IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff-Appellee, : Case No. 10 CV 1315 ANCHOR ACQUISITION, LLC, : JUDGMENT ENTRY

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO JAMES GLEISSNER, : Plaintiff-Appellee, : Case No. 10 CV 1315 v. : Judge Berens ANCHOR ACQUISITION, LLC, : JUDGMENT ENTRY Defendant-Appellant. : This matter is before the Court for a trial by brief on the terms contained in the Stipulation filed July 20, For the following reasons, judgment is entered in favor of Defendant. STATEMENT OF THE CASE This is an appeal from the final decision of the Industrial Commission of Ohio, pursuant to R.C Plaintiff s Workers Compensation claim arose from an injury while employed by Defendant on September 5, That claim was allowed for a number of conditions in On May 23, 2008, Plaintiff requested an additional claim be allowed for spinal stenosis at L4-5; aggravation of pre-existing facet join arthropathy. That claim was modified and allowed for substantial aggravation facet joint arthropathy with spinal stenosis L4-5. Defendant appealed to this Court. The parties have stipulated to the evidence and the issues before the Court. Plaintiff offers the medical records and opinions of Dr. Brian Higgins, D.O. Dr. Higgins treated Plaintiff beginning October 4, Among other tests, Dr. Higgins ordered x-rays of Plaintiff s cervical, thoracic, and lumbar spine. That x-ray was performed on October 5, 2007 (one month after Plaintiff s injury) and read by Dr. Steven J. Mustric, M.D. Among his findings, Dr. Mustric noted, there is prominent facet arthropathy at L4-L5 and L5-S1. Dr. Higgins thereafter 1

2 ordered an MRI of Plaintiff s lumbo-sacral spine, which was performed on October 24, 2007 and interpreted by Dr. Harry Zibners, M.D. Dr. Zibners noted he had no prior films for comparisons. Dr. Zibners further found, [a]t L4-5, hypertrophic change in the facet joints is present * * * At L5-S1, no abnormality is identified except for moderate hypertrophic changes in the facet joints. On May 13, 2008, Dr. Higgins gave his opinion that there has been substantial aggravation of preexisting conditions of facet joint arthropathy and spinal stenosis. This is based on the fact that there are changes in the MRI. Defendant offers the opinions of Dr. David Hannallah, M.D. Dr. Hannallah did not physically examine Plaintiff, but reviewed his medical records. That included the records of Dr. Higgins. Dr. Hannallah concluded that Plaintiff has spinal stenosis at the L4-L5 level. But he further opined that condition was not substantially aggravated by Plaintiff s injury on September 5, Dr. Hannallah concluded that Plaintiff s conditions are the result of chronic degenerative changes in the lumbar spine. LAW & ANALYSIS The issue before the court is whether the medical evidence is sufficient to meet the standard for substantial aggravation set forth in the Revised Code. R.C (C)(4) defines injury to exclude a condition that pre-existed an injury unless that pre-existing condition is substantially aggravated by the injury. The definition also defines what evidence is required to demonstrate substantial aggravation. It states, such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation. 2

3 Plaintiff asserts that the MRI referred to by Dr. Higgins, along with Dr. Higgins repeated examinations of Plaintiff in which Plaintiff reported his symptoms and Dr. Higgins performed tests to examine the severity of those symptoms, satisfies the requirement of objective test results or objective clinical findings. Defendant argues that Plaintiff cannot meet the burden of documenting substantial aggravation with objective diagnostic findings, objective clinical findings, or objective test results because all of the medical evidence was gathered and evaluated Plaintiff only after the date of his injury. Defendant maintains that Dr. Higgins objective findings show only the existence of facet joint arthropathy and spinal stenosis and do not show the aggravation of those conditions. The Court agrees with Defendant. The Revised Code requires that substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. 1 Although the code does not define aggravation, that term has been subject to a great deal of judicial consideration and has come to mean worsened symptoms or a worsening condition. 2 In either event, aggravation is a type of causation typified by the fact that an existing condition has become worse in some way. 3 The Court finds, therefore, that R.C (C)(4) requires objective diagnostic findings, objective clinical findings, or objective test results that document the fact that the claimant s condition has become worse. 4 1 R.C (C)(4). 2 See e.g., Pflanz v. Lof, 2011-Ohio-2670, at 15, quoting Gower v. Conrad (2001), 146 Ohio App.3d 200, 204, 765 N.E.2d 905. The Court notes that although worsened symptoms might no longer be sufficient to meet the burden of proof alone, worsened symptoms are likely to be the first sign of aggravation to the person with the condition. 3 See Starkey v. Builders FirstSource Ohio Valley, LLC, Slip Opinion No Ohio The Court is conscious that the law requires the statute to be liberally construed in favor of Plaintiff, but the language of the statute is not ambiguous and therefore it requires no construction. 3

4 Applying the requirement of R.C (C)(4) to the facts in this case, the Court finds that Plaintiff has failed to demonstrate substantial aggravation. The objective tests and findings in the medical records were all conducted after the date of Plaintiff s injury. Although there can be no question that Plaintiff has facet joint arthropathy and spinal stenosis, there is no objective evidence that those conditions were made worse (or aggravated ) by his injury or to what degree they were made worse (that is, whether any aggravation was substantial ). Instead, in coming to his conclusion that Plaintiff s conditions were substantially aggravated by the injury, 5 Dr. Higgins relied on Plaintiff s report that he experienced no symptoms before the injury occurred. Plaintiff s reports of symptoms are subjective complaints, which constitute evidence of substantial aggravation, but which are insufficient to establish substantial aggravation under R.C (C)(4) without the aid of objective findings or test results. For the reasons set forth above, the Court finds that Plaintiff James Gleissner is not entitled to continue to participate in the benefits of the workers compensation system for the conditions of substantial aggravation facet joint arthropathy with spinal stenosis L4-5. Accordingly, judgment is hereby ENTERED in favor of Defendant. The Court further ORDERS the costs of this action to be paid by Defendant-Appellant, Anchor Acquisitions, LLC. The fact of this Judgment Entry shall be certified to the Industrial Commission, pursuant to R.C (E). IT IS SO ORDERED. Judge Richard E. Berens 5 As opposed to whether Plaintiff had the conditions at all. 4

5 Copies to: Eric Tarbox, Workers Compensation Section, 150 E. Gay St, 22d Fl., Columbus, OH Gloria Castrodale, 1241 Dublin Rd., Ste 103, Columbus, OH Robert Dodd, P.O. Box 726, New Lexington, OH Andrew Adams, 136 W. Mound St., Columbus, OH Filed December 5,