STATE, EX REL. WOODS, v. TELEDYNE OHIOCAST, 18 Ohio St.3d 23 (1985)

479 N.E.2d 278

THE STATE, EX REL. WOODS, APPELLANT, v. TELEDYNE OHIOCAST ET AL., APPELLEES.

No. 84-431Supreme Court of Ohio.
Decided June 19, 1985.

Workers’ compensation — Occupational disease — Mandamus will not lie, when.

APPEAL from the Court of Appeals for Franklin County.

William H. Woods, Jr. was employed by appellee Teledyne Ohiocast (“Teledyne”) until his retirement on January 1, 1976. He died on January 9, 1978. Wood’s widow, appellant herein, claimed that her husband died as a result of an occupational disease caused by exposure to silica smoke, dust and other foundry pollutants during his employment with Teledyne.

Appellant filed an occupational disease claim with the appellee Industrial Commission of Ohio. Her claim came before a district hearing officer and was allowed on April 10, 1979. Teledyne appealed to the Dayton Regional Board of Review which affirmed the hearing officer’s order on June 29, 1979.

Teledyne then appealed to the Industrial Commission of Ohio. Teledyne was granted permission to take the deposition of Dr. Francisco Scheel, the commission doctor who had originally reviewed appellant’s claim and recommended that death benefits be granted. This deposition was never taken. Teledyne submitted a letter to the Industrial Commission stating that it was unable to locate Dr. Scheel, but that it had intended to challenge his opinion and credibility. Teledyne also indicated that a deposition of Dr. Scheel would have demonstrated that further review of appellant’s file by a pulmonary specialist was warranted. Teledyne requested permission to submit interrogatories to Dr. Dwight Davies in lieu of deposing Dr. Scheel. Over the objections of appellant, the Industrial Commission granted Teledyne’s request.

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Dr. Davies stated in his answers to the interrogatories that Dr. Scheel was not qualified to have reviewed appellant’s file. Dr. Davies’ assertions prompted appellant to request permission to depose Dr. Davies. Permission was granted and the deposition took place on May 2, 1983. The Industrial Commission was represented at the deposition by David J. Binkowitz. Binkowitz directed Dr. Davies to refuse to answer several questions posed by appellant’s counsel. Appellant claims that Binkowitz improperly acted in a dual capacity at the deposition, both as attorney to Dr. Davies and as representative of the Industrial Commission.

On July 15, 1983, the Industrial Commission ordered Teledyne to suspend payment of death benefits to appellant until she would provide a copy of the transcripts of depositions of Dr. Davies and another doctor to the commission. On August 5, 1983, the Industrial Commission issued another order vacating the July 15 suspension of benefits, and directing that appellant be paid any benefits that may have been withheld.

As a result of the Industrial Commission’s July 15 order, in conjunction with the actions of Binkowitz at Dr. Davies’ deposition, appellant filed this action in mandamus in the court of appeals requesting an order directing the Industrial Commission to vacate its July 15 order and to permit discovery. The court of appeals denied the writ.

The cause is now before this court upon an appeal as of right.

Michael J. Muldoon, for appellant.

Vorys, Sater, Seymour Pease, Thomas M. Taggart and Chris J. North, for appellee Teledyne Ohiocast.

Anthony J. Celebrezze, Jr., attorney general, Lee M. Smith an Douglas M. Kennedy, for appellee Industrial Commission.

Per Curiam.

The sole issue before this court is whether the court of appeals erred by denying appellant’s requested writ of mandamus. It is axiomatic that a writ of mandamus will issue only upon a showing by the requesting party that he has no adequate legal remedy. Appellant cannot make such a showing with regard to her request concerning the Industrial Commission’s July 15 order. That order has been vacated and all benefits have been restored. The issue is, therefore, moot.

Additionally, appellant has failed to show that she has exhausted her administrative remedies with respect to her allegations concerning the propriety of Binkowitz’s actions at the deposition. Appellant has not sought an order from the commission directing Dr. Davies to answer her questions, and the commission has not issued an order stating that the questions are irrelevant and need not be answered. Furthermore, the commission has not issued a final order either maintaining or withdrawing appellant’s death benefits. Since the commission has not issued any final rulings on appellant’s questions, mandamus will not lie.

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Accordingly, the judgment of the court of appeals denying appellant’s requested writ of mandamus is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.