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The Commonwealth Court has expanded upon the established rule that an employee’s claim petition can be dismissed for failure to prosecute. In Clayton v. WCAB (Carpentry Concepts Inc.), the court held that the Workers’ Compensation Appeal Board can determine that the judge’s dismissal was “with prejudice,” based upon a review of the circumstances under which the case was dismissed. The issue arose when Alan Clayton’s attorney failed to move his case forward in a timely manner, despite several promises to do so and despite clear urgings from the bench to complete his case. Clayton had filed a claim petition on Jan. 8, 2003, asserting that he had sustained a work-related injury on May 24, 2001, while working as a cabinet maker for Carpentry Concepts Inc. Clayton alleged that he suffered a fractured facial bone when a sanding drum came loose from the shaping machine he was working on and struck him in the face. Clayton’s employer filed an answer denying all allegations in the claim petition. The parties proceeded to the first hearing before the WCJ on March 20, 2003. Clayton attended the hearing without counsel, explaining that his attorney had a scheduling conflict. Clayton’s counsel thereafter advised the judge by mail that he intended to schedule two medical depositions — one regarding the physical injury and one related to possible post-traumatic stress disorder resulting from the injury. Accordingly, the WCJ continued the case until May but scheduled a status conference for April 8, 2003, to ensure that the litigation was proceeding. At this conference, Clayton’s counsel informed the WCJ that the medical depositions had not yet been scheduled, although counsel stated that one doctor was “readily available.” Anticipating that counsel would not meet the 90-day deadline for completion of medical depositions provided by the workers’ compensation regulations, the WCJ suggested that Clayton withdraw his claim petition without prejudice and re-file it when he was ready to proceed. Pennsylvania workers’ compensation claimants have three years from the date of injury to file a claim petition. Thus Clayton would have been able to re-file the petition within the next 13 months. However, counsel assured the WCJ that he was ready to proceed and did not wish to withdraw the petition. Clayton’s counsel proposed to the WCJ that Clayton be deposed in May and that “discovery” be completed by June. As there is no separate “discovery period” provided in Pennsylvania workers’ compensation litigation, the WCJ denied this request. Clayton’s counsel was directed to complete his two medical trial depositions by the time of the May hearing and to present Clayton’s live testimony at the hearing. However, Clayton’s counsel did not complete either medical deposition prior to the May 15, 2003, hearing. Counsel also failed to bring Clayton to the hearing to testify, as the judge had specifically requested. Counsel could not explain Clayton’s absence but promised that Clayton would attend the next hearing even “if I have to pick him up.” Graciously, the WCJ continued the case to July. The third and final hearing was held July 15, 2003. Neither Clayton nor his counsel attended this hearing. The WCJ stated on the record that notice of the hearing had been mailed to both Clayton and his attorney on June 6, 2003, at the addresses provided on the claim petition, further noting that these notices had not been returned by the post office. The employer moved to dismiss the petition for failure to prosecute. By order dated July 29, 2003, the WCJ granted the employer’s motion and dismissed the claim petition. In his opinion, the WCJ reiterated that Clayton had received notice of the final hearing and had not provided any excuse, either in person or by counsel, for his failure to attend. However, the WCJ’s order did not indicate whether the petition was dismissed with or without prejudice. Clayton appealed to the board and requested remand for further proceedings before the WCJ. The board affirmed, concluding that the WCJ had properly dismissed the claim petition. The board further held that the WCJ intended to dismiss the petition with prejudice, thus precluding Clayton from re-filing his petition even though the statute of limitations had not yet expired. Clayton appealed to the Commonwealth Court, which has now affirmed. Clayton argued to the court that since the WCJ did not expressly dismiss his claim petition “with prejudice” the board should have assumed the dismissal was without prejudice. Clayton did not cite to any workers’ compensation case law, but instead cited FROF Inc. v. Harris, a federal case from the Eastern District of Pennsylvania. In FROF, the district court judge considered whether his own order dismissing an action for failure to prosecute had been with prejudice even though it did not so state. Because it was the judge’s practice to specify that a dismissal for failure to prosecute was without prejudice, he ruled that the absence of the words “without prejudice” from his order was a clerical oversight, and not consistent with his intention and practice in such circumstances. The Commonwealth Court in Clayton found this federal cite to be “neither controlling nor even instructive.” The district court did not, as Clayton suggested, announce a general rule that a dismissal for failure to prosecute is always without prejudice unless otherwise specified in the order. Indeed, the Federal Rules of Civil Procedure dictate the opposite result. Federal Rule of Civil Procedure 41(b) states that “unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision … operates as an adjudication upon the merits.” The district court judge in FROF simply wished to correct his own clerical error. Instead, the court in Clayton found one of its own decisions, Cipollini v. WCAB (Philadelphia Electric Company), to be controlling. In Cipollini the court affirmed a WCJ’s decision to dismiss a claim petition with prejudice because the claimant had not presented any medical evidence regarding her alleged work-related injury. The WCJ granted numerous continuances to allow the claimant’s counsel to depose its witnesses. The depositions were neither scheduled nor taken, despite the fact that the WCJ warned that the record would be closed. Like the claimant in Cipollini, the court found that Clayton (or his attorney, more accurately) had been dilatory without good cause and despite numerous warnings from the WCJ. Accordingly, the court could find no error by the board in presuming that the WCJ intended to dismiss Clayton’s claim petition with prejudice, and affirmed. Obviously, the actions of Clayton’s attorney may have provided grounds for a legal malpractice claim. Some of the facts of the case suggest that the attorney was not versed in Pennsylvania workers’ compensation practice and procedures. It appears that counsel assumed that there would be a “discovery period” at the commencement of the case, but the applicable workers’ compensation regulations direct that the moving party in most cases must complete his or her medical depositions within 90 days of the first hearing, without any additional time for discovery. Counsel’s citation of federal case law instead of well-established Pennsylvania workers’ compensation case law may also be telling. But the WCJ’s directions seemed clear enough, and inexperience alone cannot explain counsel’s failure to comply with the judge’s scheduling deadlines. The holding in Clayton is important to attorneys representing both claimants and employers. The moving party in workers’ compensation litigation must be prepared to proceed with the presentation of evidence soon after a petition is filed. Although the workers’ compensation regulations do provide for discovery of documents and other information, the discovery process is conducted concurrently with the trial of the case, not before. Attorneys who delay scheduling depositions until they gather all the records they desire do so at the risk of having their petitions dismissed by a judge who runs his or her courtroom with strict adherence to the scheduling regulations. Matthew S. Wynn is a founding partner in Wynn McGarry, a litigation boutique located in King of Prussia, Pa., and head of the firm’s workers’ compensation practice group. He is the defense co-chairman of the workers’ compensation section of the Philadelphia Bar Association and has represented employers, insurers and third-party administrators in workers’ compensation litigation since 1991. He can be contacted via e-mail at [email protected]

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