Opinion
No. 31643
Decided April 20, 1949.
Mandamus — Burden on relator to establish clear legal right to writ — Workmen's compensation — Silicosis — Award authorized only for total disability, temporary or permanent, or death — Section 1465-68a, General Code — Industrial Commission determines whether disability partial or total — No appeal provided by law.
1. Before a writ of mandamus will be granted a clear legal right thereto must be shown, and the burden of establishing such right is upon the relator.
2. An award of compensation for silicosis is authorized by statute (Section 1465-68 a, General Code) only in the event of total disability, either temporary or permanent, or death. ( State, ex rel, Yuska, v. Industrial Commission, 144 Ohio St. 187, approved and followed.)
3. Whether disability suffered by a claimant is silicosis and whether the resulting disability is partial or total are questions of fact to be determined by the Industrial Commission, from which decision no appeal has been provided by law.
IN MANDAMUS.
This is an action in mandamus which originates in this court. The relator, Calvin Bevis, is a claimant in a matter pending before the Industrial Commission of Ohio, identified by the Industrial Commission as occupational disease claim No. OD4064-22, and wherein the Armco Steel Corporation (formerly named the American Rolling Mill Company) of Middletown, Ohio, is the self-insurer employer. The respondents, George L. Coffinberry, Richard W. Morse and Will T. Blake, are the duly appointed, qualified and acting members of the Industrial Commission of Ohio.
The petition alleges that relator worked for the employer as a bricklayer from 1928 until December 1944, and that he contracted silicosis and under the above claim he was paid an award for change of occupation of $10 per week for a period of twenty-six weeks. Thereafter, on February 24, 1948, he filed application for additional compensation beyond the date of the last payment. At that time relator filed a report of the complete clinical findings of the attending physician and X-ray films of relator's chest made on November 6, 1947. These proofs were submitted to the silicosis referees for consideration in accordance with a request made by the employer to the respondents.
The silicosis referees reported to the respondents as follows:
"The last X-ray films available to the board were made on November 6, 1947, and the board is of the opinion that the comparative study of the X-ray films showed no evidence of the progression of the simple silicosis reported. They, therefore, reaffirmed their previous opinion that the claimant had very early simple silicosis."
Relator alleges that respondents arbitrarily, unreasonably, and contrary to law, entered an order on May 26, 1948, denying his claim. On May 28, 1948, the relator moved that the respondents ask the silicosis referees to classify the relator's occupational disease according to the usual and accepted medical classifications of silicosis, grade one, grade two, grade three, or grade four, because a description of the disease as very early simple silicosis is ambiguous. Relator says that the respondents arbitrarily and unreasonably denied this motion for scientific classification but granted relator's application for review of the claim by a medical board of review.
The relator thereupon submitted X-rays, reports of radiologists and reports of several physicians to such board of review. The relator alleges that the employer's doctor and the relator's doctors agree that the relator is totally and permanently disabled due to silicosis and secondary factors resulting directly, naturally and commonly from relator's silicosis.
Relator says that on November 8, 1948, the respondents made the following finding of facts:
" 'This day to wit, November 8, 1948, this claim coming on for further hearing for consideration of the commission upon claimant's application for an appeal to a medical board of review, together with the report of the medical board of review, same having been submitted pursuant to commission's order of July 7, 1948, and
" 'Whereas, said medical board of review convened at Columbus, Ohio, on November 4, 1948, at which time the following finding was made:
" 'After consideration of the evidence on file presented at the hearing of this date and examination of the X-rays available, it is the opinion of the medical board of review that this claimant is not totally disabled as a result of his silicosis.
" 'We, therefore, recommend that the claim be disallowed,'. Now, therefore, upon due consideration of all proof on file, it is ordered that the claim be disallowed on claimant's application on appeal to the medical board of review; that the fees of the board of review and expenses of this hearing be paid and charged to the occupational disease surplus fund."
Relator says that the medical board of review illegally substituted opinion for evidence, in that both employer's doctor and relator's doctors agree that he is permanently and totally disabled due to silicosis and secondary factors resulting directly, naturally, and commonly from relator's silicosis; that the action of the respondents in denying relator's claim was arbitrary, unreasonable, contrary to law and in violation of claimant's right to a fair hearing as guaranteed to relator by the Fourteenth Amendment to the United States Constitution; and that he has no other legal remedy.
The case is before this court upon the petition of the relator and the demurrer of the respondents.
Mr. Robert E. Brooks, Mr. Louis C. Capelle and Mr. Robert E.L. Young, for relator.
Mr. Herbert S. Duffy, attorney general, Mr. T. Vincent Martin and Mr. Walter R. Hill, for respondents.
Does the petition of the relator state a cause of action warranting relief by mandamus?
The payment of compensation to employees who have incurred occupational diseases is limited in this state to certain enumerated types of disease and no direct appeal to the courts has been provided where compensation is denied. Arbitrary, unreasonable and unlawful orders of the Industrial Commission may properly be attacked by an action in mandamus but no relief may be granted unless the relator shows gross abuse of discretion of the commission.
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 the 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.
This court has repeatedly declared that the Industrial Commission should so prepare its findings and orders that the reason for the denial of compensation is clearly stated. The relator was no doubt greatly handicapped in the presentation of his case by the fact that the recommendation of the denial of his claim by the silicosis referees and the medical board of review was based on the finding that relator had "simple" silicosis. Complicated as it was with other diseases, the use of such language certainly accorded the relator no definite finding on which he could offer additional evidence before the medical board of review and there is some merit in his claim that this silicosis should have been classified. Failure to so classify his silicotic condition indicates that there may not have been sufficient consideration of the facts presented to the referees. Where the General Assembly has provided no appeal to the courts, special effort should be made by the Industrial Commission to clarify the issues so that a claimant may have a full and complete hearing and consideration of his claim for compensation.
The relator claims that because he does not have the opportunity to determine whether the medical board of review is composed of persons interested in the affairs of a self-insurer, he is not protected from possible biased action on their part. The same objection could be raised against almost any administrative official and necessarily some reliance must be placed upon the good faith of such officials. Bad faith will not be presumed.
The demurrer of the respondents is sustained and, relator not desiring to plead further, a writ is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.