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TruServe Corp. v. Workers' Compensation Appeal Board6/11/2002
Timothy Rice (Claimant) worked as a stock handler for TruServe Corporation (Employer) in a full time capacity for eleven years. He worked four ten hour days per week and was on his feet walking for most of his workday. In 1992, Claimant was diagnosed with Type II diabetes. Claimant experienced foot pain in late 1993 and early 1994, and obtained orthotics to continue in his job. On September 4, 1997, Claimant again experienced pain in his feet and legs while at work. The pain was greater than before. Claimant stopped working on September 4, 1997. He returned to work on January 12, 1998, with new orthotics and worked four half-days. However, when his symptoms increased, he ceased work.
On or about June 11, 1998, Claimant petitioned for benefits and alleged that the problems he had with circulation in his feet and legs were the result of constant standing and walking on concrete. Claimant stopped working because he could not stand to do his job properly. Notes of Testimony, July 6, 1998, (N.T.) at 17; Reproduced Record (R.R.) at 71a. If he were not on his feet constantly, he did not experience the extreme pain he had at work. N.T. at 18; R.R. at 72a.
Claimant presented the deposition testimony of Thomas C. Schwab, M.D. (Dr. Schwab), board-certified in internal medicine and Claimant's treating physician since 1991. Dr. Schwab diagnosed Claimant with diabetic neuropathy. Deposition of Thomas C. Schwab, M.D., November 5, 1998, (Dr. Schwab Deposition) at 13; R.R. at 133a. Dr. Schwab testified within a reasonable degree of medical certainty that Claimant's symptoms were worsened and exacerbated by his work situation and that Claimant could not continue to perform his job. Dr. Schwab Deposition at 23-24; R.R. at 143a-144a. On cross-examination, Dr. Schwab admitted that Claimant's diabetes and peripheral vascular disease were not caused by work. Dr. Schwab Deposition at 24; R.R. at 144a.
Employer presented the deposition testimony of Jack Edward Pickering, M.D. (Dr. Pickering), a board-certified internist and cardiologist. Dr. Pickering examined Claimant on September 18, 1998, took a history, and reviewed medical records. Dr. Pickering opined within a reasonable degree of medical certainty that Claimant was permanently disabled due to peripheral vascular disease as a result of diabetes, smoking, and hypercholesterolemia and also diagnosed him with diabetic neuropathy. Deposition of Jack Edward Pickering, M.D., January 8, 1999, (Dr. Pickering Deposition) at 21; R.R. at 172a. Dr. Pickering testified that Claimant's disorders were not caused by excessive walking. Dr. Pickering Deposition at 23; R.R. at 174a.
The Workers' Compensation Judge (WCJ) concluded that Claimant established that he sustained an aggravation of his diabetes and was totally disabled from September 5, 1997, through January 12, 1998, when he resumed working for part of a week. The WCJ awarded partial disability benefits for the week of January 12, 1998, and ordered the resumption of total disability benefits the following week. The WCJ found Claimant credible and found Dr. Schwab credible and more persuasive than Dr. Pickering. The Workers' Compensation Appeal Board (Board) affirmed.
Employer contends that the WCJ's determination that Claimant's disability was aggravated by his employment was not supported by substantial evidence and that, even if Claimant were entitled to benefits, his benefits should have been terminated when he returned to his "baseline" when he stopped working.
In a claim petition, a claimant bears the burden of establishing all the necessary elements in order to prevail. A claimant must prove that the injury occurred in the course of employment and that
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