State ex rel. Marshall v. Keller

Decision Date17 July 1968
Docket NumberNo. 68-81,68-81
Citation239 N.E.2d 85,15 Ohio St.2d 203
Parties, 44 O.O.2d 184 The STATE ex rel. MARSHALL, Appellee, v. KELLER, Adrm., Bureau of Workmen's Compensation, et al., Appellants.
CourtOhio Supreme Court

Wilbur Marshall, appellee herein, instituted an action in mandamus in the Court of appeals to compel the Industrial Commission to award him compensation for claimed disability resulting from silicosis contracted in the course of and arising out of his employment.

An earlier appeal to this court in this case appears in 10 Ohio St.2d 85, 226 N.E.2d 743, wherein this court reversed the judgment of the Court of Appeals which had vacated the order of the commission on the ground that the appointment of one of the commission members who signed the order had not been confirmed by the Senate. The cause was remanded to the Court of Appeals 'for further consideration of other errors asserted but not passed upon by that court.'

Appellee initially filed his claim for compensation in 1953. At that time, the commission had before it findings of two separate medical boards that appellee did not have silicosis and it denied the claim. In 1961, appellee submitted a second application based upon the same facts that were involved in the 1953 application. More medical evidence was presented from several doctors. This evidence was conflicting. The commission specialist indicated that there was no silicosis present. Other evidence indicated that bronchitis, emphysema, fibrosis and silicosis, operating together, caused appellee's disability. The commission again denied compensation.

There being no provision for appeal from the denial of an occupational disease claim by the Industrial Commission in the statute providing for appeals (Section 4123.519, Revised Code), appellee brought this action in mandamus in the Court of Appeals. That court found that the commission abused its discretion in denying the claim and entered judgment granting the writ.

The cause is now before this court on appeal from that judgment.

Gus Tarian, Alliance, for appellee.

William B. Saxbe, Atty. Gen., Walter J. Howdyshell and William M. Culbert, Columbus, for appellants.


The question raised by this case is whether mandamus lies to review the order of the Industrial Commission denying compensation for alleged permanent disability caused by silicosis.

Section 4123.68(W), Revised Code (now Section 4123.68(X), Revised Code), which governs the disposition of workmen's compensation claims for disability or death caused by silicosis, provides in part:

'Before awarding compensation for disability or death due to silicosis, the commission shall refer the claim to a qualified medical specialist for examination and recommendation with regard to the diagnosis, the extent of disability, the cause of death, and other medical questions connected with the claim. * * *' (Emphasis added.)

The mandatory provisions of this statute were complied with in this case, the commission having acted pursuant to the opinion and recommendation of its duly appointed medical specialist in denying relator's claim. By its action, the commission resolved a medical question of fact against the claimant, in the face of several expert medical opinions to the contrary presented to it by the claimant. From that action of the commission no appeal is allowed. Szekely v. Young, 174 Ohio St. 213, 488 N.E.2d 424; Section 4123.519, Revised Code.

Realizing that the existence and degree of disablement caused by silicosis is a question of medical fact, the General Assembly has made it mandatory, through Section 4123.68(W), Revised Code, that the Industrial Commission refer such claims to a qualified medical specialist. If that expert makes a recommendation adverse to the claimant and the commission acts upon that recommendation, neither this court, nor any other court, stands as a tribunal to review that determination by way of an action in mandamus.

What appellee is now seeking through this action in mandamus is to compel the courts of this state to act as a jury and to review and weigh medical evidence. Mandamus is not a substitute for appeal, nor can it be used to create an appeal in cases where an appeal is not provided by law. Before a writ may issue there must be a clear legal duty on respondent to act, and, where the evidence is conflicting, a court cannot substitute its judgment for that of the commission and find that the commission abused its discretion.

In State ex rel. Bevis, v. Coffinberry, 151 Ohio St. 293, 85 N.E.2d 519, this court was confronted with a situation nearly identical to that in the present case. In the course of the opinion, Judge Edward S. Matthias, stated:

'The question presented to this court by the facts alleged in the petition involves the determination of a purely medical question of fact. The determination of such a question as the relator presents here, that is whether the complicating diseases of pulmonary emphysema and asthmatic bronchitis were caused by the silicosis condition, is so clearly a question of fact that the granting of a writ by this court would be in effect a requirement that the Industrial Commission determine a question of fact in the manner in which this court believes it should have been found and determined. It is clear that there was a positive difference of opinion between th medical authorities constituting the silicosis referees and the medical board of review of the Industrial Commission on the one hand and the physicians who examined the relator on the other. In such a situation the relator obviously does not show a clear right to relief by way of mandamus and under the well established rule such a writ will not issue.'

Thus, an action in mandamus ordinarily does not lie to review the decision of the Industrial Commission denying compensation for an occupational disease.

The judgment of the Court of Appeals is reversed.

Judgment reversed.


HERBERT and SCHNEIDER, JJ., dissent.

PAUL M. HERBERT, Judge (dissenting).

The basic question presented in the case at bar is whether the Court of Appeals committed error when it allowed a writ of mandamus to issue commanding the Industrial Commission to perform a duty enjoined upon it by law, i. e., to award compensation to appellee Marshall by reason of an occupational disease, silicosis, contracted by him as a result of his employment.

The majority of this court bases its reversal of the judgment of the Court of Appeals upon two assumptions: (1) There is no appeal to the courts from a decision of the Industrial Commission, in occupational disease cases and (2) mandamus does not lie as a substitute for a law appeal.

How there can be a substitute for an appeal that does not exist will be discussed later.

The majority relies upon the case of Szekely v. Young, 174 Ohio St. 213, 188 N.E.2d 424, for support of the conclusion reached in assumption No. (1), supra. The third paragraph of the syllabus of that case reads:

'There is no right of appeal to the Common Pleas Court with respect to an occupational disease claim under the Workmen's Compensation Statutes.'

I submit that neither the General Assembly nor the adopters of our state Constitution intended to close the doors of the courts to an appeal of an adverse decision by a workman, suffering from a 'disability' arising from an 'occupational disease.' A difficult task confronted the General Assembly when it decided to enact a workmen's compensation law pursuant to Article II, Section 35 of the state Constitution, which reads, in part:

'For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment * * *.' (Emphasis added.)

It is difficult to rationalize that the adopters of the Constitution of Ohio would confer the right of appeal to the courts in the case of an 'injury' but deny the same right to a workman suffering from an 'occupational disease,' when the constitution assures compensation to victims of such disability.

Section 16, Article I of our state Constitution, provides that:

'All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. * * *' (Emphasis added.)

Yet, the majority denies an appeal to the 'courts' by workmen suffering from an 'occupational disease' to correct an injustice done by a decision of the Industrial Commission, no matter how grievous or arbitrary such injustice may have been.

The General Assembly endeavored to confer equal rights to 'injury' and 'occupational disease' claims.

Section 4123.69 of the Revised Code, reads, in part:

'Every employee mentioned in Section 4123.68 of the Revised Code (occupational diseases) * * * shall be entitled to all the rights, benefits * * * and regulations provided for injured employees * * * by Sections 4123.01 to 4123.94, inclusive, of the Revised Code.

'The Industrial Commission shall have all the powers, authority, and duties with respect to the collection, administration, and disbursement of the State Occupational Disease Fund as are provided for in Sections 4123.01 to 4123.94, inclusive, of the Revised Code, providing for collection, administration, and disbursement of the state insurance fund for the compensation of injured employees.' (Emphasis added.)

The General Assembly obviously stated its intention and purpose with clarity and precision. Victims of each type of disability-Injury or occupational disease-were entitled to the same rights. Appeal certainly is a matter of right.

State, ex rel. Indus. Comm., v. Holt, 134 Ohio St. 25, 15 N.E.2d 543, is in direct conflict with Szekely. Holt is still the law of Ohio, unreversed, unmodified and unchanged. Szekely occupies the same...

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