State ex rel. Davis v. Industrial Commission

Per Curiam. 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.