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Supreme Court of Ohio Differentiates Between “Injury” and “Causation”
For years, the question of whether or not an injured worker may change the theory of his case at trial has remained unanswered. Appellate courts in Ohio have been split on the issue. On July 7, the Supreme Court of Ohio issued the Starkey decision, and finally provided a definitive answer to this question. The Court decided that an injured worker may change his theory of causation at trial – regardless of whether or not it was alleged administratively. Practically speaking, this means that an injured worker may allege all throughout the administrative process that his injury occurred by way of direct causation, and then, at trial, claim that his injury arose by way of a substantial aggravation.In Starkey, the injured worker alleged before the Industrial Commission of Ohio that he suffered from degenerative osteoarthritis of the left hip by way of direct causation and his claim was administratively allowed for that condition. The employer appealed the allowance to the court of common pleas. While deposing the injured worker’s expert (and treating) physician, the physician stated that the injured worker suffered from an aggravation of pre-existing left hip degenerative osteoarthritis. The employer moved for dismissal at the close of the injured worker’s case, asserting that the injured worker had failed to allege the aggravation administratively. The trial court agreed with the employer and entered judgment in favor of employer.
The court of appeals reversed the trial court’s decision and the matter was appealed to the Supreme Court of Ohio. The Court held that an injured worker may change the specific theory of causation at trial so long as it is the same medical condition. In essence, the Court stated that the theory of causation does not define the injury and that causation is different from the actual condition.
So what does this mean for employers, and how will employers defend cases when they do not know what theory of causation the injured worker will pursue? Most likely, this means that more money and time will need to be invested in the discovery process. Written discovery such as interrogatories and document requests will need to be fine-tuned to draw out and “lock-in” the injured worker’s theory of causation. Expert discovery depositions may also become more common, but at the expense of the party requesting the deposition (generally the employer). Finally, errant injured workers who fail to supply their expert narrative reports will most likely be under much more pressure from employers to do so.
While this may seem daunting and unfair, from a practical standpoint, the treatment records received administratively and through early discovery should clue in the employer as to the theory of causation. Should the injured worker’s expert then change his opinion regarding causation for the first time at trial, the expert’s credibility will be questioned. Good defense counsel should be able to demonstrate the expert’s inadequacies should the expert “flip-flop” his opinion.
Last, but certainly not least, what does this ruling mean in terms of duplicate administrative requests before the Industrial Commission of Ohio? Based upon the Court’s rationale in Starkey, is an injured worker precluded from administratively pursuing two different theories of causation, at different times? Simply put, is an injured worker precluded from alleging arthritis through direct causation, adjudicating the condition administratively and losing, failing to appeal the matter into court, and then alleging arthritis by way of substantial aggravation for a “second bite at the apple” before the Industrial Commission of Ohio? Based upon the Court’s rationale in Starkey, it seems like an injured worker would be precluded from two bites at the apple. If the Court believes a theory of causation does not define the condition and the conditions are truly the same, an injured worker should be precluded from alleging the same condition, under different theories of causation, at different times. This scenario represents a clear legal standard referred to as res judicata, which bars the same matter from being raised a second time once a final decision has been reached.
Please do not hesitate to contact Meredith Ullman or any of the experienced workers’ compensation attorneys at RBS with questions regarding the Starkey decision, or with any concerns regarding workers’ compensation litigation.