APPEAL from the Court of Appeals for Franklin County.

Giovina Crognale, claimant-appellee herein, was employed by the Board of Education of the Cuyahoga Heights Local School District, appellant herein, as a cleaning woman. On October 7, 1968, she sustained an injury while in the course of her employment when she slipped down a staircase, spraining her ankle. Claimant's Workers' Compensation claim was allowed for a right ankle injury, and assigned claim No. PE 526930. Dr. Keith Harper, a chiropractor, treated claimant for this injury. Claimant received compensation for temporary total disability from October 8 to October 20, 1968. On January 12, 1969, claimant was awarded 15 percent permanent, partial disability.

On March 16, 1971, an application to re-activate the claim was made for corrective treatment in regard to possible thinning of the lumbar disc spaces and sciatic neuritis of the right lower extremity. Dr. Harper had rendered a report, dated March 8, 1971, indicating that claimant had apparently also injured her lower back when she fell on October 7, 1968. The application was denied solely because the Bureau of Workers' Compensation had no jurisdiction since it was not notified of the lower back injury within two years of the injury as required by R.C. 4123.84.

On October 24, 1973, claimant filed an application for an increase in percentage of permanent partial disability. Reports were filed by Drs. R.E. Weigel and F.M. Freimann, both of whom recommended that claimant be found 30 percent permanent partially disabled from her ankle injury. The commission, granted claimant's motion finding her 30 percent permanently partially disabled from her October 7, 1968, ankle injury.

On March 26, 1974, claimant again slipped and fell, within the course of her employment, injuring her back, right shoulder and legs and suffering other multiple bruises. In her Workers' Compensation claim application, claimant listed her previous claim, No. PE 526930. Her new claim was allowed for injured back, right shoulder, and legs. It was assigned claim No. PE 624244. In his report to the Industrial Commission in regard to this claim, Dr. Harper indicated that the pain was then so bad that claimant had to quit work. In response to a question asking him to describe any previous injury or condition contributing to claimant's disability, Dr. Harper stated that the "[p]atient was fine until the accident."

On June 21, 1975, claimant filed a motion for permanent and total disability in claim No. PE 624244. Submitted also was her affidavit stating that she had not worked since her March 26, 1974, fall, and a medical report from Dr. Finley Neuman. A copy of the motion was served upon appellant. Dr. Neuman's report does not mention claimant's previous claim or her previous medical problems, but states that "[a]s a result of this injury, this patient is completely removed from the labor market and is of no value industrially. It is my opinion that she is permanently and totally disabled." The bureau then referred claimant to an orthopedic specialist, Dr. Sheldon Green. He stated in his report that "Mrs. Crognale has developed chronic problems in her right shoulder and lower back due to this accident. * * * She has been unable to work since the accident due to her discomforts. Patient has been taking treatments, continually since the injury without significant improvement. It is my opinion that Mrs. Crognale is permanently and totally disabled due to her right shoulder and lower back injuries." Apparently, Dr. Green was also unaware of her previous claim file.

Ross B. Robinson, an attorney examiner for the commission, then rendered a report to its members summarizing the claim file for the March 26, 1974, injury, No. PE 624244, including the reports of Drs. Neuman and Green. He recommended that the commission "find from medical proof of record that the claimant is permanently and totally disabled from the injury allowed in this claim. * * *" The attorney examiner was also apparently unaware of claimant's other claim file. Thus, he did not mention it in his report. His report, however, was in the claim file in claim No. PE 624244 prior to the time the commission heard claimant's motion for permanent and total disability. Notice of the hearing on that motion was sent to appellant. No one appeared at the hearing for the employer and no questions were raised as to the propriety of the attorney examiner's report and recommendation. As was usual when no questions were raised, the commission members relied solely on the attorney examiner's report rather than individually examining the claim file. Hence, on November 4, 1975, the commission found claimant to be permanently and totally disabled from her March 26, 1974, injury.

Then, on April 27, 1977, appellant's attorney filed a motion to vacate the November 4, 1975, order finding claimant permanently and totally disabled on the grounds that the order was entered due to a mistake of fact, is contrary to fact and law, and is unsubstantiated by any probative medical evidence. The only additional evidence submitted that is not contained in the first claim file No. PE 526930 was an exhibit indicating that claimant was injured in an automobile accident on September 12, 1972, missing approximately one week of work.

On June 30, 1977, appellant's attorney moved for leave to take depositions from the physicians who had examined or treated claimant and for a continuance until such discovery should be completed. On October 12, 1977, the commission denied these motions and appellant's motion to vacate stating, "The commission, being fully advised in the circumstances finds that it has no jurisdiction to vacate commission order dated 11-4-75 for the reason that there has been no showing of fraud, error or new and changed circumstances."

Appellant then filed this action in mandamus in the Court of Appeals praying that a writ issue ordering the commission to vacate its October 12, 1977, and November 4, 1975, orders. The writ was denied.

The cause is now before this court pursuant to an appeal as of right.