505 N.E.2d 962 (Ohio 1987), 86-615, State ex rel. Lewis v. Diamond Foundry Co.

Docket Nº86-615.
Citation505 N.E.2d 962, 29 Ohio St.3d 56
Opinion JudgePer Curiam.
Party NameThe STATE, ex rel. LEWIS, Appellant, v. DIAMOND FOUNDRY COMPANY; Industrial Commission of Ohio, Appellee.
AttorneyMichael J. Muldoon, Columbus, for appellant., Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson, Jeffrey W. Clark and Merl H. Wayman, Columbus, for appellee. Michael J. Muldoon, for appellant., Anthony J. Celebrezze, Jr., attorney general, Janet E. Jackson, Jeffrey W. Clark and Merl H. Wa...
Judge PanelMOYER, C.J., and SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and HERBERT R. BROWN, JJ., concur.
Case DateApril 01, 1987
CourtSupreme Court of Ohio

Page 962

505 N.E.2d 962 (Ohio 1987)

29 Ohio St.3d 56

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

Page 963

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. [29 Ohio St.3d 57]

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.

Page 964

"I believe that claimant showed clear-cut evidence of simple silicosis which is occupationally related and has had...

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440 practice notes
  • 556 N.E.2d 467 (Ohio 1990), 88-2038, State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 3 July 1990
    ...Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 57-58, 29 OBR 438, 440, 505 N.E.2d 962, 964; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1......
  • State ex rel. Bennett v. Aldi, Inc., 011216 OHCA10, 14AP-632
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 12 January 2016
    ...findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder.......
  • State ex rel. Brahler v. Kent State University, 120313 OHCA10, 13AP-143
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 3 December 2013
    ...findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder.......
  • State of Ohio ex rel. Lawrence v. Industrial Commn., 022207 OHCA10, 06AP-141
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 22 February 2007
    ...findings, there is no abuse of discretion, and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 29 OBR 38, 505 N.E.2d 962. {¶9} The magistrate's decision was based on the principles of abandonment of employment that have been developed throug......
  • Request a trial to view additional results
440 cases
  • 556 N.E.2d 467 (Ohio 1990), 88-2038, State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 3 July 1990
    ...Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 57-58, 29 OBR 438, 440, 505 N.E.2d 962, 964; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 74, 5 OBR 127, 128, 448 N.E.2d 1......
  • State ex rel. Bennett v. Aldi, Inc., 011216 OHCA10, 14AP-632
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 12 January 2016
    ...findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder.......
  • State ex rel. Brahler v. Kent State University, 120313 OHCA10, 13AP-143
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 3 December 2013
    ...findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder.......
  • State of Ohio ex rel. Lawrence v. Industrial Commn., 022207 OHCA10, 06AP-141
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 22 February 2007
    ...findings, there is no abuse of discretion, and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 29 OBR 38, 505 N.E.2d 962. {¶9} The magistrate's decision was based on the principles of abandonment of employment that have been developed throug......
  • Request a trial to view additional results