Opinion
No. 74-191
Decided December 4, 1974.
Mandamus — No clear legal right to writ established, when — Workmen's compensation — Silicosis — Disability of claimant — Evidence conflicting.
APPEAL from the Court of Appeals for Franklin County.
Relator instituted this action in mandamus in the Court of Appeals to require the Industrial Commission to vacate its order allowing claimant, Charles Prater, compensation for permanent and total disability due to the occupational disease of silicosis, resulting from exposure to dust from scrap metal and castings while claimant was employed in relator's plant in Cleveland.
In early 1969, claimant filed for compensation with the Bureau of Workmen's Compensation alleging that he was suffering from "silica tuberculosis." With his application, claimant filed a medical report from his doctor diagnosing his condition as silicosis tuberculosis with the medical opinion that, as a result, claimant was permanently disabled.
The bureau's medical expert, after reviewing the available medical records, submitted a report giving his opinion that claimant had been temporarily and totally disabled for a time in 1968 because of "tuberculosis super-imposed on simple silicosis," but that "current pulmonary function studies show no" total disability.
Following a hearing for which claimant submitted a further report from his doctor with the opinion that claimant was permanently and totally disabled by silicosis, the Administrator of the Bureau of Workmen's Compensation found that claimant had been totally disabled and is "probably permanently and totally disabled at this time."
Relator applied for reconsideration, and submitted a report from its medical expert that claimant "is not disabled" because of silicosis. Reconsideration was granted and the finding of permanent and total disability was deleted from the administrator's decision.
On appeal, the Regional Board of Review, after hearing further evidence, affirmed, with modification, the administrator's decision on reconsideration. An appeal to the Industrial Commission, following submission of additional reports by claimant's doctor, resulted in the vacation of the regional board's decision and reinstatement of the administrator's decision.
Relator filed the instant mandamus action alleging that the commission's order allowing compensation was a gross abuse of discretion. The Court of Appeals denied the writ of mandamus.
The cause is now before this court upon appeal from that judgment.
Messrs. Baughman, Hayes, Savidge Willacy and Mr. Aubrey B. Willacy, for appellant.
Mr. William J. Brown, attorney general, Mr. Michael J. Hickey and Mr. James R. Rishel, for appellee Industrial Commission.
Mr. David L. Levine, for appellee Charles Prater.
Relator argues that the order of the commission finding total disability is not supported by substantial competent evidence and constitutes a gross abuse of discretion and is, therefore, "subject to correction by an action in mandamus."
However, a writ of mandamus cannot be granted unless a clear legal right thereto has been shown, and the burden of establishing such right is upon the relator. State, ex rel. Szekely, v. Indus. Comm. (1968), 15 Ohio St.2d 237. See, also, State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141.
Relator's argument concerns itself with the sufficiency and quality of the medical evidence before the commission. As the Court of Appeals stated in its opinion, relator asks the "court to review and weigh all of the expert medical evidence and testimony, and make a determination as to the extent of the physical impairment of * * * claimant."
It is well settled that, where there is a conflict in the medical opinion before the Industrial Commission as to the disability of a claimant seeking compensation for the occupational disease of silicosis, a relator does not show a clear right to relief by mandamus and such a writ will not issue. State, ex rel. Bevis, v. Coffinberry (1949), 151 Ohio St. 293. See, also, State, ex rel. Breno, v. Indus. Comm. (1973), 34 Ohio St.2d 227, at 230.
Accordingly, the judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.