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When analyzing the potential for worker compensation liability for an alleged work related medical condition, one must now consider the possibility of a "non-daily" aggravation of a pre-existing malady. This was the result reported at Armitage v. WCAB ( Gurler Chemicals) 2004 Pa Commw Lexis 115 ( 2/11/04).
The underlying facts are rather straight forward. Employee was a salesman, which required prolonged standing. He began to experience pain in the heels of both feet in September 1994.' He first sought medical care on July 31, 1995. Dr. Rent diagnosed plantar faciitis.' The underlying cause was unknown, but this may be aggravated by prolonged standing, walking, etc.
The WCJ dismissed the claim petition as it was filed in May of 2001, more than 3 years after the date of diagnosis by Dr. Rent.' Employer produced no medical evidence (in fact 2 insurers were involved based upon the dates of employment and the dates of insurance coverage).' Judge Friedman, writing for the Court, vacated and remanded the WCJ decision.' She reasoned that the lack of medical expert opinion evidence to support a theory of disability based upon a "daily aggravation" of employee's condition, DID NOT preclude a finding that he experienced a "non-daily" aggravation of his condition.' The "real" issue is the statute of limitations question.' This condition was diagnosed and there was some reference to a work relationship at the first office visit with Dr. Rent on July 31, 1995.' The claim petition was filed in May of 2001, almost 6 years later.' There are several candidates for the date of injury!' The claim petition stated August 31, 1999, the WCJ found July 31, 1995 and on appeal Employee argued for a November 4, 1999 date of injury!' Also Employee started working reduced hours, as a work place accommodation in January, 2000 and continued in that capacity until the Employer could no longer provide an accommodation.' His last date of work was December 31, 2000.
In any event, the Court held that the "date of injury" is not always the date of disability (that does not solve the dispute).' We need to follow this case on remand.' This case highlights the necessity of securing a detailed chronology of events through employee and employer testimony.' This was apparently secured, as reflected in the reported decision.' The employee's medical evidence appears amenable to several interpretations.' Why head into the uncharted territory of "non-daily" aggravations, if there is not an unequivocal medical opinion?' You do not meet your burden of proof.