550 N.E.2d 177
No. 88-1692Supreme Court of Ohio.Submitted November 7, 1989 —
Decided February 14, 1990.
Workers’ compensation — Application for permanent partial disability compensation — Election to receive compensation under R.C. 4123.57(A) — Proof of actual impairment of earning capacity required.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-288.
Claimant-appellee (“claimant”), Donald L. Cockroft, was injured while in the course of and arising from his employment with appellant, Cleveland Browns, Inc. In late 1982, claimant applied to appellee Industrial Commission (“commission”) for a permanent partial disability determination. He was examined by the commission’s chief medical advisor, Dr. Gilbert Gross, who found a fifteen-percent permanent partial impairment. Claimant dismissed his application shortly thereafter.
The claimant later requested compensation under R.C. 4123.57(A). A commission district hearing officer ordered:
“* * * Temporary partial compensation [of] 15% awarded from 2-24-83 through 9-1-83 and to continue as long as claimant demonstrates both a wage and medical impairment. * * * Based on the report of Dr. Gross.”
The decision was affirmed administratively.
Appellant petitioned the Court of Appeals for Franklin County for a writ
Page 18
of mandamus, alleging that the commission abused its discretion in awarding R.C. 4123.57(A) compensation. The court of appeals agreed, holding that the commission “did not follow the two-step hearing process set forth in the applicable version of R.C. 4123.57.” It granted a writ of mandamus “to the extent that the Industrial Commission’s order is vacated and a second hearing be held regarding claimant’s election based upon the Industrial Commission’s determination of claimant’s fifteen percent impairment.”
The cause is now before this court upon an appeal as of right.
Dinn, Hochman, King Melamed, Irwin J. Dinn and Michele C. Raia, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Michael Squillace and James A. Barnes, for appellee Industrial Commission.
Climaco, Climaco, Seminatore, Lefkowitz Garofoli Co., L.P.A., and Michael L. Climaco, for appellee Cockroft.
Per Curiam.
In State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775, we held that partial disability compensation under R.C. 4123.57(A) must be supported by proof of actual impaired earning capacity. We find no such evidence here.
In awarding compensation, the commission relied solely on Dr. Gross’ report. Evidence relating exclusively to the extent of a claimant’s medical impairment, however, is not “some evidence” of actual impaired earning capacity. The commission thus abused its discretion in awarding compensation under R.C. 4123.57(A). State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Accordingly, that portion of the appellate court’s decision vacating the commission’s order is affirmed.
We find it unnecessary, however, to remand the cause to the commission for further hearing. First, vacation of the commission’s order entails vacation of the fifteen-percent disability figure as well. Moreover, the appellate court’s decision is based on the belief that a permanent partial disability determination must precede any election. This premise, however, was subsequently rejected in Johnson, supra. Finally, the appellate court ordered a remand because it found that a second “election” hearing had not taken place. This finding, however, conflicts with its earlier statement that such an “election” determination had occurred.
Based on the foregoing, we affirm that portion of the appellate court’s judgment which vacated the commission’s order. We reverse that portion remanding the cause for a second hearing.
Judgment affirmed in part and reversed in part.
MOYER, C.J., HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
DOUGLAS, J., dissenting.
A majority of this court continues to rewrite (rather than just follow the clear dictates of) R.C. 4123.57. Because I continue to believe this to be improper, I respectfully dissent.
SWEENEY, J., concurs in the foregoing dissenting opinion.
Page 19