§ 131.63. Time for taking oral depositions.
(a) An oral deposition may be taken at any time subsequent to 30 days after the date of assignment of the petition by the Department.
(b) Oral depositions shall be completed so as not to delay unreasonably the conclusion of the proceedings, and within a time schedule agreed upon by the parties and approved by the judge provided that medical depositions shall be completed as specified in subsections (c) and (e).
(c) The deposition of a medical expert testifying for the moving party shall be taken within 90 days of the date of the first hearing scheduled unless the time is extended or shortened by the judge for good cause shown. The deposition of a medical expert testifying for the responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party.
(d) A party wishing to present depositions for rebuttal or surrebuttal shall notify the judge in writing within 21 days after the conduct of the hearing or deposition at which the testimony to be rebutted or surrebutted has been given.
(e) Depositions for rebuttal or surrebuttal shall be taken in accordance with § 131.53(e) (relating to procedures subsequent to the first hearing).
(f) If a party fails to abide by the time limits established by this section for submitting evidence, the evidence will not be admitted, relied upon or utilized in the proceedings or the judge’s rulings.
(g) Subsections (a)—(f) supersede 1 Pa. Code § § 35.145—35.152, 35.161 and 35.162.
Authority The provisions of this § 131.63 amended under sections 401.1, 435(a) and (c) and 1608 of the Workers’ Compensation Act (77 P.S. § § 710, 991(a) and (c) and 2708); section 2205 of The Administrative Code of 1929 (71 P.S. § 565); and section 414 of The Pennsylvania Occupational Disease Act (77 P.S. § 1514).
Source The provisions of this § 131.63 adopted March 29, 1991, effective March 30, 1991, 21 Pa.B. 1401; corrected September 27, 1991, effective March 30, 1991, 21 Pa.B. 4406; corrected October 11, 1991, effective March 30, 1991, 21 Pa.B. 4839; amended December 6, 2002, effective December 7, 2002, 32 Pa.B. 6043; amended December 19, 2014, effective December 20, 2014, 44 Pa.B. 7837. Immediately preceding text appears at serial pages (346008) to (346010).
Notes of Decisions Denial of Additional Expert
Workers’ compensation claimant was not entitled to depose additional rebuttal expert in workers’ compensation proceeding, where claimant made deposition request approximately 1 week prior to scheduled close of record, employer objected to deposition, claimant had already deposed employer’s medical expert, and claimant had already deposed one rebuttal expert. Swigart v. W.C.A.B. (City of Williamsport), 131 A.3d 117 (Pa. Cmwlth. 2015).
Evidence Insufficient
The Workmen’s Compensation Appeal Board’s order terminating compensation benefits was reversed where employer’s hearsay evidence of medical report was not corroborated by other competent evidence such as live testimony or the deposition of the medical expert, even though the report was admitted without objection and claimant failed to appear at the hearing. Tynan v. Workmen’s Compensation Appeal Board, 639 A.2d 856 (Pa. Cmwlth. 1994); appeal denied 653 A.2d 1236 (Pa. 1994).
No Unreasonable Delay
The Worker’s Compensation Judge erred in imposing a 10% penalty for unreasonable delays. The Judge imposed a penalty upon Employer because Employer unreasonably delayed the conclusion of the proceedings by demanding that claimant take the orthopedic surgeon’s deposition and by insisting that claimant afterwards submit to an independent medical evaluation by another physician. However, it was not unreasonable for employer to seek the deposition of claimant’s medical expert or to request that the physician, who had already reviewed claimant’s medical records and rendered a contrary opinion about the work-relatedness of claimant’s back problem, actually examine claimant before offering any further opinion. Ball Incon Glass Packaging v. Workmen’s Compensation Appeal Board, 682 A.2d 85 (Pa. Cmwlth. 1996).
Waiver
The Workers’ Compensation Judge did not abuse his discretion in waiving compliance by the employer with the 90-day rule, where the claimant, who argued that her ability to win the case is hurt by the introduction of the deposition, has failed to demonstrate the kind of prejudice necessary to warrant the exclusion of the medical expert’s deposition; the prejudice a claimant must demonstrate is not that if the deposition is admitted, she may lose her case, but that the delay in obtaining the deposition compromises her ability to present her case. Atkins v. Workers’ Compensation Appeal Board, 735 A.2d 196 (Pa. Cmwlth. 1999).
Unreasonable Delay
The Workers’ Compensation Judge erred in admitting the deposition of a physician, where the deposition was taken over four months before the health care provider filed his petition for review of the utilization review determination. Cruz v. Workers’ Compensation Appeal Board (Philadelphia Club), 728 A.2d 413 (Pa. Cmwlth. 1999).
Cross References This section cited in 34 Pa. Code § 131.66 (relating to admissibility of oral depositions).
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