2020 Ohio 3427
Ohio Ct. App.2020Background
- The injury: On Dec. 10, 2014, employee John R. Roush was struck when a swage (cap) blew off a pressurized pipe during a two-person hydrostatic test, causing severe injuries.
- Work setup and controls: The diesel-powered hydro tester (controls, shutoffs, pressure valve) was located at the north end with operator Phil Drosnos; Roush worked ~40 feet away at the south end, in a marked safety zone during pressurization.
- Events leading to injury: After Roush closed his slide valve and waited in the safety zone, he received a thumbs-up signal, approached a still-pressurized pipe, and the north swage blew off, propelling the pipe into him.
- VSSR claim and administrative outcome: Roush sought an additional award under Ohio Adm.Code 4123:1-5-05(D)(1) (means to disengage power within easy reach of the operator). The SHO found Roush an "operator," a violation occurred (controls not within his reach), and the violation proximately caused the injury; the commission reinstated the SHO order after reconsideration.
- Mandamus proceedings: Employer US Tubular sought a writ of mandamus in this court to vacate the VSSR finding. The magistrate recommended granting the writ; the appellate majority adopted the magistrate’s facts but rejected her legal conclusions and denied the writ, finding the commission’s rulings were supported by some evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Roush was an "operator" under Ohio Adm.Code 4123:1-5-01(B)(92) | Relator: Roush was a "test hand," not assigned or authorized to work at the hydro tester, so the SSR did not apply. | Commission / Roush: Definition is broad ("assigned or authorized to work at the specific equipment"); Roush’s duties were integral and he was assigned to work at the equipment. | Court: Some evidence supported the commission/SHO finding that Roush was an operator; no abuse of discretion. |
| Whether employer violated Ohio Adm.Code 4123:1-5-05(D)(1) (means to disengage within easy reach) | Relator: Even if operator status were assumed, employer provided disengagement means at the machine; impractical to provide them at Roush’s location. | Commission / Roush: Controls were >12 feet away and not within easy reach of the second operator. | Court: Because Roush was an operator and the controls were not within his easy reach, the SHO did not abuse its discretion in finding a violation. |
| Whether the SSR violation proximately caused the injury | Relator: Roush approached a still-pressurized pipe (miscommunication/unilateral acts); the lack of a local disengage could not have caused the injury. | Commission / Roush: Absence of a means to disengage at Roush’s station left him unable to prevent or mitigate injury; multiple factors can each be proximate causes. | Court: Proximate-cause finding was factual and supported by record; commission did not abuse discretion. |
| Whether the commission properly declined continuing-jurisdiction relief | Relator: Challenged commission’s exercise of continuing jurisdiction (sought reversal). | Commission: Reconsideration denied; exercised limited continuing jurisdiction and reinstated SHO order. | Court: Commission did not abuse discretion in declining to exercise continuing jurisdiction. |
Key Cases Cited
- Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76 (2015) (sets VSSR elements and directs strict construction of SSRs)
- State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134 (2002) (SSR strict-construction rule does not permit reweighing factual evidence)
- State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243 (2015) (appellate review of commission requires some-evidence standard)
- State ex rel. Ohio Paperboard v. Indus. Comm., 152 Ohio St.3d 155 (2017) (definition of "operator" is broad: "assigned or authorized to work at the specific equipment")
- Lovell v. Indus. Comm., 74 Ohio St.3d 250 (1996) (absence of a safety device alone is insufficient; claimant must show proximate cause)
- State ex rel. S&Z Tool & Die Co., Inc. v. Indus. Comm., 84 Ohio St.3d 288 (1999) (claimant need not quantify how much protection would have reduced injury to establish proximate cause)
- Scott Fetzer Co., Halex Div. v. Indus. Comm., 81 Ohio St.3d 462 (1998) (job title not dispositive; active involvement in machine operation supports "operator" status)
- Owens-Corning Fiberglas Corp. v. Indus. Comm., 62 Ohio St.2d 145 (1980) ("operator" definition should not be overly inclusive)
- Norris v. Babcock & Wilcox Co., 48 Ohio App.3d 66 (1988) (when multiple factors combine, each may be a proximate cause)
- Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35 (2018) (unilateral-negligence defense available only if employer complied with SSR)