State ex rel. Consolidated Freightways v. Engerer

Per Curiam. R.C. 4123.56(B) reads: “Where an employee in a claim allowed under this chapter suffers a wage loss as a result of returning to employment other than his former position of employment or as a result of being unable to find employment consistent with the claimant’s physical capabilities, he shall receive compensation at sixty-six and two-thirds per cent of his weekly wage loss not to exceed the statewide average weekly wage for a period not to exceed two hundred weeks.” Ohio Adm.Code 4121-3-32(D) states: “In injury claims in which the date of injury * * * is on or after August 22, 1986, the payment of compensation [for] wage loss pursuant to division (B) of section 4123.56 of the Revised Code shall commence upon application with a finding of any of the following: [246] “(1) The employee, as a direct result of the allowed conditions in the claim, returns to employment other than his former position of employment and suffers a wage loss. “(2) The employee returns to his former position but suffers a wage loss. “(3) The employee, as a direct result of the allowed conditions in the claim, is unable to find work consistent with the employee’s physical capabilities and suffers a wage loss.” Claimant’s wage-loss motion is premised on his alleged inability to (1) return to his former position of employment due to the physical restrictions imposed and (2) find other work within those restrictions. Recovery under this theory requires that the claimant actually sought work within his capacities. At issue is the quality of this search for two periods: January 12, 1989 through June 21, 1990; and March 2,1991 through May 1,1992. The commission did not address the quality of claimant’s job search for the period covering January 12, 1989 through June 21, 1990. The original June 22, 1990 staff hearing officers’ award was premised solely on Consolidated’s inability to provide claimant with suitable work. The commission never examined claimant’s ability to secure other employment, which is the purpose behind wage-loss compensation — to return claimant to some type of remunerative employment, regardless of employer. This deficiency was not remedied in later administrative proceedings. The June 8, 1992 staff hearing officers’ order declined to address this period, finding that the previous staff hearing officer order had rendered the issue moot. This reasoning is somewhat unclear. The appellate referee suspected — probably accurately — that the staff hearing officers meant to declare the issue res judicata, not moot. In either event, the commission erred. The June 22, 1990 award of wage loss from January 12, 1989 through June 21, 1990 is not res judicata because the order never became final. Consolidated’s motion for reconsideration was never acted upon and remains open. Since claimant’s wage-loss entitlement is still an open question, the job search issue cannot be moot. The commission also did not address the work search issue from January 12, 1989 through June 21, 1990. It did address the matter over the period from March 2, 1991 to May 1, 1992, affirmatively finding that claimant had sought employment over the latter period. However, the commission’s discussion said nothing about the adequacy of the work search. The commission’s failure to examine these critical issues dictates a return to the commission for further consideration. Contrary to Consolidated’s representation, State ex rel. Gay v. Mihm (1994), 68 Ohio St.3d 315, 626 N.E.2d 666, does [247] not compel a contrary result. Our review of the record reveals conflicting evidence, omitted information, and credibility issues. The evidence is not, therefore, so one-sided as to favor relief pursuant to Gay. Moreover, given this disposition, it is premature to address Consolidated’s allegations of fraud. Accordingly, that portion of the judgment of the court of appeals that upheld the payment of wage-loss compensation from March 2, 1991 through May 1, 1992 is reversed. The balance of the judgment is affirmed, and the commission is ordered to give further consideration to the issue of wage-loss eligibility over the disputed periods and to issue an amended order. Judgment reversed in part, affirmed in part and limited writ granted. Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur. Douglas, J., concurs in part and dissents in part. Wright, J., dissents.