Opinion
No. 78-436
Decided February 14, 1979.
Mandamus — Workers' compensation — To compel issuance of increased disability benefits — Writ denied, when.
APPEAL from the Court of Appeals for Franklin County.
In June 1956, relator, William Moon, sustained a lumbosacral sprain in the course of and arising out of his employment with respondent Jones Laughlin Steel Corporation. Moon received medical treatment from his employer and was awarded workers' compensation for temporary partial disability until June 30, 1956, when he returned to his regular work with Jones Laughlin. Moon received treatment for his injury on only two occasions after he returned to his regular job.
In September 1965, Moon filed an application for the determination of the percentage of permanent partial disability with respondent Industrial Commission. The medical report submitted by the commission's medical examiner noted, in pertinent part:
"There is normal lumbosacral curvature, and slight pain on percussion over the lower back. The claimant wears a back brace. All bending movements of the back are moderately limited and painful. The reflexes are normal. Straight leg raising can be carried out to 60 degrees on the left and 40 degrees on the right. Faber's test is positive bilaterally. There is no muscular atrophy." The report concluded that Moon suffered "[p]ermanent partial disability of low degree, approximately twenty percent * * *."
The commission subsequently awarded Moon compensation for 20 percent permanent partial disability.
In August 1976, Moon filed an application for an increase in the percentage of his permanent partial disability. Accompanying the 1976 application was a medical report which, in addition to noting that Moon had worn a "low back support in the past," stated:
"The patient has occasional aching pain and tingling sensation of both lower extremities. There is no definite history of numbness in the legs. He has difficulty with much bending or lifting due to the low back pains. There is stiffness in the lower back; the pains persist up to the present time.
"The patient has a normal station and gait. There is some pain in the lower back with heel and toe walking bilaterally. He has generalized tenderness of the lumbar musculature with some loss of normal lumbar lordosis. He has pain on motion of the lumbar spine with flexion of 30° and extension 10°. Straight-leg raising test is positive bilaterally at 70° with low back pain. Deep tendon reflexes of the legs are negative and there is no motor or sensory loss in the lower extremities. X-rays in the past have not been remarkable for the lumbar spine. He has some pain on motion of the hips, but there is no evidence of nerve root compression in the lower extremities."
The 1976 report concluded that Moon's disability had increased to 37 percent.
The Industrial Commission, following a hearing, denied Moon's application on September 29, 1976. His application for reconsideration was also denied following a hearing in August 1977. Moon subsequently filed a complaint in mandamus in the Court of Appeals for Franklin County to compel the commission to vacate its order on reconsideration and to grant him the increased permanent partial disability benefits requested in his applications. The Court of Appeals denied the writ, stating that "it is not unreasonable for the Industrial Commission to determine that there has been no increase in the percentage of permanent partial disability, and, accordingly, it did not abuse its discretion in so finding."
Relator's motion for appeal to this court was granted; his request for oral argument was denied. The cause is now before this court as a matter of right.
Messrs. Sindell, Sindell, Selker, Rubenstein, Einbund Pavlik and Mr. Dennis O. Norman, for appellant.
Mr. William J. Brown, attorney general, and Mr. Robert L. Holder, for appellees Administrator and Industrial Commission.
Crede Calhoun Co., L.P.A., Mr. Crede Calhoun and Mr. J. Michael Monteleone, for appellee Jones Laughlin Steel Corporation.
Because the instant cause originated in a Court of Appeals, this court is obligated, pursuant to Section 2, Article IV of the Ohio Constitution, to review it. Having done so, we find no merit in relator's appeal. The sole issue raised by Moon is whether mandamus should lie. Mandamus will not lie unless there is a clear legal duty to perform an official act. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, paragraph one of the syllabus. The commission is under no such legal duty to increase Moon's disability compensation unless the record reveals that its determination not to increase that award constituted an abuse of discretion. State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St.2d 128; State, ex rel. Stuber, v. Indus. Comm. (1933), 127 Ohio St. 325.
A review of the record shows that the commission did not abuse its discretion when it found that Moon's disability had not increased from 1966 to 1976. (Both medical reports record normal muscle development and reflexes and an impaired ability to bend and lift or complete the straight-leg raising test. The second report also indicates some degree of improvement — Moon is described as having worn a brace only "in the past.")
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HOLMES, J., not participating.