Substantial Aggravation of Pre-Existing Condition in Ohio Workers Compensation Injury

by michael on April 13, 2011

In the previous blog we discussed pre-existing conditions diagnosed in an Ohio workers compensation claim. If the work-related injury occurred on or after 6-30-06 R.C. 4123.01(C)(4) states that an 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 test results..Subjective complaints may be evidence of such a substantial aggravation..However, subjective complaints without objective test diagnostic findings,objective clinical findings or objective test results are insufficient to substantiate a substantial aggravation”.

Thus, it is not enough for the doctor to solely base his/her opinion of an aggravation upon the history that the patient had no(or minimal) prior complaints of neck or low back problems and that all the problems from the pre-existing condition started with the injury or that the patient only experienced minimal complaints which worsened after the injury.What if the injured worker had no prior complaints or treatments pertaining to the neck, slipped and fell at work, injured the neck, had the claim allowed for a cervical sprain , had persistent neck pain, underwent an MRI which revealed a bulging C5-6 cervical disc and degenerative disc disease? The before-and-after history of the patient can be considered by the doctor supported by clinical findings(ie limited range of neck motion,muscle spasm,positive compression test, radicular sensory or motor deficit etc.). The MRI test findings can also be considered.What about comparative findings and test results before and after the accident?If the injured worker had no prior neck problems or treatments, then such” true comparisons” cannot be made by the doctor as there are no prior complaints and findings to review.However, as a practice tip, I would have the injured worker obtain copies of all medical records from any treating physician for at least 5 years prior to the injury to confirm that there were no complaints or treatments regarding the neck.In other words, objective medical evidence of the condition or symptoms prior to the injury (none) can be compared to the symptoms and findings after the injury(all).Why go through this extra step? In the recent case of Smith v.Lucas County, 2011-Ohio-1548(OH CA 6) decided 3-31-11, the Court held that the injured worker failed, as a matter of law, to meet the statutory requirements of a substantial aggravation of a pre-existing condition of the cervical spine in that such aggravation was not documented by objective medical evidence of the pre-existing condition both before and after the industrial injury.In the Smith case, the court suggested that if the injured worker had provided any medical records or a statement from her treating physician prior to the work injury as to her pre-existing condition or symptoms then reasonable minds could come to different conclusions so as to permit the injured worker to proceed to trial on the substantial aggravation issue.The Court further noted that such evidence would not necessarily require objective “before” and “after” findings or results.The evidentiary proof appears to be: documented symptoms and findings(or test results) of pre-existing condition before and after the injury + disability caused by the injury accelerated by a substantial period of time = substantial aggravation of pre-existing condition.

Common types of aggravated pre-existing conditions: osteoarthritis,  degenerative disc disease, spinal stenosis,spondylolisthesis,diabetes,cardiovascular disease



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