dissenting. I am unable to agree with my colleagues for the reason that I believe that their majority opinion restricts and limits the original jurisdiction conferred upon the Courts of Appeals by the Constitution of Ohio. Under such jurisdiction, the Court of Appeals is the trier of the facts as well as of the law. I do not believe that it is consistent with the Constitution for this court to hold that the decision of an administrative agency is final in the field of facts merely because there may be some slight evidence to support such decision. If the original jurisdiction of the Courts of Appeals in mandamus is to be so limited, considerable confusion may result when such limitation is recognized by the hundreds of agencies of government in Ohio, each with some decision-making power.
I believe that the Court of Appeals should make its own decisions upon the evidence presented to it in an original action in mandamus, and if supported by probative evidence the writ should issue.
In the case at bar, the parties stipulated that the file of the case before the Industrial Commission should be *246considered by the Court of Appeals. This does not require the Court of Appeals to surrender its function as the trier of the facts, or to cripple the plenary jurisdiction conferred upon it by the Constitution.
After a thorough search of the record, I fail to find any substantial proof that silicosis and its associated lung diseases were not the cause of the death. On the other hand, a death certificate, an autopsy, direct testimony, as well as other evidence, definitely established a causal relationship between the occupational disease of silicosis and death of the decedent.
The decedent had worked for a period of approximately 28 years under exposure to silicosis. On October 19,1943, the Industrial Commission “did find that claimant was permanently and totally disabled, due to silicosis and compensation was awarded * * * .” Thus, we have it in the record that 15 years before the death of Szekely he was found to be a permanently and totally disabled victim of silicosis and was awarded compensation. However, the Industrial Commission two years later decided that although Szekely did have silicosis, it was only “silicosis simple” and not sufficient to be disabling.
Section 4123.68 (W) (now Section 4123.68 [X]) of the Revised Code, read:
“Silicosis means a disease of the lungs, caused by breathing silica dust (silicon dioxide) producing fibrous nodules distributed through the lungs and demonstrated by X-ray examination, by biopsy or by autopsy.” (Emphasis added.)
In view of the fact that the Industrial Commission finally refused to reconsider Szekely’s contentions, there were no X-rays made after 1950. This is a death case. Szekely died on April 9, 1958. There was a long lapse of years during which no X-rays were taken. Consequently, expressions of opinions based upon old X-rays of conditions existing many years prior to his death would have little or no probative , value to establish his condition on the day of his death,- particularly since his lung condition-grew progres*247sively worse. There was no biopsy taken. Consequently, the statute, Section 4123.68 of the Revised Code, leaves only the autopsy upon which any probative reliance can be placed to determine the cause of death. The autopsy presents to the naked eye, as well as through the microscope, the actual condition of the affected parts of the body of the deceased, and affords the production of proof by eye witnesses rather than by the opinion of an expert.
There is also the evidence furnished by the death certificate, and the Industrial Commission form entitled “Physician’s Certificate in Proof of Death,” which was filled out by Dr. Steiner, the attending physician, and which discloses in its pertinent part:
“5(a) Diagnoses and descriptions of all injuries, diseases, and illnesses for which you have examined or treated the deceased and clinical findings: [Dr. Steiner’s answer] 1. Bilateral pulmonary silicosis. 2. Bronchitis. 3 Emphysema. 4. Myocarditis, chr.
“8. Principal causes of death. [Answer] Silicosis.
“9. Report history as obtained. [Answer] Worked many years in dust at Ohio Steel Foundry.
í Í # # *
“10. In your opinion, was there a causal relationship betwen decedent’s death and the alleged injury or occupational disease? [Answer!] Yes.”
The death certificate, taken from the records of the Ohio Department of Health, Division of Vital Statistics, gave as the cause of death:
“1. diffuse pulm. nodular silicosis.
“2. acute bronchitis.
“3. pulm. emphysema.
“4. chr. cholecystitis.
“5. nephritis and cystitis.”
The autopsy was performed by F. W. Trapp, M. D., of the Department of Pathology of St. Rita’s Hospital, Lima, Ohio.
The following findings were made:
*248<< # * #
“Lungs:
“ * * * The external surfaces of the lungs are grayish black in color and they are coarsely nodular to palpation. Cut section through both lungs reveals a slate gray honeycombed cut surface that had many large areas of nodular fibrosis. * * *
“Micboscopio Examination:
ii * # #
“Lungs:
“All sections of the lung show extensive areas of diffuse nodular hyalinized fibrosis intermixed with black pigment. * *
Seven items are listed as follows:
“1. Pulmonary emphysema, severe, bilateral.
“2. Diffuse pulmonary nodular silicosis, extensive, severe, bilateral. [The word nodular is found in the statute defining silicosis.]
“3. Acute bronchitis.
“4. Mitro stenosis, moderately severe.
“5. Cholecystitis and cholelithiasis.
“6. Benign nephrosclerosis, moderately severe.
“7. Chronic cystitis, moderately severe.” (Emphasis added.)
David L. Steiner, M. D., is a graduate of the Medical School of the University of Cincinnati (1929), a member of the staff of both St. Rita’s Hospital and Memorial Hospital at Lima, Ohio, and a member of numerous state and national medical bodies. He attended Szekely for about 12 years prior to his death. He was present at the autopsy. Dr. Steiner testified at the hearing before the Industrial Commission:
“* * * From the irritation of the dust in the lungs, it increases the emphysema. The severe and prolonged coughing seizures will contribute to the pulmonary emphysema and the blebs. And it was shown at autopsy some very large emphysema blebs.”
At this stage he diagnosed Szekely’s diseases as silico*249sis and pulmonary emphysema. Later corpulmonel was found.
His description of this disease follows:
“This condition of the heart develops due to obstruction of the blood as it is trying to be forced into the lung through the pulmonary vessels, and we have here the resistance producing — causing an inability of the lung to flow — the blood to flow as freely as it should. And due to the fibrosis and silicosis of the lung, consequently, the heart muscle has to work harder to push the blood into the lung, and so doing, causes muscle hypertrophy.”
We now turn to Dr. Steiner’s testimony concerning the autopsy.
“The autopsy was performed by the pathologist who, at that time was F. W. Trapp.
“Q. Dr. Blumstein is in charge of that department? A. Yes. And Dr. Blumstein, who is in charge of the department.
“Q. Doctor, did you attend the autopsy? A. Yes, I was interested after 12 years with this man, I was interested in seeing what was found at the autopsy.
“Q. Would you tell us what you saw and observed at the autopsy? A. At the autopsy we saw the lungs, which were grayish-black color, large blebs were seen at the apexes of the lung. But as one cut through the lung and held the surface up, it looked like a piece of coal. It was solid black. * * *
“Q. Were miscrosopie examinations taken? A. Microscopic examinations were taken, and they too confirmed the heavy silicon deposits in the lungs.
“Q. Now, Doctor, you have, of course, studied and read the autopsy report? A. Yes.
“Q. And that autopsy report correctly reflects the findings at autopsy; is that right? A. It did.
“Q. Doctor, was the heart examined at this autopsy? A. Yes; the heart was.
“Q. Would you tell us what the findings were with reference to the heart? A, The muscle — the musculature of *250the heart showed enlargement, hypertrophy, and a finding consistent with corpulmonel.
“Q. How about the mitral valve? Was that Examined? A. The mitral value was examined.
££Q. What was — A. It showed some thickening and some fibrosis.” (Emphasis added.)
Dr. Steiner continued:
£‘Q. What is an autopsy diagnosis? A. The autopsy diagnosis simply tells us what the organs look like at the time of his death. And in his case, as you compare the long history of these 12 years that I attended him, one can see why he couldn’t breathe. One could see that he had no place to aerate his lungs. There was no place for oxygen exchange, because it was thickened, it was hard, it was filled with silicon deposit, and when you hold it up, and I wish we could have that piece of that lung here for the jury to see, the appearance of that, you don’t have to be a doctor to tell it is black, and that was black.
< < * % *
££Q. Doctor, in your opinion, was there a direct and causal relationship between the silicosis and the corpulmonel? A. There is a direct causal relationship between silicosis and corpulmonel.
££Q. In the case of Moses Szekely. A. In the case of Moses Szekely.
“Q. You signed the death certificate in this case, didn’t you? A. Yes.
“Q. What did you give as the primary cause of death? A. The primary cause of death was silicosis with nodular formation. I think that is correct.
££Q. And did you not also give as a secondary and related cause, pulmonary emphysema? Doctor, would you tell the court whether there was any causal relationship in this case of Moses Szekely between the silicosis and the pulmonary emphysema? A. Well, I think the silicosis aggravated the emphysema. I think we possibly all have a small amount of emphysema, in our chest. But when we have silicosis, and the terrific and dreadful cough this man had, this emphysema would be increased and aggravated.
“Q. Do you consider the emphysema as a primary op *251secondary cause of death? A. I would say it is secondary to the silicosis.” (Emphasis added.)
Mr. Blair, counsel for the decedent’s widow, then addressed the commission as follows:
“We would be very happy to have the commission or anybody representing the employer examine Dr. Steiner.
“Mr. Deshler: No questions.”
It is rather disturbing that not a single witness among all of the paid staff of the Industrial Commission testified.
A Dr. Hudson, of the medical staff of the commission, was directed by the commission to give his opinion from an examination of the file. He looked over the old X-ray examinations and comments of various and sundry people, but did not refer to the autopsy, the death certificate, nor did he testify. I am frank to say that it is doubtful if much of the material submitted by the Industrial Commission in the massive file would pass the scrutiny of a trial court, over objection. This material pertained to decedent’s condition years before his death. The instant inquiry is concerned with his condition at death. While the Industrial Commission presented opinions based upon X-rays taken many years before death, the widow presented unquestioned evidence which satisfied clearly every condition required by the statute to establish silicosis as the cause of death. She presented the testimony of Dr. Steiner and the autopsy report of Dr. Trapp, which was not disputed or contradicted. The evidence presented by the widow was in plain understandable language.
We call attention to the last paragraph of Section 4123.68 of the Revised Code, which read:
“All conditions, restrictions, limitations, and other provisions of this section, with reference to the payment of compensation or benefits on account of silicosis, shall be applicable to the payment of compensation or benefits on account of any other occupational disease of the respiratory tract resulting from injurious exposures to dust, except berylliosis.”
Section 4123.85 of the Revised Code provides as follows:
“In all cases of occupational disease, or death, result*252ing from occupational disease, claims for compensation or benefits shall be forever barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by licensed physician or within two years after death occurs, application is made to the Industrial Commission or to the employer in the event such employer has elected to pay compensation or benefits directly.” (Emphasis added.) The application for death benefits was timely filed.
Section 4123.95 of the Revised Code reads:
“Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees.” (Emphasis added.)
The record in this cause establishes without any question of doubt whatsoever, that there was a clear duty specially enjoined by law upon the Industrial Commission to recognize the claim of this dead workman’s widow and award her and her children compensation to which they were entitled. The refusal of the Industrial Commission to do so was a gross abuse of discretion.
For the foregoing reasons, the judgment of the Court of Appeals should be affirmed.