Allowed Condition Not Required for Retaliatory Discharge
Clendenin v. Girl Scouts of W. Ohio, ___ Ohio St. 3d ___, 2017-Ohio-2830 (5/18/17).
Issue: Does a Commission decision that a pre-existing condition substantially aggravated by an injury at work had returned to the status it would have had if the workplace injury had not occurred involve extent of disability or the right to participate (and can such a decision be challenged by an R.C. §4123.512 appeal, or must it be challenged by a mandamus action)?
Background: Clendenin’s claim was allowed for the substantial aggravation of a pre-existing condition. The BWC filed a motion claiming that the pre-existing condition had returned to its pre-injury state, and should be abated.
The Industrial Commission granted the motion and Clendenin filed an R.C. §4123.512 appeal. The trial court granted the BWC’s motion to dismiss, finding that the issue of whether a substantial aggravation had returned to its pre-injury condition involved extent of disability.
The Court of Appeals reversed. The Court of Appeals found that the Commission’s order could be appealed under R.C. §4123.512 because “the abatement order terminated Clendenin’s right to continue to participate in the workers’ compensation fund” for the substantial aggravation.
The BWC appealed.
Decision: Supreme Court reverses.
Under R.C. §4123.512(A), an injured worker can file an appeal unless the issue involves “extent of disability.” Under R.C. §4123.512(D), when hearing an appeal the trial court (or jury) will determine the injured worker’s right to “participate or continue to participate.”
The Court states that “[a] decision by the commission to increase or decrease compensation or benefits is a decision regarding the extent of the claimant’s disability.” On the other hand, “the right to participate means that the claimant’s injury occurred in the course of and arising out of” their employment.
The Court finds that the Commission’s initial decision to allow the claim for substantial aggravation involved the right to participate. Under R.C. §4123.54(G), however, when a substantial aggravation claim “returns to a level that would have existed absent the workplace injury”, no more compensation or benefits can be paid.
In the present case, the Industrial Commission found that Clendenin’s condition had returned to this level. Clendenin wants to challenge that decision because she disagrees. The Court finds that Clendenin’s challenge must be by mandamus, rather than an R.C. §4123.512 appeal, stating:
Despite the fact that the commission’s order stated that benefits were no longer to be paid for Clendenin’s preexisting condition, the commission’s order continued to refer to Clendenin’s claim and condition as allowed. . . . In order for this decision to be appealable to the court of common pleas, the commission would have had to make a finding that the preexisting condition was not aggravated in the course of Clendenin’s employment and that the condition was therefore disallowed. No such finding was made here.
The Court indicates that under the Commission’s order the “threshold determination” allowing the claim for substantial aggravation remains. Even though the Commission’s order effectively terminates Clendenin’s right to receive any compensation or benefits for the substantial aggravation, the Court finds “a decision that a claimant’s preexisting condition that was substantially aggravated by a workplace injury has returned to the level that would have existed absent the workplace injury involves the extent of a claimant’s disability that may be challenged in a mandamus action.”
Editor’s Comment: The Court’s decision in this case ignores the right to “continue to participate” issue. Even though Clendenin’s claim was initially allowed, and the Commission did not change that initial allowance, the effect of the Commission’s decision that the substantial aggravation has returned to its pre-injury condition is that she will no longer receive any compensation or benefits for the substantial aggravation.
In effect, the Commission’s order has denied Clendenin the right to continue to participate in the workers’ compensation fund for her substantial aggravation claim. In its decision, the Supreme Court states
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.
However, a decision “to no longer compensate an individual for an allowed condition” is not just “in essence” a decision that the injured worker no longer has the right to continue to participate for their claim – it actually is a decision that the injured worker can no longer continue to participate for their claim. And the legislature, in R.C. §4123.512, explicitly indicated that an R.C. §4123.512 appeal exists for cases involving the right to continue to participate.