Opinion
No. 88-1490
Submitted November 7, 1989 —
Decided February 14, 1990.
Workers' compensation — Commission need not consider nonmedical disability factors again in calculating extent of impaired earning capacity after considering them in determining percentage of partial disability.
O.Jur 3d Workers' Compensation §§ 194, 195.
Once the Industrial Commission has considered nonmedical disability factors in determining the percentage of partial disability, it is unnecessary to consider those same factors again in calculating the extent of impaired earning capacity.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-659.
Appellant-claimant, Boyd K. Bittinger, was injured in 1982 while in the course of and arising from his employment as a roof bolter with appellee NACCO Mining Company. He returned to his former position of employment the next day and sustained no further compensable lost time. Appellant later bid successfully on another job. He alleged that his decision was motivated by his industrial injury, stating that the new job was less physically demanding than the old job. (He also stated that he earned $15 to $20 less per day in this new position.)
Appellant applied to appellee Industrial Commission of Ohio ("commission") for permanent partial disability compensation pursuant to former R.C. 4123.57. On October 16, 1986, a commission district hearing officer found an eighteen-percent permanent partial disability. Neither appellant nor his employer requested reconsideration of that order.
Appellant elected to receive his compensation under the impaired-earning-capacity provisions of former R.C. 4123.57(A). Following a January 15, 1987 hearing, the district hearing officer acknowledged the permanent partial disability, but found no impaired earning capacity. The hearing officer stated in part: "This finding is based upon the fact that one day after the injury, the claimant returned to his former work and he was fully capable of performing work and obtaining the same earning ability after the injury as before the injury. Not until recently has [ sic] the claimant's earnings changed, but his earning capacity has remained the same. The change of earnings, but not the earning capacity, is due to the claimant's choice to change jobs based upon his bidding for the other job duties due to years of seniority. * * *" This order was administratively affirmed.
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging the commission abused its discretion in finding no impaired earning capacity. The court denied the writ.
The cause is now before this court upon an appeal as of right.
Larrimer Larrimer and Craig Aalyson, for appellant.
Squire, Sanders Dempsey and Preston J. Garvin, for appellee.
Anthony J. Celebrezze, Jr., attorney general, Michael L. Squillace and Jenice R. Golson, for appellee Industrial Commission.
Two questions are before us: (1) whether permanent partial disability and impaired earning capacity are the same; and (2) whether the commission, in determining impaired earning capacity, must consider nonmedical disability factors. We answer both questions in the negative.
The first query was conclusively resolved in State, ex rel, Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775. Johnson held that partial disability does not translate into an equivalent percentage of impaired earning capacity. Absent proof of actual impaired earning capacity, the presence of a partial disability does not entitle a claimant to compensation for impaired earning capacity under former R.C. 4123.57(A).
As to the second issue, Johnson also explained that 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. We held that the partial disability phase must include "both medical and relevant nonmedical considerations such as age, education, work history, etc." Id. at 386, 533 N.E.2d at 777.
Applying Johnson to the case at bar, the commission was not required to address nonmedical factors at the impaired-earning-capacity hearing on January 15, 1987. We further find it unnecessary to examine Johnson within the context of the October 16, 1986 permanent-partial-disability order. Since the record contains no evidence that reconsideration of that order was requested, it is not at issue.
Recognizing that our holding appears to conflict with a prior ruling in State, ex rel. Bouchonville, v. Indus. Comm. (1988), 36 Ohio St.3d 50, 521 N.E.2d 773, we take this opportunity to clarify that earlier decision. Bouchonville held that:
"It is necessary for the commission to review a claimant's age, education, work record, and all other factors contained in the record when determining the degree of impairment of earning capacity [ sic]. * * * Hence, the original order of the district hearing officer is flawed because there is no indication that all the relevant factors * * * were considered in determining the percentage of permanent partial disability." (Emphasis added.) Id. at 52, 521 N.E.2d at 775.
Our present analysis reveals the inconsistency of that decision: after stating only that nonmedical factors must be considered at the second phase of the R.C. 4123.57(A) proceedings, the court in Bouchonville found that the commission erred by failing to consider them at the first proceeding. This inconsistency is best explained by the quoted paragraph's emphasized language which indicates that Bouchonville treated the terms "impairment of earning capacity" and "permanent partial disability" synonymously.
This conclusion is stated in Johnson, supra, which initially characterized parts of Bouchonville's language as "somewhat misleading," after having found that "permanent partial disability" and "impairment of earning capacity" were improperly interchanged. Id. at 386, 533 N.E.2d at 777. Thus, except for this improper substitution of terms, Bouchonville's ultimate holding is actually consistent with Johnson in requiring that nonmedical factors be included at the first, i.e., partial disability, phase of an R.C. 4123.57(A) determination. We thus hold that once the Industrial Commission has considered nonmedical disability factors in determining the percentage of partial disability, it is unnecessary to again consider those same factors in calculating the extent of impaired earning capacity.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.
The majority continues to rewrite former R.C. 4123.57 to reach its predetermined results. I continue to disagree with such procedure and, therefore, I dissent.
SWEENEY and RESNICK, JJ., concur in the foregoing dissenting opinion.