THE STATE EX REL. JAYNOR, APPELLANT, v. THE GERSTENSLAGER COMPANY ET AL.,

                                     APPELLEES.

[Cite as State ex rel. Jaynor v. The Gerstenslager Co. (1999), 87 Ohio St.3d 278.]

Workers’ compensation — Complaint in mandamus alleging that Industrial

      Commission abused its discretion in denying claim for wage-loss

      compensation — Denial of writ affirmed, when.

(No. 97-2527 — Submitted November 17, 1999 — Decided December 22, 1999.)

   APPEAL from the Court of Appeals for Franklin County, No. 96APD08-1024.

      Appellant-claimant, Ronald Jaynor, was injured in an industrial accident in

December 1986. His workers’ compensation claim was allowed for “acute lumbar

sprain.” Claimant received three years of temporary total disability compensation

before those benefits were terminated based on maximum medical improvement.

      Claimant apparently never returned to his former position of employment

with appellee The Gerstenslager Company. In September 1993, claimant obtained

a part-time job at a local school.

      On December 26, 1995, claimant applied for wage-loss compensation from

December 19, 1990, forward. He also moved for the additional allowance of a

herniated disc condition.      A district hearing officer for appellee Industrial

Commission of Ohio denied the additional allowance and also denied wage-loss

compensation, writing:

      “The entire period from 12/19/1990 through 12/25/1993 is not payable

because no request for payment of wage-loss was made within two years. From

12/26/93 through 03/28/96, the claimant has not proven that he has a wage-loss

compensable pursuant to R.C. 4123.56(B).          The claimant has presented no

persuasive medical evidence during the period from 12/26/1993 to 03/28/1996, he

had physical restrictions which preclude him from performing the duties of his

former position of employment.
      “Furthermore, the claimant submitted no proof of a job search and his part-

time work at St. Joseph’s Montessori is not sufficient to eliminate the need to

continue to, in good faith, seek full-time employment. Accordingly, no wage-loss

has been proven.”

      A staff hearing officer affirmed at a hearing on May 22, 1996, adding:

      “At hearing, claimant testified he has earned more since 02/03/1996 than he

was making before his injury, so Wage Loss Compensation since that date is

denied as no actual wage loss is shown.

      “Claimant’s testimony at hearing [that] he occasionally sought additional

work after obtaining part-time employment as a janitor at St. Joseph Montessori

School is found not to rise to the level of a good faith effort to obtain suitable

employment consistent with an award of wage loss compensation.”

      Further appeal was refused by the commission.

      Claimant filed a complaint in mandamus in the Court of Appeals for

Franklin County, alleging that the commission abused its discretion in denying

wage-loss compensation. The court of appeals denied the writ.

      This cause is now before this court upon an appeal as of right.

                              __________________

      John S. Heath, for appellant.

      Vorys, Sater, Seymour & Pease L.L.P., and Julie M. Larson, for appellee

The Gerstenslager Company.

      Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant

Attorney General, for appellee Industrial Commission.

                              __________________

      Per Curiam.      The commission denied wage-loss compensation from

December 19, 1990 through May 22, 1996. The court of appeals upheld that

decision, and we affirm.


                                          2
      Claimant moved for wage-loss compensation on December 26, 1995.

Consequently, the two-year statute of limitations in R.C. 4123.52 bars

compensation prior to December 26, 1993—a point claimant conceded at the staff

hearing. The commission did not, therefore, abuse its discretion in denying wage-

loss compensation prior to December 26, 1993.

      We also find no abuse of discretion in the commission’s denial of wage-loss

compensation from February 3, 1996 though May 22, 1996. Claimant testified that

he was earning as much over that period as he had at his former position of

employment.      As such, claimant was not experiencing the actual wage-loss

necessary to establish wage-loss compensation eligibility. State ex rel. Watts v.

Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 623 N.E.2d 1202.

      We turn finally to the period December 26, 1993 through February 2, 1996.

The commission denied wage-loss compensation during this time for two

reasons—insufficient medical evidence and lack of good faith job search. Because

we find that the commission did not abuse its discretion as to the former reason, we

find it unnecessary to address the latter.

      The medical evidence of record is replete with discussion of claimant’s

nonallowed disc conditions. Indeed, we do not find any relevant document that

lacks at least a reference to these serious ailments.                Consistent with the

commission’s     determination,    our       review   reveals   no    medical   evidence

substantiating that claimant’s alleged inability to return to his former position of

employment is due solely to his allowed condition. As such, claimant has failed to

establish the requisite causal relationship between his allowed condition and his

diminished earnings from December 26, 1993 through February 2, 1996.

      Accordingly, the judgment of the court of appeals is affirmed.

                                                                      Judgment affirmed.




                                              3
     MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.




                                  4
