Pennsylvania Record

Sunday, February 23, 2020

Commonwealth Court permits lung injury plaintiff to withdraw petition without prejudice

By Nicholas Malfitano | Sep 22, 2016

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HARRISBURG – The Commonwealth Court of Pennsylvania has affirmed a decision from the Workers' Compensation Appeal Board, allowing the modification of a Workers’ Compensation Judge’s (WCJ) decision dismissing Kurian T. Skaria’s petition with prejudice to dismissing the petition without prejudice.

On Nov. 25, 2013, Skaria 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, eosinophilic lung disease, and interstitial pneumonitis. The petitions were assigned to a WCJ.

“At the final hearing on July 23, 2014, Skaria’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 In a July 31, 2014 decision, the WCJ marked the petitions withdrawn without prejudice, and noted in the decision that Skaria had not submitted any evidence,” Commonwealth Court Judge Anne E. Covey said.

On Aug, 19, 2014, Skaria filed another petition, again seeking total disability benefits as of May 16, 2012. Hearings were subsequently conducted where evidence was submitted this time around, and medical evidence was likewise due to be submitted at a hearing on Jan. 13, 2015.

“Claimant’s counsel stated that claimant’s medical expert had not yet been scheduled, and requested that the petition be withdrawn without prejudice,” Covey said. “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 Skaria was afforded an opportunity to file another petition, and would have to provide a medical expert’s deposition to prove causation – which had not been done. Thus, the WCJ dismissed Skaria’s petition with prejudice.

Skaria appealed to the Board, who ruled Skaria’s delay in obtaining an expert opinion was due to circumstances beyond his control, and the Board modified the WCJ’s order by dismissing the petition without prejudice. The employer thus appealed to the Commonwealth Court.

The employer argued both the Board erred by determining that Skaria’s delay in obtaining an expert opinion was due to circumstances beyond his control, and in not considering the employer’s ability to defend the claim.

The Commonwealth Court rejected both pleas from the employer.

“Here…the WCJ and employer overlook the reason that claimant failed to obtain Dr. Alonzo’s deposition,” Covey said. “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.”

Covey then moved to the employer’s second appeal argument.

“Although case law appears to imply that prejudice to employer is grounds for a dismissal with prejudice, we hold that since whatever prejudice employer faced due to claimant withdrawing the petition in the instant case was not the result of claimant’s disregard of a WCJ’s deadlines or orders, a dismissal with prejudice is not warranted,” Covey said.

“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,” Covey concluded.

Commonwealth Court of Pennsylvania 2488 C.D. 2015

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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