State ex rel. Long v. Mihm - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
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The State ex rel. Long, Appellant, v. Mihm, Admr., et al.,
Appellees.
[Cite as State ex rel. Long v. Mihm (1992), Ohio
St.3d .]
Workers' compensation -- Election of compensation under R.C.
4123.57 -- Unforeseen changed circumstances sufficient to
justify an election change -- Evidentiary basis of hearing
officer's decision specified, when.
(No. 91-1244 -- Submitted July 8, 1992 -- Decided
September 2, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-1062.
Claimant-appellant, David L. Long, was injured in the
course of and arising from his employment with R.B.
Manufacturing Co. in 1977. His workers' compensation claim was
allowed for "amputation right second finger, laceration right
thumb." In early 1979, claimant was found to have a
fifteen-percent permanent and partial disability. Pursuant to
former R.C. 4123.57, he elected to receive his award as R.C.
4123.57(B) permanent partial disability compensation. In 1987,
his disability increased to twenty-two percent.
In 1989, claimant sought to change his election from R.C.
4123.57(B) permanent partial disability compensation to
4123.57(A) impaired earning capacity compensation.
Accompanying his motion was the medical report of attending
physician James C. Cameron, indicating that the medical
impairment caused by the allowed conditions had diminished
claimant's earning capacity. Claimant also submitted his own
affidavit, averring that:
"* * * At the time he made the initial election he was
unable to foresee the impact this injury would have upon him:
"(a) He is a laborer with no formal education or
skilled/semi-skilled training;
"(b) He is right handed;
"(c) The loss of feeling in his thumb, decreased strength
and pain in his right hand have substantially impacted his
ability to work:
"(1) He has to work harder now than he did in 1977-1979 in
order to perform the same tasks;

"(d) He must work harder than his co-workers in order to
get similar pay raises because he works slower;
"(e) He has been unable to perform certain job tasks and
duties which resulted in lost pay and/or lost opportunities for
overtime compensation;
"(f) He has been unable to advance or go into other work
situations because of his injury;
"(g) He would be able to work longer, more effectively and
more efficiently if it were not for this injury[.] * * *"
An Industrial Commission district hearing officer denied
claimant's motion, stating:
"The issue of change of elections is moot as District
Hearing Officer finds that claimant has not proven an
impairment in earning capacity. Claimant has not received any
treatment in his claim since 1978. He has been able to
continue working in the job he was working at the time of
injury. There has been no documented change in circumstances
since claimant's original election in 1979 such as an
additional allowance. Claimant testified that co-employees
with less seniority are getting paid more due to claimant's
industrial injury but there has been no factual evidence
submitted to support this contention. As such, claimant has
not proven good cause to change elections nor an impairment in
earning capacity."
The regional board of review affirmed. Industrial
Commission staff hearing officers ultimately modified the order
to reflect an affirmative denial of an election change, not
merely the issue's dismissal as moot.
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in denying the change. The appellate
court disagreed and denied the writ.
This cause is now before this court upon an appeal as of
right.

Ronald J. Koltak, for appellant.
Lee I. Fisher, Attorney General, and Jetta Mencer, for
appellees.

Per Curiam. 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 4123.57(A) impaired
earning capacity benefits. All future partial disability
awards were to be paid according to the method selected.
However, for "good cause shown" a claimant could change his or
her election. R.C. 4123.57(A). (136 Ohio Laws, Part I, 1160.)
"To establish good cause, a claimant must prove (1)
unforeseen changed circumstances subsequent to the initial
election, and (2) actual impaired earning capacity." State ex
rel. Combs v. Goodyear Tire & Rubber Co. (1992), 62 Ohio St.3d
378, 381, 582 N.E.2d 990, 992.
"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 (State ex rel. Simpson v. Indus. Comm.
[1991], 62 Ohio St.3d 162, 580 N.E.2d 779); (2) unexpected
transformation of a nonwork-preventive injury into a
work-prohibitive one (id.), and (3) recognition of additional
conditions after election (Combs, supra).
None of these elements is present here. Claimant stresses
his alleged post-election limitation on promotions and
overtime. The commission, however, was unpersuaded by
claimant's assertion. This determination was within the
commission's prerogative since it "alone shall be responsible
for the evaluation of the weight and credibility of the
evidence before it." State ex rel. Burley v. Coil Packing,
Inc. (1987), 31 Ohio St.3d 18, 20-21, 31 OBR 70, 72, 508 N.E.2d
936, 938. The commission thus did not abuse its discretion in
finding that claimant's statement, absent independent
verification, lacked credibility.
Procedurally, claimant asserts that the commission
violated State ex rel. Mitchell v. Robbins & Myers, Inc.
(1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721. This
claim is unpersuasive. The district hearing officer
specifically cited three reasons for her decision: (1) work
continuation, (2) lack of treatment, and (3) lack of
independent verification of lost pay. This explanation
comports with Mitchell.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.