State Ex Rel. Scott v. Industrial Commission
136 Ohio St. 3d 92
| Ohio | 2013Background
- Scott worked as a laborer for Country Saw & Knife, sharpening and brazing carbide teeth on saw blades.
- After about 1.5 years, he developed respiratory disease from metal dust exposure and his workers’ compensation claim was allowed.
- On November 25, 2008, Scott sought a VSSR award alleging Country Saw violated specific safety requirements by not protecting workers from metal particulates.
- OSHA air testing on April 16, 2008 showed cobalt at 0.03 mg/m3 (below 0.1 limit) and tungsten at 0.33 mg/m3 (no established limit then); the test occurred after Scott’s exposure period.
- The staff hearing officer relied on Gilbert to conclude OSHA results could be evidence supporting denial of a VSSR; the court denied the mandamus seeking to compel an award.
- The Ohio Supreme Court affirmed, holding the commission did not abuse its discretion in denying Scott’s VSSR claim given the evidence and standard of review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-exposure OSHA data can support denial of VSSR | Scott argues the post-exposure OSHA data should show hazardous exposure. | Country Saw asserts OSHA data can be relied on if relevant and stable conditions exist. | OSHA data could be relied on as evidence; not abused. |
| Whether hazardous concentrations must be proven during exposure | Scott contends evidence of occupational disease proves hazardous exposure. | Court should require evidence of hazardous concentrations in the work environment. | Hazardous concentrations must be proven by evidence; disease alone is not enough. |
| What is the appropriate standard of review for VSSR determinations | Trial court review should be de novo given punitive nature. | Abuse-of-discretion standard governs VSSR findings. | Review for abuse of discretion; employer-favorable presumptions apply in VSSR context. |
Key Cases Cited
- State ex rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243 (2007-Ohio-6096) (post-exposure testing may be relevant if conditions replicated)
- State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989) (VSSR is punitive; doubts resolved in employer’s favor)
- State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191 (1986) (elements of a VSSR claim; proximate cause; specific requirements)
- State ex rel. Ish v. Indus. Comm., 19 Ohio St.3d 28 (1985) (interpretation and application of specific safety requirements)