State ex rel. Howard v. White-Westinghouse, Inc.

Per Curiam. A claimant has the burden of establishing, by proof of actual impaired earning capacity, an entitlement to R.C. 4123.57(A) compensation. State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St. 3d 384, 533 N.E. 2d 775, syllabus; State, ex rel. Apgar, v. Indus. Comm. (1989), 42 Ohio St. 3d 5, 535 N.E. 2d 1364. Appellant submitted no such evidence here, claiming that such proof is unnecessary since the ten-percent permanent partial disability determination entitles her as of right to compensation for impaired earning capacity, the amount of which is to be computed using the ten-percent figure. However, because this proposition was conclusively rejected in Johnson, appellant’s argument fails. Appellant also asserts that the [132] commission had no jurisdiction to consider the employer’s motion for a hearing on impaired earning capacity since no application for reconsideration had been filed. This argument, too, fails. Former R.C. 4123.57(B) provided in part that the commission cannot modify a permanent partial disability percentage absent a timely reconsideration request. Westinghouse, however, did not seek modification of the ten-percent figure; it requested a hearing to determine impaired earning capacity. A determination under former R.C. 4123.57(A) entails two steps — an initial determination of the percentage of partial disability, followed by a hearing to determine actual impaired earning capacity. State, ex rel. Bittinger, v. NACCO Mining Co. (1990), 49 Ohio St. 3d 30, 31, 550 N.E. 2d 172, 173. A motion for reconsideration under former R.C. 4123.57(B) goes to the first step; Westinghouse’s motion for a hearing to determine impairment of earning capacity went to the second. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Holmes, Wright, H. Brown and Resnick, JJ., concur. Sweeney and Douglas, JJ., concur separately.