
    The State, ex rel. Cleveland Browns, Inc., Appellant, v. Industrial Commission of Ohio et al., Appellees.
    [Cite as State, ex rel. Cleveland Browns, Inc., v. Indus. Comm. (1990), 49 Ohio St. 3d 17.]
    (No. 88-1692
    Submitted November 7, 1989
    Decided February 14, 1990.)
    
      
      Dinn, Hochman, King & Melamed, Irwin J. Dinn and Michele C. Raia, for appellant.
    
      Anthony J. Celebrezze, Jr., attorney general, Michael Squillace and James A. Barnes, for appellee Industrial Commission.
    
      Climaco, Climaco, Seminatore, Lejkowitz & Garofoli Co., L.P.A., and Michael L. Climaco, for appellee Cockroft.
   Per Curiam.

In State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St. 3d 384, 533 N.E. 2d 775, we held that partial disability compensation under R.C. 4123.57(A) must be supported by proof of actual impaired earning capacity. We find no such evidence here.

In awarding compensation, the commission relied solely on Dr. Gross’ report. Evidence relating exclusively to the extent of a claimant’s medical impairment, however, is not “some evidence” of actual impaired earning capacity. The commission thus abused its discretion in awarding compensation under R.C. 4123.57(A). State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 31 OBR 70, 508 N.E. 2d 936. Accordingly, that portion of the appellate court’s decision vacating the commission’s order is affirmed.

We find it unnecessary, however, to remand the cause to the commission for further hearing. First, vacation of the commission’s order entails vacation of the fifteen-percent disability figure as well. Moreover, the appellate court’s decision is based on the belief that a permanent partial disability determination must precede any election. This premise, however, was subsequently rejected in Johnson, supra. Finally, the appellate court ordered a remand because it found that a second “election” hearing had not taken place. This finding, however, conflicts with its earlier statement that such an “election” determination had occurred.

Based on the foregoing, we affirm that portion of the appellate court’s judgment which vacated the commission’s order. We reverse that portion remanding the cause for a second hearing.

Judgment affirmed in part and reversed in part.

Moyer, C.J., Holmes, Wright, H. Brown and Resnick, JJ., concur.

Sweeney and Douglas, JJ., dissent.

Douglas, J.,

dissenting. A majority of this court continues to rewrite (rather than just follow the clear dictates of) R.C. 4123.57. Because I continue to believe this to be improper, I respectfully dissent.

Sweeney, J.,

concurs in the foregoing dissenting opinion.  