When a pre-existing condition is aggravated by a workplace injury, the state will provide benefits until the condition returns to the level before the on-the-job injury. An injured workers’ right to appeal the elimination of the benefits are limited, the Ohio Supreme Court ruled today.

A Supreme Court majority concluded that Ohio Industrial Commission approval of an Ohio Workers’ Compensation Bureau decision to discontinue payments for aggravated pre-existing conditions that return to the levels as if the workplace injury had not happened are “extent of disability” claims that must be challenged by a writ of mandamus.

Writing for the Court, Justice William M. O’Neill wrote that the mandamus request must be filed in the Columbus-based Tenth District Court of Appeals or with the Ohio Supreme Court. The Court noted the “standard for review of this determination is highly deferential to the commission.”

In reversing a First District Court of Appeals’ decision, the Court explained that extent of disability claims are different from appeals of the “right to participate” in the Ohio Bureau of Workers’ Compensation program, which are permitted at the local court of common pleas.

Girl Scout Employee Injured
In 2008, Audrey Clendenin suffered a shoulder injury while working for the Girls Scouts of Western Ohio. The bureau of workers’ compensation allowed the claim for multiple injuries, including a rotator-cuff tear and biceps-tendon tear. The bureau also determined Clendenin suffered substantial aggravation of several preexisting conditions including dermatomyositis. (According to the U.S. National Institutes of Health, the primary symptom of dermatomyositis is a skin rash that precedes, accompanies, or follows progressive muscle weakness.)

In 2013, the bureau requested Industrial Commission approval to terminate Clendenin’s compensation and medical benefits for the dermatomyositis because it received a medical report that indicated the condition had returned to the level Clendenin experienced before she was injured at work.

Clendenin appealed the determination in the Hamilton County Common Pleas Court, arguing the condition had not returned to its pre-injury condition and benefits should continue. The bureau asked the common pleas court to dismiss the case, asserting the improvement of a preexisting condition is an extent-of-disability issue and it cannot be appealed to a common pleas court. The bureau stated that R.C. 4123.512 only permits appeals by workers to the common pleas court in the county where the injury took place when the issue is the right to participate in workers’ compensation.

The trial court agreed with the bureau and dismissed the appeal. Clendenin appealed to the First District Court of Appeals, which reversed the common pleas court. The First District concluded that when the bureau decides the condition is no longer impacted by the workplace injury, then the bureau is terminating a workers’ right to participate for that condition. If so, then the appropriate place to appeal is in common pleas court.

The bureau appealed the decision to the Ohio Supreme Court.

Extent of Disability Claims Assume Right to Participate
The opinion explained that an extent of disability decision determines the amount of compensation and medical benefits that are to be paid for the allowed condition. Decisions that can be appealed to a common pleas court are for the right to participate and determine whether a condition is allowed or disallowed. When the bureau is deciding how much to pay, that decision assumes the worker’s injury has been “allowed,” the Court stated.

“A decision by the commission to increase or decrease compensation or benefits is a decision regarding the extent of the claimant’s disability,” the Court concluded.

The statute explicitly excludes extent of disability claims from the types of decisions that can be appealed to common pleas court.

While the bureau concluded Clendenin’s claim was no longer compensable, it continued to refer to the condition in its orders as being allowed and there was no dispute that the condition was aggravated by the injury. Justice O’Neill wrote that for a decision to be appealed to common pleas court, the Industrial Commission would have to disallow the claim.

The Court ruled that Clendenin was required to file her appeal in the Tenth District or the Supreme Court, and concluded that if appeals of extent of disability issues were allowed by the common pleas court, then the Court would be granting to a whole class of decisions “a less deferential level of review that the legislature did not authorize.”

Chief Justice Maureen O’Connor, and Justices Sharon L. Kennedy and Judith L. French joined the opinion. Eighth District Court of Appeals Judge Sean C. Gallagher, sitting for Justice Patrick F. Fischer, and Fifth District Court of Appeals Judge Patricia A. Delaney, sitting for Justice R. Patrick DeWine, also joined the majority opinion.

Justice Terrence O’Donnell concurred in judgment only.

2015-1993. Clendenin v. Girl Scouts of W. Ohio, Slip Opinion No. 2017-Ohio-2830.

View oral argument video of this case.

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