Dismissal With or Without Prejudice Critical in PA Workers’ Comp Claim

There is an old saying in law that one only gets “one bite at the apple.”  That means, basically, that you have a chance to file your claim or suit or whatever, litigate the issue and obtain a final decision.  Once that is done, you can file an appeal of that decision (if available in that forum), but you can never go back and try the case all over again from the start.  While the world of workers’ compensation has some different evidentiary standards, this rule of law generally applies.  A recent case from the Commonwealth Court of Pennsylvania dealt with this issue.

In 2013, the injured worker filed a Claim Petition alleging interstitial lung disease, chronic inhalation injury, hypersensitivity, lung disease, eosinophilic lung disease, and interstitial pneumonitis.  This was the case of Northtec, LLC and American Zurich Insurance Company v. Workers’ Compensation Appeal Board (Skaria).  After the Petition was assigned to a Workers’ Compensation Judge (WCJ), but before any evidence was submitted, the attorney for the injured worker withdrew the Claim Petition.  This was done “without prejudice.”  That means that the injured worker could refile the same Petition again (if it was done prior to the statute of limitations, of course).

Indeed, the injured worker did file the same Claim Petition again, in 2014.  Hearings were conducted and the deposition testimony of the injured worker was submitted.  Subsequently, since the attorney for the injured worker was unable to get the deposition of their medical expert scheduled within the allotted time period, the attorney again requested that the Claim Petition be marked as withdrawn “without prejudice.”  This time, the counsel for the workers’ compensation insurance carrier opposed the request, stating that she had intended to defend the claim, on the issue of notice of the injury, but that both of her witnesses had since left the employ of that company.  She alleged that she would be prejudiced if the injured worker was allowed to file the same Petition, yet again, in the future.

The WCJ agreed with the defense counsel, finding that allowing the injured worker to file the same Petition again in the future would be prejudicial to the employer and the workers’ compensation insurance carrier.  As such, the WCJ dismissed the Claim Petition “with” prejudice.  This means the Claim Petition cannot be filed again.

The injured worker filed an appeal with the Workers’ Compensation Appeal Board (WCAB).  Finding that the delay in obtaining an expert opinion was beyond the control of the injured worker, the WCAB modified the decision of the WCJ to make the dismissal “without” prejudice.

Dissatisfied with this result, the workers’ comp insurance carrier filed an appeal with the Commonwealth Court of Pennsylvania.  The first words of the Court’s discussion probably told us which way the result would be heading, “Initially, ‘we keep in mind that the Workers’ Compensation Act is remedial in nature and intended to benefit the worker, and, thus, should be construed liberally to effectuate its humanitarian objectives.’”  The Court found that the injured worker did try to get the deposition of its medical expert (but the expert was unable to provide an opinion without the results of a test the injured worker could not have performed).  Further, the Court found that, unlike in cases cited by the workers’ comp insurance carrier, the injured worker here did offer reasons for the delay and did not simply ignore many deadlines and warnings from the WCJ.  Therefore, the Court found that any prejudice to the employer or insurance carrier was not the result of the bad conduct on the part of the injured worker.  As such, the Court affirmed the decision of the WCAB, finding that the dismissal “without prejudice” was the correct ruling.

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