Monday, September 12, 2005

Testimony that a Condition is Subject to Periods of Exacerbation and Remission is Competent to Support Reinstatement After Termination

In C. Taylor v. WCAB (Servistar Corporation) the Claimant suffered from work-related plantar fasciitis in 1993. She worked at light duty until December of 1999, when the plant closed. She had stopped treating for the condition in 1997 and was terminated by Order of the WCJ in July 2000.

The Claimant went back to her doctor for orthotics in September of 2000, then went to work for another Employer in March of 2002. In April of 2002 the Claimant went for treatment again, and in May of 2002, the doctor operated on the plantar fasciitis condition.

The Claimant filed for reinstatement. The WCJ rejected the testimony of the Claimant's physician that there was a recurrence of the Claimant's 1993 condition. The Board affirmed.

The Commonwealth Court noted Claimant's doctor's testimony was uncontroverted, and in its analysis, the Court felt the doctor competently testified the condition "continues through cycles of exacerbations and remissions."

The Board had inserted an analysis that the doctor's testimony of recurrence was inconsistent with the prior finding of full recovery and therefore barred by the doctrine of collateral estoppel. The Court rejected this analysis.

The Court did not analyze whether it was simply incredible that the Claimant's 2002 surgery was related to a 1993 onset of plantar fasciitis pain. The WCJ had rejected the credibility of the Claimant's physician and the Claimant's testimony that her subjective complaints were continuing when the finding of full recovery was made.

The Court remanded the matter to the WCJ "for calculation of benefits and a determination of the responsible employer." Both procedurally and based on the evidence there is no way for the WCJ to find the new employer is responsible. Calculation of benefits will be relevant if the WCJ believed the 2002 disability was related to the injury the Claimant sustained in 1993. The treating doctor's testimony is competent, per the Court's holding.

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