concurring in part and dissenting in part. I concur in paragraph two of the syllabus, Part III of the opinion, and the judgment reversing the holding of the court of appeals and reinstating the decision of the Industrial Commission. I respectfully dissent, for the reasons that follow, as to paragraph one of the syllabus and the remainder of the majority opinion.
It is a basic tenet that courts will not decide a constitutional issue when a case before the court can be decided on a non-constitutional basis. Kinsey v. Bd. of Trustees of Police & Firemen’s Disability & Pension Fund of Ohio (1990), 49 Ohio St. 3d 224, 225, 551 N.E. 2d 989, 991. The majority not only violates that tenet but goes further in this case and decides a constitutional issue not even raised in the first instance by the parties.6 Accordingly, the question of the constitutionality of the prospective application of R.C. 4123.57(B) (now [A]), involving injuries sustained after October 1, 1963, is not presently before us for decision. Ap*151pellant Industrial Commission’s proposition of law is:
“The Industrial Commission of Ohio had not abused its discretion or otherwise act [sic] unlawfully when by order dated March 1, 1985 and January 27, 1986 it found John Bednar, Claimant, entitled to an award of twelve percent of permanent partial disability in Claim Number 845368-22 and an award of thirty percent for permanent partial disability in Claim Number 818804-22.”
Nothing in this proposition of law presents the issue of the constitutionality of the prospective application of former R.C. 4123.57(B).
Appellee Sears, Roebuck & Company’s proposition of law is:
“The one hundred percent limitation of R.C. 4123.57 requires that in claims with a date of injury subsequent to October 1, 1963, all permanent partial disability awarded to the claimant be aggregated. Such aggregation would, of necessity, include claims accruing prior to October 1, 1963.”
Nothing in this proposition of law presents the issue of the constitutionality of the prospective application of former R.C. 4123.57(B).
Amici, the Ohio Academy of Trial Lawyers, the Ohio AFL-CIO and the United Autoworkers, do, in their proposition of law number two, present, in some measure, the prospective application question. Amici are not, of course, parties to the action and may not present original issues for the court to decide.
Applying paragraph two of the syllabus of the majority opinion answers the inquiry presented to us. This is so because only the retrospective application of former R.C. 4123.57(B) would deprive claimant Bednar of the two awards in question.
The law in question was effective October 1, 1963. That is the date to be used in settling the dispute between appellant and appellee which, of course, materially affects Bednar. The language of former R.C. 4123.57(B) to be interpreted states:
“No award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent.” (Emphasis added.)
For the 1961 injury, Bednar was awarded permanent partial disability of seventy-seven percent. This injury obviously occurred before the 1963 change in the law. For the 1966 injury, Bednar was awarded forty-eight percent permanent partial disability. For the 1981 injury, Bednar was awarded ten percent permanent partial disability. For the 1982 injury, Bednar was awarded twelve percent permanent partial disability. For the 1988 injury, Bednar was awarded thirty percent permanent partial disability.
Since it is clear that the injuries sustained by Bednar after 1963 total exactly one hundred percent permanent partial disability, if the law is not applied retrospectively then Bednar has not received an amount which “exceeds one hundred per cent” and the question of prospective application of the law is, in addition to not being before us, not necessary to decide.
Since the majority chooses to decide an issue not properly before us, I comment further on that issue. Is that language of R.C. 4123.57, which mandates a one hundred percent ceiling on awards for permanent partial disability, constitutional?
It is comforting to see the majority at least cites to Section 35, Article II of the Ohio Constitution. It is disquieting, however, to then have the majority completely ignore the mandates of the constitutional provision.
Section 35, Article II of the Ohio *152Constitution clearly contemplates “* * * compensation to workmen and their dependents, for * * * injuries * * * occasioned in the course of such workmen’s employment * * *.” There is no dispute that Bednar was injured during the course of his employment during the years 1982 and 1983 — and that two claims were made for the injuries and were allowed by the commission. Yet, if the injury suffered by Bednar in 1961 had, instead, occurred after 1963, Bednar (and all other injured workmen now likely situated) would, under the holding of the majority, be barred from receiving compensation for his 1982 and 1983 injuries notwithstanding the constitutional provision that compensation be awarded for injuries occurring during the course of employment.
By today’s decision, the majority, for all practical purposes, dictates a course of action for injured workers about which some members of the majority usually complain. Given today’s holding, any workman who is approaching or has reached one hundred percent permanent partial disability for which awards have been made will, rather than continuing to work for a willing employer, quit working and seek permanent total disability. How this makes any sense is difficult to comprehend.
For the foregoing reasons I concur in part and dissent in part..
Sweeney, J., concurs in the foregoing opinion.After this dissent had been written and filed and after the case had been voted out of conference, the majority added fn. 5. No comment on the footnote need be made for the knowledgeable reader. Suffice to say, the thesis of the footnote has no basis in law and, in fact, literally applied, the dimensions it reaches are inconceivable.