State ex rel. Marshall v. Keller

Per Curiam.

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 dis ability,- 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 ; Section 4123.519, Revised Code.

Realizing that the existence and degree of disablement caused by silicosis is a question of medical fact, the Gren *205 eral 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 , 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 the medical authorities1 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 clear1 right to relief by way of mandamus and under the well os-" tablished rule such a writ will not issue.” 1 .

Thus, an action in mandamus ordinarily does not lie to *206 review the decision of the Industrial Commission denying compensation for an occupational disease.

The judgment of the Court of Appeals is reversed.

Judgment reversed.

Tart, C. J., Zimmerman, Matthias, O’Neihl and Brown, JJ., concur.

Herbert and Schneider, JJ., dissent.