dissenting. I dissent from today’s decision because I believe the commission abused its discretion in failing to allow the application for a violation of a specific safety requirement. I agree with an initial finding that the employer had in place exhaust and ventilation systems designed to prevent exposure to silica dust. However, relator’s uncontroverted evidence conclusively establishes that during the time the decedent was exposed to this deadly contaminant, the equipment was ineffectively functioning and was not maintained in a manner which ensured “minimization” of air contamination. There is simply insufficient credible evidence in the record to support the commission’s speculative inference that because the equipment existed, it functioned effectively.
I am also disturbed by the majority’s failure to address or even acknowledge one of relator’s contentions. In proposition of law number four, relator contends the application of our decision in State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, operates in favor of the issuance of the writ on the basis of the establishment in that case of a standard requiring the commission’s determination to be supported by substantial, probative and reliable evidence. According to relator, the only substantial, probative and reliable evidence in the commission’s file supports the claim.
First, it is noteworthy that the order at issue predates Mitchell and this court has expressly declined to give Mitchell retroactive application. State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St. 3d 169, 171, at fn. 1; State, ex rel. Burdette, v. Dayton Walther Corp. (1984), 14 Ohio St. 3d 29, 31; State, ex rel. Woodard, v. Frigidaire (1985), 18 Ohio St. 3d 110, 113. Second, Mitchell did not concern the some-evidence rule nor did it substitute in its place a different test to determine the sufficiency of the evidence in support of the commission’s decision. Instead, Mitchell directed the commission to comply with its statutory duty to specifically state which evidence and only that evidence relied upon to reach its conclusion, accompanied by a brief explanation stating why the claimant is or is not entitled to benefits. Id. at 483-484. The purpose behind Mitchell was primarily twofold. First, it will make employers and employees alike better aware of why requested benefits are either being granted or denied; and, second, the decision constituted an effort to reduce an ongoing practice whereby medical evidence, not relied upon at the commission level, was later utilized to support the commission’s decision in subsequent mandamus actions. Accordingly, although not specifically addressed by the majority, relator’s fourth proposition of law is without merit.