State ex rel. Buckeye International, Inc. v. Industrial Commission ( 1982 )

Victor, J.

Appellant Shipman argues that no action in mandamus can lie since Buckeye had an adequate remedy by way of appeal. We disagree. Buckeye challenges the order of November 7,1979. That order being a determination as to the extent of disability only is not appealable. Mandamus is therefore the proper remedy. See State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St. 2d 278, 280.

Turning now to the merits, the issue is whether the Industrial Commission may lawfully award permanent partial disability benefits for severe anxiety neurosis which is the result of the occupational disease of silicosis and which has not caused the claimant to be totally disabled. We conclude that the commission may not make such an award on the facts presented here.

We begin with the question whether severe anxiety neurosis is either an injury or an occupational disease. R. C. 4123.68 provides in part:

“Every employee who is disabled because of the contraction of an occupational disease as defined in this section * * * is entitled to the compensation provided by sections 4123.55 to 4123.59 and 4123.66 of the Revised Code * * *.”

Anxiety neurosis is not specified as an occupational disease under R. C. 4123.68. R. C. 4123.68(BB) does allow compensation for occupational diseases not otherwise delineated in the statute. R. C. 4123.68(BB) reads:

“All other occupational diseases: A disease peculiar to a particular industrial process, trade, or occupation and to which an employee is not ordinarily subjected or exposed outside of or away from his employment. * * *”

Nothing of record suggests that Shipman’s anxiety neurosis can be classified within R. C. 4123.68(BB). Thus Shipman’s neurosis itself is not compensable as an occupational disease.

Nor does anything of record suggest that Shipman’s neurosis is itself a compensable injury. See Szymanski v. Halle’s (1980), 63 Ohio St. 2d 195. Hence no award of permanent partial disability can be made on that basis.

Accordingly, compensation for the anxiety neurosis can only be predicated upon Shipman’s silicosis. Silicosis is an occupational disease. R. C. 4123.68(X). However, compensation to an employee who has contracted an occupational disease is “subject to the modifications relating to occupational diseases contained in Chapter 4123 of the Revised Code.” R. C. 4123.68. R. C. 4123.68(Y), applicable to silicosis, provides in part:

“Compensation and medical, hospital, and nursing expenses on account of silicosis * * * are payable only in the event of temporary total disability, permanent total disability, or death, in accordance with sections 4123.56, 4123.58, and 4123.59 of the Revised Code. * * *”

Thus the commission lacks authority to award permanent partial disability benefits for silicosis. State, ex rel. Superior Foundry Inc., v. Indus. Comm. (1959), 168 Ohio St. 537, 541; and State, ex rel. Bevis, v. Blake (1953), 159 Ohio St. 491.

Appellants contend that the commission had the authority to make the award pursuant to R. C. 4123.57(B) which pertains to partial disability compensation and which provides in part:

“The district hearing officer, upon such application, shall determine the percentage of the employee’s permanent disability * * * based upon the condition of the employee resulting from the injury or occupational disease and causing permanent impairment evidenced by medical or clinical findings reasonably demonstrable. * * *’”

The argument is that the award was granted for the condition of anxiety neurosis resulting from the occupational disease of silicosis, not for the silicosis itself, and that no specific statutory authority prohibits such an award. We do not agree that R. C. 4123.57(B) may be so employed. Because of R. C. 4123.68(Y), no award for partial disability could have been made to Shipman on account of the silicosis. R. C. 4123.68(Y) must be read in conjunction with R. C. 4123.57(B) and when so read limits its operation. Hence, there is no com-pensable occupational disease to form the foundation of an award under R. C. 4123.57(B).

This same rationale refutes the additional argument by Shipman that R. C. 4123.52 is authority for the award. That section pertains to the continuing jurisdiction of the commission over cases. Here, the argument is that the anxiety neurosis developed subsequent to the silicosis and is distinct from it. Even assuming this to be true, Shipman’s neurosis could only be compensable on account of a compensable disability which, by operation of R. C. 4123.68(Y), Shipman did not have.

We, therefore, conclude that the neurosis disability must be considered a part of the silicosis claim and an award of permanent partial disability benefits is prohibited by R. C. 4123.68(Y).

Shipman also claims that R. C. 4123.68(Y) violates principles of equal protection. We reject this claim as the classification was upheld in State, ex rel. Lourin, v. Indus. Comm. (1941), 138 Ohio St. 618.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Stephenson, Locher, Holmes and Krupansky, JJ., concur. Sweeney, Acting C. J., and C. Brown, JJ., dissent. Stephenson, J., of the Fourth Appellate District, sitting for Celebrezze, C. J. Victor, J., of the Ninth Appellate District, sitting for W. Brown, J.