Pursuant to O.C.G.A. § 34-9-1 (4), a compensable injury “. . . shall include the aggravation of a preexisting condition by accident arising out of and
Pursuant to O.C.G.A. § 34-9-1 (4), a compensable injury “. . . shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability.”
As it now stands in Georgia, the employer takes its employees as they are and assumes the risk of being responsible for an aggravation to a preexisting condition if the aggravation arises out of and in the course of a worker’s employment. Although employers are not responsible for employees’ preexisting ailments and conditions, it is well established that it may very well be responsible for a condition that, when combined with a preexisting problem, results in an injury to an employee. Simply put, an employer takes an employee as it finds him or her, that is, with existing health conditions.
In sum, if the employment contributes to the aggravation of a preexisting injury in any way, it is considered a compensable accident under our compensation laws – even if the same employment circumstances would not have resulted in an injury to a “healthy” worker without preexisting health conditions. Colonial Stores v. Hambrick, 176 Ga. App. 544, 336 S.E.2d 617 (1985). It matters not that a work condition or incident would not normally give rise to an injury in a person without a preexisting medical issue.
An aggravation can be a specific accident, a general working condition or, simply, a gradual worsening of an existing disease or injury. In other words, a claimant does not have to prove a specific accident, which makes these types of claims even more difficult to defend. For instance, in the case of Colonial Stores, the claimant had a preexisting pulmonary disease which was aggravated by his work moving frozen foods in and out of a large freezer. In this case, the Court specifically held that it is not necessary for there to be a specific job-connected incident at a specific time and place which aggravates a previous injury. Instead, the onset of the disability may be imperceptible from day to day. In The Home Depo et al. v. McCreary, it was suggested that plain job stress can be an aggravating “work condition” which, when combined with a previously unknown preexisting cognitive condition, could result in compensable claim. 306 Ga. App. 805, 703 S.E.2d 392 (2010).
This rule has been extended to mental disability as well. In fact, the Georgia Court of Appeals has held that, even though a specific work injury did not cause an employee’s mental disability, if the employee’s work was even just a part of the reason for its continuation, then the mental disability would be considered compensable. Fortunately, the Court also confirmed that, once the impact from the employees work ceased to affect the claimant, the employer would not be responsible for an underlying mental disability. Logan v. St. Joseph Hospital, 227 Ga. App. 853, 490 S.E.2d 483 (1997).
With these examples in mind, the prospect of getting a claimant back to suitable employment or closing one of these difficult claims altogether may seem daunting, especially if the employee’s prior condition is a chronic one. However, it must be remembered when dealing with these challenging claims that an employer is only responsible for a workers’ condition only for as long as the aggravation continues. Simply put, once the aggravation of the employee’s preexisting condition ceases, so does the employer’s liability for providing benefits. What this means is, even if an employer finds itself responsible for paying benefits under these “aggravating” circumstances, it does not mean the situation has to be permanent one.
The recent Georgia Court of Appeals case of Big Lots et al. v. Kiker confirmed this rule of law. 304 Ga. App. 190, 695 S.E.2d 710 (2010). In this case, the claimant was a cashier at Big Lots who incurred a compensable accident and injury in July of 2002 when her preexisting back condition was aggravated by her work. As a result, she was entitled to ongoing indemnity and medical benefits.
However, in 2009, the employer filed a hearing for a “change in condition” for the better based upon medical evidence which indicated the claimant’s 2002 back injury had resolved. In order to terminate benefits, the employer had to prove Kiker’s condition (at that time) was no longer related to the aggravation of her preexisting injury. To do this, the employer submitted medical evidence showing that the claimant’s injury had resolved and ceased to be the cause of her current problems and that the claimant had returned, in effect, to the baseline medical condition she was in before her 2002 injury.
The primary evidence the employer presented to show the claimant’s aggravation had resolved included a physician’s medical opinion, medical examinations and testing done on Kiker through June of 2008. The medical evidence in the Big Lots case established that 1.) the claimant’s July 2002 aggravation had resolved, 2.) her preexisting back condition progressively worsened apart from any aggravation initially caused by the July 2002 injury and, 3.) her present back-related disability was caused, not by her July 2002 injury, but by her preexisting back condition. Kiker confirmed that, with adequate medical documentation, an employer can be successful in its efforts to discontinue benefits when an aggravation ceases to be the proximate cause of an employee’s continued health problems.
That being said, unfortunately, treatment and worker’s compensation benefits needlessly continue sometimes long after an aggravation ceases to be the cause of ongoing medical problems – unless the employer takes proactive steps to suspend benefits. As a practical matter, many physicians will continue to treat claimants without separating a preexisting condition from an aggravation of that condition. Put another way, they will not address what is causing a worker’s current medical problems unless they are asked to do so. Therefore, it is incumbent upon the employers and insurers to take an active roll in the workers’ medical treatment and closely monitor the medical situation in any claim involving a preexisting injury to make sure they are not paying benefits for a condition the worker had before his or her injury.
Cases involving aggravations of preexisting injuries are, by nature, extremely fact sensitive. Therefore, the type and quality of medical evidence the employer presents in court may very well determine the success of its effort to suspend benefits due to the resolution of an aggravation. With this in mind, it is important to first secure this favorable documentation from the authorized treating physician (ATP), if possible.
This documentation may be readily available in the claimant’s treatment notes. However, it very well may be that the issue of causation is not on the treating physician’s “radar” and, therefore, will not be addressed in the physician’s office notes. In such circumstances, the ATP can be asked to address and update the employer periodically regarding whether the claimant’s condition is still due to an aggravation or, in the alternative, whether the aggravation has resolved.
Favorable medical documentation may also be obtained at any juncture in the claim by simply asking the ATP to address the specific issue of causation – either in the form of an opinion letter or by answering a questionnaire. However, in some cases, an employer may ultimately have to resort to obtaining an independent medical examination if it is unable to otherwise secure a favorable opinion from the ATP. Once the authorized treating physician (or IME physician) indicates an aggravation has resolved, steps can be taken to limit or suspend benefits altogether, including filing for a change in condition, as the employer did in Kiker.
Although injuries caused by aggravations of preexisting conditions can certainly be challenging to manage and defend, with diligence and proactive efforts, the life of these claims can, many times, be significantly shortened. In the end, if an employer can show the aggravation of a preexisting injury or condition has resolved and the claimant has returned to his pre-aggravation baseline – it very well may mean the resolution of the compensable injury and a resolution of the claim altogether.