Commission Finding of Abatement of Substantially Aggravated Condition Goes to Claimant’s “Extent of Disability”

Senate Bill 7, which became effective in 2006, required that for a pre-existing condition to be recognized in a claim by way of aggravation, a substantial aggravation had to be proven by objective medical evidence in the form of diagnostic findings, clinical findings or test results. The Bill also amended R.C. 4123.54(G) to provide that a condition that has been recognized by substantial aggravation is no longer compensable once that condition has returned to a level that would have existed without the injury. Accordingly, employers are now pursuing motions to terminate compensation and benefits for conditions allowed by way of substantial aggravation. The question arose as to how to appeal a final decision on that issue.

In Clendenin v. Girl Scouts of Western Ohio, Slip Opinion No. 2017-Ohio-2830, the Ohio Supreme Court held that this decision goes to the claimant’s extent of disability and, therefore, is not appealable into Common Pleas Court pursuant to R.C. 4123.512. Clendenin’s claim was allowed for substantial aggravation of a number of pre-existing right shoulder conditions and a condition described as dermatomyositis. The Bureau of Workers’ Compensation filed a motion to “abate” Clendenin’s claim for substantial aggravation of the pre-existing dermatomyositis. A district hearing officer granted the Bureau’s motion finding that compensation and medical benefits were “no longer [to] be paid under this claim for the allowed condition.” The order was affirmed by a staff hearing officer, and the Commission refused further appeal.

Clendenin filed a Notice of Appeal and Complaint in Hamilton County Common Pleas Court pursuant to R.C. 4123.512. The Bureau moved to dismiss the complaint for lack of subject matter jurisdiction, which the trial court granted. On appeal to the First District Court of Appeals, however, the Court found that the abatement order terminated Clendenin’s right to participate in the Workers’ Compensation Fund for the condition at issue and, therefore, the order was appealable into Common Pleas Court. The Supreme Court reversed that decision.

The Court first noted that Ohio’s Workers’ Compensation system is a statutory remedy for work-related injuries and, therefore, a litigant has no inherent right to appeal in this area. The Court then noted that the goal of having a Workers’ Compensation system administered largely outside of the court system has led the Court to adhere to a narrow reading of R.C. 4123.512.

The Court found that the “right to participate” means that the claimant’s injury occurred in the course of and arising out of the claimant’s employment. The right to participate issue is appealable into the Common Pleas Court. In this case, the Court found that a decision that medical benefits and compensation were no longer payable for a condition allowed by way of substantial aggravation did not involve the claimant’s right to participate as the claim remained allowed for that condition. The Court stated: “If we held that a decision to no longer compensate an individual for an allowed condition was in essence the same as a decision on the right to participate, we would subject a whole class of commission decisions to a less deferential level of review that the Legislature did not authorize.”

Accordingly, any decision by the Industrial Commission in this regard is appealable only by way of an action in mandamus in which the Commission’s order will be upheld if there is “some evidence” to support the decision. This higher standard of review necessarily means that the Commission’s decision in this regard more often than not will be upheld.