Armitage v. Workers' Compensation Appeal Board11/22/2005
, recurrent symptoms of the same 1995 condition. Accordingly, because Claimant filed his claim petition more than three years after July 1995, the WCJ again denied Claimant's claim petition as time-barred. Claimant appealed to the WCAB, which affirmed. Claimant now petitions this court for review of the WCAB's order.
Before this court, Claimant argues that the WCJ and WCAB capriciously disregarded substantial and competent evidence which establishes that Claimant suffered an aggravation in the nature of a repetitive trauma injury and, further, failed to provide an acceptable reason for disregarding such evidence. Claimant maintains that his placement on part-time status is evidence establishing that he sustained an aggravation of his injury; therefore, his date of injury is either November 9, 2000, the last day Claimant worked full-time or, alternatively, December 31, 2000, the last day Claimant was exposed to the repetitive trauma.
Claimant argues that because he filed his claim petition within three years of either of these dates, his claim is not time-barred.
"Review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 202, 812 A.2d 478, 487 (2002). Capricious disregard is found when the fact-finder ignores relevant, competent evidence. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503 (Pa. Cmwlth. 1998).
At issue here is whether Claimant ever suffered an "aggravation" of his condition, which constitutes a new injury. SKF USA, Inc. v. Workers' Compensation Appeal Board (Smalls), 728 A.2d 385 (Pa. Cmwlth.), appeal denied, 561 Pa. 663, 747 A.2d 903 (1999). Contrary to Claimant's assertion, the WCJ and WCAB did not capriciously disregard any evidence suggesting that Claimant suffered an aggravation. Rather, the WCJ acknowledged that the evidence might suggest that Claimant suffered an aggravation. Nevertheless, the WCJ, in its role as fact-finder, rightfully rejected that evidence in favor of evidence establishing that no such aggravation occurred. Moreover, contrary to Claimant's assertions, the WCJ specifically set forth the evidence on which he was relying and explained how that evidence supported his conclusions.
Specifically, the WCJ relied on portions of Dr. Rent's testimony and found that although Claimant's symptoms waxed and waned, Claimant continually suffered from the same condition. (WCJ's Findings of Fact, Nos. 5, 6; R.R. at 66-71, 73.) Indeed, Dr. Rent testified that Claimant's condition persisted throughout his course of treatment and that Claimant's diagnosis remained the same. (WCJ's Findings of Fact, No. 6; R.R. at 71, 81, 88-89.) This evidence supports the WCJ's finding that Claimant did not suffer an aggravation of his work-related injury, but suffered from continually persistent, recurring, symptoms of his 1995 plantar fasciitis. Therefore, his date of injury remains July 1995, when, as the WCJ found, Dr. Rent diagnosed Claimant's condition as work-related and so informed Claimant. Because Claimant filed his claim petition more than three years after that date, his claim petition is time-barred, and the WCJ properly denied it.
Accordingly, we affirm.
ORDER
AND NOW, this 22nd day of November, 2005, the order of the Workers' Compensation Appeal Board, dated May 10, 2005, is hereby affirmed.
ROCHELLE S. FRIEDMAN, Judge
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