State ex rel. Davis v. Industrial Commission, 79-450
| Decision Date | 26 December 1979 |
| Docket Number | No. 79-450,79-450 |
| Citation | 398 N.E.2d 779,60 Ohio St.2d 160 |
| Parties | , 14 O.O.3d 402 The STATE ex rel. DAVIS, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees. |
| Court | Ohio Supreme Court |
On June 27, 1974, Wilbur Davis, appellant herein, then age 61, fractured his right ankle in the course of his employment as a custodian for the Dayton Board of Education, an appellee herein. His workers' compensation claim was recognized for "broken right ankle" (fracture dislocation of the right ankle). Appellant has not worked since the time of injury. He received sick leave for a few months after the injury and compensation for temporary total disability on a continuous basis thereafter.
On February 26, 1976, appellant filed a motion with the Industrial Commission, an appellee herein, requesting that he be found permanently and totally disabled as a result of his right ankle fracture. The commission referred him to Dr. Donald N. Berning, an orthopedic specialist. He found that appellant had some impairment in the functioning of his right ankle that has resulted in some "low back complaints." He concluded "for all practical purposes, that while the injury itself would not be necessarily so disabling in a 'white collar' worker, this man's walking, standing ability is markedly curtailed and his climbing ability would be frankly hazardous.
The commission then referred appellant's claim file to Dr. Dwight Davies of its medical staff. Without examining appellant he issued his "Medical Opinion" stating:
The commission denied appellant's motion for permanent and total disability. He then filed a complaint in mandamus in the Court of Appeals seeking a writ ordering the commission to find him permanently and totally disabled. The court denied the writ.
The cause is now before this court upon an appeal as of right.
E. S. Gallon & Associates and John A. Cervay, Dayton,...
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