State ex rel. Rhodeback v. Johnstown Mfg., Inc.

Clifford F. Brown, J.,

concurring in part and dissenting in part. The majority correctly concludes that there is “no evidence” upon which the Industrial Commission could have properly based its denial of permanent total disability benefits. This is clearly true. However, the majority then proceeds to grant only a limited writ directing the commission to issue an order evaluating the effect of appellant’s medical impairment upon her ability to engage in sustained remunerative employment. This is clearly incorrect for the following reasons.

This court has recently held that where there is no evidence upon which the commission could have based its denial of permanent total disability benefits, such denial constitutes an abuse of discretion for which the claimant will be afforded relief in mandamus. State, ex rel. Thompson, v. Fenix & Scisson, Inc. (1985), 19 Ohio St. 3d 76, syllabus. In Thompson, this court found such an abuse of discretion and issued a full writ directing the commission to find claimant permanently and totally disabled. I see no basis whatsoever for the “limited writ” granted herein. Under Thompson, appellant in this cause is entitled to the issuance of a full writ ordering a finding that she is permanently and totally disabled. This is the relief prayed for in appellant’s complaint. This is the relief to which she is entitled. See, also, State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St. 3d 38.

Celebrezze, C.J., concurs in the foregoing opinion.