dissenting. I dissent in that I find the record reflects facts quite different from those found and interpreted by the majority. I find there to be no equivocation or contradiction within the testimony adduced from one of the examining physicians upon which evidence the commission relied in making its determination that this claimant was not permanently and totally disabled.
The major concern of the majority is the commentary of Dr. McCloud concerning the report of Dr. King. There is no equivocation or contradiction in Dr. McCloud’s testimony in this regard. Dr. King’s report stated aliunde:
“* * * While I feel that this patient had some impairment of his left shoulder, I don’t feel that it is of such a magnitude that is deserving 100% disability. * * * I feel as if his chances of being gainfully employed is [sic] nil, but, as far as his objective disability is concern [sic], I feel that he has 25 to 30% disability. I certainly don’t feel that this man is 100% disabled. From the duration of this injury over 12 years, I don’t feel that this man will ever be able to return to the job market on a [sic] active basis, however, I certainly don’t feel that he is 100% impaired. I feel that this man’s problem is approximately 25 to 30% of an impairment, from him being a functional individual.”
Unlike the statement of counsel for claimant, as contained in the majority opinion here, Dr. King did not state that the claimant’s “prospect of returning back to the employment market was nil.” Precisely what he stated was that he didn’t feel “that this man will ever be able to return to the job market on a [sic] active basis * * The reasonable interpretation of this language is that the claimant is not totally disabled from an objective physical basis, and that due to all factors of the total man, i.e., physical condition, age, job training, the claimant would not be able to return to the job market on an active basis.
Dr. McCloud, upon deposition, merely was indicating his approval with Dr. King that the claimant was not totally disabled, and that the claimant may not be able to return to the job market on an active basis in the same manner as prior to his injuries.
Thereafter, Dr. McCloud emphasized his prior commentary in his testimony upon direct examination:
“Q. Just one more question, Doctor. In light of Dr. King’s report and this discussion at the deposition regarding the impairment due to the allowed condition, is it your opinion that the claimant in a physical sense is completely precluded from a substantially remunerative employment?
“A. No, it is not.”
On re-cross, Dr. McCloud was again asked to explain his answer:
“Q. The only question I have, Doctor, then, the opinion that you expressed today, which is in agreement with that of Dr. King, was an opinion expressed taking into consideration age, educational background, past work experience and the impairment as found by you; is that correct?
*76“A. That answer was directed towards my response to Dr. King’s evaluation, which I feel was very close to my evaluation as well, and he included both impairment and disability. From that standpoint, I agree with him.”
Indeed, as noted by Dr. McCloud, Dr. King’s position as to the disability of the claimant was quite similar to his own. In his prior report, Dr. McCloud had stated:
“* * * It is my opinion this patient does not present with medical evidence consistant [sic] with considering him permanently and totally impaired based on the injuries to his upper left extremity. I would extimate [sic] that he has a PPI of 40% of the body as a whole in regards to the injuries noted in this claim.”
These statements are unequivocal, as found by the court of appeals’ decision in affirmance of the order of the Industrial Commission. There definitely was some evidence to support the commission’s order.
Mandamus is an extraordinary legal remedy, the essential purpose of which is to command the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. The writ will not issue in a doubtful case, or where the effect of its issuance would be to control the discretion of the one against whom it would be directed. State, ex rel. Gerspacher, v. Coffinberry (1952), 157 Ohio St. 32 [47 O.O. 31], paragraph one of the syllabus. The relator seeking the writ must establish a clear legal right to the relief sought. State, ex rel. Stevenson, v. Murray (1982), 69 Ohio St. 2d 112, 114 [23 O.O.3d 160],
In addition, since the respondent has referred to the evidence upon which it has based its order, consistent with State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, no abuse of discretion and, therefore, no clear right to a writ, have been shown by relator. As such, relator’s request for a writ of mandamus should be denied.
Locher and Wright, JJ., concur in the foregoing dissenting opinion.