State ex rel. Anderson v. Industrial Com'n, s. 82-1776

• Decision Date: 15 February 1984
• Docket Number: Nos. 82-1776,82-1567,s. 82-1776
• Citation: 459 N.E.2d 548,9 Ohio St.3d 170
• Parties: , 9 O.B.R. 456 The STATE, ex rel. ANDERSON, Appellant, v. INDUSTRIAL COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 170

9 Ohio St.3d 170 459 N.E.2d 548, 9 O.B.R. 456 The STATE, ex rel. ANDERSON, Appellant,
v.
INDUSTRIAL COMMISSION et al., Appellees. Nos. 82-1776, 82-1567. Supreme Court of Ohio. Feb. 15, 1984.

Michael Muldoon, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Thomas E. Skilken, Asst. Atty. Gen., for appellee Indus. Com'n.

PER CURIAM.

I

This court has consistently held that a writ of mandamus will lie only

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where there has been a showing that relator has a clear legal right to the relief prayed for, a clear duty to perform the requested act, and that relator has no plain and adequate remedy at law. State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.3d 42, 399 N.E.2d 81 [15 O.O.3d 53], paragraph one of the syllabus. The second action in mandamus, now being appealed, sought to compel the commission to comply with the writ previously issued by finding appellant permanently and totally disabled. This very specific request is not consonant with the more general mandate of the writ: that the commission proceed on appellant's motion. A writ of mandamus will not lie where the specific act requested is not clearly required of the official to whom it is directed. II

R.C. 2705.02 states:

"A person guilty of any of the following acts may be punished as for a contempt:

"(A) Disobedience of, or resistance to, a lawful writ * * *."

Appellant contends that the commission has disobeyed the mandate of the writ previously issued. The court of appeals directed the commission to vacate the order of August 31, 1977 and proceed with appellant's motion. All parties concede that the commission has complied with the first prong of the order. The commission insists that it initiated compliance with the second prong of the order also, but that appellant's[459 N.E.2d 551] refusal to submit to a psychiatric examination gives it authority, pursuant to R.C. 4123.53, to suspend further consideration of his motion.

R.C. 4123.53 states succinctly: "Any employee claiming the right to receive compensation may be required by the industrial commission to submit himself for medical examination at any time, and from time to time * * *. If such employee refuses to submit to any such examination * * * his right to have his claim for compensation considered * * * shall be suspended during the period of such refusal * * *." (Emphasis added.) This statute gives the commission wide discretion with regard to requests for medical examinations...