In R. Armitage v. WCAB (Gurtler Chemicals) the Claimant suffered from plantar fasciitis that arose from continuous standing. The condition was diagnosed in 1995. The Claimant kept working, however, only suffering a work restriction when the Employer sought to increase his hours in 1999 and the Claimant stated he could not do it. The Claimant's modified duty status continued until December 2000, when modified duty was no longer available. When the Claimant filed a claim in March 2001, his doctor testified that while standing aggravates the Claimant's symptoms, the Claimant's condition was no better or worse than it was in 1995. The WCJ was constrained to dismiss on the statute of limitations. The Board affirmed.
The Commonwealth Court agreed it is necessary to establish a daily aggravation to establish the last date of work is the injury date. The Claimant's doctor testified there was not a daily aggravation. However, the Commonwealth Court remanded for the WCJ to consider whether the Claimant's condition was aggravated on any date within the three year statute of limitations. The WCJ had not made a specific finding on this fact, and the Court identified testimony of the Claimant and his doctor that might support such a finding.
The equities of this case favor the Claimant. The policy concern of allowing the Employer to conduct a fresh investigation of the circumstances of the injury is satisfied without regard to the passage of time. Proper notice was given, and the Claimant's physical condition is unchanged. The Claimant should not be punished for continuing to work.
The Court did foreshadow a possible remedy for the Claimant. After recognizing the Claimant sought to set the date of injury when he first had a loss of (potential) earning power in 1999, the Court called this a "valid point," but then moved on to their analysis that the record might support an aggravation within the last three years.
Friday, February 13, 2004
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