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Employers were pleased when Ohio legislators enacted a law stating that a claim could not be allowed for substantial aggravation of a pre-existing condition unless there was objective evidence of the condition prior to the claim. (Interpretation provided by my attorney.)

Objective evidence of aggravation should be an x-ray, MRI, or other objective test performed prior to the date of injury. After all, how can it be determined whether there is substantial aggravation if there is no objective evidence of the claimant’s condition prior to the date of injury?

But decisions from hearing officers are not consistent. One hearing officer will require MRI, x-ray or other objective tests while another hearing officer doesn’t require anything. Some hearing officers apparently think a claimant saying “it never bothered me until the accident at work, and now it bothers me all the time” is sufficient to allow the condition.

Why is it important? Here’s a story:

The claimant fell on her arm. The diagnosis was contusion and sprain shoulder. Then the x-ray and MRI showed a massive chronic rotator cuff tear, so severe that it could not be surgically repaired. The claimant filed to get the claim additionally allowed for torn rotator cuff, but it was denied because all doctors agreed that the tear was chronic and not new.

Then the claimant filed for substantial aggravation of rotator cuff tear. The District Hearing Officer disallowed the claim, but the Staff Hearing Officer allowed it, even though there is no objective evidence of the tear prior to the date of injury. The Industrial Commission has stated that it will accept an appeal when it wants to clarify an issue, but in this case it refused to grant another hearing. The employer filed a motion to the court of common pleas to grant summary judgment, but the court dismissed the motion without mentioning a reason.

The doctor has over treated so much that the claimant’s condition has worsened, and the employer is paying for it because the treatments are charged to the employer’s premiums.

How can the Industrial Commission and the court get away with ignoring the law?

I just visited the new and improved Industrial Commission (ICO) website, ohioic.com, and I am favorably impressed. The site is bright and appealing, and it was easy to access the pages I use the most. I didn’t look at everything, but I liked what I saw.

However, I find it ironic that under News and Press Releases, there is a lengthy explanation of a court case that upheld the Industrial Commission officers ruling in a permanent total disability (PTD) claim. The claimant is named and his physical limitations are clearly identified.

Why is this ironic? Since S.B. 7 took effect in 2008, the ICO no longer makes available the decisions of its hearing officers for attorneys to review when preparing their appeals to the Commission. This means that attorneys don’t know how the hearing officers made their decisions in similar cases, which also means that employers and claimants may incur unnecessary legal expenses for appeals that will probably not succeed. And yet here is the ICO, bragging about a court decision that upheld one of its decisions. Why the double standard?