A New Standard for the Aggravation of a Pre-Existing Condition: Is the Aggravation Substantial?
By Anthony A. Baucco
As an employer, you take your employees as you find them. You assume the risk that your new employee may have a pre-existing medical condition that could be aggravated by an unfortunate work-related injury. For instance, you’ll rarely have any idea that your otherwise healthy new employee has a moderate age-related arthritic condition throughout the discs of his lumbar spine. After that healthy new employee sustains a lumbar sprain on the job, you’ll eventually wonder why it is taking him so long to recover from the injury. A lumbar MRI will soon reveal the hidden pre-existing arthritic condition. Your employee’s treating physician will next opine that the work-related injury aggravated this pre-existing condition. Before you know it, your now-disabled employee will be requesting an additional allowance, for aggravation of pre-existing degenerative disc disease of the lumbar spine. Now what?
For all injuries prior to October 11, 2006, Ohio law favors your employee, as many employers unfortunately know from experience. Your employee’s aggravation of a pre-existing condition does not have to be “substantial” to be compensable. This means that your employee’s subjective complaints are enough to prove an aggravation occurred. Your employee is not required to provide any objective diagnostic or clinical findings which support a worsening of the pre-existing condition. Furthermore, employers will continue to be held responsible for the work-related aggravation, even after it has subsided and the pre-existing condition returns to pre-injury status.
Senate Bill 7 recently revised the Ohio Revised Code in favor of employers. Effective October 11, 2006, aggravations now must be substantial to be compensable. A substantial aggravation must be documented by objective diagnostic findings, objective clinical findings or objective test results. A claimant’s subjective complaints may still be considered evidence of a substantial aggravation, but said complaints, without objective findings, are alone insufficient to prove a substantial aggravation. Simply put, this major change in the law will make it much more difficult for an employee to claim aggravation of a pre-existing condition.
Additionally, the Ohio Revised Code now provides that even if a substantial aggravation is proven, no compensation or benefits are payable because of the pre-existing condition once that condition has returned to a level that would have existed without the injury. Again, this is another major change in the law and it will be interesting to see how this change is handled in hearings before the Industrial Commission.
Last but not least, the Industrial Commission recently issued a new memorandum under its policy statements and guidelines. Hearing officers must ensure that an order is clear as to which standard of aggravation is being applied in a claim. Furthermore, if a hearing officer allows a claim for a substantial aggravation, the order must specifically cite the objective evidence being relied upon.
Aggravated by an aggravation issue? Please do not hesitate to contact Tony or any of the workers’ compensation attorneys at RBS to discuss the applicable standard in your specific situation.