One of the most impactful parts of the legislation passed in 2006 was the change from permitting aggravation of any magnitude to requiring a “substantial aggravation.” Tied in with the defining of substantial aggravation in the new law were provisions regarding a return to baseline. The return to baseline provisions provide that if a preexisting condition that was substantially aggravated returns to the level it was prior to the aggravation, the claim can abate. Interestingly, unlike with the provisions regarding substantial aggravation itself, the legislature included the return to baseline language with almost no direct definitions.
Now that nearly seven years have passed since these legislative changes became law, motions for return to baseline are beginning to pop up. While they do not appear to be overwhelmingly common, their mere existence makes it important to further examine what the precise meaning of return to baseline is. Fortunately, while the statute lacks a direct definition of the requirements for finding a return to baseline, it does provide other language which clearly demonstrates what should be required to find a return to baseline. As the following will demonstrate, as with substantial aggravation itself, proof of return to baseline should require objective evidence.
Clarity regarding the definition of return to baseline requires looking at how that term fits into the statute. Return to baseline is defined under R.C. 4123.54(G), which states, “If a condition that pre-existed an injury is substantially aggravated by the injury, and that substantial aggravation is documented by objective diagnostic findings, objective clinical findings, or objective test results, no compensation or benefits are payable because of the pre-existing condition once that condition has returned to a level that would have existed without the injury.” As this provision demonstrates, in order to reach the return to baseline question, one must have two elements: 1) a preexisting condition and 2) a substantial aggravation of that preexisting condition. As the change from the preexisting condition to the post-injury status is the substantial aggravation, the only way that one can “return to baseline” would be if that substantial aggravation goes away. As such, a determination of how “return to baseline” must be defined must start with an understanding of the justifications for a substantial aggravation finding.
Substantial aggravation is defined by the statute under R.C. 4123.01(C)(4), where it defines as compensable: “(4) 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 diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.”
To emphasize, in order to prove an allowance of substantial aggravation, an injured worker must demonstrate some objective change created by the injury. This means, that in cases of substantial aggravation, the difference between the baseline status and the post-injury status has already been demonstrated by objective evidence on the record. Once one understands that objective evidence was the basis for determining a condition has been substantially aggravation from baseline, one can clearly see what would be required to prove a return to baseline. Simply stated, if objective evidence demonstrated a change from baseline, one should need objective evidence that demonstrates that the baseline has been returned to. Based on the statute, this means that an employer should be required to present objective diagnostic findings, objective clinical findings, or objective tests results that demonstrate that the condition has returned to its preinjury states. To put it more simply, this objective evidence would have to demonstrate that any changes which occurred as a result of the injury are no longer present.
The essence of this article is to demonstrate that proving return to baseline should require objective evidence that clearly demonstrates that the changes which occurred following an injury no longer exist. The evidence supporting such a requirement is clear when one notes the fact that the return to baseline provisions of the statute not only cite the existence of a substantial aggravation, but emphasize the fact that the substantial aggravation necessarily involves a demonstration of objective changes. Clearly, if the statute requires objective evidence that a substantial aggravation occurred, objective evidence must necessarily be provided to demonstrate that a substantial aggravation has gone away.