State ex rel. Republic Steel Corp. v. Industrial Commission, 79-820

• Decision Date: 06 February 1980
• Docket Number: No. 79-820,79-820
• Citation: 399 N.E.2d 1268,61 Ohio St.2d 193,15 O.O.3d 216
• Parties: , 15 O.O.3d 216 The STATE ex rel. REPUBLIC STEEL CORP., Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
• Court: Ohio Supreme Court

Page 193

61 Ohio St.2d 193

399 N.E.2d 1268, 15 O.O.3d 216

The STATE ex rel. REPUBLIC STEEL CORP., Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.

No. 79-820.

Supreme Court of Ohio.

Feb. 6, 1980.

Respondent-appellee Ralph A. Shearer was employed as a carpenter by cross relator-appellant, Republic Steel Corporation, from 1952 to 1969. Shearer filed an occupational disease application for adjustment of claim with the Bureau of Workers' Compensation in January 1971. The application alleged that he had developed chronic bronchitis, emphysema and duodentis, as a result of exposure to dust and fumes in the course of his employment with Republic Steel.

Shearer's claim was disallowed by the Deputy Administrator and the Canton Regional Board of Review affirmed the Deputy Administrator's order. A timely appeal was then filed with respondent-appellee Industrial Commission. Following a series of delays the Industrial Commission: (1) entered an order allowing claimant Shearer's application for occupational disease; and (2) granted a motion by the claimant for permanent total disability. Republic Steel thereafter applied for reconsideration of that decision. The commission then rendered a decision affirming the allowance of the occupational disease, but also ordered that the claim be reset for hearing on the question of permanent and total disability.

Shearer filed a complaint in mandamus in the Court of Appeals for Franklin County to prevent the commission from reconsidering the issue of disability. Republic Steel filed a cross-complaint in mandamus attacking the allowance of the occupational disease. The Court of Appeals denied both mandamus requests. No appeal was taken from the denial of the original complaint in mandamus. Republic Steel has instituted this appeal as of right from the denial of its cross-complaint in mandamus.

Baughman & Associates Co., L.P.A., and Jerry Kennemuth, Cleveland, for appellant.

William J. Brown, Atty. Gen., and Solomon H. Basch, Asst. Atty. Gen., for appellee Industrial Commission.

John R. Workman, Columbus, for appellee Shearer.

PER CURIAM.

Appellant alleges that the Industrial Commission abused its discretion by allowing the occupational disease claim involved in the instant cause. This court, however, has consistently held that mandamus will not lie where there is some evidence to support the finding of the commission. See State, ex rel. Mees v. Indus. Comm. (1972), 29 Ohio St.2d 128, 131, 279 N.E.2d 861; State, ex rel. Davis v. Indus. Comm. (1979), 60 Ohio St.2d 160, 161, 398 N.E.2d 779.

The claimant in this cause established compensability under R.C. 4123.68(BB), a residual definitional section dealing with non-scheduled occupational diseases. That section states: "All other occupational diseases: A disease peculiar to a particular industrial process, trade or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment." This court construed this section in Ohio Bell Telephone Co. v. Krise (1975), 42 Ohio St.2d 247, 327 N.E.2d 756. It was held that a disease is compensable under that section where the following criteria are found to exist: "(1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally." The Court of Appeals concluded that there was evidence to support the commission's finding and that all three criteria were established.

Appellan...