It seems logical that when a claimant requests that a claim be amended to include an additional condition based upon a theory of substantial aggravation, the easiest element to prove would be that the condition pre-existed the date of injury.
Recently, in Houlihan v. Hamilton County, 2021-Ohio-3087, the Ohio First District Court of Appeals found that a claimant must prove a condition existed at the time of the injury before they can establish a substantial aggravation. While this seems simple enough, in most cases where a substantial aggravation is alleged, the analysis of the experts focuses on whether or not the pre-existing condition was substantially aggravated by the work incident. The pre-existent nature of the condition is often treated as a foregone conclusion.
In the Houlihan case, the competing experts disagreed as to the pre-existing nature of the claimant’s alleged low back conditions. The evidence demonstrated the claimant had neither experienced back pain nor been diagnosed with a low back condition prior to the date of injury. The claimant’s expert testified that the claimant had pre-existing and asymptomatic disc degeneration in the low back that was substantially aggravated by the work incident. The Court, however, found this opinion to be scientifically unreliable. The orthopedic studies referenced by the expert were “merely suggestive of a link” between the claimant’s age and a natural degenerative change. The Court noted the expert failed to show the claimant, more likely than not, suffered from pre-existing disc degeneration. The Court went on to state that when an expert fails to explain this element, the expert’s opinion would carry “little if any, weight.” The employer’s expert testified it was impossible to determine when the claimant’s alleged disc conditions developed.
The Court also found the claimant failed to provide any legal support for his contention that he suffered from a substantial aggravation due to repetitive trauma. The claimant argued repetitive trauma had caused a substantial aggravation under the Village case which allows gradually-occurring injuries to be compensable in certain situations, even where there was no single specific injurious event at work. The Court, however, noted it could not find any case law recognizing a “combined repetitive trauma/substantial aggravation theory of causation.”
With this decision, the Court scrutinized the claimant’s expert’s opinion noting the claimant did not have evidence to suggest the alleged low back conditions predated the work incident, therefore he could not demonstrate the conditions were substantially aggravated. Thus, the Court agreed with the trial court’s decision that the claimant did not meet his burden of proof.
The lesson here is that a claimant’s expert’s opinion on causation, under a theory of substantial aggravation, must be scrutinized on the initial issue of whether there is credible evidence that the condition pre-existed the work incident. Houlihan also reinforces the lack of legal support for any alleged repetitive trauma/substantial aggravation theory of causation. This case should benefit employers before the Industrial Commission and certainly offers guidance to counsel for the cross-examination of a claimant’s expert where a claimant proceeds to trial on a theory of substantial aggravation.
© 2021 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XI, Number 274
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Sixth Circuit Rules Conditions Must Pre-Exist in Injury Claims - The National Law Review
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