Opinion
No. 74-753
Decided April 9, 1975.
Workmen's compensation — Permanent partial disability award — Increase in percentage of disability not warranted, when — No evidence of new and changed conditions.
APPEAL from the Court of Appeals for Franklin County.
As a result of a 1965 head and neck injury sustained in the course of his employment, Marion R. Solomon, appellant herein, filed a claim with the Bureau of Workmen's Compensation. In May 1967, temporary total disability benefits were awarded him. Thereafter, he filed an application for permanent partial disability. At that time, the commission had before it two medical reports, one estimating a permanent partial disability of 25 percent, the other estimating permanent partial disability at 10 to 15 percent.
After initially rejecting the application, the Industrial Commission, pursuant to an agreement between the claimant and the employer, on April 23, 1968, granted an award of permanent partial disability, based on six percent disability.
In May 1971, appellant applied for an increase in percentage of permanent partial disability benefits, having submitted his physician's report which rated appellant's disability at 15 percent. The commission's physician then re-examined appellant, the resultant medical opinion being that such disability was 15 percent. On December 15, 1971, the commission ordered an increase in permanent partial disability rating to 15 percent.
Following the increased rating, The Ohio Brass Company, an appellee herein, sought reconsideration by the commission, which resulted in the commission vacating its order of December 15, 1971.
Appellant then filed this mandamus action in the Court of Appeals, seeking to require the commission to award compensation and benefits pursuant to its order of December 15, 1971. The mandamus action was grounded upon the contention that in vacating the order of December 15, 1971, the commission had abused its discretion.
The Court of Appeals denied the writ of mandamus, and the cause is now before this court as a matter of right.
Chester T. Freeman Co., L.P.A., for appellant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey, Mr. J. Michael Monteleone and Mr. Victor P. Kademenos, for appellees.
At issue here is the action of the commission in light of R.C. 4123.57(B) which reads, in pertinent part, as follows:
"* * * 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."
The entire file of the commission was before the Court of Appeals. The medical records, as noted by the Court of Appeals, reflect "a continuing, painful condition." The file also reflects an award of temporary total benefits covering a period of hospitalization from September 6, 1969, through September 21, 1969 or subsequent to the original six percent permanent disability rating. However, the medical disability opinions subsequent to the original six percent rating of the commission, while higher than the agreed six percent rating, are not higher than the percentages which supported that six percent rating. Moreover, the fact of temporary total disability benefits having been awarded subsequent to the original six percent disability rating is not persuasive in itself of "substantial evidence of new and changed circumstances" under R.C. 4123.57(B).
There is no question here that the Industrial Commission has discretion to evaluate the medical evidence. The new medical evidence before the commission was, upon reconsideration of its December 15, 1971, order, found not to justify an increase in percentage of permanent partial disability. The commission's action does not reflect an abuse of discretion to support mandamus since the governing statute, R.C. 4123.57(B), specifically requires "substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.