When litigating a workers’ compensation case, the parties are often at the whim of a doctor who has a remarkably busy schedule and who may cancel a deposition on the eve of a scheduling order in a case before a regimented workers’ compensation judge. Moreover, fact witnesses who are less than concerned with your client’s case are often difficult to locate or reach and can give the parties fits in agreeing on a mutually convenient date, time and place for a deposition. All of these potential delays can lead to a case being either withdrawn or dismissed with or without prejudice to refile.
A WCJ’s application of Section 131.13(m)(1) of the Special Rules of Administrative Practice and Procedure is at the heart of the matter. The regulation deals with a WCJ’s power to dismiss a case for lack of prosecution. Given the humanitarian purposes of the act, one would think that dismissing a case with prejudice should be reserved for very limited circumstances. The recently decided Commonwealth Court case of Northtec v. Workers’ Compensation Appeal Board (Skaria), No. 2488 C.D. 2015, provides an excellent overview of factors that should be considered by a WCJ charged with adjudicating a dismissal or withdrawal.
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