Back to the baseline-terminating payments for a substantial aggravation

In 2006 the Ohio legislature changed the law regarding allowances for pre-existing conditions that are aggravated by a work injury.  Specifically, the legislature amended O.R.C. 4123.01 to require that in order to be compensable, the pre-existing condition must have been “substantially aggravated” by the work injury.  A substantial aggravation must be documented by “objective diagnostic findings, objective clinical findings, or objective test results.”

The legislature also added O.R.C. 4123.54(G), which holds that once the substantial aggravation “has returned to a level that would have existed without the injury”, no compensation or benefits are payable because of the pre-existing condition.

Recently, in Clendenin v. Girl Scouts of Western Ohio, the Ohio Supreme Court held that an Industrial Commission determination that an injury has returned to baseline is not appealable to common pleas court.  The court noted that Ohio’s workers’ compensation system was set up with a goal of being “administered largely outside of the court system.”  Accordingly, any decision that pertains to an injured worker’s “extent of disability” as opposed to the “right to participate” can only be heard in mandamus, by the 10th Appellate District.  The Court found that the determination that a condition had returned to its pre-injury baseline involved the “extent of disability” and that Clendenin’s appeal of the Commission’s decision to the court of common pleas was properly dismissed.

The Clendenin decision means that the only judicial review of the Commission’s determination that a condition has returned to baseline is in mandamus.  In a mandamus action, the Commission’s decision can only be overturned if it constitutes an abuse of discretion.  That is a very high standard, which is not often met.  It might be worthwhile to take another look at your substantial aggravation claims.  If things haven’t changed in a while, it may be time to consider scheduling an exam and filing a motion under 4123.54(G).

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