State ex rel. General Motors Corp. v. Industrial Commission, 74-842

• Citation: 71 O.O.2d 255,328 N.E.2d 387,42 Ohio St.2d 278
• Decision Date: 14 May 1975
• Docket Number: No. 74-842,74-842
• Parties: , 71 O.O.2d 255 The STATE ex rel. GENERAL MOTORS CORP., Appellant, v. INDUSTRIAL COMMISSION et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 278

42 Ohio St.2d 278

328 N.E.2d 387, 71 O.O.2d 255

The STATE ex rel. GENERAL MOTORS CORP., Appellant, v. INDUSTRIAL COMMISSION et al., Appellees.

No. 74-842.

Supreme Court of Ohio.

May 14, 1975.

On December 12, 1958, a claimant, Walter P. Brown, sustained a back injury while in the course of his employment with the General Motors Corporation. After undergoing a lumbar laminectomy, the claimant was granted a 30 percent permanent partial disability award by the Industrial Commission. The last payment relative to this award was made on Cotober 6, 1961.

On April 26, 1966, claimant was again injured in a work-related incident, and a claim was allowed for a condition described as 'lumbar strain.' It was further ruled by the Administrator of the Bureau of Workmen's Compensation that claimant had experienced no compensable lost time due to the injury. This order was affirmed by the regional board of review, and later by the Industrial Commission.

Claimant then filed an application to determine the percentage of his permanent partial disability. On May 2, 1972, the commission found the extent of his disability to be 30 percent, the same as it had been in 1960. After this determination, claimant filed a motion on May 30, 1972, for permanent total disability. To support this position, the medical statement of Dr. F. J. Roemer was submitted, stating that, as of March 1968, claimant was permanently and totally disabled. However, in the opinion of Dr. J. A. Koenighoff, a staff doctor of the commission, claimant was not permanently and totally disabled. Due to the conflict in medical opinions, the commission referred claimant to Dr. Gary Katz, an independent orthopedic specialist. It was his conclusion that claimant was permanently and totally disabled.

A hearing was held before the Industrial Commission, and, on July 11, 1973, an order was issued finding claimant to be permanently and totally disabled as of May 30, 1972.

The Court of Appeals denied General Motors' petition for a writ of mandamus to vacate the order, finding that it had a plain and adequate remedy in the ordinary course of the law.

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

Baughman & Hayes and Thomas P. Hayes, Cleveland, for appellant.

William J. Brown, Atty. Gen., Michael J. Hickey, and James R. Piercy, Columbus, for appellee Industrial Commission.

Shapiro, Kendis & Assoc. Co., L. P. A., and Alan J. Shapiro, Cleveland, for appellee Walter P. Brown.

PER CURIAM.

In denying appellant's request for a writ of mandamus, the Court of Appeals found the issue of causal relationship to be appealable and, therefore, that an adequate remedy, existed in the ordinary course of the law.

R.C. 4123.519 provides, in pertinent part:

'The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state. * * *'

Past decisions of this court interpreting the above provisions have consistently held that an order constituting a denial that is absolute and which goes to the basis of claimant's right to participate in the fund is not a 'decision as to the extent of disability,' and is appealable pursuant to R.C. 4123.519. Rummel v. Flowers (1972), 28 Ohio St.2d 230, 277 N.E.2d 422; State ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St.2d 154, 277 N.E.2d 219; Reeves v. Flowers (1971), 27 Ohio St.2d 40, 271 N.E.2d 769; State ex rel. Mansour v. Indus. Comm. (1969), 19 Ohio St.2d 94, 249 N.E.2d 775; Keels v. Chapin & Chapin (1966), 5 Ohio St.2d 112, 214 N.E.2d 428; Carpenter v. Scanlon (1958), 168 Ohio St. 139, 151 N.E.2d 561. Where an appeal is available from an order of the commission, an action in mandamus may not be maintained. See State ex rel. Ferris v. Indus. Comm. (1969), 17 Ohio St.2d 49, 245 N.E.2d 357; State ex rel. Foley v. Greyhound Lines (1968), 16 Ohio St.2d 6, 241 N.E.2d 904; State ex rel. Benton v. C. & So. O. Elec. Co. (1968), 14 Ohio St.2d 130, 237 N.E.2d 134; State ex rel. Latino v. Indus. Comm. (1968), 13 Ohio St.2d 103, 234 N.E.2d 912.

Conversely, where the commission's order constitutes a finding as to the extent of disability, an appeal is unavailable and mandamus is proper to test the commission's exercise of its discretion. See State ex rel. Campbell v. Indus. Comm., supra; Rummel v. Flowers, supra; Reeves v. Flowers, supra; State ex rel. Shewalter v. Indus. Comm. (1969), 19 Ohio St.2d 12, 249 N.E.2d 51.

In the case at bar, both appellant and appellee Industrial Commission argue that the relevant provisions of R.C. 4123.519 do not allow an appeal from the commission's order of May 30, 1972. That decision, finding claimant permanently and totally disabled, clearly was not an absolute denial of claimant's right to participate in the fund, but was a determination as to the extent of disability. Therefore, an appeal did not lie and appellant's only available remedy was an original action in mandamus.

Appellant argues that the commission abused its discretion by accepting for review claimant's motion for permanent disability without evidence of new and changed circumstances required by R.C. 4123.57(B). ¹ Although the medical report of Dr. Roemer did not constitute substantial evidence of changed conditions since the last examination, we disagree with appellant's position that the relevant provisions of R.C. 4123.57(B) must be construed in pari materia with the provisions of R.C. 4123.58, relating to permanent and total disability. ²

As our prior cases have noted, a distinct difference exists between the goals of compensation for partial disability and for permanent and total disability. Although an award for permanent and total disability is generally aimed at compensating for impairment of earning capacity, benefits for partial disability are more akin to damages for work-related injuries. See Fleischman v. Flowers (1971), 25 Ohio St.2d 131, 267 N.E.2d 318; State ex rel. Latino v. Indus. Comm., supra (13 Ohio St.2d 103, 234 N.E.2d 912). See, also, Young, Workmen's Compensation Law of Ohio, 107, Section 7.22. As can be seen from a reading of R.C. 4123.57(B), the phrase 'substantial evidence of new and changed circumstances' relates to the concept of partial disability. Additionally, R.C. lusixty-six and two-thirds per cent of the statewide inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees.' It is our conclusion that the language from R.C. 4123.57(B) discussed above, being absent from R.C. 4123.58, was intended by the General Assembly to apply only to partial disability claims pursuant to R.C. 4123.57(B).

Appellant contends further that the Industrial Commission's determination that claimant is permanently and totally disabled is unsupported by the evidence, and that such determination constitutes an abuse of discretion. We disagree. This court has often recognized that the determination of disputed factual situations is within the final jurisdiction of the commission, subject to correction by action in mandamus only upon a showing of abuse of discretion. State ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24; State ex rel. Reed v. Indus Comm. (1965), 2 Ohio St.2d 200, 207 N.E.2d 755; State ex rel. Allied Wheel Products v. Indus. Comm. (1956), 166 Ohio St. 47, 139 N.E.2d 41. Thus, where the record contains evidence which supports the commission's factual findings, this court will not disturb that determination. See State ex rel. Coen v. Indus. Comm. (1933), 126 Ohio St. 550, 186 N.E. 398; State ex rel. Allied Wheel Products v. Indus. Comm., supra; State ex rel. Mees v. Indus. Comm. (1972), 29 Ohio St.2d 128, 279 N.E.2d 861; State ex rel. Breno v. Indus. Comm. (1973),...