The question of what actually constitutes substantial aggravation remains murky. While the legislature that enacted substantial aggravation may view this problem as a triumph – their objective was seemingly to enact a law that would make aggravations difficult to demonstrate – the question of how exactly one proves substantial aggravation has proven difficult for the Commission and the courts. The thing that appears most clear at this time is that even though the law is written as if it wants diagnostic testing preceding an injury, the unfairness of such a request means that other evidence must exist that can prove a substantial aggravation occurred (of course some would even disagree with this statement). Various opinions have addressed what might constitute this evidence, but most of those cases have provided small windows and minimal clarity.
One case that seems to offer a promising definition for injured workers trying to prove substantial aggravation is Bohl v. Cassens Transport Co. 2012-Ohio-2248. In Bohl, the appellate court upheld a trial court allowance of substantial aggravation which was based upon a physician’s testimony that his physical findings of reduced range of motion constituted objective evidence of substantial aggravation. To the employer community’s consternation, the court seems to affirm the decision despite the fact that the physician in question did not appear to reference any pre-injury range of motion testing but merely indicated that the reduced range of motion he found would demonstrate substantial aggravation.
While Bohl appears to be a major victory for injured workers, more than a year removed from the decision, it remains difficult to convince Industrial Commission hearing officers that range of motion testing, in and of itself, is objective evidence supporting the allowance of substantial aggravation claims. This obstacle hardly renders Bohl a worthless case. What is most important about the Bohl decision is the court’s confirmation that range of motion testing can be considered an objective finding. Such confirmation opens potentially new avenues to demonstrate substantial aggravation in the absence of a pre-injury MRI. The most likely evidence that could be helpful comes in the form of family doctor records.
Family doctor records can help prove a substantial aggravation claim if they provide some commentary to which post-injury range of motion findings can be compared. Of course, applying this principle sound simpler than it is in practice. Introducing the potential that family doctor records can help prove substantial aggravation produces pitfalls as well as benefits. In the ideal situation, an injured worker will have seen his/her family doctor prior to the injury and that family doctor will have commented on the body part in question; in the best case scenario, that physician will even have provided baseline range of motion findings which can be compared to post-injury findings. A treating physician could then simply compare the findings and opine on substantial aggravation.
As any practitioner who has ever looked at family doctor records knows, this ideal situation is rarely the situation one encounters. Family doctor records run a broad gamut in regard to how much they discuss and how much detail they go into. Some records will discuss only the precise issue a patient came to see the doctor for. Other records, particularly some of the new computerized records, will discuss every single body part, but with almost no detail. Only the rarest of family doctor records will actually discuss the body part in question in any depth. Even then, applying that discussion to substantial aggravation may be difficult. For example, if a family doctor mentions that a patients knee has no issues and the claimant later applies for substantial aggravation of arthritis in that knee, can one use the record do help substantiate that range of motion limitations demonstrate substantial aggravation? It depends on how one views the family doctors opinion. The best argument is that the doctor examined the patient and found no issues – meaning that the range of motion was normal. An employer, of course, is going to argue that the same finding does not specifically address range of motion and therefore cannot be interpreted as such. That being said, given the decision in Bohl, getting even the most basic statement from pre-injury family physician records is probably the best an injured worker can hope for.
Of course, increased use of family doctor records is going to present problems as well as solutions. If decision makers start to expect family doctor records to be entered into the record to demonstrate substantial aggravation some patients will suffer from said expectation. This is because many injured workers lack a family doctor, or see a family doctor infrequently, and, as previously noted, also because most family doctor records might not discuss the body part in question. Therefore, some injured workers may be left in the cold on substantial aggravation claim merely because they lacked a physician or their physician’s notes lacked attention to a body part that may not have caused the patient any issues. The other enormous issue with family doctor records is that they are not limited in scope. Plaintiff’s attorneys often go to great lengths to keep family doctor records out of the workers’ compensation system to protect the privacy of claimants when it comes to non-work related conditions. Creating an expectation that family doctors records will be presented could endanger that protection and using the records would certainly make those other issues more public than an injured worker would prefer. That being said, in a time where substantial aggravation claims are exceedingly difficult to demonstrate, any possible evidence is probably better than no evidence at all. Therefore, given the opening that exists with range of motion claims, it probably is best practice for plaintiff’s attorneys to at least try and obtain family doctor records and, if they mention the body part in question at all, present them to the treating physician for comment. It may provide a way to demonstrate substantial aggravation under a code that has continually made pathways to such allowances difficult to find.