State Ex Rel. Shewalter v. Industrial Commission

Ohio Court of Appeals

State Ex Rel. Shewalter v. Industrial Commission

244 N.E.2d 788, 17 Ohio App. 2d 153, 46 Ohio Op. 2d 213, 1968 Ohio App. LEXIS 300

CourtOhio Court of Appeals

DecidedDecember 17, 1968

Docket8983

StatusPublished

This text of 244 N.E.2d 788 (State Ex Rel. Shewalter v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Shewalter v. Industrial Commission, 244 N.E.2d 788, 17 Ohio App. 2d 153, 46 Ohio Op. 2d 213, 1968 Ohio App. LEXIS 300 (Ohio Ct. App. 1968).

Pincite

Opinion

Per Curiam.

In November 1954, relator received an injury to his lower back for which he received compensation from the Industrial Commission for a 50 per cent permanent partial disability. In December 1963, relator was again injured when he slipped and fell. The second injury was distinct from the first. Relator again applied to the Industrial Commission for compensation for a permanent partial disability. He was examined by a specialist, chosen by the Industrial Commission, who concluded that relator had a 20 to 25 per cent disability, equally divided be *154 tween the two injuries. Another doctor rated his disability at 50 per cent, equally divided between the two injuries.

The Industrial Commission decided that, since relator had received 50 per cent disability already, no additional recovery could be allowed. This decision was clearly in error. The fact that relator’s disability may have been compensated for in his first injury claim does not legally justify a disallowance of the compensation indicated by the second injury. See State, ex rel. Dudley, v. Indus. Comm., 135 Ohio St. 121, and State, ex rel. Latino, v. Indus. Comm., 13 Ohio St. 2d 103.

However, mandamus is not a proper remedy in this case. The issue involved in the commission’s decision does not go to the extent of disability. The commission is denying that compensation is payable for the recognized disability. An appeal under Section 4123.519, Eevised Code, is available. Where such an appeal is available and adequate, the injured workman may not maintain an action in mandamus to enforce his claimed rights. State, ex rel. Foley, v. Greyhound Lines (1968), 16 Ohio St. 2d 6.

In view of the Foley v. Greyhound case, supra, the writ will have to be denied.

Writ denied.

Troop, J. (Presiding), Duffy and Herbert, JJ., concur.

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Per Curiam.

In November 1954, relator received an injury to his lower back for which he received compensation from the Industrial Commission for a 50 per cent permanent partial disability. In December 1963, relator was again injured when he slipped and fell. The second injury was distinct from the first. Relator again applied to the Industrial Commission for compensation for a permanent partial disability. He was examined by a specialist, chosen by the Industrial Commission, who concluded that relator had a 20 to 25 per cent disability, equally divided be *154 tween the two injuries. Another doctor rated his disability at 50 per cent, equally divided between the two injuries.

The Industrial Commission decided that, since relator had received 50 per cent disability already, no additional recovery could be allowed. This decision was clearly in error. The fact that relator’s disability may have been compensated for in his first injury claim does not legally justify a disallowance of the compensation indicated by the second injury. See State, ex rel. Dudley, v. Indus. Comm., 135 Ohio St. 121, and State, ex rel. Latino, v. Indus. Comm., 13 Ohio St. 2d 103.

However, mandamus is not a proper remedy in this case. The issue involved in the commission’s decision does not go to the extent of disability. The commission is denying that compensation is payable for the recognized disability. An appeal under Section 4123.519, Eevised Code, is available. Where such an appeal is available and adequate, the injured workman may not maintain an action in mandamus to enforce his claimed rights. State, ex rel. Foley, v. Greyhound Lines (1968), 16 Ohio St. 2d 6.

In view of the Foley v. Greyhound case, supra, the writ will have to be denied.

Writ denied.

Troop, J. (Presiding), Duffy and Herbert, JJ., concur.

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Bluebook (online)

244 N.E.2d 788, 17 Ohio App. 2d 153, 46 Ohio Op. 2d 213, 1968 Ohio App. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-shewalter-v-industrial-commission-ohioctapp-1968.

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