Court of Appeals Finds Substantial Aggravation a Question of Fact

In Rowland v. Buerhrer, 2nd Dist. No. 27412, 2017-Ohio-7096, the claimant had an allowed claim from soft tissue neck and low back conditions, and later filed a motion to additionally allow substantial aggravation of left shoulder supraspinatous tendon tear.  The Commission disallowed the claim throughout the administrative proceedings, prompting the claimant to appeal to the trial court.


After taking the trial deposition of her expert, the employer filed a motion in limine to exclude the expert on the ground that his testimony did not support substantial aggravation under R.C. 4123.01(C)(4).  Specifically, the employer argued there was no objective evidence supporting substantial aggravation, the expert failed to identify objective evidence demonstrating substantial aggravation, and the expert failed to articulate an understanding of the requirements of R.C. 4123.01(C)(4).  The trial court granted the motion in limine, finding the diagnostic tests of record did not document substantial aggravation of a tendon tear; rather, the diagnostics merely showed the existence of the condition.  The court noted, however, that the expert did not need to know the import of 4123.01(C)(4), as the expert was a physician, not a lawyer.  The employer moved for summary judgment, which the court granted.  The claimant appealed to the court of appeals, which reversed and remanded the case.


The court of appeals extensively reviewed the expert’s testimony.  The expert testified to a reasonable degree of medical certainty that the claimant had sustained substantial aggravation of left shoulder supraspinatous tendon tear and relied upon clinical tests such as range of motion testing, and muscle weakness, in addition to the MRI findings of a tear to support his opinion.  The court concluded such evidence, coupled with the expert’s ultimate opinion on causation was sufficient to support substantial aggravation.


Although the court of appeals ruled against the employer, employers should not be discouraged from filing summary judgment in substantial aggravation cases. There is no unanimity among the courts of appeals regarding the proof necessary to succeed on a substantial aggravation theory or to overcome a summary judgment motion.


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