State ex rel. Simpson v. Industrial Commission
State ex rel. Simpson v. Industrial Commission
Opinion of the Court
Former R.C. 4123.57 required a successful applicant for partial disability compensation to choose the method of payment — as perma
“Good cause” is not statutorily defined nor have we previously interpreted it. The parties direct our attention to State, ex rel. Fellers, v. Indus. Comm. (1983), 9 Ohio App.3d 247, 248, 9 OBR 421, 422, 459 N.E.2d 605, 606, wherein the Court of Appeals for Franklin County stated that “good cause,” as used in R.C. 4123.57(A), “is demonstrated when, at the time of making the first election, subsequently occurring circumstances were not foreseeable.”
Fellers hurt her arm and shoulder at work. She sought partial disability compensation and was found to be ten percent partially disabled. Fellers elected to be compensated under R.C. 4123.57(B). She later applied for an increase in partial. disability compensation and it, too, was paid under paragraph (B). Fellers continued working throughout.
When Fellers’ injury later prevented her from working, she attempted to change her election from R.C. 4123.57(B) to 4123.57(A). The commission found no good cause and denied her motion.
The appellate court found an abuse of discretion and ordered the commission to vacate its order. The court held:
“ ‘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.”1 Id.
The commission did not abuse its discretion in finding foreseeability and, therefore, lack of good cause in the case at bar. Fellers is distinguishable in two important respects — both of which go to the question of foreseeability.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
. While Fellers enunciates an acceptable definition of “foreseeability,” foreseeability can no longer be viewed as the sole element of “good cause.” When Fellers was decided, claimant’s eligibility for impaired earning capacity benefits under former R.C. 4123.57(A) was thought by some to be automatic once a partial disability had been found. Under State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St.3d 384, 533 N.E.2d 775, however, this is no longer true. In Johnson, we held that a claimant must prove actual impaired earning capacity. As such, “good cause” must now be viewed as dual pronged, demonstrated only by a showing of unforeseeable circumstances and actual impaired earning capacity. If either requirement is not met, “good cause” has not been established.
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