In 2006, the state enacted Senate Bill 7 which changed many of the laws relating to workers’ compensation. One of the most significant changes made relate to the legal standard in proving an aggravation of a pre-existing condition.
Prior to this law being passed, a pre-existing condition could be made part of a claim by way of aggravation where there was evidence that the injury brought on new or worse symptoms from the pre-existing condition. For example, if a nurse hurt his/her back from lifting a patient, and the symptoms brought on by the injury were determined to be generated from arthritis (typically a pre-existing condition) in the back, the onset of symptoms of arthritis from the injury satisfied the legal requirement of aggravation.
However, Senate Bill 7 limits coverage for pre-existing conditions by forcing additional proof requirements. Now, in order to get coverage for a pre-existing condition, not only must you establish that you suffer pain and limitation from the pre-existing condition, and that the pain and limitation is directly caused by the injury, but the medical evidence must also establish a worsening of the pre-existing condition through an objective diagnostic finding, objective clinical finding or objective test result.
What this means is that previous aggravation claims are no longer recognized where the “objective” diagnostic studies, test results or clinical findings do not support the aggravation. Thus, the pain and limitations brought on your injury are not enough – additional “objective” testing is required to prove that your pain and limitations exist!
What does “objective” mean for purposes of this law? Objective means the condition or complaint can be independently verified. For example, an X-ray is a test result. Where an X-ray show a pre-existing condition, such as arthritis, the test is consider “objective” since a doctor can look at the X-ray and independently confirm that the arthritis exists.
Why does this law make it more difficult to prove aggravation? Our experience thus far with pursuing aggravation cases under this standard is that the hearing officers from the Industrial Commission are requiring much more than medical proof of your pain and limitations. The hearing officers are interpreting the law to require that the evidence establish the existence of “objective” worsening of the pre-existing condition. For example, a hearing officer will grant aggravation where a post-injury X-Ray shows a worsening of the pre-existing condition when comparing it with a pre-injury X-ray.
What about situations where there is no previous testing to compare? In those cases, the aggravation is very difficult, if not impossible to prove. “Objective” tests results, like an EMG (which is a nerve test) that can independent verify nerve damage, are helpful. In addition, “objective” clinical findings, i.e., the results of the doctor’s physical examinations, are also helpful.
Ultimately, the intent of this law is to curb coverage of pre-existing conditions. In those cases where an aggravation is being pursued, it is especially important that you consult with our workers’ compensation specialists to ensure that the necessary proof is generated to support your claim of aggravation, and to ensure that you receive medical and compensation benefits available under you claim.
Thomas J. Schaffer, Esq.
Partner and Administrative Attorney
Workers’ Compensation Section