
    The State ex rel. DiRosa Appellant, v. Industrial Commission of Ohio, Appellee.
    [Cite as State ex rel. DiRosa v. Indus. Comm. (1998), 84 Ohio St.3d 56.]
    (No. 96-1393
    Submitted October 13, 1998
    Decided December 2, 1998.)
    
      
      Michael I. Shapero & Associates and John P. McGinnis, for appellant.
    
      Betty D. Montgomery, Attorney General, Miltina A. Gavia and Cordelia A. Glenn, Assistant Attorneys General, for appellee.
   Per Curiam.

R.C. 4123.56(B) provides:

“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.”

Additionally, 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 [f]or wage loss pursuant to division (B) of Section 4123.56 of the Revised Code shall commence upon application with the finding of any of the following:

“(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.”

To prevail on his claim, a claimant must demonstrate an actual wage loss that is causally related to his or her injury. State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 623 N.E.2d 1202. Therefore, voluntary acts by a claimant that limit income can foreclose wage-loss compensation. State ex rel Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210, 648 N.E.2d 827.

The commission, in this case, found a voluntary limitation of income, citing claimant’s failure to replace his lost fireman/EMT wages by “increased labors” in his insurance business or elsewhere. Fatal to this reasoning, however, is the commission’s inherent assumption that claimant was medically capable of increasing his labors. The commission does not dispute claimant’s description of his insurance agent position as having “minimal physical demands.” Dr. Grow nevertheless concluded that claimant’s allowed conditions were such that a restriction in the number of hours that claimant could do such work was necessary. Since there is no evidence that claimant was working fewer hours than the maximum medically permitted, the commission abused its discretion in expecting claimant to devote more hours to either his insurance business or any other employment.

Accordingly, we reverse the judgment of the court of appeals and return the cause to the commission with instructions that it vacate its denial of wage-loss compensation, determine the dates over which such compensation is payable, and issue an appropriate order.

Judgment reversed and cause returned.

Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.

Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.

Lundberg Stratton, J.,

dissenting. I respectfully dissent. I do not find Dr. Grow’s opinion conclusive that DiRosa is unable to work at any employment longer than eight hours per day. Therefore, I agree with the court of appeals that this claimant failed to prove that he qualifies for wage-loss compensation as a result of his allowed conditions.

The claimant suffers from a soft tissue injury. Dr. Grow opined that DiRosa is medically restricted from any heavy lifting, but that he is capable of returning to his job as an insurance agent. Dr. Grow’s additional statement that DiRosa “is able to work no more than 8 hours a day as an insurance agent” is conclusory and unsubstantiated by the facts or medical evidence. This is insufficient evidence that DiRosa is physically unable to perform any other types of employment in an effort to replace the income lost from his fireman/EMT position.

Therefore, I would affirm the judgment of the court of appeals.

Moyer, C.J., and Cook, J., concur in the foregoing dissenting opinion.  