State ex rel. Petros v. Connor

Per Curiam. This court has repeatedly stated that the resolution of disputed factual situations lies within the final jurisdiction of the commission, and is subject to correction by an action in mandamus only when it is demonstrated that the commission has abused its discretion. State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 50 [1 O.O.2d 190]; State, ex rel. G F Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St. 2d 446, 447 [20 O.O.3d 379]; State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396, 397 [23 O.O.3d 358]; State, ex rel. Paragon, v. Indus. Comm. (1983), 5 Ohio St. 3d 72, 74. As stated in State, ex rel. Kramer, v. Indus. Comm. (1979), 59 Ohio St. 2d 39, 42 [13 O.O.3d 30], “* * * [w]here there is no evidence upon which the commission could have based its factual conclusion an abuse of discretion is present and mandamus becomes [177] appropriate.” See, also, State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481. In the syllabus of State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St. 2d 630 [23 O.O.3d 518], the definition of temporary total disability was set forth as follows: “Under R.C. 4123.56, temporary total disability is defined as a disability which prevents a worker from returning to his former position of employment.” Relator contends that the medical evidence considered by the commission unequivocally demonstrates that his work-related injury precluded him from returning to his former position of employment. As such, relator argues the commission abused its discretion when temporary total disability benefits were terminated and a temporary partial disability award, totaling thirty-five percent, was entered in its place. Four medical reports were before the commission pertaining to the question of the extent of relator’s disability. Dr. John J. Euliano, Jr., concluded in his report as follows: “It is extremely doubtful that this patient would ever be able to return to his previous form of work which involved heavy use of his upper extremeities [sic]. It may be possible that he could be retrained for lighter duty or work involving the use of the right arm only.” In addition, Dr. C. K. Ramachandran concluded, in his November 1980 report, that relator’s physical impairment prevented him from returning to his former position of employment. Relator relies upon the aforementioned medical reports as the primary justification for the issuance of a writ of mandamus. The commission, in its discretion, chose tp rely upon the medical report of Dr. Ronald S. Paloski. After examining relator in March 1980, Dr. Paloski read and noted the medical report of Dr. A. G. Cummings, Jr.,1 and concluded that relator had a “[temporary [p]artial [impairment in the ‘[l]ow [r]ange’ at 25% * * *.” Thus, as evinced from the medical reports considered by the commission, a disputed factual situation existed for the commission to resolve; i.e., whether relator was able to return to his former position of employment as a forklift operator. Although the medical reports of Drs. Euliano and Ramachandran support relator’s claim that he was unable to return to his former position of employment, the report of Dr. Paloski, expressly relied upon by the commission, unquestionably supports the discontinuance of temporary total disability benefits in favor of a temporary partial disability award. In essence, this court is being asked to reweigh the evidence and reach a [178] conclusion, opposite that reached by the commission, that relator’s injury prevents him from assuming his former position as a forklift operator. This court has, however, consistently refused such requests. State, ex rel. Kilburn, v. Indus. Comm. (1982), 1 Ohio St. 3d 103, 105; State, ex rel. G F Business Equip., Inc., supra, at 447. In view of the fact that the commission’s decision is fully supported by the evidence upon which it relied in making an award of temporary partial disability benefits, the commission did not abuse its discretion. Accordingly, the writ of mandamus is denied. Writ denied. Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes and J.P. Celebrezze, JJ., concur. C. Brown, J., dissents. Footnotes [1] After having examined relator, Dr. Cummings concluded: “On the basis of minimal to moderate arthritic changes in the left elbow, I believe Mr. Petros has a permanent/partial disability of low degree. I would estimate his disability at 15%. I believe he is able to carry out all but the most physically rigorous activities with his left upper extremity.”