State ex rel. Lewis v. Diamond Foundry Co.

• Decision Date: 01 April 1987
• Docket Number: No. 86-615,86-615
• Citation: 505 N.E.2d 962,29 Ohio St.3d 56,29 OBR 438
• Parties: , 29 O.B.R. 438 The STATE, ex rel. LEWIS, Appellant, v. DIAMOND FOUNDRY COMPANY; Industrial Commission of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 56

29 Ohio St.3d 56

505 N.E.2d 962, 29 O.B.R. 438

The STATE, ex rel. LEWIS, Appellant, v. DIAMOND FOUNDRY COMPANY; Industrial Commission of Ohio, Appellee.

No. 86-615.

Supreme Court of Ohio.

April 1, 1987.

In 1980 appellant, Robert E. Lewis, filed a claim for disability from the occupational disease of silicosis. The Industrial Commission, on November 29, 1982, while finding that appellant had contracted silicosis in the course of employment, further determined that such disease did not cause appellant total disability and no lost time or medical payment benefits were to be paid.

Appellant was employed by Diamond Foundry Company for approximately twenty-three years where he worked as a truck driver and also as a laborer in the knockout and shakeout areas of the foundry.

The relevant medical evidence consists of the examination reports of Dr. Dan M. Daneshvari, appellant's physician, who is a pulmonary specialist, Dr. Alan E. Kravitz, a commission specialist, and Dr. Mario R. Brezler, a commission pulmonary specialist. The commission's file reflects that some question was raised as to whether Dr. Kravitz was a pulmonary specialist or a heart specialist. Apparently as a result of such question, appellant was then examined by Dr. Brezler. All three examiners recited that appellant's job termination or inability to return to work was because vision difficulty impaired his ability to drive a truck.

Appellant filed the instant mandamus action below in 1985, alleging that the commission abused its discretion in denying him compensation and medical benefits and seeking an order requiring such compensation and benefits. The court of appeals assigned this case to a referee who made a detailed report, consisting of findings of fact, conclusions of law and a recommendation that the writ be denied. Appellant objected to the referee's report and the cause was heard by the court of appeals. The appellate court overruled appellant's objections and stated that " * * * the report of the referee is approved and adopted by the court as its own, and it is the judgment and order of this court that the requested writ of mandamus is denied."

The cause is now before this court upon an appeal as of right.

Michael J. Muldoon, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson, Jeffrey W. Clark and Merl H. Wayman, Columbus, for appellee.

PER CURIAM.

Appellant first urges that the commission abused its discretion in denying him temporary total disability compensation because all the evidence revealed that he was not able to return to his former position of employment.

With respect to evaluation of the evidence, it is only necessary to consider the medical report of Dr. Mario R. Brezler, a pulmonary specialist who examined appellant on October 1, 1981. Dr. Brezler in his report first noted: "I have reviewed all the claimant's chart, especially the reports by Dr. Daneshvari and Dr. Kravitz as well as Mr. Hollis' (industrial hygienist's) comprehensive report. I obtained essentially a similar work history as was mentioned previously." ¹ He further stated:

"I believe that history, physical examination, radiological findings, resting pulmonary function test and stress test do confirm the diagnosis of simple silicosis which has not produced any significant disability judging by the amount of work achieved on the stress tests, performed both at my office and at Dr. Daneshvari's office.

"I believe that claimant showed clear-cut evidence of simple silicosis which is occupationally related and has had some minimal residual abnormalities noted on the resting pulmonary function test. However, patient is neither partially nor totally disabled from it. Rather, his disability is entirely unrelated to his occupational exposure (i.e., blindness, which hampered him in his activities to conduct his former job as a truck driver). The presence of a positive PPD places patient in a high risk category. It is well known that patients with previous exposure to silicosis have an enhanced susceptibility to the development of tuberculosis. Therefore, he should be carefully followed up with sputum examinations, at regular intervals."

The examination report of Dr. Brezler reflected his awareness of appellant's former position of employment and the duties thereof. There can be no doubt that Dr. Brezler's finding of neither partial nor total disability ² related to appellant's ability to return to his former position of employment. Dr. Brezler attributed disability only to appellant's visual problems and specifically stated that such disability was unrelated to the occupational...