
    The State, ex rel. Hughes, Appellant, v. Industrial Commission of Ohio, Appellee. The State, ex rel. Romine, Appellant, v. Industrial Commission of Ohio, Appellee.
    (Nos. 71-280 and 71-281
    Decided February 9, 1972.)
    
      
      Messrs. Gallon & Miller, Messrs. Barkan, Barkan & Neff and Messrs. Howdyshell & Dodd, for appellants.
    
      Mr. William J. Brown, attorney general, and Mr. R. Peterson Chalfant, for appellee.
   Cole, J.

As these cases involve identical issues, they are considered together. In each, relator seeks reversal of an order of the Court of Appeals denying a writ of mandamus. The nature of the relief requested establishes the framework for consideration of the issues. In State, ex rel. Marshall, v. Keller (1968), 15 Ohio St. 2d 203, it is said:

“* * * Before a writ may issue there must be a clear legal duty on respondent to act, and, where the evidence is conflicting, a court cannot substitute its judgment for that of the commission and find that the commission abused its discretion.”

Again in State, ex rel. Szekely, v. Indus. Comm. (1968), 15 Ohio St. 2d 237, paragraph four of the syllabus reads:

“Where there is substantial evidence to support the finding by the Industrial Commission on a question of fact, a court cannot, as an essential basis for awarding a writ of mandamus, substitute its finding on that question of fact for that finding by the Industrial Commission.”

In issue in the present situation is the question whether relators were or were not permanently and totally disabled. This is essentially an issue to be answered by a consideration of tbe evidence presented to tbe commission. Tbe Court of Appeals beld that there was substantial evidence in each case, both pro and con, and thus the matter lay within tbe sound discretion of tbe commission.

Tbe essential claim of each relator is that evidence of vocational limitation and psychological inadequacies magnified tbe purely physical disabilities to such an extent that total and permanent disability resulted. Tbe claimants were, it is alleged, no longer employable as a result of this combination of underlying and preexisting mental deficiencies and lack of vocational abilities with a physical handicap resulting from injury. It is asserted that tbe commission either ignored or rejected this evidence.

Tbe ultimate finding of tbe commission in each instance was not limited to tbe specific issue, but was general, simply determining that tbe commission found that tbe claimant was not totally and permanently disabled. It does not establish that such evidence was ignored or that it was rejected as being irrelevant to tbe problem before it. Therefore, tbe only way such an assertion can be maintained is by showing that there was no conflict in evidence to be resolved by tbe commission.

This, too, cannot be maintained. In each case, in addition to tbe evidence of psychologists and psychiatrists, submitted by tbe claimants with their motions, there was also submitted to and considered by tbe commission all tbe medical reports included in each case from its inception. There were medical opinions directly contradicting the assertion of total and permanent disability made at tbe time of previous motions. Tbe preexisting mental and vocational inadequacies of relators, if any, were existing at those times and observable by all medical examiners. Tbe cumulative effect of this evidence, taken in historical sequence, was to put evidentiary material on both sides of tbe issue as to the extent of disability.

There was, therefore, as tbe Court of Appeals determined, a conflict of evidence, and in each, case there was substantial evidence upon which the Industrial Commission could base its finding that the respective relators were not permanently and totally disabled.

This being the case, the Court of Appeals was correct in not issuing a writ of mandamus which would, in effect, substitute its judgment on a question of fact for that of the commission. The judgments are therefore affirmed.

Judgments affirmed.

O’Neill, C. J., SchNeider, Herbert, Corrigah, SterN and Leach, JJ., concur.

Cole, J., of the Third Appellate District, sitting for DuNcaN, J. Judge Cole of the Court of Appeals was, pursuant to Section 2 of Article IY of the Constitution of Ohio, duly directed by the Chief Justice “to sit with the justices of the Supreme Court in the place and stead of” Justice DuNcaN and Judge Cole did so and heard and considered this cause prior to the resignation of Justice DuucaN on November 28, 1971.  