State ex rel. Hutton v. Industrial Commission

• Decision Date: 26 January 1972
• Docket Number: No. 71-337,71-337
• Citation: 29 Ohio St.2d 9,278 N.E.2d 34
• Parties: , 58 O.O.2d 66 The STATE ex rel. HUTTON, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.
• Court: Ohio Supreme Court

Page 9

29 Ohio St.2d 9

278 N.E.2d 34, 58 O.O.2d 66

The STATE ex rel. HUTTON, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.

No. 71-337.

Supreme Court of Ohio.

Jan. 26, 1972.

Syllabus by the Court

Page 90

Where there is no evidence in the record to support or justify an order of the Industrial Commission awarding 15% permanent partial disability and where all the evidence in the record supports an extent of permanent partial disability equal to 40%, the action of the Industrial Commission in awarding only 15% disability constitutes an abuse of discretion, subject to correction by an action in mandamus. (State ex rel. Shewalter v. Indus. Comm., 19 Ohio St.2d 12, 249 N.E.2d 51, followed.)

This action originated in the Court of Appeals for Franklin County wherein relator, appellant herein, sought a writ of mandamus to compel the Industrial Commission of Ohio to increase its July 14, 1970, award to him of permanent partial disability, in claim No. PE 489065, from 15% to 40%.

The cause was heard by the Court of Appeals upon the complaint, the answer, the briefs of counsel and oral argument. Attached to the brief of respondent Industrial Commission were exhibits A through X, consisting of copies of pertinent portions of the Industrial Commission's claim file No. PE 489065. It appears from the entry of the Court of Appeals that exhibits A through X were 'stipulated by the parties as to their authenticity, correctness and admissibility.'

The complaint alleges:

'Relator sustained an injury to his low back on November 7, 1966 while in the course of his employment with the named respondent ^* city of Cleveland; that said injury was assigned claim number PE 489065 by the Bureau of Workmen's Compensation; that said claim was allowed by the bureau and compensation for temporary total disability paid thereunder; and that thereafter relator duly filed an application for permanent partial disability.

'Relator further says that pursuant to his application for permanent partial disability he was examined by the medical section of the Industrial Commission; that the examining doctor, F. M. Freimann, M. D., in his report dated 5/14/70, found the relator's permanent partial disability to be 40%; that relator's application for permanent partial disability was heard by the Industrial Commission on July 14, 1970; that said body awarded 15% permanent partial disability, 25% less than the disability flowing from this injury found by its own medical department.

'Relator further says that on August 21, 1959 he sustained an injury to his low back while in the employ of the city of Cleveland; that said injury was assigned claim number PE 334883; that on September 13, 1961, the Industrial Commission awarded relator 25% permanent partial disability.

'Relator further says that the 25% permanent partial disability awarded under claim number PE 334883 was deducted from the award of permanent partial disability due and owing to him in claim number PE 489065; that said deduction is contrary to law; that the respondent Industrial Commission is under a clear legal duty to award the additional 25% permanent partial disability compensation to relator; that its denial in this case is an abuse of discretion * * *.'

Essentially, the answer of the Industrial Commission admits all the allegations of the complaint except that the award of 15% was computed by deducting the 1961 award of 25% in claim No. PE 334883. It admitted the finding of 40% disability by Dr. Freimann in May 1970 and alleged merely:

'* * * that relator's application for permanent partial disability was heard by the Industrial Commission on July 14, 1970; that said body awarded 15% permanent partial disability * * *.'

The Court of Appeals denied the writ of mandamus, concluding that 'this court has nothing before it to evidence that the Industrial Commission in fact deducted the prior award from the report of Dr. Freimann relating to the percentage of permanent partial disability'; that 'we have no means of ascertaining the precise method as established by the commission in making its determination'; that 'the Industrial Commission presumably had the relator's complete records and file before it, and in the process of reviewing the relator's application for permanent partial disability, had all of the pertinent facts and evidence pertinent thereto'; and that the findings of the examining physician, employed by the Industrial Commission 'would not be binding upon the Industrial Commission, and such body may make its own independent determinations separate and apart from any conclusions as might be reached by the examining physician,' citing State ex rel. Coen v. Indus. Comm. (1933), 126 Ohio St. 550, 186 N.E. 398.

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

Harold Ticktin and Kenneth S. Kabb, Cleveland, for appellant.

William J. Brown, Atty. Gen., R. Patrick Baughman and David J. Sheriff, Cleveland, for appellee.

LEACH, Justice.

At the outset, it should be noted that no claim is made by or on behalf of the Industrial Commission that it would have any authority to deduct, from the determination of relator's percentage of permanent partial disability, the percentage determined in making an award to the same person in a separate claim which predated the injury in question. In any event, our decision in State ex rel. Shewalter v. Indus. Comm. (1969), 19 Ohio St.2d 12, 249 N.E.2d 51, would appear to preclude such authority, in the absence of a specific finding that a portion of a workman's present...