Walls v. J.P. Stevens Company

The undersigned have reviewed the prior Order based upon the record and the briefs and arguments of the parties. The appealing party has shown good grounds to reconsider the Deputy Commissioners dismissal with prejudice.

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The undersigned find and conclude that Rule 613(3) is inapplicable in the instant case. In general the Rule provides for the dismissal of a claim removed at plaintiffs request or necessitated by plaintiffs conduct when plaintiff does not request a hearing within one year of the filing of the order of removal.

In this case, plaintiffs claim is an occupational disease claim of a complicated nature. Plaintiffs claim was placed on the hearing docket for the sole purpose of obtaining a panel examination at defendants expense. Because defendants agreed to authorize the examination, this matter was understandably removed from the hearing docket. This case was not docketed for a final hearing on the merits nor was it removed for delay on the part of plaintiff or for plaintiffs conduct. Therefore, Rule 613 is inapplicable and the Order of Deputy Commissioner Garner is hereby Vacated and plaintiffs claim is hereby Dismissed without prejudice.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DCS/bjp