October of 2016 will mark the 10 year anniversary of the effective date of Senate Bill 7, which changed the definition of a workers’ compensation injury with respect to aggravation of a pre-existing condition. Specifically, R.C. 4123.01(C)(4) was modified to require that a workers’ compensation injury can only include a pre-existing condition if that condition is “substantially aggravated” by the injury. The statute further provides that a substantial aggravation must be documented by “objective diagnostic findings, objective clinical findings, or objective test results.”
Despite the relatively straightforward language in the statute, confusion and inconsistency have abounded in administrative proceedings in which injured workers’ seek to have their claims recognized for “substantial aggravation” of a pre-existing condition. Very recently, the Tenth District Court of Appeals has provided some clarity in Anderson v. Buehrer, et al., No. 15AP-633.
In the Anderson case, the injured worker filed a claim in 1998. After undergoing an MRI in 2012, the injured worker’s 1998 claim was amended to include the three new conditions revealed in the test. He received treatment and compensation accordingly. In 2013, the injured worker submitted a new claim for substantial aggravation of the same three new conditions. When his new claim was denied by the Industrial Commission, the injured worker filed a court appeal in the Franklin County Court of Common Pleas. The employer filed for summary judgment, which was granted by the trial court. The injured worker filed an appeal, arguing that summary judgment was not appropriate.
The Court of Appeals agreed with the trial court. The Court first noted that the evidence the injured worker relied on to support substantial aggravation of the three new conditions is the same evidence relied upon to support the allowance of these conditions in his 1998 claim. More importantly, the Court discussed each of the three pieces of evidence relied upon by the injured worker to demonstrate a substantial aggravation theory of causation: 1) a doctor’s office visit note, 2) a doctor’s letter, and 3) an MRI. Each was found to be insufficient to demonstrate substantial aggravation. With respect to the office visit note, the doctor found tenderness and positive impingement tests. However, the Court found that these were the same findings as in pre-injury notes. Moreover, the Court noted that there was no evidence of decreased range of motion. The Court also found that a change in medication alone, without further explanation, does not prove substantial aggravation. With respect to the doctor’s letter, the Court found that the mere statement that a substantial aggravation occurred, without citation to any diagnostic or physical findings, is inadequate. Lastly, the Court found the MRI findings alone to be insufficient without a physician’s explanation or comparison to a previous MRI.
The ruling in this case should prove very useful to employers arguing that an injured worker has not met his or her burden in establishing a substantial aggravation theory of causation.