Opinion
No. 93-2155
Submitted November 15, 1994 —
Decided December 23, 1994.
APPEAL from the Court of Appeals for Franklin County, No. 92AP-951.
Appellant-claimant, Richard A. Delong, was injured in 1977 in the course of and arising from his employment with appellee Kroger Company. His workers' compensation claim was allowed for "lower back." Claimant missed nearly three months of work before returning to his former job.
It is undisputed claimant continued to work as a meat cutter until 1984, when a Kroger plant closure forced his layoff. Thereafter, claimant apparently engaged in less strenuous employment.
In 1987, claimant applied to appellee Industrial Commission of Ohio for a determination of his partial disability pursuant to former R.C. 4123.57. The commission ordered a twelve percent permanent partial disability award. Given the statutory option of receiving his compensation as a lump-sum permanent partial disability under R.C. 4123.57(B) or as a bi-weekly award of impaired earning capacity benefits under R.C. 4123.57(A), claimant elected under R.C. 4123.57(B).
In December 1988, claimant applied for a permanent partial disability increase. His permanent partial disability was raised to forty percent. That award was administratively affirmed.
In September 1989, claimant's back condition flared up, precipitating surgery. Surgeon and attending physician, Roger V. Meyer, on March 1, 1990 reported that:
"Post-operatively the patient had very little if any leg pain and his back pain was decreased markedly. He did very well post-operatively and was able to return to work around the first of November, 1989. His followup has been uneventful with still come [ sic] complaints of back strain and pain which we would expect due to a bad disc. * * * Post-operatively 90% of his pain was gone and he felt quite a bit better. * * *"
At some point thereafter, claimant returned to a job at Bob Townsend Ford. In March 1991, claimant asked to switch his form of partial disability benefits from permanent partial disability to impaired earning capacity benefits because "the disabilities recognized herein have worsened to the point that claimant incurred or otherwise suffered a long term impairment of earning capacity."
A commission district hearing officer denied the request, writing:
"The hearing officer finds that claimant has not shown good cause to justify the change of election. The hearing officer further finds that claimant has not suffered an impairment in earnings [ sic] capacity.
"The hearing officer finds that claimant's reduction in earnings is the result of economic factors rather than the injury of 5/2/77.
"This order is based with particularity on the 3-1-90 (post surgical) report of Roger Meyer, M.D."
The order was administratively affirmed.
Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, seeking to compel his election change. The appellate court concurred in the commission's finding of a lack of "good cause" and denied the writ.
The cause is now before this court upon an appeal as of right.
Grady Honerlaw Co., L.P.A., and Michael J. Honerlaw, for appellant.
Lee Fisher, Attorney General, and Jetta Mencer, Assistant Attorney General, for appellee Industrial Commission.
Porter, Wright, Morris Arthur, Charles J. Kurtz III and Karl J. Sutter, for appellee Kroger Company.
Former R.C. 4123.57 permitted claimants to choose the form of partial disability award payment — as permanent partial disability benefits under R.C. 4123.57(B) or as impaired earning capacity compensation under division (A). (136 Ohio Laws, Part I, 1160-1161.) For "good cause shown" claimant could later change that election. ( Id. at 1160.) R.C. 4123.57(A).
"Good cause" was first defined in State ex rel. Fellers v. Indus. Comm. (1983), 9 Ohio App.3d 247, 248, 9 OBR 421, 422, 459 N.E.2d 605, 606:
"`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."
That definition was approved in State ex rel. Simpson v. Indus. Comm. (1991), 62 Ohio St.3d 162, 580 N.E.2d 779. Simpson, however, added that, along with foreseeability, "good cause" required a showing of actual impaired earning capacity. Id. at 164, 580 N.E.2d at 781, fn. 1. See, also, State ex rel. Combs v. Goodyear Tire Rubber Co. (1992), 62 Ohio St.3d 378, 381, 582 N.E.2d 990, 992.
We elaborated on this definition in State ex rel. Long v. Mihm (1992), 64 Ohio St.3d 527, 529, 597 N.E.2d 134, 136:
"`To establish good cause, a claimant must prove (1) unforeseen changed circumstances subsequent to the initial election, and (2) actual impaired earning capacity.' * * *
"`Unforeseen changed circumstances' has two elements, with changed circumstances being a condition precedent to consideration of foreseeability. The term appears to be deliberately flexible in order to accommodate the many possible situations that could merit a change of election. In our limited encounters with `good cause,' we have thus far provided three examples of unforeseen changed circumstances sufficient to justify an election change: (1) significant worsening of claimant's condition * * *; (2) unexpected transformation of a nonwork-preventive injury into a work-prohibitive one * * * [;] and (3) recognition of additional conditions after election * * *." (Citations omitted.)
Claimant cites Long's first example as justification for an election change. Claimant's position fails. Claimant's permanent partial disability did increase from twelve to forty percent. However, under similar circumstances in State ex rel. Doughty v. Wheeling-Pittsburgh Steel Corp. (1993), 67 Ohio St.3d 610, 612, 622 N.E.2d 1081, 1083, we held:
"We also do not find that claimant's increase in disability from twenty-one to thirty-nine percent, standing alone, demonstrates a `significant worsening' of claimant's condition. Our holding is supported by Simpson, supra, in which a twenty-percent increase in disability, in and of itself, did not justify an election change. To define `significant' in purely numerical terms is untenable because no two claimants, or the circumstances accompanying their change of election requests, are the same. A claimant with an already high percentage of disability may finally be forced from the work force by a small increase in disability. A different claimant, on the other hand, with a low percentage of disability may be virtually unaffected by such an increase. The significance of a disability increase, therefore, must be decided on a case-by-case basis, based on the totality of the attendant circumstances. In this case, absent nothing more than a sheer mathematical increase in percentage of disability, we decline to find that claimant has established that his condition has sufficiently changed so as to warrant further inquiry."
Dr. Meyer attested to the significant improvement in claimant's condition after his 1989 operation. While it may not have returned claimant to his pre-injury state, the degree of post-operative recovery negates claimant's assertion that a significant worsening of his condition has occurred.
Claimant's reliance on Fellers and Combs, supra, is equally misplaced, as both cases had an added element that distinguishes them from this case. In addition to a substantial post-election disability percentage increase, the claimant in Combs was allowed several serious post-election conditions. The disability percentage increase in Fellers, on the other hand, was accompanied by a post-election inability to work. In this case, claimant's inability to return to work at Krogers was not injury-induced, which eliminates any "good cause" parallels with Fellers.
Claimant puts considerable stock on his return to light work following surgery. Claimant, however, was performing light duty work not only before his surgery, but performed it at one time before his initial election as well. There is thus no work-related change that would substantiate claimant's allegation of "good cause." Having disposed of this issue, we need not consider the companion question of claimant's actual impaired earning capacity.
Claimant also argues that the district hearing officer's order does not comply with State ex rel. Mitchell v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. This is incorrect. The order identifies Dr. Meyer's report as the evidence relied on establishing a lack of good cause. Since claimant alleged only one basis for good cause due to unforeseen changed circumstances — significant worsening of his condition — and since Dr. Meyer's report clearly indicates otherwise, the commission's evidentiary explanation is adequate.
The appellate judgment is hereby affirmed.
Judgment affirmed.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.