Opinion
No. 77-1047
Decided June 14, 1978.
Mandamus — Writ not available, when — Workers' compensation — R.C. 4123.57 — Finding of disability percentage — Evidence — Increase in percentage allowed — Claim of abuse of discretion — Mandamus sought to vacate allowance.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the denial of a complaint for a writ of mandamus by the Court of Appeals.
Walter Phillips, claimant, originally received an award, on June 13, 1973, of 11 percent permanent partial disability from the Industrial Commission as a result of laceration of his right lower leg. The only question concerning the initial claim was the extent of permanent partial disability. Two medical reports were submitted in support of this claim and they described the injuries as severance of peroneus longus tendon and partial severance of peroneus brevis tendon. These reports estimated the percent of permanent partial disability at 5 and 15 percent respectively. The report estimating 15 percent disability reflected that claimant had slight limitation of motion of the right ankle.
On July 16, 1975, claimant applied for an increase in percentage of permanent partial disability and attached to his application a medical report by his own physician rating permanent partial disability at 35 percent. A physician examining claimant on behalf of the employer, appellant herein, rated disability at 11 percent. A referral of claimant by the commission to its own medical section and to an independent specialist resulted in two medical reports each rating permanent partial disability at 20 percent. On June 25, 1976, after a hearing, the commission found an increase of 9 percent in permanent partial disability. Appellant's motion for reconsideration, filed on September 17, 1976, was denied February 16, 1977.
The mandamus action below filed by appellant, seeking to vacate the commission's allowance of an increase in percentage of permanent partial disability, asserted that the commission abused its discretion in granting such increase.
Baughman Associates Co., L.P.A., and Mr. Alan Harlan, for appellant.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee.
Appellant's claim of abuse of discretion cites the last sentence of the first paragraph of R.C. 4123.57(B), which reads: "No application for subsequent percentage determinations on the same claim for injury or occupational disease shall be accepted for review by the district hearing officer unless supported by substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination."
Appellant contends that medical opinion which differs only on the basis of increase in numerical percentage from that previously awarded is not "substantial evidence of new and changed circumstances" so as to justify either review of an application for increase or a determination of increase in percentage of permanent partial disability. Appellant urges further that the progression or degeneration in physical condition must be evidenced by demonstrable medical or clinical findings beyond subjective opinions as to numerical percentages of disability.
The basis for appellant's argument is language, now deleted, in former R.C. 4123.57(B), which read, in part, "in no instance shall this commission modify its former order unless it finds from such medical or clinical findings that the condition of the claimant resulting from the injury has so progressed as to have increased the percentage of permanent disability."
This statutory language, although effective until January 17, 1977, was not so restrictive of the phrase "substantial evidence of new and changed circumstances," found in both the 1973 and 1977 versions of R.C. 4123.57(B), so as to negate the consideration of disability percentage estimates by physicians resulting from their own evaluation of complaints and objective medical or clinical findings.
R.C. 4123.57(B) requires determination of percentage of permanent disability, and a medical report or reports concluding percentage increases, beyond percentages previously reported in connection with the original claim, is not an improper consideration under R.C. 4123.57(B) of "new and changed circumstances developing since the time of the hearing on the original or last determination."
For reason of the foregoing, the judgment of the Court of Appeals denying the writ of mandamus is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.