Shortly after the first of the year, I am scheduled to present oral argument to the Sixth District Court of Appeals in a case which could produce the first appellate decision interpreting a recent amendment to the Ohio workers’ compensation act regarding the proof necessary to establish a claim for substantial aggravation of a pre-existing condition.
Ohio has long recognized the right to workers’ compensation protection when a work-related accident results in the aggravation of a pre-existing medical condition. While the recognition of aggravation of a pre-existing condition as a compensable injury has been part of the law for a long time, however, there has seldom been any general agreement regarding what must be proven in order to establish an aggravation claim. The continuing controversy in this area has been fueled by the fact that, until recently, there was no statutory test for establishing an aggravation claim, and courts have often disagreed with each other about what was required.
In 2006, the General Assembly enacted the first Ohio statute dealing specifically with aggravation claims. The key points in this legislation are: 1) workers’ compensation coverage will not apply to a pre-existing condition unless there has been a substantial aggravation of that condition; 2) substantial aggravation must be documented by objective diagnostic or clinical findings or objective test results; and 3) while an injured workers’ subjective complaints of pain or other symptoms may be evidence of a substantial aggravation such statements are not legally sufficient if they are not accompanied by objective medical evidence.
Since the enactment of this legislation, one of the key debates has centered around whether proof of a substantial aggravation requires objective evidence regarding the severity of the pre-existing condition before, as well as after, the work-related injury. Employer advocates have argued that unless such before-and-after evidence is required, there is no way to know whether the pre-existing condition has been made worse. Employee representatives have argued that an injured worker’s statements regarding the changes in symptoms or functional abilities are evidence of substantial aggravation, as long as they are accompanied by objective medical evidence which shows that there is a medically demonstrated basis for those complaints. In its most basic terms, this is the issue which is soon to be decided by the court of appeals and that court’s decision will have an important impact on future cases under the substantial aggravation standard.