EXCHANGE OF INFORMATION AND DEPOSITIONS AND DISCOVERY
§ 131.61. Exchange of information.
(a) Parties shall exchange all items and information, including medical documents, reports, records, employment records, wage information, affidavits, tapes, films and photographs, lists of witnesses, CD ROMs, diskettes and other digital recordings, to be used in or obtained for the purpose of prosecuting or defending a case, unless the foregoing are otherwise privileged or unavailable, whether or not intended to be used as evidence or exhibits.
(b) The moving party shall provide the items and information referred to in subsection (a) to the responding party prior to the commencement of the first pretrial hearing or hearing actually held. The responding party shall provide the items and information referred to in subsection (a) to the moving party no later than 45 days after the first pretrial hearing or hearing actually held.
(c) A witness whose identity has not been revealed as provided in subsections (a) and (b) may not be permitted to testify on behalf of the defaulting party unless the testimony is allowed within the judge’s discretion.
(d) An item or information not exchanged as provided in subsections (a) and (b), which becomes available after the times set forth in subsection (b) shall be exchanged within 15 days after receipt by the party of the item or information.
(e) Statements, documents or other records required to be provided by this chapter, if not provided within the time periods in this chapter or modified under § 131.12 (relating to modification of time), will not be admitted, relied upon or utilized in the proceedings or judge’s rulings, as appropriate.
(f) Failure to comply with this section may result in the application of § 131.13(m) (relating to continuances or postponements of hearings).
(g) Subsections (a)—(f) supersede 1 Pa. Code § § 35.161 and 35.162 (relating to form and admissibility of evidence; and reception and ruling on evidence).
Authority The provisions of this § 131.61 amended under sections 401.1 and 435(a) and (c) of the Workers’ Compensation Act (77 P. S. § § 710 and 991(a) and (c)); 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 § 131.61 adopted November 6, 1981, effective November 7, 1981, 11 Pa.B. 4015; reserved March 29, 1991, effective March 30, 1991, 21 Pa.B. 1401; 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 (346005) to (346007).
Notes of Decisions Evidence Properly Reviewed
Employer does not argue how the late submission of the medical bills violated its due process rights or the notion of fair play. Employer’s argument addresses only that such submission was a clear violation of the Special Rules of Administrative Practice and Procedure Before Referees. A review of the introduced bills, which the referee permitted to be submitted into evidence reveals that they are, indeed, causally connected to the work injury and are reasonable and necessary. Since the referee has the discretion to waive the requirements of the special rules and employer has not shown any prejudice as a result, the referee did not err in permitting the introduction into evidence of those bills which were causally related to claimant’s work injury and were reasonable and necessary. Nevin Trucking v. Workmen’s Compensation Appeal Board, No. 19 C. D. 1995, 1995 Pa. Cmwlth. LEXIS 495 (1995).
Given the liberal evidence provisions of the Workmen’s Compensation Act, the referee was free to consider the settlement letter written to employer’s insurance company by claimant’s counsel regarding claimant’s settlement demands. It was then within the province of the referee to determine how much weight should be given to the letter in making the decision with respect to employer’s petition to terminate or suspend claimant’s benefits. Anzaldo v. Workmen’s Compensation Appeal Board, 667 A.2d 488 (Pa. Cmwlth. 1995).
Although this regulation required parties to exchange all evidence, which was not available at the time of the first hearing, within 10 days of a party’s receipt of the item or information and that evidence not provided within the time period would not be admitted, relied upon or utilized in the proceedings or referee’s rulings, the referee did not err in relying on the surveillance evidence when plaintiff’s counsel received it within 5 days of defense counsel’s receipt even though the report was dated 21 days earlier. Lathilleurie v. Workmen’s Compensation Appeal Board, 660 A.2d 694 (Pa. Cmwlth. 1995).
Expert Testimony
The worker’s compensation judge did not err in allowing employer’s medical expert to testify during deposition as to causation issues when the expert’s report was allegedly limited to the worker’s employability. Stech v. Workmen’s Compensation Appeal Board, 678 A.2d 1243 (Pa. Cmwlth. 1996); appeal denied 698 A.2d 69 (Pa. 1997).
Obligation to Provide
Employer had an obligation to provide a copy of the surveillance videotape to claimant prior to the first hearing, pursuant to this regulation, and while employer managed to provide a copy to its medical witnesses, the employer violated this regulation by failing to reveal the existence of the tape to claimant for 11 months. Thompson v. Workmen’s Compensation Appeal Board, 683 A.2d 1315 (Pa. Cmwlth. 1996).
Employer violated this regulation by not providing claimant with the surveillance videotape in a timely manner. Contrary to employer’s assertions, claimant was not obligated to request the videotape from employer. Rather, employer had an obligation to provide claimant with the videotape prior to the first hearing before the referee. Anzaldo v. Workmen’s Compensation Appeal Board, 667 A.2d 488 (Pa. Cmwlth. 1995); appeal denied 678 A.2d 366 (Pa. 1996).
Cross References This section cited in 34 Pa. Code § 131.68 (relating to discovery of records); 34 Pa. Code § 131.70 (relating to discovery of statements of parties or witnesses); and 34 Pa. Code § 131.202 (relating to first hearing information and stay).
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