The Supreme Court of Ohio recently decided a case which further clarified “right to participate” under section 4123.512 of the Ohio Revised Code.
In the Clendenin case, Ms. Clendenin’s 2008 workers’ compensation claim had been recognized for several conditions, including three conditions that were present prior to her date of injury, but “substantially aggravated” by her injury. In 2013, the Ohio Bureau of Workers’ Compensation filed a motion challenging the payment of further benefits for one of Ms. Clendenin’s pre-existing conditions, taking the position that said condition had “returned to a level that would have existed without her workplace injury.” In other words, the BWC alleged that the period of “substantial aggravation” had effectively ended.
The matter proceeded to hearing before the Ohio Industrial Commission. Based upon the BWC’s expert medical opinion, the IC agreed with the BWC’s position and granted its motion. Ms. Clendenin would receive no further benefits for that specific pre-existing condition. Ms. Clendenin appealed the IC’s decision to the Court of Common Pleas, pursuant to section 4123.512 of the Ohio Revised Code, alleging that the IC’s decision to terminate benefits presented a “right to participate” issue which entitled her to a trial.
While it is true that section 4123.512 guarantees a trial to workers’ compensation litigants on “right to participate” issues, the same is not true for “extent of disability” issues. Decisions concerning extent of disability by the IC can only be challenged by way of mandamus. The issue presented in the Clendenin case, and ultimately decided by the Supreme Court of Ohio, was whether the decision by the IC was a “right to participate” issue which proceeds to trial, or an “extent of disability” issue which must be pursued via mandamus.
What is mandamus? Mandamus is a writ, issued in the name of the state, to an inferior tribunal, commanding the performance of an act which that tribunal had a duty to perform. Mandamus is used by an aggrieved party to challenge an adverse decision – in this case, Ms. Clendenin asking the Court of Appeals to order the IC to act. In workers’ compensation claims, mandamus challenges to decisions by the IC are filed directly with the Tenth District Court of Appeals, which considers the matter “from the record,” without new evidence or testimony – and without a trial.
What is of the utmost importance is the standard of review which the Court of Appeals must apply on mandamus. Ohio’s public policy requires the Court of Appeals to give “great deference” to decisions by the IC because the IC and its hearing officers are considered to be “experts” in Ohio workers’ compensation matters. Ohio law states that the Court of Appeals, on mandamus, is not to disturb decisions by the IC when there is “some evidence” in the record to support the IC’s decision.
So, unlike an appeal to the Court of Common Pleas pursuant to section 4123.512, where a judge or jury hears testimony and considers all the evidence “de novo” (as if being heard for the very first time), and the standard of proof is “by the greater weight of the evidence,” mandamus is a proceeding without a jury, and without new evidence or testimony, where the challenge presented must be rejected by the Court of Appeals if there is “some evidence” supporting the IC’s decision. As you may expect, the “some evidence” standard is a very easy one to meet for a litigant defending a decision by the IC in its favor (in this case the BWC).
In this case, on mandamus, the BWC would need only to prove to the Court of Appeals that there was “some evidence” presented to the IC that Ms. Clendenin’s “substantially aggravated” condition had returned to its pre-injury status. In this case, the “some evidence” standard would be easily met by the expert medical opinion secured by the BWC.
When the Supreme Court of Ohio considered Ms. Clendenin’s challenge, alleging the appropriate avenue was a 4123.512 appeal to the Court of Common Pleas for trial and not by way of mandamus, the Supreme Court of Ohio based its decision almost exclusively on the appropriate standard of review and decided the case against her. 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.” The Court held that the decision Ms. Clendenin appealed simply addressed ongoing payment of benefits for one of her allowed conditions. Since the denial of ongoing benefits for an allowed condition is not the same as a denial of the underlying condition, mandamus was the appropriate remedy.
Questions regarding “right to participate” under section 4123.512? Please contact Mike Reidy or any of the experienced workers’ compensation attorneys at RBS to discuss the same.