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Temporarily Aggravated

Robert Gruber

We have written about aggravation of pre-existing condition claims in South Carolina; so you are familiar with the legal standard. The claimant has the burden to prove, by a preponderance of the evidence including medical evidence, that their injury has aggravated a pre-existing condition or that the pre-existing condition has aggravated the effects of their work-related injury. The medical evidence the claimant must present includes testimony or documentation from a qualified medical professional stated to a reasonable degree of medical certainty. We have been reasonably successful in challenging aggravation claims by deposing doctors and forcing them to acknowledge that they really can’t state to any degree of medical certainty whether or not some ill-defined or vague “injury” aggravated some underlying condition that the claimant may have had for years prior. Successfully defending an aggravation claim is usually a one-shot deal. You either win or lose the entire claim forever depending upon what the doctor says. But can there be such a thing as a temporary aggravation? Are there cases in which your work-related injury may have aggravated a pre-existing condition, but the aggravation was merely temporary?

The Full Commission recently decided a case which held that, while the claimant had suffered an aggravation of a pre-existing condition to her back, the aggravation was “temporary” and the claimant was not entitled to additional temporary compensation, permanent disability, or medical treatment.  It was a slightly unusual case in the factual sense, but the Commission’s Order does give some guidance for future “temporary aggravation claims.”

First of all, the work related injury was minor (the claimant was rear ended while at a stop light in September of 2017), and the claimant acknowledged that she started having lower back problems in 2006, and she had low back surgery in 2012 and lumbar injections in 2015.  She also acknowledged receiving chiropractic adjustments after 2015 and that she had intermittent back pain with certain activities before her work-related accident.

Second, the claimant actually did get better following about two (2) months of conservative treatment.  She returned to work full duty, with no impairment and no restrictions, and she did not complain about any additional back pain until after she had been at work for about four (4) months.  The claimant tried to say that her “flare up” was the result of her September 2017 work injury, but with four (4) months of working full duty with no complaints and no objective medical evidence supporting her claim, her credibility took a hit.

Third, the defense used the claimant’s well documented pre-injury medical history to depose the doctors, who were forced to admit that the medical evidence indicated that the claimant’s condition was “back to baseline.” Pre-injury diagnostic scans were available for comparison with post injury scans, which was certainly crucial to the doctors’ opinions.

Not all aggravations need to be permanent, so please call us if you want to make yours temporary so that we can look into it.