Armitage v. Workers' Compensation Appeal Board11/22/2005
Robert Armitage (Claimant) petitions for review of the May 10, 2005, order of the Workers' Compensation Appeal Board (WCAB) which affirmed the decision of the workers' compensation judge (WCJ) on remand to deny Claimant's claim petition. We affirm.
Beginning in December 1989, Claimant worked for Gurtler Chemicals (Employer) as a sales and service representative, selling chemicals to large laundries. At times, Claimant's duties required him to stand for extended periods. In September of 1994, while working on a job that required him to stand on concrete floors for an extended period of time for several days, Claimant began to develop pain in both heels, and he discussed this problem with his supervisor. Subsequently, Claimant continued to experience pain in both heels, and the pain worsened during periods of extended standing. Claimant first sought medical treatment in July 1995 with James J. Rent, DPM, a podiatrist, who diagnosed Claimant with plantar fasciitis and informed Claimant that this injury was work-related. Claimant's heel problems continued even after treating with Dr. Rent, and, in early 1999, Dr. Rent referred Claimant to Scott L. Baron, M.D.; however, Dr. Baron's treatment also proved ineffective. (WCJ's Findings of Fact, Nos. 4, 6.)
In August 1999, Claimant informed Employer that Dr. Baron recommended that Claimant be restricted to light-duty work with limited standing and walking. However, Claimant continued in his pre-injury position until January 2000, when Employer attempted to modify the job by reducing the days and hours that Claimant worked. Claimant remained in this modified position until December 31, 2000, and has not returned to work with Employer since that date. (WCJ's Findings of Fact, No. 4.)
On May 11, 2001, Claimant filed a claim petition alleging that, on August 31, 1999, he sustained a work-related injury in the nature of plantar fasciitis as a result of standing for prolonged periods of time. (WCJ's Findings of Fact, No. 1; R.R. at 1.) Employer, through its insurer CNA, filed a timely answer denying the material allegations in the claim petition; CNA also filed a joinder petition, naming Zurich Insurance Company as an additional carrier. Both insurers asserted a statute of limitations defense. (R.R. at 4, 10.)
Following a hearing on the matter, at which Claimant testified and offered the deposition testimony of Dr. Rent, the WCJ concluded that Claimant sustained a work-related injury in July 1995, and because he failed to file his claim petition within three years of this date, as required by section 315 of the Workers' Compensation Act, the WCJ dismissed Claimant's claim petition as untimely. In doing so, the WCJ rejected Claimant's theory that his job duties aggravated his condition, finding that Claimant failed to establish a daily aggravation. The WCAB affirmed, but, on appeal to this court, we vacated and remanded the matter to the WCAB to remand to the WCJ. We concluded that Claimant's failure to establish a daily aggravation did not preclude a finding that an aggravation occurred at some time, and we directed the WCJ to address this alternate, non-daily aggravation theory. Armitage v. Workers' Compensation Appeal Board (Gurtler Chemicals), 842 A.2d 516 (Pa. Cmwlth. 2004).
After considering the evidence on remand, the WCJ again found that Claimant suffered from a work-related injury in the nature of plantar fasciitis and that this condition was present no later than July 1995, when Dr. Rent informed Claimant of his condition and that it was work-related. The WCJ rejected the theory that Claimant's work-related injury was aggravated at a later date, concluding that Claimant suffered no more than persistent
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