By: Keith J. Landry
We often question whether the subject injury exacerbated or aggravated a pre-existing injury. Or that perhaps a subsequent injury exacerbated or aggravated the subject injury of your claim. Attorneys often use these terms interchangeably, as well as many medical providers.
However, at the outset you should clearly define the two when inquiring with the medical provider and definitely your SMO/IME physician.
“Exacerbation” is a temporary increase in the severity of a pre-existing condition(s) that returns to its prior level within a reasonable period. It is sometimes referred to as a “temporary aggravation.” That is, the condition is back to its pre-accident baseline state (another terminology used to distinguish exacerbation from aggravation). Some courts will accept that your obligation to provide compensation benefits will cease after the period of exacerbation has ended.
“Aggravation” is a permanent increase in the severity of pre-existing conditions where the underlying pathology is permanently moved to a higher level. The condition is unlikely to go back to baseline. This is the dreaded “aggravation of pre-existing condition” claim with which we are all so familiar.
While as noted above, these two terms are often used interchangeably, the correct use of the terms is very important in many aspects. The proper terminology can be used to provide a defense against the continuing treatment of the injury if the subject injury is back at baseline, It can be used as an affirmative defense that a second accident is now the cause of the present condition. The proper terminology is important for other questions such as MMI status, in SIF applications, etc. Don’t forget to be aggressive with those SMOs and IMEs, where this distinction can be critical. Our firm has been very successful in challenging the work status, relatedness of the current complaints (“exacerbation” vs. “aggravation”), and condition of the claimant for further treatment. Our firm will gladly assist you in working with the SMOs to help maximize the likelihood of a favorable report. Simply having a nurse schedule the SMO with no more direction than the requests itself rarely works out to your advantage. Many SMO physicians often tell us that without the direct interactions with defense counsel, they are often left to guess at what the adjuster/employer needs from the report. We can also assist with requesting IMEs, as what you say, and more importantly do not say, in the request is critical. We have developed a very good bank of physicians in various fields and continue to do so.