State ex rel. Mathess v. Wheeling-Pittsburgh Steel Corp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Mathess v. Wheeling-Pittsburgh Steel
Corporation et al.
[Cite as State ex rel. Mathess v. Wheeling-Pittsburgh Steel
Corp. (1994), Ohio St.3d .]
Workers' compensation -- Partial disability compensation --
Election of compensation under former R.C. 4123.57(A) --
Industrial Commission's denial of a motion for change of
election an abuse of discretion, when.
(No. 92-2575 -- Submitted November 9, 1993 -- Decided
February 2, 1994.)
In Mandamus.
Relator-claimant, George O. Mathess, was injured on May
25, 1967 while in the course of and arising from his employment
with respondent, Wheeling-Pittsburgh Steel Corporation. His
workers' compensation claim was allowed for "[b]urns to right
side of face, neck, chin, hands and chest; contusion and
abrasions to mid back; fracture of 10th and 11th ribs."
In 1974, claimant sought partial disability compensation
under former R.C. 4123.57. Respondent Industrial Commission
found a ten-percent permanent partial disability. Given the
statutory option of receiving this award as former R.C.
4123.57(A) impaired earning capacity benefits or permanent
partial disability compensation under former 4123.57(B),
claimant chose the latter.
Between 1974 and 1985, the commission ultimately increased
claimant's permanent partial disability to sixty percent.
During that same period, his claim was amended to include
"[h]ypertension," "acute cervical strain, muscle tendonous in
origin," "aggravation of pre-existing anxiety neurosis,"
"discogenic disease of C5-C6 and aggravation of degenerative
osteoarthritic changes of the cervical spine."
On January 12, 1991, after approximately forty-one years
with Wheeling-Pittsburgh, claimant retired. His separation
form indicated a "30 year" as opposed to "disability"
retirement. Six months later, claimant moved to change his
partial disability election from permanent partial disability
compensation to impaired earning capacity benefits. Claimant's
sole supporting evidence was his statement that "[b]ecause of

all the pain and frustration from my injuries, I retired two
years earlier than I had intended. I am able to receive my
pension for years worked, but cannot get social security for
another two years." The form also indicated that he had a high
school diploma and a work history that ranged from "laborer to
roll provider." When asked to describe the physical nature of
his work, claimant characterized it as a mix of moderate,
heavy, and light.
On August 8, 1991, a commission district hearing officer
denied claimant's motion, stating:
"While the claimant has demonstrated good cause pursuant
to the Fellers case [State ex rel. Fellers v. Indus. Comm.
(1983), 9 Ohio App. 3d 247, 9 OBR 421, 459 N.E.2d 605]
(unforeseen circumstances of subsequent increases and
claimant's percentage of permanent partial disability and
allowance of additional conditions), there is insufficient
evidence to determine that the claimant has sustained an
impairment in earning capacity based upon the disability
resulting from the allowed conditions of this claim.
"There is no medical evidence which states that there is a
causal connection between the disability from the allowed
conditions and the claimant's inability to earn wages (i.e.,
earning capacity) by performing any work or duties for which he
is otherwise qualified by virtue of training or prior work
experience."
The regional board of review affirmed without comment.
Appealing further, claimant submitted additional evidence
to staff hearing officers. His August 23, 1991 affidavit
stated:
"* * * [W]hen he [claimant] terminated his employment * *
* he was employed as a roll provider in the * * * Wheeling
Pittsburgh Steel Corporation; [and] among other things his
duties required him about 40 times a day to lift a 1" steel
cable and loop it over a hook on a crane and then lift it off
again; but this activity required him to look up and created
significant pain and headaches on account of his neck injury.
"* * * [F]rom time to time in his employment he would be
required to handle and lift heavy items which created similar
problems in his neck.
"* * * [T]he painful symptoms associated with his injury
interfered substantially with his ability to rest or sleep and
seemed to worsen his anxiety state and generally cause a
deterioration of his overall physical and mental condition;
[and] he reached the point that he just didn't feel that he
could continue working, and because he had already qualified by
age and length of service or pension, he elected to accept his
pension.
"Affiant further says that he would have continued to work
if he could, because by doing so, his overall pension benefits
would have increased as would his social security benefits when
he becomes eligible to receive them, but his painful symptoms
are such that he just didn't feel he could continue working."
A report from Dr. Jonathan D. Lechner indicated that
claimant had restrictions on lifting, climbing and crawling.
Dr. Lechner also responded affirmatively to the following
question:
"Has such medical impairment caused a decrease in

claimant's energy, usefulness, health, and strength so that
when considered with other non-medical evidence there has been
a corresponding decrease in the ability of claimant to earn a
living subsequent to his compensable injury as compared to his
ability to earn a living prior to sustaining the disability?"
Dr. Thomas R. Ream also answered that question
affirmatively. He concurred in Dr. Lechner's restrictions and
added limitations on stretching, driving, work rate, heavy
lifting and repetitive upper extremity use.
Staff hearing officers affirmed the regional board's
order, stating:
"It is the finding and order of the Staff Hearing Officers
that claimant's appeal be denied, and the finding and order of
the Regional Board be affirmed for the reason that it is
supported by proof of record and is not contrary to law."
Claimant thereupon filed the instant complaint in mandamus
to compel the commission to grant his motion to change his
election.

Larrimer & Larrimer and Craig Aalyson, for relator.
Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr.,
and Bradley K. Sinnott, for respondent Wheeling-Pittsburgh
Steel Corporation.
Lee I. Fisher, Attorney General, and Merl H. Wayman,
Assistant Attorney General, for respondent Industrial
Commission.

Per Curiam. Under former R.C. 4123.57, a claimant could
elect how to receive partial disability compensation - - as
impaired earning capacity compensation under R.C. 4123.57(A) or
permanent partial disability under R.C. 4123.57(B). For "good
cause shown," however, a claimant could switch his election.
Former R.C. 4123.57(A) (130 Ohio Laws 932-933.). "Good cause,"
in turn, requires "unforeseen changed circumstances subsequent
to the initial election and actual impaired earning capacity."
(Emphasis added.) State ex rel. Combs v. Goodyear Tire &
Rubber Co. (1992), 62 Ohio St.3d 378, 381, 582 N.E.2d 990, 992.
The first element, "unforeseen changed circumstances," is
"deliberately flexible in order to accommodate the many
possible situations that could merit a change of election."
State ex rel. Long v. Mihm (1992), 64 Ohio St.3d 527, 529, 597
N.E.2d 134, 136. It, too, has two components, "with changed
circumstances being a condition precedent to consideration of
foreseeability." Id. To date, three examples of "changed
circumstances" sufficient to trigger a foreseeability inquiry
have been identified: (1) recognition of additional conditions
after election (Combs), (2) significant worsening of claimant's
condition (State ex rel. Simpson v. Indus Comm. [1991], 62 Ohio
St.3d 162, 580 N.E.2d 779), or (3) transformation of a non-work
preventive injury into a work-prohibitive one. Id.
Claimant has unquestionably established "unforeseen
changed circumstances." His six-fold increase in disability
subsequent to election demonstrates a "significant worsening"
of his condition. The post-election recognition of six
additional conditions also satisfies the criterion established
by Combs.
The presence of actual impaired earning capacity

attributable to claimant's allowed conditions is less
clear-cut. Claimant's assertion of impaired earning capacity
appears to rest solely on claimant's present lack of employment
and resultant lack of income. The commission district hearing
officer denied a change of election citing a lack of medical
evidence causally relating claimant's allowed conditions to his
lack of wages.
This finding is an abuse of discretion. While such
evidence was indeed absent when the district hearing officer
made his decision, it was present before the staff hearing
officers. Doctors Lechner and Ream both connected claimant's
medical impairment to the "decrease in the ability of claimant
to earn a living subsequent to his compensable injury as
compared to his ability to earn a living prior to sustaining
the disability." When the staff hearing officers affirmed the
regional board's order without comment, however, they
inherently adopted the district hearing officer's reasoning.
See State ex rel. DeMint v. Indus. Comm. (1990), 49 Ohio St.3d
19, 550 N.E.2d 174. Given the cited medical reports, the
commission, through its staff hearing officers, erred in
denying impaired earning capacity benefits on this basis.
Our rejection of the commission's reasoning does not,
however, compel a finding that claimant's earning capacity has
been impaired, since two key issues have yet to be decided: (1)
identification of claimant's preinjury earning capacity (State
ex rel. Eaton Corp. v. Indus. Comm. [1993], 66 Ohio St.3d 180,
610 N.E.2d 992), and (2) the nature of claimant's retirement.
A finding of voluntary retirement does not foreclose a finding
of actual impaired earning capacity if claimant can establish
that the injury hampers his or her ability to perform other
post-retirement jobs for which claimant is otherwise
qualified. State ex rel. CPC Group v. Indus. Comm. (1990), 53
Ohio St. 3d 209, 559 N.E.2d 1330. Claimant must also show a
desire to indeed pursue other employment opportunities. A
claimant who voluntarily retires with no intention of ever
working again cannot establish actual impaired earning
capacity. State ex rel. Pauley v. Indus. Comm. (1990), 53 Ohio
St.3d 263, 559 N.E.2d 1333.
Conversely, a finding of injury-induced retirement does
not automatically establish impaired earning capacity.
Impaired earning capacity depends on the extent of claimant's
preinjury earning capacity. For example, an inability to do
prior construction duties will have different effects on the
life-long laborer and the medical student who worked
construction over summer break. The latter's earning capacity
may not be impacted at all while the former's may be
destroyed. See, generally, Eaton. Further consideration of
this issue is, therefore, necessary.
We thus find that the stated basis for the commission's
denial of the motion for change of election is an abuse of
discretion. Discussion in this case, however, can go no
further absent additional consideration. Accordingly, we
vacate the commission's order and issue a limited writ
returning the cause to the commission for further inquiry into
the issue of claimant's actual impaired earning capacity and a
new order.
Limited writ granted.