State ex rel. Apgar v. Industrial Commission

Douglas, J.,

dissenting. I respectfully dissent. The matter before us is not, in my judgment, an application of the “some evidence” rule. It is purely a matter of statutory interpretation.

The version of R.C. 4123.57 in effect on the date of appellee’s injury provided an absolute right to a claimant to elect benefits under either R.C. 4123.57(A) or (B) once a percentage of partial disability had been determined. See State, ex rel. Johnson, v. Indus. Comm. (1988), 40 Ohio St. 3d 384, 388, 533 N.E. 2d 775, 779 (Sweeney, J., dissenting). I dissent simply because I read the statute, then in existence, differently than does the majority.

Sweeney and Resnick, JJ., concur in the foregoing dissenting opinion.