Opinion
No. 33003
Decided May 27, 1953.
Mandamus — Workmen's compensation — Silicosis — Compensable only for total disability, temporary or permanent, or death — Whether disability total determined by Industrial Commission — Its decision final.
IN MANDAMUS.
The relator in his petition in mandamus, filed originally in this court, alleges that he has an occupational-disease claim pending before the Industrial Commission; that upon hearing of his application for additional compensation the commission found "after due consideration of all proof on file * * * there is a preponderance of medical proof that the claimant is not totally disabled from the disease of silicosis, and that there has been no progression of the disease since this claim was previously considered; there is, therefore, no basis for the payment of compensation at this time." Relator alleges further that he requested the commission to classify the silicosis as I, II, III or IV, and that such request was denied.
The prayer of the petition is "for a writ directing the commission to state the ground or grounds of its order or make the said order definite as to the ground or grounds thereof."
A general demurrer has been filed to the petition.
Mr. Robert E. Brooks and Mr. Louis C. Capelle, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Chalmers P. Wylie, for respondents.
Compensation for silicosis is payable "only in the event of temporary total disability, permanent total disability, or death." Section 1465-68 a, General Code. Whether claimant's disability is partial or total is a question of fact to be determined by the commission and its decision thereon is final. State, ex rel. Bevis, v. Coffinberry et al., Industrial Commission, 151 Ohio St. 293, 85 N.E.2d 519, certiorari denied, 338 U.S. 826, 94 L. Ed., 502, 70 S. Ct., 74.
The demurrer is sustained and, relator not desiring to plead further, a writ is denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.