Opinion
No. 75-803
Decided February 18, 1976.
Workmen's compensation — Occupational disease — Compensation — R.C. 4123.68(BB) — Allowance of claim, abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
On May 24, 1972, William R. Shifflet, claimant, a stockkeeper and tool crib attendant for appellee, filed an application for adjustment of claim in case of occupational disease with the Bureau of Workmen's Compensation. He alleged that he "developed a photo allergic contact dermatitis as a result of the use of hand soap in * * * [his] employment in March 1969," which allegation was substantiated by claimant's physician. The Industrial Commission affirmed the orders of the administrator and the Dayton Regional Board of Review that a claim be allowed for "industrial dermatitis."
Claimant's employer then filed a complaint in mandamus in the Court of Appeals claiming that the order of the Industrial Commission is an abuse of discretion, and requesting the court to vacate that order.
The Court of Appeals allowed a writ of mandamus ordering the Industrial Commission to vacate its order, and an appeal as of right was filed with this court.
Messrs. Cowden, Pfarrer, Crew Becker and Mr. Stephen M. Pfarrer, for appellee.
Messrs. E.S. Gallon Associates and Mr. John A. Cervay, for appellant claimant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey and Mr. William Naperstick, for appellant Industrial Commission.
The question presented is whether the Industrial Commission abused its discretion in allowing the claim as an occupational disease compensable under R.C. 4123.68(BB).
In State, ex rel. Ohio Bell Telephone Co., v. Krise (1975), 42 Ohio St.2d 247, this court held that an occupational disease is compensable under R.C. 4123.68(BB) where the following criteria exist:
"(1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally."
Applying that holding to the stipulated facts of this case, it is necessary to determine whether there was evidence of record upon which the commission could have found the existence of these criteria. State, ex rel. Ohio Bell Telephone Co., supra, at page 254.
The Court of Appeals found evidence of the existence of the first criterion, supra, that "[t]he disease is contracted in the course of employment." However, the court found no evidence of the second and third criteria as being before the Industrial Commission. The Court of Appeals, in its majority opinion, stated: "* * * there is no evidence which shows that the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation, or that the conditions of employment result in a hazard which distinguishes the employment in character from employment generally, and further no proof that claimant's employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally. There is no evidence that claimant was required to use a harsh type of hand cleaner regularly, or that his hands were exposed to oil or grime repeatedly, or that his employment exposed him to hand cleaning solutions potentially causing harm with any greater regularity than persons in other employment or the public generally. In fact, the record discloses the use of the particular hand cleaner on only the one occasion at his employment and also discloses skin irritation problems with similar materials outside of his employment."
Following a review of the record herein, this court agrees that there was no evidence of the existence of the second and third criteria as being before the commission, and that the commission abused its discretion in allowing the claim herein.
Claimant argues the applicability of State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 255, herein, a case also involving "contact dermatitis." However, that case is clearly distinguishable on its facts.
For the foregoing reason, the judgment of the Court of Appeals, allowing the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.