42 Ohio St. 2d 278 | Ohio | 1975
In denying appellant’s request for a writ of mandamus, the Court of Appeals found the issue of causal relationship to be appealable and, therefore, that an adequate remedy existed in the ordinary course of the law.
R. C. 4123.519 provides, in pertinent part:
‘ ‘ The claimant or the employer may appeal a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state. * * * ”
Past decisions of this court interpreting the above provisions have consistently held that an order constituting a denial that is absolute and which goes to the basis of claimant’s right to participate in the fund is not a “decision as to the extent of disability,” and is appealable pursuant to R. C. 4123.519. Rummel v. Flowers (1972), 28 Ohio St. 2d 230, 277 N. E. 2d 422; State, ex rel. Campbell, v. Indus. Comm. (1971), 28 Ohio St. 2d 154, 277 N. E. 2d 219; Reeves v. Flowers (1971), 27 Ohio St. 2d 40, 271 N. E. 2d 769; State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St. 2d 94, 249 N. E. 2d 775; Keels v. Chapin & Chapin (1966), 5 Ohio St. 2d 112, 214 N. E. 2d 428; Carpenter v. Scanlon (1958), 168 Ohio St. 139, 151 N. E. 2d 561. Where an appeal is available from an order of the commission, an action in mandamus may not be maintained. See State, ex rel. Ferris, v. Indus. Comm. (1969), 17 Ohio St. 2d 49, 245 N. E. 2d 357; State, ex rel. Foley, v. Greyhound Lines (1968), 16 Ohio St. 2d 6, 241 N. E. 2d 904; State, ex rel. Benton, v. C. & So. O. Elec. Co. (1968), 14 Ohio St. 2d 130, 237 N. E. 2d 134; State, ex rel. Latino, v. Indus. Comm. (1968), 13 Ohio St. 2d 103, 234 N. E. 2d 912.
Conversely, where the commission’s order constitutes a finding as to the extent of disability, an appeal is unavailable and mandamus is proper to test the commission’s exercise of its discretion. See State, ex rel. Campbell, v. Indus. Comm., supra; Rummel v. Flowers, supra; Reeves v. Flowers, supra; State, ex rel Shewalter, v. Indus. Comm. (1969), 19 Ohio St. 2d 12, 249 N. E. 2d 51.
Appellant argues that the commission abused its discretion by accepting for review claimant’s motion for permanent disability without evidence of new and changed circumstances required by E. C. 4123.57(B).
Appellant contends further that the Industrial Commission’s determination that claimant is permanently and totally disabled is unsupported by the evidence, and that such determination constitutes an abuse of discretion. We disagree. This court has often recognized that the determination of disputed factual situations is within the final jurisdiction of the commission, subject to correction by action in mandamus only upon a showing of abuse of discretion. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St. 2d 15, 278 N. E. 2d 24; State, ex rel. Reed, v. Indus.
In the case at bar, the commission considered the medical opinions of three doctors concerning whether claimant was permanently and totally disabled. Only Dr. Koenigshoff indicated that claimant was not so disabled, and his opinion was based upon the medical proof on file with the commission, not upon an examination of claimant. Dr. Roemer’s report, although insufficient in other respects, supported a finding of permanent and total disability. The report submitted by Dr. Katz also stated that claimant was permanently disabled, and provided a detailed description of claimant’s medical problems arising out of the 1958 and 1966 injuries. A reasonable interpretation of this report is-that the effects of the 1966 injury, when superimposed upon the 1958 injury, caused claimant to be permanently and totally disabled; the 1966 injury was not only a contributing factor, but the “final straw” which produced such disability. Because the commission did not base its conclusion upon a claim over which jurisdiction no longer existed (the 1958 injury),
Although the Court of Appeals erred in concluding that appellant had a right of appeal from the decision of the Industrial Commission, that court correctly found that the record supports the commission’s factual determination. Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
R. C. 4123.57(B) provides, in pertinent part:
“(B) The Industrial Commission, upon such application, shall determine the percentage of the employee’s permanent disability * * * based upon that condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable. * * * No application for subsequent percentage determinations on the same claim for injury or occupational disease shall be accepted for review by the commission unless supported by substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination.”
R. C. 4123.58 states:
“In cases of permanent total disability, the employee shall receive an award to continue until his death in the amount of sixty-six and two-thirds per cent of his average weekly wage, but not more than a maximum amount of weekly compensation which is equal to sixty-six and two-thirds per cent of the statewide average weekly wage as defined in division (C) of Section 4123.62 of the Revised Code, nor not less than a minimum amount of weekly compensation which is equal to fifty per cent of the statewide average weekly wage as defined in division (C) of Section 4123.62 of the Revised Code, unless the employee’s average weekly wage is less than fifty per cent of the statewide average weekly wage at the time of the injury, in which event
“The loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent disability, to be compensated according to this section. Compensation payable under this section for permanent total disability shall be in addition to benefits payable under division (C) of Section 4123.57 of the Revised Code.”
R. C. 4123.52 provides:
“The jurisdiction of the Industrial Commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability under Section 4123.56 of the Revised
The last payment of compensation arising out of the 1958 injury was in October 1961.