claimant had, first, to find a new expert, who cannot be expected to author a reliable medical report overnight,” the appellate panel wrote.

The judges noted that the workers’ compensation judge’s sole factual finding to support his dismissal was that Wagner did not abide by the judge’s order to have a medical deposition by Aug. 19, 2011, a finding that is “inconsistent with the record.”

“The WCJ seems to have forgotten that he extended this deadline to September 24, 2011, and he overlooked Employer’s acknowledgement that Claimant’s medical report met that deadline,” the ruling states. “The WCJ also overlooked the fact that Claimant had arranged for the deposition of his expert for October 2, 2011.”

That deposition, however, didn’t take place precisely because the employer, not Wagner, requested a continuance, the judges wrote.

“In fact, the deposition had to be delayed for three months while the parties waited for Employer’s physician to produce an IME report,” the ruling states. “Claimant’s counsel told the WCJ that he was working diligently to reschedule the deposition of Claimant’s expert, and Employer did not dispute this representation of Claimant’s efforts.”

The judges wrote that Wagner’s lawyer had met the workers’ compensation judge’s schedule for producing a medical report, had successfully scheduled the medical deposition once, and was actively attempting to reschedule the deposition.

A “significant part” of the delay, the Commonwealth Court wrote, was caused by the employer’s expert.

The panel concluded that the workers’ compensation judge abused his discretion when he dismissed Wagner’s petition.

The judges reversed the Workers’ Compensation Appeal Board’s decision to uphold the workers’ compensation judge’s decision, and remanded to the WCJ for further proceedings on the merits of Wagner’s claim petition.

The decision was written by Commonwealth Court Judge Mary Hannah Leavitt.

The other participating judges were Bonnie Brigance Leadbetter and Anne E. Covey.