“Injury” for workers’ compensation purposes includes an aggravation of a pre-existing disabling condition. Ackerman v. Indus. Comm. (1936), 131 Ohio St. 371, 3 N.E.2d 794. This proposition is derived from the underlying axiom that the workers’ compensation system does not presuppose a worker will meet any prescribed standard of health or physical condition; the employer instead takes the worker in the worker’s existing condition. Williams v. Indus. Comm. (1953), 95 Ohio App. 275, 119 N.E.2d 126.
The employer takes an employee as he finds him and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person. If that injury is the proximate cause of death or disability, the previous physical condition is immaterial and recovery may be had independently of the pre-existing weakness or disease.

Hamilton v. Keller, Adm. (1967), 11 Ohio App.2d 121, 127, 229 N.E.2d 63, 68. Significantly, a pre-existing condition is not the same as a pre-existing disability, where the claimant worked without any apparent problems prior to the injury. State ex rel. Consolidation Coal Co. v. Indus. Comm. (1997), 78 Ohio St.3d 176, 677 N.E.2d 338.
In 2006, the General Assembly passed an omnibus workers’ compensation bill, Am. Sub. S.B. 7, which included a provision making substantial aggravation as the standard for a compensable
injury. Effective October 11, 2006, R.C. § 4123.01(C)(4) provides that “injury” does not include
[a] condition that pre-existed an injury unless that pre-existed condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation.

However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.

Many claimant representatives fear that this amendment might be construed as materially diminishing the protection afforded injured workers by the fundamental proposition that “injury” includes an aggravation of a pre-existing disabling condition, thereby denying compensation to injured workers who were formerly eligible to access the workers’ compensation fund. The impact of the S.B. 7 amendment can be predicted by considering existing authorities which should allay that fear.
Our first such reassuring authority is the previous pattern injury instruction prescribed in 3 Ohio Jury Instructions (1973), 439, Workmen’s Compensation, Section 365.15.
The plaintiff worker is entitled to benefits for a substantial aggravation directly and proximately caused by such accident.

This means that the plaintiff must establish by a preponderance of the evidence that the physical condition which he had before the accident was directly and proximately aggravated or made worse by the accident . . . . It also means that the plaintiff must establish that the aggravation (if any) was substantial in nature. Substantial aggravation means that the act or event made his original condition substantially worse than it was before such act or event. (Emphasis added).

The reference to “substantial” aggravation in this previous instruction demonstrates that the requirement is not new to the workers’ compensation system.
Turning to judicial precedent, an understanding of the meaning of the phrase “substantial aggravation” begins with an analysis of McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77. In McKee, a worker sustained a deep laceration of a finger which allegedly caused an aggravation of his pre-existing arteriosclerosis from which he died. The Ohio Supreme Court addressed this causal relationship as follows:
If we are to continue to hold, despite no provision therefore in the statute, that death from a pre-existing cause and accelerated by an accidental injury is compensable as a death claim under the statute, there must be a substantial causal relationship between the accident
and the accelerated death, and such relationship cannot be proved by mere magic words of direct causation without evidence to definitely support it.
. . .

We are of the opinion . . . that there can be no recovery without an acceleration by an appreciable and substantial period of time.

Id. at 82, 83, 151 N.E.2d at 544, 545. Within a year, the Supreme Court clarified its holding in McKee by its syllabus in Senvisky v. Truscon Steel Div. (1959), 168 Ohio St. 523, 156 N.E.2d 724.
Death from a pre-existing disease, claimed to have been accelerated by an accidental injury in the course of and arising out of employment, is compensable under the Workmen’s Compensation Act, where it is established that such death was accelerated by a substantial period of time as a direct and proximate result of such accidental injury.

The Supreme Court subsequently provided further insight in Swanton v. Stringer (1975), 42 Ohio St.2d 356, 328 N.E.2d 794. Edward Swanton worked as a metal polisher at National Cash Register for approximately 30 years. On February 2, 1968, he turned on his polishing machine and dust flew out, covering him from head to toe and causing him to choke violently. He was unable to continue working that day and did not return to work thereafter. The only medical testimony concerning

aggravation of the plaintiff’s pre-existing condition was given by a physician in response to a hypothetical question:
In my opinion this man had, according to the previous examination, severe and far advanced obstructive lung disease . . . any acute exposure to a significant amount of dust or irritating odors would substantially aggravate this pre-existing condition, therefore, I feel that this might be, figuratively speaking, “the straw that broke the camel’s back by aggravation of the pre-existing condition . . . .

The Supreme Court in Swanton concluded that this testimony supported a finding that the casualty that occurred on February 2, 1968 was the proximate cause of the aggravation of the pre-existing disease which in turn resulted in disability to Mr. Swanton. In its syllabus, the Swanton court wrote that a disabling condition claimed to have been accelerated by an injury is compensable where such disability was accelerated by a substantial period of time.
As previously noted, the Ohio Jury Instructions at this time required that in order for the aggravation of a pre-existing condition to quality as a compensable injury, the claimant had to prove that the aggravation was substantial, even though there were no authorities cited in those instructions supporting that requirement. David Heichel v. Bureau of Workers’ Compensation, 1986 Ohio App. LEXIS 8612. The 1986-1 replacement page to 3 Ohio Instructions, Section 365.13 and 365.15 deleted any reference to “substantial,” perhaps in recognition of the legitimacy of the Heichel court. Nevertheless, appellate courts continued to disagree over whether the worker had to prove that a pre-existing condition was merely aggravated or was instead substantially aggravated as a result of the injury in order for that aggravation to qualify as a compensable injury. In both Heichel v. Bur. of Workers’ Compensation, 1986 Ohio App. LEXIS 8612, and Starcher v. Chrysler Corp. (1984), 15 Ohio App.3d 57, 472 N.E.2d 736, appellate courts held that any aggravation of a pre-existing condition is sufficient to allow participation in the workers’ compensation fund and that it is error to require proof of substantial aggravation. On the other hand, in both Kane v. Ford Motor Corp. (1984), 17 Ohio App.3d 111, 477 N.E.2d 662 and Pacatte v. Daugherty (1988), 42 Ohio App.3d 188, 537 N.E.2d 697, other appellate courts held that the claimant must show a substantial aggravation. The conflict among the appellate courts was echoed in scholarly commentary.
Despite this disagreement among appellate courts and commentators, there was consensus in the substantial aggravation debate on certain points, and that consensus is apposite in analyzing the S.B. 7 amendment. First, a causal relationship between the accident and the accelerated disability from a pre-existing condition cannot be proved by “mere magic words of direct causation without evidence to definitely support it.” McKee v. Electric Auto-Lite Co., 168 Ohio St. 77, 151 N.E.2d 540; Oswald v. Connor, 16 Ohio St.3d 38; 476 N.E.2d 658; Kane v. Ford Motor Co. (1984), 17 Ohio App.3d 111, 477 N.E.2d 662. Likewise, a disabled employee may be entitled to recover despite the failure of a physician to use the phrase “substantial aggravation” in his or her testimony. Kane at 115.
Moreover, symptoms cannot always be separated from the condition(s) they evidence. Westerviller v. Lennox Industries, Inc. (April 15, 1986), Franklin App. No. 85-AP-377; Golden v. George Grandel Co. (Feb. 17, 1989), No. L-88-091, unreported, 1989 WL 24210. In Westerviller, the claimant had a pre-existing condition, cardiomyopathy, a disease of the heart muscle. Having experienced no problems from that condition before the injury, the claimant began suffering after the injury symptoms of irregular heart beat and chest pain. The Tenth District had this to say about the change which the injury brought about in claimant’s condition:
In this case, plaintiff’s pre-existing condition essentially was a weak heart muscle which caused him no problems. Should the onset of symptoms of irregular heart beat and chest pain result in a substantial change in that, in combination with his symptoms, his weak heart muscle does cause him real problems, then, when considering his pre-existing conditions and his symptoms, as a total package, his status will have substantially changed and his pre-existing condition will have been substantially aggravated. Westerviller, supra.

In Golden, a compensable claim was proven by x-rays demonstrating a degenerative lumbar spine and by medical testimony that the claimant suffered from pain and limited back mobility following the accident. See also Pacatte v. Daugherty (1988), 42 Ohio St.3d 188, 537 N.E.2d 697 (evidence of shortness of breath, disorientation, and tightness in the chest contrasted with a stable pre-existing condition established that the worker’s injury had substantially aggravated the pre-existing condition; Kane v. Ford Motor Co. (1984), 17 Ohio App.3d 111, 477 N.E.2d 662 (testimony establishing physical deterioration from a healthy condition to the physical manifestations and shortcomings of multiple sclerosis constituted sufficient evidence to withstand a motion for summary judgment on the issues of causation and substantial aggravation).
Finally, and most importantly, courts had held it was prejudicial error to require an injured worker to prove a growing or spreading of the pre-existing condition in order to establish that aggravation of the condition was compensable. McDonald v. Mayfield (Nov. 18, 1986), Montgomery County App. No. 9469, unreported (blow to head caused disabling symptoms and effects of pre-existing brain tumor to appear but did not cause the brain tumor itself to grow or spread); Golden v. George Gradel Co. (Feb. 17, 1989), No. L-88-091, unreported, 1989 WL 24210

(compensable aggravation of pre-existing degenerative arthritis did not require proof of a measurable physical or neurological change in the degenerative arthritis).
Although the qualification that aggravation of a pre-existing condition must be “substantial” had been deleted from the Jury Instructions in 1986, and the Tenth District Court of Appeals apparently was not requiring proof of a substantial aggravation (see State ex rel. Spangler Candy Co. v. Indus. Comm. (1988), 36 Ohio App.3d 231, 522 N.E.2d 1078; Boroff v. McDonald’s Restaurants of Ohio, Inc. (1988), 46 Ohio App.3d 178, 546 N.E.2d 457), both the Bureau of Workers’ Compensation and Industrial Commission continued to require proof of substantial aggravation of a pre-existing condition in order for the claim to be compensable. Thus, in Schell v. Globe Trucking, Inc. (1990) 48 Ohio St.3d., 548 N.E. 2d 920, the Industrial Commission had denied the injured workers’ motion to amend his claim because there was no showing of a substantial aggravation of a pre-existing condition. Furthermore, once the Court of Common Pleas of Ottawa County entered judgment in the claimant’s favor, holding that he was not required to prove that the aggravation was substantial, the Administrator of the Bureau of Workers’ Compensation sought review by the Sixth District Court of Appeals. The Court of Appeals affirmed the trial court, but noted that its judgment was in conflict with the decision of the Cuyahoga Court of Appeals in Kane v. Ford Motor Co. and certified the record to the Ohio Supreme Court for review and final determination.
Responding to this certification request and the conflict between the court of appeals, the Ohio Supreme Court held in Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1, 548 N.E.2d 920, that a workers’ compensation claimant who has established a work-related aggravation of a pre-existing condition is not required to prove that the aggravation is substantial in order to be entitled to a determination of the extent of his participation in the State Insurance Fund. In arriving at this decision, the Court made a number of prescient observations.
First, the Ohio Manufacturer’s Association (OMA) had argued that in order to warrant compensability, an aggravation of a pre-existing condition must be substantial, and that “substantial” should mean “major, of real importance, of great significance, and not trifling or small” in accordance with the Ohio Jury Instructions. See 3 Ohio Jury Instructions (1988), 365.13, Section 3. The Court rejected this argument, noting that the statute, R.C. § 4123.01(C), did not require that an injury be of any particular magnitude, and suggesting that any such change would best be left to the legislature. By adopting the S.B. 7 amendment to R.C. § 4123.01(C)(4), the legislature accepted that invitation.
Next, the OMA had argued that it was
unfair to permit even a relatively minor work-related aggravation of a pre-existing condition to entitle a claimant to participation in the fund, since the claimant would then be entitled to payment based upon the full extent of his disability, including not only the component of his disability corresponding to the work-related aggravation, but also the component corresponding to his pre-existing condition.

Consistent with its response to the OMA’s first argument, the court rejected this second contention, iterating that it was the province of the legislature to amend the statute in order to avoid this alleged

unfairness. Am. Sub. S.B. 7, as initially worded, incorporated the OMA position. R.C. § 4123.54(G) provided:
If an injury described in division (C)(1)(b) of section 4123.01 of the Revised Code occurs, compensation and medical benefits are payable only for the impairment or disability that results from the substantial worsening of the pre-existing condition or impairment or the substantial acceleration of the disease process . . .

This provision, however, was deleted from the bill that the General Assembly eventually passed. Thus, if a pre-existing condition is substantially aggravated by an accident, the claimant is entitled to payments based on the full extent of the resulting disability, including not only the component of the disability resulting solely from the work-related aggravation but also the component corresponding to the pre-existing condition. Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1, 548 N.E.2d 920, citing State ex rel. Republic Rubber Div., v. Morse (1952), 157 Ohio St. 288, 105 N.E.2d 251.
Finally, perhaps the most influential portion of the Schell opinion came in the Court’s overarching acknowledgment that “workers’ compensation is provided for disabilities resulting from an injury.” The Court held that acceleration of a disabling condition by an injury is different from aggravation of a pre-existing condition. Acceleration of a disabling condition occurs when an injury precipitates the onset of a disabling condition that was bound to occur sooner or later but had not manifested itself prior to the injury. Hess v. United Insurance Co. of Am. (1991), 74 Ohio App.3d 667, 600 N.E.2d 285. The exact time of an acceleration is unimportant, Allyn D. Kendis and James D. Kendis, Aggravation Under Workmen’s Compensation (1968), 17 Cleve.-Mar.L.Rev.93, because it is not possible to precisely pinpoint the date of precipitation and whether onset of the disabling

condition was accelerated by a substantial time is a question for the fact-finder. Thomas v. Keller (1967), 9 Ohio App.2d 237, 224 N.E.2d 165.
Business groups, such as the Ohio Chamber of Commerce, immediately complained that the Schell opinion had so liberalized the system that it made Ohio a less attractive business climate for employers. Ohio Chamber of Commerce website. These groups clamored for an immediate legislative response and sympathetic Republican legislators attempted to comply.
On May 18, 1993, State Senator Robert Cupp introduced S.B. 152, a bill drafted by a coalition of employer organizations. Senator Cupp stated one of the goals of the proposed legislation was to reinstate legislatively-prescribed benefit definitions which had been distorted by judicial interpretation. Foreword by State Senator Cupp for Ohio WC Act, 1993 House Bill 107, Banks-Baldwin. “Substantial aggravation” was one such definition. S.B. 152 was subsequently incorporated into the Bureau and Commission budget, Am. Sub. H.B. 107.
On June 29, 1993, the House, acting along party lines, refused to approve Am. Sub. H.B. 107, a response that resulted in the appointment of a Conference Committee. Both the House and Senate subsequently passed Am. Sub. H.B. 107, as reported out of the Conference Committee, and although Am. Sub H.B. 107 contained many substantive changes, a refinement of “substantial aggravation” was not included among them. 145 v. H.B. 107. Senator Cupp stated that Am. Sub. H.B. 107 met all of his goals except the reinstatement of the legislatively-prescribed benefit determinations which had been relaxed by judicial interpretation. Achievement of that goal was merely postponed as the definitions were referred to a Task Force for resolution and legislative recommendation. R.C. § 4121.71.
The Task Force was comprised of thirteen members, a chairman chosen by the Governor, five employer representatives, five labor representatives, and two legislative members. R.C. § 4121.71(C) directed the Task Force to determine and then advise whether legislation was needed to address a number of matters, including the meaning of “substantial aggravation of pre-existing condition.” It is not surprising that the Task Force was unable to reach a consensus on that question and agreed to issue separate reports to the chairman.
Shortly thereafter, employers formed a coalition called “Citizens For Responsible Workers Compensation Reform” in support of their efforts to reform the workers compensation system. The coalition’s efforts culminated on February 13, 1997, when State Representative Bill Thompson and State Senator Bob Cupp introduced companion bills, respectively H.B. 222 and S.B. 45. On April 22, 1997, Governor Voinovich signed Am. Sub. S.B. 45, which prescribed an evidentiary standard governing “substantial” aggravation of a pre-existing condition. The day before the effective date of Am. Sub. S.B. 45, a citizens group opposed to the bill forced a referendum on the legislation.

The electorate defeated Issue 2 by a margin of 57% to 43%, thereby causing deletion of the “substantial aggravation” standard from the statute.
Although the business community continued to clamor for legislative changes, the Taft Administration shied away from pursuing any further omnibus approach, because the “public had spoken” on the issue. On May 14, 2003, however, the Governor convened a “Stakeholder Meeting on Workers’ Comp Legislative Reform”, but the stakeholder parties failed to reach any consensus. In January 2005, apparently believing that enough time had passed since the electorate defeated Issue 2, Bureau of Workers’ Compensation Administrator James Conrad announced that workers’ compensation reform was one of Governor Taft’s top legislative priorities. One of the legislative priorities was a reconsideration of the substantial aggravation issue.
The bill which the Governor introduced contained language similar to that found in Am. Sub. S.B. 45. According to the Legislative Service Commission, the bill expanded the definition of “injury” to include
a condition, impairment, or disease that pre-existed an injury if that pre-existing condition or impairment is substantially worsened or the disease process is substantially accelerated by the injury and is documented by objective diagnostic findings and test results. If the worsening or acceleration is not documented by objective diagnostic findings and test results, the condition, impairment, or disease process is excluded from the definition of “injury.” (Sec. 4123.01(C)(1)(b) and (2)(d).

Bill Analysis for H.B. 72. (Emphasis added).

Thus, the bill as introduced effected a major philosophical change in both the language of the statute and the prior case law. First, a substantial aggravation under the proposed bill could be proved only by comparing test and diagnostic studies taken before and after the injury. As employer representative George Wilkinson noted, this proposed requirement was draconian. As a practical matter, few employees can be expected to have undergone pre-employment tests and diagnostic studies and the statute’s narrow definition of injury would foreclose the compensability of a host of formerly compensable conditions. More importantly, the proposed language shifted the focus away from any disability resulting from an injury to the pre-existing condition itself. Recall that the Supreme Court in Schell had emphasized that the concept of acceleration of a disabling condition by an injury is different from aggravation of a pre-existing condition. Under the proposed language of H.B. 72, casualty would have to measurably aggravate the pre-existing condition. As George Wilkinson recognized, labor representatives and trial lawyers removed this language during the process of legislative negotiation in order to prevent this shift. WCJO, Id. Consequently, under the language of the bill that the governor signed, the legal dichotomy between an injury that accelerates a disabling condition and an injury that aggravates a pre-existing condition remains.
So what is the implication of the S.B. 7 amendment of the substantial aggravation standard? R.C. § 4123.01(C)(4) provides that a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints unsupported by those objective findings or results are insufficient to establish a compensable claim. In Schell, the Ohio Supreme Court has held that an injury did not have to be of any particular magnitude in order to be compensable. Pain alone could make an injury compensable. Thus, the General Assembly clearly wanted to ensure that the claimed injury would be supported by objective clinical findings, objective diagnostic findings, or objective test results, and not supported merely by subjective complaints of pain.
To recapitulate: The first step in proving that an injured worker has suffered a substantial aggravation of a pre-existing condition is to prove the condition by objective clinical findings, objective diagnostic findings, or objective test results. The mere existence of pain does not prove the condition. If the claimant meets the statutory gatekeeper requirements of establishing a diagnosed condition, the claimant must then prove, as before Schell, that the disability caused by the injury was accelerated by a substantial period of time. There is simply no other credible interpretation when account is taken of the language in the bill as it was originally introduced and the final language of Am. Sub. S.B. 7 as enacted.
Consequently, as anticipated, the case law governing how to prove causation prior to Schell remains applicable. As before Schell, the use of or not of “magic words” does not assist in proving or disproving the requisite casual relationship. See McKee, Oswald, Kane. Symptoms cannot always be separated from the condition they evince. See Westerviller, Golden, Pacatte, Kane. Finally, substantial aggravation does not have to be proven by a growing or spreading of a pre-existing

condition. See McDonald, Golden. The prediction that the new legislation has effected no meaningful change in the standards governing substantial aggravation has proven accurate.
S.B. 7 contains one further amendment of the statute. R.C. § 4123.54(G) provides that no compensation or benefits are payable on account of the pre-existing condition once that condition has returned to a level that would have existed without the injury. Like the “substantial aggravation” language, this language does not effect a change in the law; it merely codifies prior case law. The Franklin County Court of Appeals has previously held that an aggravation may be a temporary condition that eventually completely resolved, leaving only the pre-existing or baseline condition. State ex rel. Pepsi Cola General Bottlers v. Indus. Comm. (Aug. 5, 2003), 2003 Ohio App. Lexus 3671.
Furthermore, as the Ohio Supreme Court recently held in State ex rel. Advantage Tank Lines v. Indus. Comm., 107 Ohio St.3d 16, 2005-Ohio-5829, “permanent means the permanent physical or mental diminution of the whole person caused by the industrial injury. It is a baseline, but it does not necessarily imply a static condition while in the PPC context, permanency always represents a level above which a claimant’s condition will never improve. . .”. Thus, once a substantial aggravated condition has reached a level of permanency, by proof of a permanent partial disability award or otherwise, the issue is res judicata in any subsequent attempts to challenge the continuation of compensation or benefits pursuant to R.C. § 4123.54(G).