Starkey v. Builders FirstSource Ohio Valley, LLC, Slip Opinion No. 2011-Ohio-3278
The Ohio Supreme Court, in Starkey v. Builders FirstSource Ohio Valley, LLC, recently weighed in on the question of whether a worker’s compensation claim for a certain medical condition encompasses each theory of causation, or whether each theory of causation must first be considered administratively. In other words, when a claim is on appeal to the trial court, is the injured worker permitted to raise a theory of direct causation or aggravation for the first time even if one of those theories was not advanced at the Industrial Commission? The Ohio Supreme Court, in Starkey, answered that it is permissible for the injured worker to advance a different theory of causation at the trial court level for a medical condition on appeal.
The claimant in Starkey sustained a compensable injury. One of the allowances involved the left hip. Two years after the injury the injured worker sought to have his claim additionally allowed for the condition of degenerative osteoarthritis of the left hip. The claimant was successful administratively in having his claim amended to include this condition. Importantly, the condition was allowed by the Industrial Commission on the theory of direct causation. The employer appealed the matter into Court. During the trial, the injured worker’s expert testified that the pre- existing left hip osteoarthritis was aggravated by the industrial injury. Because the injured worker did not present this theory of causation before the Industrial Commission, the employer filed a motion for directed verdict. The trial court granted the motion, and an appeal ensued to the Court of Appeals. The Court of Appeals reversed the decision of the trial court noting that the injured worker merely changed the type of causation at the trial court level.
The Ohio Supreme Court affirmed the decision of the Court of Appeals and held: (1) because aggravation of a preexisting medical condition is a type of causation, it is not a separate condition or injury, and (2) an appeal to the Court of Common Pleas under O.R.C. 4123.512 allows the claimant to present evidence on any theory of causation pertinent to a claim for a medical condition as long as that medical condition was addressed administratively. The Court noted that although the appeal to the trial court is de novo, the issue before the trial court is the claimant’s right to participate in the fund for a specific injury, not for a specific type of causation. The Court’s decision in Starkey did not overrule its prior decision in Ward v. Kroger (2005), 106 Ohio St.3d 35. Rather, the decision in Starkey allowed the Court to consider an issue left open after Ward. The Court in Ward held that an appeal under O.R.C. 4123.512 to the Court of Common Pleas can only encompass those conditions that were addressed in the administrative order from which the appeal is taken. Thus, claimants may change their theory of causation (direct causation to aggravation or vice versa) on a particular condition between the administrative level and the trial court; however, claimants are not permitted to raise new conditions at the trial court level that were not addressed in the final appealable hearing order.
The Starkey case puts to rest the issue left open after Ward of whether a claimant must stick with the theory of causation (direct or aggravation) that he or she presented before the Industrial Commission. Because claimant’s no longer have to stick with their original theories of causation when on appeal to the Court of Common Pleas, it is all the more important that discovery be undertaken. In the post SB 7 era, claimants want to pursue claims on a direct causation theory administratively because the chances of success are much greater when not faced with the “substantial aggravation” requirements under O.R.C. 4123.01. Thus, claimants now know that they can easily and without penalty change their theory of causation when on appeal. This means that there may be an increase in claimant medical opinions on a direct causation basis. It will be incumbent upon employers to present evidence to the Commission that there are preexisting conditions for that particular claimant and that the Commission must use the proper standards under “substantial aggravation.” Further, when on appeal, it will be necessary to establish early on, through answers to discovery, whether the claimant is pursuing the case on a direct causation or aggravation basis. Establishing this early on in the case should allow the employer to seek any necessary continuances from the trial court if the claimant later presents expert reports or testimony inconsistent with the original discovery responses regarding the theory of causation.
If you would like a full copy of the opinion, or if you have any other questions related to matters of Workers’ Compensation, please feel free to contact one of our statewide Workers’ Compensation Practice Group Members to discuss.