2021 Ohio 1174
Ohio2021Background
- U.S. Tubular performed hydro-testing of used pipe in a three-sided "test shelter" requiring two employees: north-end operator (controls, diesel engine and pump) and south-end worker (installs a swage with a slide valve and then retreats to a safety zone).
- During testing the north-end employee pressurized the pipe; the south-end employee had no controls, gauges, or radios and relied on visual signals to know when pressure was released.
- On December 10, 2014, south-end employee John R. Roush approached a pipe after either a thumbs-up or observing the north-end employee approach; before pressure was released a swage blew off and the pressurized pipe struck and seriously injured Roush.
- Roush claimed a VSSR award under Ohio Adm.Code 4123:1-5-05(D)(1) (means to disengage machine within easy reach of the operator). The Bureau’s investigation, expert reports, and live testimony were submitted to the Industrial Commission.
- A staff hearing officer found a violation (concluding Roush was an "operator" because his swage and duties were components of the hydro-tester) and awarded a 25% VSSR penalty; the Commission affirmed after procedural motions. U.S. Tubular sought a writ of mandamus from the Tenth District, which denied the writ; the Ohio Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Roush) | Defendant's Argument (U.S. Tubular) | Held |
|---|---|---|---|
| Whether Roush was an "operator" for purposes of OAC 4123:1-5-05(D)(1) | Roush was assigned/authorized to work at the hydro-tester; his swage/valve was integral to pressurization | Roush worked ~44 ft from the diesel engine/pumps; "machine" limited to engine/pump so he was not an operator | Commission reasonably found he was an operator; record (employer admission, expert testimony) supports that swages were machine components |
| Whether the phrase "at each machine" requires disengage means to be located only at engine/pump or can encompass connected components | The tester is an integrated machine (engine, pumps, hose, swages); means to disengage must be within easy reach of both operators | The machine is the diesel/pumps and controls are at north end; impractical to require a kill at the south end | Commission’s interpretation (machine including swages/connected system) was supported by evidence; no abuse of discretion |
| Whether the employer violated the specific safety requirement and whether that violation proximately caused the injury | Lack of an independent means to disengage at Roush’s end caused him to rely on signals and led to injury; a reachable disengage would have prevented the harm | Injury resulted from employees leaving safety zones or miscommunication; even with a switch Roush would have approached due to a thumbs-up | Commission reasonably found a violation and that the violation proximately caused injury; unilateral-negligence defense unavailable because employer did not comply with the requirement |
| Whether the Commission’s VSSR award was an abuse of discretion (mandamus standard) | The award is supported by investigation, expert testimony, and testimony | Commission’s finding incorrect as matter of law and fact; sought mandamus to vacate | Under the "some evidence" standard, the Commission’s decision was supported by the record; no abuse of discretion, writ denied |
Key Cases Cited
- State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76 (2015) (sets three-part VSSR test: specific rule applies, employer violated it, and violation caused the injury)
- State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243 (2015) (mandamus review; "some evidence" supports commission means no abuse of discretion)
- State ex rel. Vonderheide v. Multi-Color Corp., 156 Ohio St.3d 403 (2019) (affirming that commission findings need only some evidence even if contrary evidence exists)
- State ex rel. Glunt Indus., Inc. v. Indus. Comm., 132 Ohio St.3d 78 (2012) (employer’s conjecture that worker would not have used safety equipment is not a valid proximate-cause defense)
- State ex rel. Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35 (2018) (employee unilateral-negligence defense available only if employer complied with the specific safety requirement)
- State ex rel. Scott Fetzer Co., Halex Div. v. Indus. Comm., 81 Ohio St.3d 462 (1998) (discusses when employee may be considered an "operator" for rule application)