[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Clendenin v. Girl Scouts of W. Ohio, Slip Opinion No. 2017-Ohio-2830.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.


                         SLIP OPINION NO. 2017-OHIO-2830
      CLENDENIN, APPELLEE, v. GIRL SCOUTS OF WESTERN OHIO ET AL.;
                          MORRISON, ADMR., APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Clendenin v. Girl Scouts of W. Ohio, Slip Opinion No.
                                   2017-Ohio-2830.]
Workers’ compensation—Appeal—R.C. 4123.512—Decision that preexisting
        condition substantially aggravated by workplace injury has returned to
        preinjury level is a decision regarding the extent of a claimant’s disability
        and is not appealable—Court of appeals’ judgment reversed.
     (No. 2015-1993—Submitted January 11, 2017—Decided May 18, 2017.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-140658,
                                   2015-Ohio-4506.
                              ______________________
        O’NEILL, J.
        {¶ 1} In this case, we are asked whether an Industrial Commission order
determining that a preexisting condition that was substantially aggravated by a
workplace injury has returned to a level that would have existed absent the injury
                              SUPREME COURT OF OHIO




is appealable to a court of common pleas under R.C. 4123.512(A). We hold that it
is not. A determination that a condition has returned to a level that would have
existed absent a workplace injury is a decision regarding the extent of a claimant’s
disability. R.C. 4123.512 provides that decisions as to the extent of disability are
not appealable to the court of common pleas.
                               Facts and Prior History
          {¶ 2} Appellee, Audrey Clendenin, suffered an injury on October 21, 2008,
while working for the Girl Scouts of Western Ohio. Clendenin’s claim for workers’
compensation was allowed for right-shoulder rotator-cuff tear, right biceps-tendon
tear, substantial aggravation of preexisting right-shoulder tendonitis, substantial
aggravation of preexisting acromioclavicular-joint arthritis right, substantial
aggravation of preexisting right-shoulder labral tear, and substantial aggravation of
preexisting dermatomyositis.
          {¶ 3} In March 2013, appellant, the administrator of the Bureau of Worker’s
Compensation, filed a motion to abate Clendenin’s claim for substantial
aggravation of preexisting dermatomyositis. The administrator’s motion asserted
that Clendenin’s dermatomyositis had returned to a level that would have existed
without her workplace injury. A district hearing officer granted the bureau’s
motion and ordered that compensation and medical benefits were “no longer [to]
be paid under this claim for the allowed condition.” The hearing officer stated that
the decision was based on a January 9, 2013 medical report. A staff hearing officer
agreed.
          {¶ 4} Clendenin filed a notice of appeal and a complaint in the Hamilton
County Court of Common Pleas, alleging that her condition had not returned to its
preinjury status and that compensation and medical benefits should continue to be
paid under the claim for the allowed condition.
          {¶ 5} The bureau moved to dismiss for lack of subject-matter jurisdiction.
It argued that medical abatement of one condition of a claim is an extent-of-




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                                     January Term, 2017




disability issue that cannot be appealed to a common pleas court under R.C.
4123.512(A). The trial court agreed with the bureau and dismissed Clendenin’s
appeal for lack of jurisdiction.
        {¶ 6} Clendenin then appealed to the First District Court of Appeals.1 The
court of appeals reversed the judgment granting the motion to dismiss and
remanded the matter to the trial court. 2015-Ohio-4506, 42 N.E.3d 812, ¶ 18-19.
The appellate court concluded that the abatement order terminated Clendenin’s
right to continue to participate in the workers’ compensation fund for the claim of
a substantial aggravation of preexisting dermatomyositis and that the order was
appealable to the court of common pleas. Id. at ¶ 14, 18.
        {¶ 7} The administrator appealed to this court, asserting the following
proposition of law:


                 A decision that a claimant’s substantially aggravated
        preexisting condition has returned to a level that would have existed
        absent a workplace injury involves the extent of the claimant’s
        disability and therefore cannot be appealed under R.C. 4123.512.


Clendenin responded with the following counter proposition:


                 A decision that a claimant’s substantially aggravated
        preexisting condition has returned to a level that would have existed
        absent a workplace injury, involves the right to participate and is
        thus appealable under R.C. 4123.512.




1
  Clendenin also filed a petition for a writ of mandamus in the Tenth District Court of Appeals but
voluntarily dismissed that petition pending the outcome of this case. State ex rel. Clendenin v.
Indus. Comm., 10th Dist. Franklin No. 14AP-1034 (Apr. 13, 2015).




                                                3
                              SUPREME COURT OF OHIO




       {¶ 8} This cause is before the court on the acceptance of a discretionary
appeal. 145 Ohio St.3d 1421, 2016-Ohio-1173, 47 N.E.3d 166. We reverse the
judgment of the First District Court of Appeals and hold that a decision made
pursuant to R.C. 4123.54(G) that substantial aggravation of a preexisting condition
has abated involves the extent of a claimant’s disability. Accordingly, such a
decision is not appealable under R.C. 4123.512. Instead, a challenge like this one,
to the commission’s final decision regarding the extent of disability, is properly
made by an action in mandamus.
                                 Law and Analysis
       {¶ 9} Ohio’s workers’ compensation system is the exclusive statutory
remedy for work-related injuries. R.C. 4123.74; Indus. Comm. v. Weigandt, 102
Ohio St. 1, 4, 130 N.E. 38 (1921). Therefore, “ ‘a litigant has no inherent right of
appeal in this area.’ ” Felty v. AT & T Technologies, Inc., 65 Ohio St.3d 234, 237,
602 N.E.2d 1141 (1992), quoting Cadle v. Gen. Motors Corp., 45 Ohio St.2d 28,
33, 340 N.E.2d 403 (1976). Litigants may seek judicial review of commission
rulings in one of the following three ways: by direct appeal to the court of common
pleas under R.C. 4123.512, by seeking a writ of mandamus in the Tenth District
Court of Appeals or this court, or by seeking a declaratory judgment under R.C.
Chapter 2721. Felty at 237.
                                 The Appeal Statute
       {¶ 10} R.C. 4123.512(A) allows a claimant to appeal an order of a staff
hearing officer from which the commission has refused to hear an appeal in “an
injury or occupational disease case, other than a decision as to the extent of
disability.” The appeal must be filed in “the court of common pleas of the county
in which the injury was inflicted.” In addition to filing the notice of appeal, the
statute requires a claimant to file a petition showing a cause of action to participate
or to continue to participate in the workers’ compensation fund and setting forth
the basis for the jurisdiction of the court. R.C. 4123.512(D). That statute authorizes




                                          4
                                January Term, 2017




the judge, or the jury if a jury trial is demanded, to “determine the right of the
claimant to participate or to continue to participate in the fund.” Id.
       {¶ 11} Thus, the statute grants the court of common pleas jurisdiction to
review decisions that determine the claimant’s right to participate or to continue to
participate in the fund. It does not grant the court of common pleas jurisdiction to
review decisions regarding the extent of a claimant’s disability. Consistent with
the goal of having a workers’ compensation system that is administered largely
outside of the court system, this court has adhered to a narrow reading of R.C.
4123.512. Felty at 238.
                                 Extent of Disability
       {¶ 12} The extent of a claimant’s disability determines the amount of
compensation and benefits payable under workers’ compensation law for the
allowed conditions of the claim. Zavatsky v. Stringer, 56 Ohio St.2d 386, 384
N.E.2d 693 (1978), paragraph two of the syllabus. A decision regarding the extent
of a claimant’s disability presupposes that a claimant has been allowed the right to
participate in the workers’ compensation fund. Id. A decision by the commission
to increase or decrease compensation or benefits is a decision regarding the extent
of the claimant’s disability. Felty, 65 Ohio St.3d at 239-240, 602 N.E.2d 1141.
Final decisions of the commission regarding the extent of disability may be
challenged by a writ of mandamus or in an action for declaratory judgment. Afrates
v. Lorain, 63 Ohio St.3d 22, 584 N.E.2d 1175 (1992), paragraph three of the
syllabus. The standard of review of this determination is highly deferential to the
commission. State ex rel. McLean v. Indus. Comm., 25 Ohio St.3d 90, 93, 495
N.E.2d 370 (1986). When there is some evidence in the record to support the
commission’s decision, mandamus is not appropriate. State ex rel. Black v. Indus.
Comm., 137 Ohio St.3d 75, 2013-Ohio-4550, 997 N.E.2d 536, ¶ 19.




                                          5
                              SUPREME COURT OF OHIO




                                 Right to Participate
        {¶ 13} This court has stated that R.C. 4123.512 limits a claimant’s right to
appeal a decision of the commission to the common pleas court to only those orders
that decide the claimant’s right to participate in the workers’ compensation fund.
State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 279-280, 737 N.E.2d
519 (2000). The right to participate means that the claimant’s injury occurred in
the course of and arising out of the claimant’s employment. Id. at 279; see also
White v. Conrad, 102 Ohio St.3d 125, 2004-Ohio-2148, 807 N.E.2d 327, ¶ 10-15
(once a claimant has the right to participate, a later termination involves the right
to continue to participate.     A dependent’s right to continue to participate is
appealable to the common pleas court under R.C. 4123.59(E)). The right to
participate is a threshold determination of the jurisdiction of the commission.
Liposchak at 279-280. When the commission disallows a claim or condition, it
denies the claimant the right to participate and all benefits and compensation must
be denied for that claim or condition. Liposchak at 279-280. The commission’s
denial of the right to participate for an entire claim is appealable, as is the denial of
the right to participate for one condition when other conditions have been allowed.
Zavatsky at paragraph three of the syllabus. The standard of review in these cases
is not deferential to the commission; appeals to the common pleas court under R.C.
4123.512 are subject to de novo review. Afrates at 26.
                      No Right to Appeal under R.C. 4123.512
        {¶ 14} Clendenin was granted the right to participate in the workers’
compensation fund for the substantial aggravation of a preexisting condition as well
as for other conditions.     In the language of workers’ compensation law, the
substantial aggravation of Clendenin’s preexisting condition was “allowed.” R.C.
4123.54(G) provides that compensation and benefits are not payable once the
preexisting condition returns to a level that would have existed absent the
workplace injury.     Based upon a medical report, the Industrial Commission




                                           6
                                January Term, 2017




determined that Clendenin’s allowed preexisting condition had returned to a level
that would have existed absent her workplace injury and pursuant to R.C.
4123.54(G), ordered that compensation and benefits should no longer be paid for
the allowed condition. Clendenin maintains that her preexisting condition has not
returned to a level that would have existed absent her workplace injury and that she
is still entitled to compensation and benefits.
       {¶ 15} 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. There is no
dispute whether Clendenin’s claim and this condition were the result of the work-
related injury. 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. Accordingly,
this matter, a decision about the extent of Clendenin’s disability, is not appealable
to the court of common pleas under R.C. 4123.512.
       {¶ 16} Our case law supports this conclusion. In Zavatsky, one of the
claimants was allowed to participate based on a claim for an injury to his left elbow.
However, additional conditions for which the claimant was seeking to participate
were found to be unrelated to the claimant’s workplace injury. This court held that
the order finding that the additional conditions were not the result of or related to
the workplace injury was appealable to the common pleas court under R.C.
4123.512 even though the claimant was allowed to participate for other conditions.
Zavatsky, 56 Ohio St.2d at 389, 384 N.E.2d 693. In Felty, we determined that the
court of common pleas lacked jurisdiction to hear an employer’s appeal of the
denial of its motion to indefinitely suspend a claimant’s benefits. 65 Ohio St.3d at
241, 602 N.E.2d 1141. Because the denial of the motion to suspend benefits was
not an allowance or disallowance of the claimant’s right to participate, the employer




                                          7
                             SUPREME COURT OF OHIO




could not appeal the decision to a court of common pleas under R.C. 4123.512.
Felty at 241. Similarly, the order of the Industrial Commission in this case leaves
the threshold determination that the aggravation of the preexisting condition was
the result of the workplace injury undisturbed.
       {¶ 17} Phrasing a motion in terms of terminating the right to participate
does not establish the right to appeal under R.C. 4123.512. Courts must look to the
issue before the Industrial Commission and its order, not how the motion was
posited, to determine whether the order is appealable under R.C. 4123.512. Thomas
v. Conrad, 81 Ohio St.3d 475, 479, 692 N.E.2d 205 (1998). 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.
                                   Conclusion
       {¶ 18} We hold that 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. Under R.C. 4123.512,
decisions regarding the extent of the claimant’s disability are not appealable to a
court of common pleas. The decisions that are appealable to a court of common
pleas under R.C. 4123.512 are those decisions that resolve an employee’s right to
participate or to continue to participate in the workers’ compensation fund.
Zavatsky, 56 Ohio St.2d 386, 384 N.E.2d 693; Afrates, 63 Ohio St.3d 22, 584
N.E.2d 1175; Felty, 65 Ohio St.3d 234, 602 N.E.2d 1141; White, 102 Ohio St.3d
125, 2004-Ohio-2148, 807 N.E.2d 327; Benton v. Hamilton Cty. Educational Serv.
Ctr., 123 Ohio St.3d 347, 2009-Ohio-4969, 916 N.E.2d 778.
                                                                Judgment reversed
                                                              and cause dismissed.




                                         8
                                 January Term, 2017




          O’CONNOR, C.J., and KENNEDY, FRENCH, GALLAGHER, and DELANEY, JJ.,
concur.
          O’DONNELL, J., concurs in judgment only.
          SEAN C. GALLAGHER, Eighth District Court of Appeals, sitting for FISCHER,
J.
          PATRICIA A. DELANEY, Fifth District Court of Appeals, sitting for DEWINE,
J.
                                _________________
          Becker & Cade and Dennis A. Becker, for appellee.
          Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, Samuel C. Peterson, Deputy
Solicitor, and Cheryl J. Nester, Assistant Attorney General, for appellant.
                                _________________




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