Active Preexisting Conditions or Passive Predispositions – How Do I Tell the Difference?

Anderson, Kevin_webA few months ago, we discussed a new Court of Appeals case addressing preexisting conditions. Dennis L. Corkum v. Bi-Mart Corp., 271 Or App 411 (2015). Our main concern was another court-made layer of analysis, specifically distinguishing “active” preexisting conditions and “passive” predispositions. A copy of that article can be found here.

The Board has issued two recent opinions attempting to clarify the Corkum decision.

Steven Prince treated for a left sided hernia in 1998, a right sided hernia from an off-work injury in 2013, and an alleged work related hernia in 2014. Steven Prince, 67 Van Natta 1325 (2015). The Board put in a footnote that the worker’s 2013 hernia surgery hernia surgery for a right inguinal hernia merely rendered him more susceptible to hernias in 2014. As such, the 2013 hernia would not constitute a “preexisting condition” and, therefore, a combined condition analysis would not be applicable. The Board set aside the denial.

The Board provided additional guidance more recently in Rick Minton, 67 Van Natta 1615 (2015). There, an automotive technician was working under a car reported right shoulder pain after working under a car and swinging a hammer overhead. He had prior non-work related right shoulder problems resulting in an arthroscopic decompression and rotator cuff repair. An MRI suggested a recurrent rotator cuff tear. After surgery, the attending physician diagnosed a recurrent rotator cuff tear.

The Board again set aside the denial of the hernia. The defense expert agreed the mechanism of injury was insufficient to cause a rotator cuff tear unless there was a previous injury because a torn rotator cuff “will not return to 100% health.” Citing the language in Corkum, the Board also found employer did not establish a preexisting condition because there was no evidence of “how claimant’s previous tear/repair was an ‘active, ongoing contributor’ to damaging claimant’s right shoulder or had ‘its own independent, active pathological impact’ on that body part.”

So what should I ask our experts to successfully process and defend combined condition denials?

  • Identify all preexisting conditions (previously diagnosed and treated, and arthritic conditions).
  • Verify those preexisting conditions are currently contributing to the worker’s disability and need for treatment, or whether they are delaying claimant’s recovery.
  • Have your expert provide specific information for how the preexisting condition is an “active ongoing contributor” to claimant’s current condition.
  • Have your expert provide specific information for how the preexisting condition has an active pathological impact on the current body part, something more than simply predisposing the worker to another injury.

As the Board continues to review the Corkum decision, we will get a clearer idea of what exactly constitutes an active preexisting condition sufficient for a combined condition. If you have any questions or concerns regarding how to develop this evidence, please feel free to contact me at kanderson@sbhlegal.com