THE STATE EX REL. 31, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 2016-0968
SUPREME COURT OF OHIO
December 21, 2017
Slip Opinion No. 2017-Ohio-9112
Workers’ compensation—Violation of a specific safety requirement (“VSSR“)—Ohio Adm.Code 4123:1-5-11(D)(10)‘s nip-point rule does not apply to a calender machine that is expressly covered by Ohio Adm.Code 4123:1-13-03—Writ of mandamus granted ordering Industrial Commission to vacate VSSR award based on violation of nip-point rule.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2017-OHIO-9112
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. 31, Inc. v. Indus. Comm., Slip Opinion No. 2017-Ohio-9112.]
(Submitted July 11, 2017—Decided December 21, 2017.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-925, 2016-Ohio-3526.
{¶ 1} This is an appeal in a mandamus case in which appellant, 31, Inc. (“31“), challenges the order of appellee Industrial Commission granting an additional award for the violation of a specific safety requirement (“VSSR“). The commission determined that 31 had violated the “nip point” rule found in
{¶ 2} The Tenth District Court of Appeals denied the request for a writ, concluding that the commission did not abuse its discretion.
{¶ 3} We hold that the nip-point rule did not apply here because an administrative-code provision applicable to the rubber and plastics industry expressly covered the machine that Ashworth was operating. Therefore, we reverse the judgment of the court of appeals and issue a writ of mandamus ordering the commission to issue a new order that denies Ashworth‘s application for a VSSR award.
Facts and Procedural History
{¶ 4} 31 processes rubber to make products that are used to repair tires. Ashworth was employed by 31 as a calender operator. A calender is defined as “a machine equipped with two or more metal rolls revolving in opposite directions and used for continuously sheeting or plying up rubber or plastic compounds and for frictioning or coating fabric with rubber or plastic compounds.”
{¶ 5} Ashworth operated a calender with three rolls. A coworker would insert a ball of rubber between the top and middle rolls on one side of the calender, and as it came out of the opposite side, Ashworth‘s job was to grab the rubber with
{¶ 6} On the day of the accident, as Ashworth grabbed the rubber to pull it off the roll, it caught the fingers on his right hand and pulled his hand into a three-inch space between the rolls. When he was unable to remove his hand, he pulled an emergency cable that immediately stopped the rolls.
{¶ 7} Ashworth filed a workers’ compensation claim that was allowed for multiple injuries to his hand. He also applied for an additional award for a VSSR, alleging that 31 had violated
{¶ 8}
Nip points.
(a) Means shall be provided to protect employees exposed to contact with nip points created by power driven in-running rolls, rollover platen, or other flat surface material being wound over roll surface.
(b) Exception.
Machinery covered expressly by requirements contained in other codes of specific requirements of the Ohio bureau of workers’ compensation.
{¶ 9} 31 argued that the exception in
{¶ 10} The staff hearing officer nevertheless denied Ashworth‘s VSSR application, concluding that “the nip point guarding provisions were not practical on the calender machine” and that the machine was equipped with alternative means of protection, such as extra safety lines and emergency-stop cords as required for the rubber industry.
{¶ 11} Ashworth moved for a rehearing. A staff hearing officer granted the motion.
{¶ 12} On rehearing, a staff hearing officer concluded that
{¶ 13} 31 filed a complaint for a writ of mandamus, alleging that both the decision to grant a rehearing and the decision to order a VSSR award were contrary to law and not supported by some evidence, see State ex rel. McKee v. Union Metal Corp., 150 Ohio St.3d 223, 2017-Ohio-5541, 80 N.E.3d 491, ¶ 11 (the commission abuses its discretion if it enters an order that is not supported by “some evidence“).
{¶ 14} The court of appeals concluded that the commission did not abuse its discretion when granting the rehearing motion or the VSSR award. The court determined that Hartco, which interpreted the same Administrative Code provisions at issue here, held that the rules for the rubber and plastic industries supplement but do not supplant the rules for workshops and factories. The court of appeals denied the writ. 2016-Ohio-3526, ¶ 7-8.
{¶ 15} The direct appeal filed by 31 is now before the court.
{¶ 16} At the outset, we deny 31‘s request for oral argument. Granting oral argument in a direct appeal is subject to the court‘s discretion. S.Ct.Prac.R. 17.02(A). The case does not present an issue that necessitates oral argument, and the parties’ briefs are sufficient to resolve the issues raised. See State ex rel. Woods v. Oak Hill Community Med. Ctr., 91 Ohio St.3d 459, 460, 746 N.E.2d 1108 (2001).
{¶ 17} 31‘s argument that the commission‘s decision to grant a rehearing was an abuse of its discretion is resolved by our analysis of the merits of the VSSR claim. Regarding the VSSR, 31 argues that the rule in
{¶ 18} 31 maintains that there are express safety requirements for calender machines in
{¶ 19} We agree.
{¶ 20} Furthermore, the court of appeals’ reliance on Hartco is misplaced because that case is factually distinguishable. Hartco involved a reroll machine used in the rubber industry. The injured worker alleged that the employer failed to guard the nip point on the reroll machine in violation of former
{¶ 21} Because a VSSR award is a penalty, a specific safety requirement must be strictly construed and all reasonable doubts concerning the interpretation must be resolved in favor of the employer. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). A plain reading of the rules indicates that
{¶ 22} 31 has met its burden of showing a clear legal right to the relief requested and is entitled to a writ of mandamus. See State ex rel. M.T.D. Prods., Inc. v. Stebbins, 43 Ohio St.2d 114, 119, 330 N.E.2d 904 (1975). Therefore, we
Judgment reversed and writ granted.
O‘CONNOR, C.J., and O‘DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
O‘NEILL, J., dissents, with an opinion.
O‘NEILL, J., dissenting.
{¶ 23} Respectfully, I dissent.
{¶ 24} I have dissented before when this court has overstepped its constitutional boundaries in order to overturn an Industrial Commission order granting an award for the violation of a specific safety requirement (“VSSR“). State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, 47 N.E.3d 109 (O‘Neill, J., dissenting). I regret that once again, restraint and logic have lost out in favor of personal preferences, and I must dissent from this court‘s overzealous meddling in administrative matters.
{¶ 25} Ultimately, this case presents a fair disagreement between an employer—appellant, 31, Inc.—and the Industrial Commission about a safety regulation.
{¶ 26} The majority barely describes the standard that we are bound to follow when reviewing a lower court‘s decision denying an employer‘s petition for a writ of mandamus that would compel the Industrial Commission to vacate an order granting a VSSR award. Under the law, “[t]he interpretation of a specific safety requirement lies exclusively with the commission.” State ex rel. Internatl. Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428, 2009-Ohio-3502, 912 N.E.2d 85, ¶ 10. We must therefore “defer to the commission‘s expertise in its construction of the safety code unless that construction is shown to be an abuse of discretion” just as we always “defer to an agency‘s interpretation of its own rule, as long as it is reasonable.” State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d 157, 2014-Ohio-1604, 10 N.E.3d 683, ¶ 25, 28.
{¶ 27} Applying that stringent, deferential standard, we have required a claimant challenging the commission‘s denial of a VSSR award to “establish that his or her injury resulted from the employer‘s failure to comply with a specific safety requirement” while construing “all reasonable doubts concerning the interpretation of the safety standard * * * against its applicability to the employer.” State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 171-172, 545 N.E.2d 1216 (1989). When the commission has determined that a specific safety requirement does apply to an employer, we have required the employer to show that the commission abused its discretion before we will issue a writ of mandamus to correct
{¶ 28} Whether the commission has granted or denied a VSSR award, we must deny a writ of mandamus that would substitute our judgment for the commission‘s judgment if there is a “bona fide difference of opinion as to the interpretation of the safety requirement in question.” State ex rel. Wilms v. Blake, 144 Ohio St. 619, 627, 60 N.E.2d 308 (1945).
{¶ 29} The Ohio Constitution demands no less deference, and it probably demands more. I have argued before that “it is not the Supreme Court‘s role to interpret rules for the commission in VSSR cases” or to “advance alternate theories that support one outcome or another.” Precision Steel Servs., 145 Ohio St.3d 76, 2015-Ohio-4798, 47 N.E.3d 109, at ¶ 27 (O‘Neill, J., dissenting). I find support for this conclusion in the plain language of
Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *.
{¶ 30} In the following decades, we treated the applicability of a specific safety requirement to an employer as a question left exclusively to the judgment of the commission. E.g., State v. Ohio Stove Co., 154 Ohio St. 27, 38, 93 N.E.2d 291 (1950) (“Either there was a violation and a consequent injury as a result thereof, or there was no such violation, or, if there was, no such injury resulted therefrom. The determination by the commission of these facts, whether favorable or unfavorable to the employee, under the provisions of Section 35, Article II of the state Constitution, is final“); see also State ex rel. Moore v. Indus. Comm., 129 Ohio St. 195, 196-197, 194 N.E. 370 (1935). Our own decisions in the early days of VSSR litigation focused almost uniformly on the constitutional question whether or not a safety requirement was “specific” within the meaning of Article II, Section 35. E.g., State ex rel. Howard Eng. & Mfg. Co. v. Indus. Comm., 148 Ohio St. 165, 168-170, 74 N.E.2d 201 (1947).
{¶ 31} In the 1970s, the rule in Slatmeyer began to evolve into the “some evidence” rule we commonly apply today. See State ex rel. Mees v. Indus. Comm., 29 Ohio St.2d 128, 131, 279 N.E.2d 861 (1972). In Mees, we cherry-picked the conclusion from State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm. that “there was evidence upon which the [commission‘s] finding might properly rest, and in this circumstance the determination of respondent became final,” 166 Ohio St. 47, 50, 139 N.E.2d 41 (1956), and took it out of context, conflating the existence of
{¶ 32} Throughout the 1970s, we deferred to the Industrial Commission on the interpretation and application of specific safety requirements less and less. In 1977, we disagreed with the commission that safety regulations requiring guard rails applied to a roof when we declared that “the space around the edge of a roof is not an opening pursuant to [former Industrial Commission Rule] IC-3-03.09 and the roof is not a platform pursuant to [former Industrial Commission Rule] IC-3-07.06.” State ex rel. City Iron Works, Inc. v. Indus. Comm., 52 Ohio St.2d 1, 6, 368 N.E.2d 291 (1977). We conflated our own disagreement regarding the applicability of these regulations with the absence of evidence of a violation and called the commission‘s decision to the contrary an abuse of discretion. Id. In 1979, we declared that it was not strictly “necessary” within the meaning of former Industrial Commission Rule IC-3-05.03(A)(5) for a crane on which a worker was suspended to come within 12 feet of power lines while he washed an electric sign. State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 51-55, 386 N.E.2d 1107 (1979). His electrocution and death occurred when the crane came into accidental contact with high-voltage electrical lines. Id. at 51. These events were—we thought—merely accidental, and “if the crane operator had been careful, the job could have been successfully completed without the boom coming within 12 feet of the electrical lines.” Id. at 51. We criticized the commission‘s “result-oriented approach in its determination that [former] Rule IC-3-05.03(A)(5) was violated by
{¶ 33} Since it was amended in 1923, the text of
{¶ 34} Most remarkably, the majority bends over backwards to distinguish an opinion this court issued in almost identical circumstances in 1988. See State ex rel. Hartco, Inc., Custom Coated Prods. v. Indus. Comm., 38 Ohio St.3d 181, 527 N.E.2d 815 (1988). In Hartco, we considered a VSSR award that the commission granted because a man‘s “right arm and hand were drawn into a reroll machine that was winding a sheet of rubberized material.” Id. at 181. Just as in the present case, the commission found a violation of former
“* * * Specific requirements of other codes [chapters] adopted by the industrial commission of Ohio shall apply to the particular industry covered by any such other code, and, to the extent of conflict between this code and such other, the latter shall govern, but in all other respects this code shall be deemed to apply and the other to be a supplement of this.”
(Brackets added in Hartco.) Hartco at 182, quoting former
{¶ 35} In a weak attempt to distinguish Hartco, the majority claims that this court came to its decision in that case “because no specific rules within the chapter of the Administrative Code dealing with the rubber industry applied to the reroll machine” in Hartco. (Emphasis sic.) Majority opinion at ¶ 20. That statement is untrue in two ways. First, as emphasized above, we held more narrowly in Hartco that former “Ohio Adm.Code Chapter 4121:1-13 contains no nip-point protection provision that, if conflicting, would render it controlling.” Hartco at 182. That is still true:
{¶ 36} Fundamentally, this lawsuit is not a reasonable vehicle for 31, Inc., to seek a change in the regulations governing safety at its rubber-processing facility. Rather, it is an end run around the regulatory structures set up to protect workers. If 31, Inc., cannot reasonably protect a worker from machinery regulated by the Administrative Code due to “practical difficulty or unnecessary hardship,” then it should have sought an exemption from the general rules governing workshops and factories before it had its workers operate a dangerous machine. See
{¶ 37} In consideration of the foregoing circumstances, I dissent.
Black, McCuskey, Souers & Arbaugh, Brian R. Mertes, and Rod A. Moore, for appellant.
Michael DeWine, Attorney General, and Andrew J. Alatis, Assistant Attorney General, for appellee Industrial Commission.
Phillips & Mille Co., L.P.A., Nicholas E. Phillips, and Stewart S. Wilson, for appellee Duane Ashworth.