Opinion
No. 88-589
Submitted February 8, 1989 —
Decided March 29, 1989.
Workers' compensation — Claim for impairment of earning capacity properly denied, when.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-1069.
Relator-appellee, Betty Smith Apgar, suffered an injury on September 16, 1979 in the course of and arising out of employment with respondent Ponderosa Systems, Inc. ("Ponderosa"). Following the allowance of her claim for "acute cervical, dorsal and lumbar ligamentous strain and myospasm; strain left shoulder," she received intermittent periods of temporary total and temporary partial compensation. On October 4, 1983, appellee filed an application with respondent-appellant Industrial Commission for a determination of her percentage of permanent partial disability. On June 6, 1984, appellee was awarded seven percent permanent partial disability. Following a reconsideration hearing, the award was increased to ten percent.
After the initial percentage determination, appellee filed a notice stating her desire to be compensated under R.C. 4123.57(A) for impairment of earning capacity. Attached to that notice was appellee's affidavit, dated July 31, 1984, which stated "no work, no wages or other compensation since February 3, 1983." Ponderosa objected to appellee's election, maintaining that "the medical evidence fails to support an impairment of earning capcity [ sic] as a result of the allowed conditions * * *." On October 18, 1985, commission staff hearing officers ultimately agreed, finding that the permanent partial disability did not result in any impairment in earning capacity.
On November 25, 1986, appellee filed an action for mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in denying appellee's election to receive compensation under R.C. 4123.57(A). The appellate court granted the writ, holding that once a percentage of permanent partial disability had been determined, a claimant has an absolute right to elect under R.C. 4123.57(A) or (B).
The cause is before this court upon an appeal as of right.
Agee, Clymer Morgan Co., L.P.A., and Philip J. Fulton, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and Jenice R. Golson, for appellant.
In the syllabus to State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775, we held:
"When a claimant has demonstrated to the Industrial Commission that he or she has suffered an injury in the course of employment and the commission has determined the percentage to which such injury left the claimant partially disabled, and the claimant elects to receive compensation under R.C. 4123.57(A), proof of actual impairment of earning capacity must be presented to support an award of weekly compensation thereunder. (Former R.C. 4123.57, construed.)"
Our task in the present case is limited to a determination of whether the appellee (claimant) has presented proof of actual impairment of her earning capacity. As distinguished from the findings made by the district hearing officer in denying the claim in Johnson, supra, here the district hearing officer made the following finding on January 7, 1985:
"The employer's motion objecting to claimant's election under Paragraph `A' is granted for the reason that claimant has not established nor does the medical evidence reveal an impairment of earning capacity as a result of the allowed conditions in this claim." (This finding was essentially affirmed by the commission staff hearing officers on October 18, 1985.)
Appellee does not point to any evidence of record to support an actual impairment of earning capacity and we find no such evidence. Appellee argues that there need be no such evidence and that impaired earning capacity can be determined from the finding that appellee's degree of permanent partial disability was ten percent. We rejected this argument in Johnson, supra.
The burden is not upon the commission to disprove the existence of impairment of earning capacity. Rather, a claimant must show evidence of impairment and that such impairment is causally related to the claimant's industrial injury. See Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 55 O.O. 472, 125 N.E.2d 1.
Since the standard applied by the Industrial Commission in denying the claim for impairment of earning capacity complies with the law as set forth in Johnson, supra, and Fox, supra, we reverse the judgment of the court of appeals and deny appellee's complaint for a writ of mandamus.
Judgment reversed.
MOYER, C.J., HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.
I respectfully dissent. The matter before us is not, in my judgment, an application of the "some evidence" rule. It is purely a matter of statutory interpretation.
The version of R.C. 4123.57 in effect on the date of appellee's injury provided an absolute right to a claimant to elect benefits under either R.C. 4123.57(A) or (B) once a percentage of partial disability had been determined. See State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 388, 533 N.E.2d 775, 779 (Sweeney, J., dissenting). I dissent simply because I read the statute, then in existence, differently than does the majority.
SWEENEY and RESNICK, JJ., concur in the foregoing dissenting opinion.