2015 Ohio 3973
Ohio Ct. App.2015Background
- Worker Timothy Roark died in a >20-foot trench collapse while employed by Sunesis on a sewer project; no eyewitness saw the collapse. Photographs and depositions were in the record.
- The Ohio BWC allowed the death claim; decedent’s dependents filed a VSSR (violation of specific safety requirements) application alleging Sunesis failed to properly slope/shore/engineer the trench.
- Multiple administrative hearings occurred: an initial SHO grant of VSSR, rehearing, vacatur by this court, a de novo SHO hearing (Oct. 4, 2012) again granting VSSR in part, and the commission’s denial of Sunesis’s motion for reconsideration (Mar. 2013).
- The SHO found one trench face was Class C (soft, wet) soil with groundwater, that sloping/shoring on that side was inadequate or not engineered by a “qualified person,” and that those failures proximately caused Roark’s death; awarded an additional 35% compensation.
- Sunesis sought mandamus relief to vacate the SHO order (arguing the SHO failed to make required findings on slope and proximate cause and improperly required a professional engineer); the magistrate recommended granting the writ; the panel court reviewed objections and the record.
Issues
| Issue | Plaintiff's Argument (Roark/Claimant) | Defendant's Argument (Sunesis/Relator) | Held |
|---|---|---|---|
| Whether SHO had to find the actual degree of slope under Table 13-1 | SHO need not quantify slope when record shows wet/Class C soil requiring special treatment; photographic and deposition evidence supports inadequacy | SHO erred by failing to identify soil type/actual slope and compare to Table 13-1; without that finding proximate-cause and rule violation are unsupported | Court sustained claimant: SHO did not need exact angle because presence of groundwater/Class C soil places conditions outside Table 13-1, triggering special-treatment requirement |
| Whether failures to slope/shore were shown to be the proximate cause of death | Testimony and photos (Renken, Darrah, Roark) supply some-evidence that collapse came from the sloped/unshored side | No direct observation of collapse and no evidence pinpointing source of moved earth; proximate cause not proved | Court sustained claimant: testimonial and photographic evidence constitutes some evidence to support proximate-cause finding |
| Whether trench must be designed/inspected by a licensed professional engineer ("qualified person") | The rule permits reliance on evidence that design failed to meet accepted engineering requirements; depositions show the trench was not OSHA- or company-compliant and lacked professional design/inspection | "Qualified person" is undefined; absence of licensed engineer alone does not automatically show a VSSR violation or proximate cause | Court sustained claimant: there was some evidence the excavation failed to meet accepted engineering/OSHA/company standards; SHO permissibly relied on those facts to find a design-related violation |
| Whether magistrate improperly substituted credibility determinations for the commission | Magistrate credited record and evaluated legal sufficiency, not reweighed credibility; commission entitled to defer to witness credibility | Magistrate improperly reweighed evidence and substituted his view for the commission's | Court found this factual dispute moot for the VSSR determination and adopted factual findings; rejected magistrate's legal conclusions that would have granted the writ (writ denied) |
Key Cases Cited
- State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352 (claimant negligence bars VSSR only when employee deliberately renders a complying device noncompliant)
- State ex rel. Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190 (employer exonerated where employee removed required scaffold)
- State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (SHO orders must state evidence relied on and explain reasoning)
- State ex rel. Engle v. Indus. Comm., 142 Ohio St. 425 (authority for additional award calculation rule cited by SHO)
- State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d 333 (commission interpretations must be reasonable; cannot rewrite rules)
- State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77 (limits on commission’s reinterpretation of safety rules)
- State ex rel. Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42 (specific safety requirements protect negligent employees as well as diligent ones)
- State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (origin of unilateral negligence defense)
- State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (commission factfinding and interpretation reviewed for abuse of discretion)