State ex rel. Brady v. Industrial Commission

Per Curiam. For the reasons to follow we affirm the denial of the writ of mandamus. Only where the record is devoid of some evidence to support the commission’s order will an abuse of discretion exist. State, ex. rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St. 3d 76, 79; State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St. 2d 9, 13 [58 O.O.2d 66]. Appellant presents two theories for recovery. The first is that an examining doctor must present an opinion on whether the claimant can perform remunerative employment or the doctor’s testimony is not “evi [242] dence.” The second theory avers that the commission must address the issue of sustained remunerative employment before being allowed to render a disability determination. We reject both these theories. Appellant would have this court usurp the commission’s responsibilities and compel the commission to only accept evidence that supports claimant’s position. The weight to be assigned to conflicting evidence is in the province of the Industrial Commission, not this court. State, ex rel. Elliott, supra, at 79. Insofar as some evidence was presented to support the commission’s decision, it will not be overturned. State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396, 397 [23 O.O.3d 358]. Moreover, because decisions that come to us from the commission have a presumption of regularity (see, e.g., State, ex rel. Rouch, v. Eagle Tool & Machine Co. [1986], 26 Ohio St. 3d 197, concurring opinion by Douglas, J., at 215), we will not compel the commission to specifically, and expressly, disprove every potential basis for compensation, either real or imagined, before we allow a commission decision to stand. The issue of remunerative employment is an aspect of the commission’s disability determination and therefore need not be expressly addressed by those individuals, such as examining physicians, who present evidence with respect to levels of impairment. Obviously, if the commission does not find permanent and total disability it has concluded that the claimant is capable of sustained remunerative employment. This is an action for a writ of mandamus. Thus, the burden is on the relator to show that the commission committed an abuse of discretion. State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St. 3d 38, 39. Relator must affirmatively demonstrate that the commission acted from perversity of will, passion, prejudice, partiality or moral delinquency. Relator-appellant has not met her burden. Accordingly, the judgment of the court of appeals is affirmed and the writ is denied. Judgment affirmed. Locher, Holmes and Wright, JJ., concur. Sweeney and Douglas, JJ., concur in judgment only. Celebrezze, C.J., dissents. C. Brown, J., dissents, with opinion.