SB 7 – AGGRAVATION OF PRE-EXISTING CONDITIONS

The following is an excerpt from my presentation to the Miami Valley Chiropractic Society on October 17, 2011:

I want to now address the issue of aggravation of a pre-existing condition.

A pre-existing condition is of course a condition or diagnosis that was present prior to the date of injury.  The issues are what happens when an injury at work aggravates the pre-existing condition and what must be shown to achieve allowance of the pre-existing condition on the basis of aggravation.

SB 7 which became law in 2006 changed the definition of injury with regard to aggravation of a pre-existing condition.  The revision was a response to the Supreme Court of Ohio’s decision in 1990 in Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1.  In Schell, the court held that an injured worker need only show any aggravation of a pre-existing condition, even a slight aggravation, and that the aggravation need not “be of any particular magnitude.”

Under SB 7, the rules relating to substantial aggravation were changed significantly.  The new definition of injury [set for in Section 4123.01(C)(4) now provides:

“Injury” includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment. “Injury” does not include:

A condition that pre-existed an injury unless that pre-existing condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.

In addition, on May 13, 2009 the Industrial Commission issued Memo A5 setting forth their policy and interpretation for hearing officers on the issue of substantial aggravation.  This memo provides the following:

“On or after August 25, 2006, when allowing a claim for substantial aggravation of a pre- existing condition, the hearing officer must cite in the order evidence which documents the substantial aggravation by objective diagnostic findings, objective clinical findings, or objective test results. The determination as to whether a “substantial aggravation” has occurred is a legal determination rather than a medical determination. Therefore, while it is necessary that a hearing officer rely on medical evidence which provides the necessary documentation pursuant to the statute, it is not necessary that the relied upon medical evidence contain an opinion as to substantial aggravation.”

This means that a doctor’s report and opinion does not need to contain the specific words “substantial aggravation”.  This issue is a legal determination based upon all of the evidence regardless of whether the term “substantial aggravation” is present in the causal relationship opinion.

To date, there has been only one published court decision addressing the issue of substantial aggravation.  In Smith v. Lucas County, which is a 6th District Court of Appeals case, (6th Dist. No. L-10-1200, 2011-Ohio-1548) – the claimant sought additional allowance for aggravation of a pre-existing cervical disc condition. The condition was disallowed by the Industrial Commission and the claimant appealed into common pleas court.  The trial court granted the employer’s motion for summary judgment, meaning the employer won the case, finding that there was no pre-injury diagnostic evidence to compare to a post-injury MRI and therefore the claimant failed to prove a “substantial aggravation” under the new statute.  The claimant then appealed to the Sixth District Court of Appeals.  That court affirmed the trial court’s decision, but noted that if the claimant had provided sufficient documentation of her symptoms preceding the injury, substantial aggravation could have been established.  The court stated that such evidence would not necessarily require objective “before” and “after” findings or results.

In the Lucas case, the claimant provided only the treating physician’s affidavit and chart notes which he specifically stated were based on the history which the claimant related to him.  The court noted that the claimant failed to provide any information such as records or a statement from her prior physician and that the [post-injury] MRI revealed only the existence of [the condition] and provided an explanation for the claimant’s current symptoms.  This post injury testing did not establish that the condition was substantially aggravated by the injury because there apparently was no pre-injury information to establish the claimant’s baseline condition.

The Lucas case is a poor beginning, I feel, to the interpretation of “substantial aggravation.”  It is unclear exactly what evidence was adduced in support of the claimant’s position. The court’s opinion is lacking in this respect.  For example, did the treating doctor’s affidavit state that there were no pre-injury symptoms (asymptomatic pre-injury condition).  Or,  was it that the pain was greater after the injury as compared to before the injury?  And, what exactly was the “history which the claimant related to her doctor”?  We really do not know the answers to any of these questions, which makes the decision ambiguous and imprecise.

The encouraging aspect of the Lucas case is the court’s finding that objective “before” evidence is not necessary (meaning objective evidence such as an x-ray or MRI taken prior to the date of injury).  Rather any evidence showing the pre-injury status of the condition in question is sufficient.  Based on the language of the opinion, this pre-injury evidence could take the form of medical records or a physician’s opinion. However, the court made it clear that silence on the issue will not work.

Keep in mind that the statute identifies three types of evidence which can provide the objective support for a substantial aggravation: 1) diagnostic findings; 2) clinical findings; or 3) test results. The statute does not say “and” – it says “or”. Thus, any of these three can provide the required proof.  Moreover, nothing in the statute requires pre and post injury comparisons.  However, as the Lucas court noted, there must be some evidence to describe the pre-injury status of the condition because there is no other way to determine whether a substantial aggravation occurred without knowing the pre-injury, baseline status of that condition.

I am sure that there will be many more decisions on this issue in the future as this is certainly a hot issue and an evolving area of Ohio workers’ compensation law.

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