Claim for Aggravation Can Be Raised For First Time During Court Appeal

Claim for Aggravation Can Be Raised For First Time During Court Appeal

Posted: August, 2011

Starkey v. Builders Firstsource Ohio Valley, L.L.C. (7/7/11), 130 Ohio St.3d 114, 2011-Ohio-3278.

Issue: Can an injured worker pursue a claim for aggravation of a condition on an R.C. §5123.512 appeal even though the only theory of causation which they pursued administratively was direct causation?

Background: Starkey was injured and his workers’ compensation claim was allowed. He later filed to have the additional condition “degenerative osteoarthritis of the left hip” allowed. This condition was allowed administratively and the employer appealed to court.

Starkey’s treating doctor, Dr. G, indicated that Starkey had previously suffered from “degenerative osteoarthritis of the left hip” which was “directly aggravated” by the work injury. The employer’s doctor, Dr. B, also indicated that Starkey had aggravated a previously existing condition.

The trial court granted a directed verdict for the employer, finding that

a claim for aggravation of a preexisting condition is a claim separate and distinct from a claim for that underlying condition itself, and administrative action on one such claim does not without more trigger Common Pleas Court jurisdiction to consider the other.

Starkey appealed. The Court of Appeals reversed, finding that the appeal to court involved the same condition, degenerative osteoarthritis of the left hip, which had been presented administratively. The Court of Appeals found that by claiming aggravation, Starkey only changed the theory of causation. The employer appealed.

Decision: Supreme Court affirms.

In Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, the Supreme Court found that when an injured worker filed an R.C. 4123.512 appeal they could only seek to participate “for those conditions that were addressed in the administrative order from which the appeal is taken.” The Court in Ward specifically stated that it was not determining whether a claim for aggravation could be raised on appeal when only direct causation had been considered at the administrative level.

The employer argues that because the proof necessary for aggravation is different than the proof necessary for direct causation, the claims are different and therefore a claim for aggravation must initially be pursued at the administrative level. The Court rejects this argument.

Under the workers’ compensation system, injured workers must provide a medical diagnosis at the administrative level. They must also provide a causal connection. Ohio law recognizes a number of different types of causal connections, any of which may be considered administratively. The Court finds that an injured worker is not required to pursue a specific theory of causation administratively in order to pursue that theory on an R.C. §4123.512 appeal because:

The ultimate question in a workers’ compensation appeal is the claimant’s right to participate in the fund for an injury received in the course of, and arising out of, the claimant’s employment. As long as the injury has a causal connection— whether direct or aggravated—to the claimant’s employment, the claimant is entitled to benefits.

Editor’s Comment: The Supreme Court’s decision goes beyond just the issue of aggravation/direct causation. The second syllabus of the Court’s decision states:

An appeal taken pursuant to R.C. §4123.512 allows the claimant to present evidence on any theory of causation pertinent to a claim for a medical condition that already has been addressed administratively.

Among the different types of causation recognized in the Court’s decision are: “direct causation, aggravation of a preexisting condition, repetitive trauma, and flow-through.” The Court recognizes that an R.C. §4123.512 appeal involves the injured worker’s right to participate for a specific injury or condition, not a specific theory of causation.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.