Everyone who practices workers’ compensation knows that SB7 changed the aggravation standard to a substantial aggravation supported by objective findings. Everyone in the field also knows that almost eight years later, the exact definition of objective findings remains a mystery. The lack of a pure definition of objective findings has caused significant issues for those of us who represent injured workers. Obviously, most cases do not present the kind of objective findings that would make proving substantial aggravation claims easiest to prove, namely baseline testing prior to the occurrence of an injury. Without such testing, injured workers forced to make a host of arguments which may or may not be considered based on objective findings depending on the adjudicator. Unfortunately for injured workers, the justification most commonly offered as supporting conditions by both injured workers and their physicians – the absence of problems preceding an injury – is often deemed not objective by the Industrial Commission and the courts, based on the determination that the complaints themselves are subjective. Since the statute makes clear that complaints deemed subjective can only help to support a substantial aggravation claim when objective findings are present, but cannot support substantial aggravation claims without objective medical findings laying the foundation for the condition, requests based solely on subjective history are routinely denied. These leave injured workers needing to figure out which portion of their case can actually be deemed objective enough to give them a chance at winning a substantial aggravation claim.
This need for objective findings has forced practitioners to comb medical files for anything even slightly resembling an objective finding. In so doing, however, I believe that many claimant’s attorneys and attorneys may be overlooking a clear cut objective finding that exists: the trauma sustained during the injury itself.
Once a workers’ compensation claim is allowed, the existence of injuries resulting from a specific event become an objective fact in a workers’ compensation claim. For example, if someone states that they fell on ice and landed on his or her knee, once a claim is allowed, it can be stated objectively that the individual suffered a knee injury from landing on his or her knee. At that point, based on the unquestionable modality of the injury, it can be stated objectively that the injured worker suffered trauma to his or her knee when he or she fell on the ice. There is no reason that the evidence of such a trauma could not be considered an objective clinical finding under the statute. Therefore, a physician should simply be able to state that there is objective evidence of trauma to the injured area. In order to meet the statutory definition of objective clinical finding, the physician would likely need to note that the examination he/she performed supported the repercussions of the trauma. But if the physician elaborates in such a fashion and also indicates that the type of trauma would be sufficient to cause a substantial aggravation it could be enough to meet the minimum statutory requirements. The physician could bolster the case, as per the statutory allowance, by adding the subjective complaints, i.e. the absence of problems prior to the injury, as further evidence that a substantial aggravation occurred.
The obvious counterargument to the proposition that trauma meets the definition set forth in R.C. 4123.01 is that the trauma itself, even if it is objective, may not meet the statutory criteria of “objective diagnostic findings, objective clinical findings, or objective test results.” That position would be based on the argument that trauma is not a “diagnostic finding, a clinical finding, or a test result.” But this problem may be easily solved by objective clinical findings that both could verify the trauma and be relatively easy to identify. For example, bruising, swelling and limited range of motion can all be proffered as objective clinical findings that prove the existence of a traumatic injury. From there, a physician can argue that there is objective evidence of trauma from both the accepted nature of the injury and the objective clinical findings. Under the statute, an argument could then be made, that the nature of the trauma itself, when proven by these objective facts, and bolstered further by the permissible support of subjective evidence from the claimant, can meet the statutory requirements of R.C. 4123.01. Ultimately, the key is that the objective trauma can be objectively demonstrated and is of such a nature that it would cause substantial aggravation of a condition. To return to the fall on ice example used earlier, the argument would be that the trauma itself, which is objectively accepted as part of the claim and supported by clinical findings such as bruising, swelling and limited range of motion, is of such a nature that it objectively supports substantial aggravation of a preexisting condition when combined with the claimant’s subjective lack of preinjury complaints compared significant postinjury complaints.
While this theory of substantial aggravation, to my knowledge, has yet to be tested in the courts, it certainly seems to meet the minimum requirements of the statute. It also seems to be the best chance of solving the issue that those of who are on the claimant’s side of the aisle most often run into – which is that physicians don’t’ understand how to justify a claim for substantial aggravation when the primary basis they have for agreeing to that diagnosis is the absence of complaints prior to the injury. With the argument described herein, they merely need to enumerate the position they often leave unsaid, which is that the reason that they are willing to rely on the presence of post-injury subjective complaints as the basis for a subjective aggravation finding is that they have objective evidence that trauma occurred and that the trauma itself is of the nature to justify a substantial aggravation finding.