Opinion
No. 90-1431
Submitted September 10, 1991 —
Decided December 4, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-1027.
Appellant, Thomas J. Simpson, was injured in 1979 while in the course of and arising from his employment with appellee, Wheeling-Pittsburgh Steel Corporation. His workers' compensation claim was recognized for low back strain and temporary total disability compensation was paid until his return to work seven months later.
In September 1982, appellant applied for permanent partial disability compensation. Three months later, appellant's injury again prevented him from working, and temporary total disability compensation was reinstated. Temporary total disability compensation continued until 1986 when it was terminated due to the permanency of claimant's disability.
On March 18, 1983, a commission district hearing officer heard appellant's application for compensation for partial disability. Two months later, appellant's claim was additionally allowed for "herniated nucleus pulposis L4-5" and disc surgery was performed in September 1983. On September 29, 1983, the hearing officer issued an order finding appellant twenty percent permanently and partially disabled. Consistent with statute, the order informed appellant that he must elect how his award was to be paid — under either the impaired earning capacity provisions of former R.C. 4123.57(A) or the permanent partial disability provisions of former R.C. 4123.57(B). See Am.Sub.H.B. No. 138, 138 Ohio Laws, Part I, 1727, 1733-1739. Appellant chose the latter.
In 1987, appellant sought recognition of an increase in his permanent partial disability. A commission district hearing officer found a forty-percent permanent partial disability and issued an order accordingly. Appellant subsequently requested permission to change his election from R.C. 4123.57(B) compensation to 4123.57(A) benefits. Commission staff hearing officers denied this request, finding:
"* * * [T]hat the claimant has not shown good cause for a change of election from Paragraph (B) to Paragraph (A) of ORC Section 4123.57. An increase of a claimant's percentage of permanent partial disability is not good cause since such increases are already anticipated by ORC Section 4123.57(B) which provides for additional compensation when the claimant's permanent partial disability increases.
"The claimant's status regarding his ability to return to his former work has not changed since the time of election. He was not working when he filed his original election on October 17, 1983, and he was not working when he requested his change of election on June 14, 1988. In fact, he was not working for more than five months before he filed his election in 1983.
"There is no proof of any changed or unforeseen circumstances which have developed since the time of the original election."
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion by finding that appellant's change of election was not supported by good cause. The appellate court disagreed and denied the writ.
This cause is now before this court upon an appeal as of right.
Larrimer Larrimer and David H. Swanson, for appellant.
Lee I. Fisher, Attorney General, Michael L. Squillace and Yolanda L. Barnes, for appellee Industrial Commission.
Baughman Associates Co., L.P.A., R. Patrick Baughman, Susan S. Henderson and James V. Weixel, Jr., for appellee Wheeling-Pittsburgh Steel Corporation.
Former R.C. 4123.57 required a successful applicant for partial disability compensation to choose the method of payment — as permanent partial disability compensation under R.C. 4123.57(B) or as impaired earning capacity benefits under R.C. 4123.57(A). Any future partial disability awards were to be paid according to the method first selected. However, for "good cause shown" a claimant may change election. Former R.C. 4123-57(A). We must decide whether the commission abused its discretion when it found no good cause here. We find that it did not.
"Good cause" is not statutorily defined nor have we previously interpreted it. The parties direct our attention to State, ex rel. Fellers, v. Indus. Comm. (1983), 9 Ohio App.3d 247, 248, 9 OBR 421, 422, 459 N.E.2d 605, 606, wherein the Court of Appeals for Franklin County stated that "good cause," as used in R.C. 4123.57(A), "is demonstrated when, at the time of making the first election, subsequently occurring circumstances were not foreseeable."
Fellers hurt her arm and shoulder at work. She sought partial disability compensation and was found to be ten percent partially disabled. Fellers elected to be compensated under R.C. 4123.57(B). She later applied for an increase in partial disability compensation and it, too, was paid under paragraph (B). Fellers continued working throughout.
When Fellers' injury later prevented her from working, she attempted to change her election from R.C. 4123.57(B) to 4123.57(A). The commission found no good cause and denied her motion.
The appellate court found an abuse of discretion and ordered the commission to vacate its order. The court held:
"`Good cause' is demonstrated when, at the time of making the first election, subsequently occurring circumstances were not foreseeable. If a person suffers what appears to be a minor injury, at the time of election, but the injury subsequently causes major problems to the relator's health and earning power, such a change of circumstances constitutes `good cause,' within the meaning of R.C. 4123.57, for a change of election." Id.
While Fellers enunciates an acceptable definition of "foreseeability," foreseeability can no longer be viewed as the sole element of "good cause." When Fellers was decided, claimant's eligibility for impaired earning capacity benefits under former R.C. 4123.57(A) was thought by some to be automatic once a partial disability had been found. Under State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775, however, this is no longer true. In Johnson, we held that a claimant must prove actual impaired earning capacity. As such, "good cause" must now be viewed as dual pronged, demonstrated only by a showing of unforeseeable circumstances and actual impaired earning capacity. If either requirement is not met, "good cause" has not been established.
The commission did not abuse its discretion in finding foreseeability and, therefore, lack of good cause in the case at bar. Fellers is distinguishable in two important respects — both of which go to the question of foreseeability. First, when the election was made, Fellers' injury was minor — appellant's was not. By the time appellant made his election, his claim had been additionally allowed for a disc condition — herniated nucleus pulposis L4-5 — and appellant had undergone back surgery. Second, unlike Fellers, appellant was already prevented by his injury from working when he elected to receive R.C. 4123.57(B) compensation. Thus, the circumstances that appellant claims justify an election change were not only foreseeable, but were present when the initial election was made.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., concurs in judgment only.