Is An Aging Back A “Preexisting Condition” Which Should Preclude Comp Benefits

Many workers – our clients and your patients – have suffered (or potentially face) severe economic hardship because their work-related back and neck injuries are precluded from Workers’ Compensation coverage primarily because of their age. This is the result of the new (1995) “preexisting condition” definition which is now being applied in a way which denies Workers’ Comp benefits in claims where natural age-related degeneration plays the major role.

This legal interpretation poses real-life social and economic consequences for many workers. This article is to help doctors who are asked to give an opinion in these cases to be aware of the legal context and consequences of these rulings.

The definition of “preexisting condition” is: “any injury, disease, congenital abnormality, personality disorder or similar condition that contributes or predisposes a worker to disability or need for treatment…” (For a more in-depth discussion of this definition, please see the 3-part series of articles on “preexisting condition” in Volumes 3, 4, and 5 of the MEDICAL-LEGAL JOURNAL and the articles on “major cause” in Volumes 6 and 7.)

The Oregon Court of Appeals in a June 1998 opinion stated that the results of the natural aging process are a “disease.” The Court said: ”From a medical standpoint, however, the degenerative process in claimant’s back, although a natural result of the aging process, is a “disease” as characterized by the doctors who examined claimant …” 1 (emphasis added)

This ruling makes this interpretation law: if age-related changes in a worker’s spine play a major (51%) role in the treatment and disability following a work injury, the worker has no legal recourse for covering his/her medical bills or income for lost time off work. That is, as long as the doctors involved call this natural aging process a “disease.”

Medical experts seem to agree that degenerative changes in the spine are a universal sign of aging, as much as wrinkled skin or graying hair. While the rate of degeneration may vary, it can be safely said that all workers in their 50’s, most in their 40’s and many in their 30’s will be affected. (I had some gray hair when I was 16 years old!)

It also appears that years of repetitive and/or strenuous physical work may cause “wear and tear” on the spine. Both aging and this “wear and tear” may make workers in their 30’s, 40’s or 50’S more vulnerable, prone or “pre-disposed” to back or neck injuries. As you know, these commonly involve herniated discs impinging nerves which are extremely painful, debilitating and expensive to diagnose and treat.

However, if a work injury causes this condition to be symptomatic, the causal role of the age-related degeneration as a “preexisting condition” may preclude Workers’ Compensation benefits at a time when they are most needed.

The legislature tried to make the law fair to employers. Employers should not have to cover expenses due primarily to injuries and diseases, congenital abnormalities, personality disorders and the like, which the worker already had before the onset of the work injury or “occupational disease.” So, when an employee afflicted with a “disease” before he walks on the job experiences an injury or work conditions which combine with that disease, medical experts will be asked: “Which was the major cause?”

Again, the whole issue turns on whether natural, age-related degenerative changes in the spine are medically a “disease.” Consider the following definition from Webster’s Medical Desk Dictionary:

“disease … : an impairment of the normal state of the living animal or plant body or of any of its components that interrupts or modifies the performance of the vital functions and is a response to environmental factors …. to specific infective agents …. to inherent defects of the organism …. or to combinations of these factors : SICKNESS, ILLNESS — called also morbus –” (emphasis added)

“Normal,” on the other hand, is defined in part as, “… occurring naturally and not because of disease…”!

The law was designed to take into account the role of prior diseases, injuries, abnormalities and disorders. But if degenerative changes in the spine are normal, since they occur in almost all people as they age, are they an “abnormality” or a “disease?”

Our concern is that thousands of injured workers, whose bodies have simply undergone changes common to all, may be losing vital benefits because their age-appropriate spines are labeled as having “degenerative disc disease.”

Doctors, both those who treat the worker and those hired by employers/carriers as independent medical examiners, are asked: 1) is there a “preexisting condition” which has combined with the work injury? If so, then, 2) what percentage of cause may be attributed to the preexisting condition as compared to the work injury, when looking at the cause of the injured worker’s disability and need for treatment.

More specifically, what is more responsible for this worker’s need for surgery and time lost from work – the fact that he/she has a 40-year old spine, or the bending and lifting incident at work? If the medical answer is: “the natural degenerative changes in the 40-year old spine and these are called a disease,” the injured worker will not receive any Workers’ Compensation benefits.

Another recent court case held that if the work injury was the major contributing cause of the need for treatment and/or the disability of the combined condition, the injury is compensable. See the article on “Major Cause” on page 3 of Volume 6, of the MEDICAL-LEGAL JOURNAL.

Should the provision of benefits hinge on whether the worker bent and lifted with a 40-year old spine, rather than a more supple 25-year old spine? According to the Court of Appeals, it all depends on whether natural, age-related changes in the spine are a disease. It’s the doctor’s call on both counts: is it a disease? If so, is the work incident the major cause of the disability and need for treatment, when compared to the causal role of the “disease”?

Doctors should he keenly aware of the legal implications and the practical ramifications to their patients of calling a condition a disease.”

1 Brown v. A-DEC, Inc. and SAIF.___Or App___.____P2d___(June 3, 1998)

This article was prepared by Robert F. Webber.