Opinion
No. 84-694
Decided November 21, 1984.
Workers' compensation — Pulmonary silicosis — Permanent total disability benefits denied, when.
APPEAL from the Court of Appeals for Franklin County.
The appellant, Zannie Burdette, contracted pulmonary silicosis as the direct result of his employment as a foundry worker with the Dayton Walther Corp. Burdette filed an application for workers' compensation benefits. The condition was allowed by the Industrial Commission and the appellant was eventually awarded the maximum temporary compensation benefits.
On October 25, 1979, Burdette filed a motion with the commission to be declared permanently and totally disabled as a result of pulmonary silicosis. On December 21, 1981, the Industrial Commission denied the motion and entered the order which prompted this action. The order reads in part: "That the Commission find from proof of record that the claimant is not permanently and totally disabled; that therefore the Motion filed 10-25-79 be denied. This finding and order is based on the reports of Drs. Chinn and Graham, evidence in the file and evidence adduced at the hearing."
Dr. James P. Graham reported the appellant's permanent impairment due to work-related silicosis as forty percent. He believed the impairment would preclude heavy work, and future employment would be restricted to a non-manual job in a pollution free environment.
Dr. William M. Chinn examined the appellant and issued an opinion that the appellant had pulmonary problems related in part to silicosis and in part to non-work-related pulmonary emphysema. It was his belief that the silicosis-related impairment "is a low moderate level." Subsequently, during oral deposition, Dr. Chinn, in response to a hypothetical question, stated that the silicosis impairment, when combined with appellant's existing pulmonary emphysema and in light of his age, mental, physical and vocational condition, left him "disabled from any gainful occupation." Dr. Chinn prefaced this opinion with a remark that the appellant's pulmonary impairment extends beyond the silicosis and did not expressly retract or negate his earlier finding that the occupationally related impairment was of a low moderate level.
Also before the commission was a report from Charles H. Scheidler, Ph.D. (a licensed psychologist), dated four years previous to the other reports. Dr. Scheidler reported that the appellant has a severe reading problem along with a low educational and intellectual level. Dr. Scheidler opined that the appellant would be unemployable if he could not return to his previous employment.
Burdette filed an original action in mandamus in the Court of Appeals for Franklin County claiming that appellee Industrial Commission abused its discretion in refusing to grant permanent total disability benefits. The court of appeals denied the writ.
The cause is now before this court upon an appeal as of right.
Mr. James R. Piercy and Mr. Richard M. Malone, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Michael L. Squillace and Mr. Lee M. Smith, for appellee.
Appellant seeks a writ of mandamus to order the Industrial Commission to award him permanent total disability benefits due to his work-related impairment of pulmonary silicosis.
R.C. 4123.68 concerns disabling occupational diseases contracted by employees in the work place. Division (Y) provides, inter alia, that "[c]ompensation * * * on account of silicosis * * * [is] payable only in the event of temporary total disability, permanent total disability or death * * *."
In the case sub judice, appellant sought a permanent total award. However, the evidence establishes that although he may be permanently and totally disabled, the disability is due only in part to the silicosis impairment. The work-related impairment only amounted to forty percent (Dr. Graham) or a low moderate level (Dr. Chinn).
In State, ex rel. Marshall, v. Keller (1968), 15 Ohio St.2d 203 [44 O.O.2d 184], a worker was diagnosed as suffering from the occupational disease of silicosis together with other non-work-related pulmonary impairments. The commission denied benefits and the claimant filed a mandamus action in the court of appeals which was also denied. Upon appeal, this court acknowledged that "* * * the existence and degree of disablement caused by silicosis is a question of medical fact * * *," and that the courts of this state will not "* * * act as a jury and * * * review and weigh medical evidence." Id. at 204-205. "`* * * In such a situation the relator obviously does not show a clear right to relief by way of mandamus * * *.'" Id. at 205.
In the instant case there was substantial evidence before the commission which was probative of the extent of Burdette's impairment due to silicosis. The determination of disputed facts is within the final jurisdiction of the commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396 [23 O.O.3d 358]. The medical evidence herein does not support a finding of permanent total disability. Accordingly, Burdette has failed to demonstrate abuse of discretion, as both the commission's order and the appellate court's denial of the writ of mandamus appear consistent with the legislative enactments.
Appellant also contends that the commission's order is legally insufficient in that it does not specifically state which evidence the commission relied upon to reach its conclusion, nor is there a brief explanation stating why the claimant is not entitled to the benefits, as required by State, ex rel. Mitchell, v. Robbins Myers, Inc. (1983), 6 Ohio St.3d 481. This court recently stated that it would decline to retrospectively apply the minimum standards for commission orders required by Mitchell. State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St.3d 169, 171, at fn. 1. While the order in the case sub judice was issued prior to Mitchell, it nevertheless did articulate the evidence relied on by the commission.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.