Request for Continuance to Depose a Witness In Workers Comp Cases
In Cipollini v. Workmen's Compensation Appeal Bd. (Philadelphia Electric Co.), 167 Pa. Commw. 25, 647 A.2d 608 (Pa. Cmwlth. 1994), the claimant testified before a referee (now WCJ) and requested continuances at five subsequent hearings in order to depose her fact witness and medical expert.
The referee denied all of employer's objections to the continuances.
However, the referee warned, at the fifth request for a continuance, that the record would be closed if the claimant did not take action within the next sixty days.
The claimant did not act within sixty days and the referee advised counsel that the claimant's case would be closed at the next hearing.
The referee concluded that the claimant failed to submit any medical evidence establishing that she suffered a work-related injury and her claim petition would be marked "withdrawn with prejudice for failure to prosecute."
The claimant appealed and argued that the record showed no prejudice to the employer and that, absent a finding of prejudice, the Board erred in affirming the referee's decision to mark her case "withdrawn with prejudice."
On appeal to the Court relied on Fremont Farms v. Workmen's Compensation Appeal Bd. (Phillips), 147 Pa. Commw. 467, 608 A.2d 603 (Pa. Cmwlth. 1992), and held that:
The referee accommodated the claimant by continuing the case several times to allow her counsel to depose its witnesses; however, in the almost 9 months which elapsed from the time of the first hearing until the last hearing, the claimant failed to take those depositions.
In fact, the claimant never even scheduled the deposition of its medical witness even though the referee specifically warned her counsel that the record would be closed. . . the referee provided her with ample opportunities to present her case.
Her current misfortune resulted solely from her counsel's failure to act on these opportunities. Cipollini, 647 A.2d at 611.
The Court concluded that the referee did not err when he closed the claimant's case "with prejudice" because he based his decision on the claimant's continued disregard for the deadlines imposed by him, coupled with the employer's objections to the claimant's request to have her petition withdrawn without prejudice so that she could later re-file. Id.
In Fremont Farms v. Workmen's Compensation Appeal Bd, the Court determined that a referee properly closed the record, which precluded the employer from offering additional evidence, where the employer failed to produce, or even arrange to produce, medical evidence within the deadlines imposed by the referee.
Because the employer had ample opportunity to present its evidence, it never indicated to the referee that it wished to present testimony on the issue of notice, and the referee had explicitly warned the employer that the record would be closed.