Aggravation of Pre-Existing Conditions under the AWCA

A question which we often face following enactment of the Administrative Workers’ Compensation Act (AWCA) in February 2014, is whether a claimant with a well-documented pre-existing condition can have a new injury when that pre-existing condition is aggravated by an on the job injury? By enacting the AWCA the Oklahoma Legislature attempted to limit liability for claims wherein the claimant had a known pre-existing condition. Per 85A Section 2(9)(b)(5) a “compensable injury” does not include a
”strain, degeneration, damage or harm to, or disease or condition of, the eye or musculoskeletal structure or other body part resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process including, but not limited to, degenerative joint disease, degenerative disc disease, degenerative spondylosis/spondylolisthesis and spinal stenosis…” However, the AWCA also provides a potential exception for pre-existing conditions, if  that condition is aggravated by an “identifiable and significant” event which is clearly confirmed by the treating physician.  85A O.S. Section 2(9)(b)(6).

To date, the Oklahoma Supreme Court has yet to weigh in on the statutory interpretation of these potentially conflicting provisions, though a recent appellate decision in Fitzwilson v. AT&T, 2019 OK CIV APP 48, has suggested that a trial court may not deny a claim based upon a pre-existing condition unless they fully consider the exception as set out in Section 2(9)(b)(6). Relying on reasoning set out in the earlier Ayisi decisions, the Fitzwater court held that “[e]ven if Claimant’s work-related incident, which Employer admitted occurred, was not  ‘the sole or major cause of her resulting lumbar spine deterioration or degeneration that ultimately necessitated surgery’ and is excluded from being compensable pursuant to Sec. 2(9)(b)(6), the WCC was required to determine if her injury was compensable pursuant to Sec. 2(9)(b)(6) because Claimant’s treating physician, Dr. Hendricks, ‘found that Claimant sustained a significant and identifiable aggravation of her preexisting injury.’” The Court of Civil Appeals itself did not determine whether the claim was compensable, but remanded the matter back to the Administrative Law Judge to re-consider based upon the statutory interpretation set out in the appellate opinion.

So as we analyze defenses for cumulative trauma claims going forward, the Court of Civil Appeals makes it clear that both sections 85A 2(9)(b)(5) and 2(9)(b)(6) must be read in conjunction with one another rather than separately, at least pending a ruling on this issue from the Oklahoma Supreme Court.