Opinion
No. 79-450
Decided December 26, 1979.
Workers' compensation — Motion for permanent and total disability — Denial by commission not abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
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.
"***There is no reluctance to conclude that he represents a situation in which sustained, remunerative industrial activity is not possible. For this reason, and in connection with the present work he was doing when injured, he certainly does represent a permanent total disability."
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: "Dr. Berning in his December 15, 1976 examination report includes training and occupation as part of his opinion. From the medical viewpoint, the impaired function of one ankle or even the foot, ankle and leg on one extremity does not render a person totally disabled. The Motion***is medically disapproved."
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.
Messrs. E.S. Gallon Associates and Mr. John A. Cervay, for appellant.
Mr. William J. Brown, attorney general, and Mr. James C. Ayers, for appellee Industrial Commission.
Appellant alleges that the commission abused its discretion in denying his motion for permanent and total disability. It is well established, however, that mandamus will not lie where there is some evidence to support the finding of the commission. See State, ex rel. Ruggles, v. Stebbins (1975), 41 Ohio St.2d 228. In State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, this court held that the opinion of a non-examining physician may constitute evidence before the commission if he expressly accepts the findings of the examining physician, but expresses his own conclusion based on those findings. Here, Dr. Davies accepted the medical findings of Dr. Berning but reached a different conclusion as to whether appellant is permanently and totally disabled. Hence, his medical opinion is evidence before the commission.
Since the evidence before the commission supports the commission's order denying appellant's motion for permanent and total disability, the commission did not abuse its discretion. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
HERBERT, W. BROWN, P. BROWN, LOCHER and HOLMES, JJ., concur.
CELEBREZZE, C.J., and SWEENEY, J., dissent.