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A New Standard for Pre-Existing Injuries
The Ohio Legislature has recently submitted House Bill 72/Senate Bill 7 proposing expansive changes throughout the Ohio Workers’ Compensation arena. Of significant importance to employers is a portion of the bill which appears to expand the definition of “injury,” but in actual effect will limit the scope of the definition. The new Bill has the potential to eliminate claims where an employee is suffering from a pre-existing condition that is merely aggravated by an industrial incident.The Bill expands the definition of “injury” to include a condition or disease that pre-existed an injury, if that pre-existing condition is substantially worsened (or the disease process is substantially accelerated) by the injury, and is documented by diagnostic findings and test results. As the statute stands now, an “injury” is generically defined to include, “any injury . . . received in the course of and arising out of the injured employee’s employment.” The statute then contains a limiting clause stating that injuries or disabilities caused by the natural deterioration of tissue, an organ, or part of the body is not considered an injury for purposes of a compensable workers’ compensation claim.
This limiting clause has been interpreted differently by the Ohio courts, but has remained effectively meaningless since 1990 for pre-existing injuries that are made worse in any degree due to an injury occurring while at work. Prior to 1990, the courts held that in order to be recoverable, a claimant must provide evidence establishing that a pre-existing condition was substantially aggravated by a work-related injury. Unfortunately for employers, this case was overturned in 1990 by the Ohio Supreme Court when it ruled that if an injured worker can show a pre-existing condition was aggravated by a work-related incident, the aggravation need not be of any particular magnitude in order to entitle him to benefits.
For example, if an employer hired an employee suffering from degenerative arthritis in the knees after 1990, and the employee then suffered a minor fall, the chances for his recovery for aggravation of pre-existing arthritis were very good. Under the existing standard, for all practical purposes, if the employee alleges complaints different from those prior to the incident, he can recover for an aggravation claim. Even with diagnostic tests confirming he was suffering from severe arthritis prior to the accident, if the employee alleged new and different symptoms, the balance was stacked in his favor to recover for an aggravation claim.
If these Bills are passed into law, employers will no longer be held responsible for the costs of employees who are suffering from clear, pre-existing conditions who suffered only minor aggravations. With the passage of these laws, the balance will return, and an employee will have to prove the pre-existing condition was substantially aggravated with objective diagnostic evidence, rather than with mere allegations and complaints.
Make sure to read all the other legislative updates our attorneys have prepared for this edition. We are always vigilant for changes that may affect your company.