Opinion
No. 89-335
Submitted July 19, 1990 —
Decided September 12, 1990
Workers' compensation — Actual impairment of earning capacity not shown, when — Claimant's decision to abstain from employment unrelated to any disability but solely to her desire to remain home to take care of her children.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-148.
Appellee, Teri M. Pauley, was injured in June 1981 in her employment with the Sugar Creek Packing Company. The Industrial Commission of Ohio ("commission") allowed her claim for "low back strain."
Appellee eventually applied for a determination of her percentage of permanent partial disability. Appellee and her employer filed a written agreement in which they stipulated that appellee had a percentage of permanent partial disability of twenty percent. The commission thereafter entered an order to that effect. The order also stated that appellee would be required to elect "whether to receive compensation, as above determined, or to be compensated for impairment of earning capacity * * *."
Appellee elected to receive compensation for her impairment of earning capacity under former R.C. 4123.57(A), rather than for her percentage of permanent partial disability under former R.C. 4123.57(B). Appellee thereafter was awarded compensation for impaired earning capacity. The employer objected to this award and the matter was heard by a district hearing officer of the commission. The hearing officer found the evidence insufficient to support a finding of impaired earning capacity and therefore ordered a termination of such compensation. The regional board of review affirmed.
Two staff hearing officers of the commission affirmed the regional board's order. The officers noted that appellee had testified "that her sole reason for not working at any job at this time is her personal desire to remain home to care for her children. * * *" (Emphasis sic.) Because appellee's decision to abstain from all employment was unrelated to any disability, the officers found that she had not shown an actual impairment of her earning capacity.
Appellee filed a mandamus action in the court of appeals challenging the commission's decision. The court of appeals concluded that no further hearing or determination was necessary regarding impaired earning capacity after the commission determined appellee's percentage of permanent partial disability. The court issued a limited writ which required the commission to redetermine the percentage of permanent partial disability after considering and identifying all medical and nonmedical factors upon which it relies.
The cause is now before this court upon an appeal as of right.
Thompson, Meier Dersom and William A. Meier, for appellee Pauley.
Anthony J. Celebrezze, Jr., attorney general, and James A. Barnes, for appellant.
Upon review of the record, we find that the court of appeals erred in granting a limited writ of mandamus.
At the time the court of appeals decided this case, it did not have the benefit of recent rulings by this court on the question of impairment of earning capacity under former R.C. 4123.57(A). In the syllabus of State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775, we stated that when a "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." As we stated in State, ex rel. Bittinger, v. NACCO Mining Co. (1990), 49 Ohio St.3d 30, 31, 550 N.E.2d 172, 173, the "determination of impaired earning capacity entails two steps — an initial hearing to calculate partial disability and a second hearing to assess actual impaired earning capacity." In light of these cases, the court of appeals was incorrect to conclude that compensation for impaired earning capacity must be awarded once the percentage of partial disability has been determined.
The burden is on the claimant to show the existence of an impairment of earning capacity. State, ex rel. Apgar, v. Indus. Comm. (1989), 42 Ohio St.3d 5, 7, 535 N.E.2d 1364, 1365. As the district hearing officer correctly ruled, there was insufficient evidence in this case to support an award of compensation for impaired earning capacity. Appellee does not direct us to any evidence regarding her working skills and opportunities; the commission therefore could not assess her earning capacity and the impairment thereof. Because there was insufficient evidence, the commission properly terminated the award of compensation for impaired earning capacity.
In any event, the staff hearing officers of the commission noted evidence in the record which justified the termination of compensation for impaired earning capacity. As the officers stated, appellee herself testified "that her sole reason for not working at any job at this time is her personal desire to remain home to care for her children. * * *" (Emphasis sic.) Appellee does not dispute the accuracy of this summary of her testimony.
We have held that "evidence of increased or decreased earnings has `* * * no essential relation to earning capacity.'" Johnson, supra, at 387, 533 N.E.2d at 778, quoting Indus. Comm. v. Royer (1930), 122 Ohio St. 271, 273, 171 N.E. 337, 338. Therefore, the mere fact that a claimant has not been employed is not dispositive of the impaired-earning-capacity issue.
Nevertheless, we stated recently that the lack of a "desire to earn" can be dispositive. In State, ex rel. CPC Group, General Motors Corp., v. Indus. Comm. (1990), 53 Ohio St.3d 209, 211-212, ___ N.E.2d ___, ___, we stated the following:
"R.C. 4123.57(A) requires a comparison of a claimant's pre- and post-injury earning capacity. Consideration of post-injury earning capacity assumes, at a minimum, a desire to earn during the period in which an impairment has been alleged. Receipt of compensation for impaired earning capacity when that desire is absent is inconsistent with Johnson's requirement that a claimant prove actual impaired earning capacity. Thus, where a claimant retires for reasons unrelated to his or her allowed injury, the attendant circumstances may be relevant to an R.C. 4123.57(A) determination." (Emphasis sic.)
In this case, appellee removed herself from the labor market for reasons unrelated to her injury, thereby reducing her "earning capacity" to zero. Appellee's earning capacity therefore could not be impaired by her injury.
The evidence supports the commission's conclusion that appellee did not show that she had an actual impairment of earning capacity. In light of the foregoing, the grant of a limited writ of mandamus was unwarranted.
Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.