State ex rel. Elliott v. Industrial Commission

For the reasons to follow we affirm the denial of the writ of mandamus.

The extraordinary writ of mandamus may only issue if relator has demonstrated a clear legal right to the relief sought. State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St. 2d 165 [22 O.O.3d 400]. Such demonstration is predicated upon an abuse of discretion by the Industrial Commission which, in turn, may be established only if the record is devoid of some evidence to support the commission’s order. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9, 13 [58 O.O.2d 66]; State, ex rel. Teece, supra, at 167.

Although Drs. Kackley, Braunlin and Steiman did not expressly consider appellant’s age, education or work history in rendering their respective opinions, there is no requirement that they do so. In State, ex rel. Adkins, v. Indus. Comm. (1986), 24 Ohio St. 3d 180, 181-182, we stated:

“As to the evidence supporting the commission’s finding and order, appellant argues that Dr. Kackley’s admission in his answers to interrogatories that he did not consider the factors of age, education and work history in making his impairment evaluation is not evidence supporting a want of permanent and total disability because disability must be considered in context with those factors. The answer to this argument is that disability determination rests with the Industrial Commission. State, ex rel. Dallas, v. Indus. Comm. (1984), 11 Ohio St. 3d 193.”

Evidence of appellant’s age, education and work history, while potentially relevant to the question of disability, was clearly in the record before the commission. While the ultimate disability opinion by the commission did not expressly indicate these factors were considered relevant, it need not have done so because the weight to be given such evidence is squarely within the commission’s discretionary power of fact-finding. See State, ex rel. Teece, v. Indus. Comm., supra, at 169; State, ex rel. Lunsford, v. Indus. Comm. (1984), 11 Ohio St. 3d 137, 139. Similarly, the concern that Drs. Kackley, Braunlin, and Steiman did not consider claimant’s age, education and work skills in their respective evaluations is not persuasive. While such factors may be considered, the medical reports of those doctors goes to the issue of impairment which is a concern separate and distinct from the issue of disability. See, generally, State, ex rel. Meeks, v. Ohio Brass Co. (1984), 10 Ohio St. 3d 147, 148.

To conclude, R.C. 4123.519 expressly indicates that this court may not act as an appellate body with respect to decisions by the commission concerning the extent of disability. Moreover, mandamus is not a substitute for an appeal nor can it be used to create an appeal in cases where appeal is not provided by law. State, ex rel. Marshall, v. Keller (1968), 15 Ohio St. 2d 203, 205 [44 O.O.2d 184]. Because the commission’s decision was supported by some evidence, no basis for mandamus is extant and we are compelled to affirm the judgment of the court of appeals in denying the requested writ.

Judgment affirmed.

Locher, Holmes, Douglas and Wright, JJ., concur.

Celebrezze, C.J., Sweeney and C. Brown, JJ., dissent.

It must be assumed, absent evidence to the contrary, that the commission acted in good faith and properly performed its function in reviewing the evidence before it. State, ex rel. Gerspacher, v. Coffinberry (1952), 157 Ohio St. 32 [47 O.O. 31], paragraph two of the syllabus. See, also, State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581[50 O.O. 465],