2020 Ohio 83
Ohio Ct. App.2020Background
- On Feb. 27, 2014 Josue S. Morales suffered a workplace eye injury when a grinder/cutting wheel shattered, penetrating his face shield and causing loss of vision in his left eye.
- Morales applied for an award for Violation of a Specific Safety Requirement (VSSR), alleging failures to (a) maintain guards on handheld grinders, (b) follow abrasive grinding/cutting equipment rules, and (c) provide proper eye/face personal protective equipment.
- BWC investigators recorded conflicting statements: Morales said the shop supplied only an inadequate sandblasting mask (taped, flimsy) and that the grinder’s guard had been removed; owners/co-workers said proper grinding masks and blades were available though the guard had been removed for access.
- A first Staff Hearing Officer (SHO) denied the VSSR, finding Morales improperly used the tool, appropriate PPE was available, and the presence of a guard would not have prevented the injury.
- On rehearing a second SHO granted the VSSR, finding (inter alia) the grinder originally had a removable guard that was not in place, oversized blades were used so a guard could not be used, and insufficient evidence showed proper grinding masks were actually available at the time of injury.
- Target filed mandamus in the court of appeals asking the Commission’s VSSR grant be vacated; the magistrate and the court denied relief, concluding the Commission’s factual credibility determinations were supported by some evidence and not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Target) | Defendant's Argument (Morales/IC) | Held |
|---|---|---|---|
| Whether Target's alleged removal of the grinder guard and other code violations could be the proximate cause of Morales's injury | Guard removal and lack of proper PPE could not be proximate cause because Morales’s failure to wear the correct mask was the decisive cause | Employer’s VSSR (guard removal and lack of PPE) set in motion a natural sequence that produced the injury; employee negligence does not bar recovery where employer violated safety rules | Court: VSSR could be proximate cause; employee’s failure to wear mask did not break causation because VSSRs protect employees from their own negligence. |
| Whether the Commission improperly shifted burden of proof to Target regarding availability of proper PPE | SHO effectively placed burden on Target to prove PPE availability rather than requiring Morales to prove none were provided | Commission credited Morales’s testimony that proper grinding masks were not available; credibility decisions are for the Commission | Court: No burden shift; Commission permissibly disbelieved Target and credited Morales — credibility is within Commission’s discretion. |
| Whether the Commission conflated or misapplied different Ohio Adm. Code sections (4123:1-5-07, 1-5-12, 1-5-17) in finding VSSR | Commission conflated duties: employee responsibility under 1-5-17(D)(1) cannot be converted into employer duty to correct misuse | Commission lawfully interpreted and applied proximate code obligations (maintenance/guards; employer instruction; provision of PPE) based on record evidence | Court: Objection waived or immaterial; even if conflation arguable, evidence supports finding violations and result unchanged. |
| Whether the evidence supports finding that proper grinding/cutting masks were not available | Target produced evidence masks were ordered/available and that Morales was trained; SHO failed to accept this evidence | Morales testified the only available mask was an altered sandblasting mask; the SHO found insufficient proof masks received/available and credited Morales | Court: Some competent evidence supports the SHO’s credibility determination; no abuse of discretion — VSSR award stands. |
Key Cases Cited
- Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585 (1991) (proximate-cause principles from tort law apply to Workers’ Compensation VSSR causation)
- Oswald v. Connor, 16 Ohio St.3d 38 (tort causation principles applied in industrial claims)
- Strother v. Hutchinson, 67 Ohio St.2d 282 (proximate cause and when intervening acts do not break causation)
- Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35 (2018) (VSSR intended to protect employees against their own negligence)
- Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981) (credibility and weight of evidence are for the Commission)
- Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986) (mandamus relief available only if Commission’s order is unsupported by any evidence)
- Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (mandamus not appropriate where record contains some evidence supporting Commission)
- Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373 (trial court may not supplant Commission’s factual findings even if contrary evidence is stronger)