Claim petition was again properly dismissed without prejudice where the claimant’s delay in obtaining an expert opinion during litigation was due to circumstances beyond his control.

On appeal to the Commonwealth Court, the employer argued that the Appeal Board was wrong to conclude that the claimant’s delay in deposing his expert was due to circumstances beyond his control. The employer further asserted that failure to dismiss the claim petition would actually prejudice the employer. The court disagreed and affirmed the Board, noting that the record showed a good faith effort to advance the case and obtain the opinions of the claimant’s medical expert, but that the claimant’s medical expert had advised the claimant needed to undergo an invasive procedure to further refine his causal opinions. The court noted that case law seems to generally imply that prejudice to the employer was grounds for a dismissal with prejudice. However, in this case, because the delays were not due to the claimant’s disregard of deadlines orders, a dismissal was not warranted.

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