Opinion
No. 80-277
Decided June 25, 1980.
Workers' compensation — Mandamus — Seeking award of compensation — Writ denied, when.
APPEAL from the Court of Appeals for Franklin County.
Relator, appellant herein, seeks a writ of mandamus requiring respondent commission to vacate an order denying her compensation for permanent and total disability and to require it to award such compensation.
On June 12, 1964, appellant, Elizabeth S. Dodson, sustained an accidental injury to her left knee and contusion of her right shoulder and arm while in the course of her employment with National Acme Company. Appellant filed a claim with the Bureau of Workers' Compensation and was paid temporary total disability compensation. On December 1, 1967, the Industrial Commission (commission) determined that appellant had a 15 percent permanent partial disability.
On June 18, 1971, appellant filed an application for an amendment to her claim alleging that she suffered from hypertrophic arthritis in her left knee and right shoulder prior to and aggravated by the accidental injury which occurred in 1964. This application was subsequently allowed by the commission. National Acme Company appealed to the Court of Common Pleas of Cuyahoga County, which entered judgment on February 21, 1975, overruling the commission and finding that the prior allowed injury did not aggravate any pre-existing condition of hypertrophic arthritis of the left knee or right shoulder.
On March 1, 1977, the commission, acting on appellant's motion for permanent and total disability filed December 24, 1973, found "that the claimant [appellant] is permanently and totally disabled but not as the result of the allowed injuries in this claim***."
Upon remand, the Court of Appeals denied the writ finding that "***relator has failed to demonstrate a clear legal right to the requested writ."
This case was previously before this court in State, ex rel. Dodson, v. Indus. Comm. (1979), 58 Ohio St.2d 399. The Court of Appeals had dismissed appellant's mandamus action because she had an appeal pending in the Court of Common Pleas and, thus, had a plain and adequate remedy in the ordinary course of the law. This court reversed and remanded on the basis that appellant's appeal to the Court of Common Pleas from a commission order "***which is not appealable is a futile act, and can not constitute a plain and adequate remedy in the ordinary course of the law." Id. at page 401.
Edward J. Cox Co., L.P.A., Mr. Edward J. Cox, Sr., Bustamante, Donohoe Palmisano Co., L.P.A., Mr. John H. Bustamante and Mr. Harry R. Paulino, for appellant.
Mr. William J. Brown, attorney general, and Mr. Solomon H. Basch, for appellee Industrial Commission.
Messrs. Thompson, Hine Flory, Mr. Arthur F. Zalud and Mr. Matthew J. Hatchadorian, for appellee National Acme Co.
This court has enunciated the "some evidence" rule recently in State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 79, as follows: "***[W]here the record contains some evidence to support the commission's factual findings, these findings will not be disturbed. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283; State, ex rel. Capitol City Excavating Co., v. Indus. Comm. (1978), 54 Ohio St.2d 184, 188-189."
The commission stated in its decision that it relied, inter alia, upon "evidence in the file." Under R.C. 4123.10, the commission "shall not be bound by the usual common law or statutory rules of evidence***." In addition, the commission file is replete with material of a quasi-evidentiary nature which would support the commission's determination and satisfy the "some evidence" rule. For instance, appellant filed suit for injuries sustained in an automobile accident in 1969, including sprain and contusion of the musculature of the lumbo-sacral spinal region and aggravation of pre-existing arthritis in the spinal region and left knee. In 1967, appellant sued for injuries allegedly received from a fall in a laundromat including injuries to her head, back, left arm, right leg, and limitation of motion and pain regarding her back, arms, and legs. In addition, appellant was repeatedly treated at the Cleveland Clinic for recurrent pain in her knees prior to her alleged industrial accident.
In view of the extensive medical history of appellant, there was definitely some evidence in appellant's file upon which the commission could base its finding that she is permanently and totally disabled but not as a result of the allowed injuries.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.