THE STATE EX REL. ARMSTRONG STEEL ERECTORS, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 2014-1150
Supreme Court of Ohio
Submitted July 7, 2015—Decided November 3, 2015
144 Ohio St.3d 243, 2015-Ohio-4525
Per Curiam.
{11} This is an appeal of a judgment in a mandamus cаse challenging the Industrial Commission‘s decision to grant an additional workers’ compensation award for the employer‘s violation of a specific safety requirement (“VSSR“). Relator-appellant, Armstrong Steel Erectors, Inc., contends that the commission abused its discretion by finding that Armstrong violated a specific safety requirement, because the employee‘s injuries were the result of his failure to wear the appropriate personal protective equipment.
{12} The Tenth District Court of Appeals denied Armstrong‘s request for a writ of mandamus. Because it determined that the commission‘s order was supported by some evidence in the record, the court concluded that Armstrong failed to demonstrate an abuse of discretion that would warrant mandamus relief.
{13} For the reasons that follow, we affirm.
{14} Respondent-аppellee, Frank P. Seidita, was an ironworker employed by Armstrong, a subcontractor on a bridge project on U.S. Route 62 over Andrews Avenue in Youngstown. On April 23, 2009, Sеidita was working beneath the bridge decking on top of a concrete pier, welding bearing pads into place. The concrete pier was approximately 25 feet, 6 inches high, 3 to 4 feet wide, and 25 feet long. Another subcontractor on the project had strung chain-link fencing between the bridge piers. The fencing was primarily designed to catch falling debris but also served as a safety net.
{15} Seidita was working alone, out of the sight of other workers. He was not wearing a safety harness or other fall-prevention equipment. He was kneeling on the concrete pier using a board to pry up a bearing pad when the board broke. Seidita lost his balance and fell to the ground through a gap between the concrete pier and the adjacent chain-link fencing.
{16} Seidita‘s workers’ compensation claim was allowed for numerous injuries sustained in the fall, for which he was compensated. About two years after the incident, he appliеd for an additional award for a VSSR, alleging that his fall was caused by Armstrong‘s violation of numerous specific safety regulations.
{17} Following a hearing, a staff hearing officer determined that
{18} Armstrong filed a complaint and an amended complaint in mandamus, seeking a writ that would compel the commission to vacate its order granting a VSSR award and to refund all additional compensation that had been paid by Armstrong as a result оf that award. A magistrate concluded that evidence in the record supported the commission‘s finding that Seidita‘s use of personal protective equipment to prevent a fall was impractical under the circumstances. The magistrate accordingly agreed with the commission that Seidita was not unilaterаlly negligent in failing to use that equipment at the time. Finally, the magistrate concluded that under
{19} Armstrong filed objections to the magistrate‘s decision. The court of appeals ovеrruled the objections, adopted the magistrate‘s decision as its own, and denied the writ.
{110} This matter is before the court on Armstrong‘s appeal as of right.
{111}
{112} The commission determined that Armstrong violated
{113} To prevail on its claim for mandamus relief, Armstrong must demonstrate that the commission‘s decision to issue a VSSR award was an abuse of discretion. So long as some evidence supports the commission‘s order, there was no abuse of discretion, and the court must uphold the decision. State ex rel. Turner Constr. Co. v. Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, 29 N.E.3d 969, 112.
{114} Armstrong argues that it should not be liable for violating a specific safety requirement when Seidita failed to use the pеrsonal protective equipment that Armstrong provided to all workers on the jobsite to protect against falls. Armstrong maintains that it is the responsibility of the emрloyee to properly use the equipment provided and that Seidita‘s failure to wear the equipment precluded placing any liability for a VSSR on Armstrong.
{115} Armstrong concedes that conflicting testimony was presented as to whether it was necessary for Seidita to use protective equipment at the time he was injured. Several Armstrong employees stated that company policy required Seidita to use the equipment, while Seidita maintained that it was unnecessary fоr him to wear the equipment while he was working atop the concrete pier, because the safety net was in place to prevent falls.
{116} Questions rеgarding the weight and credibility of the evidence are within the discretion of the commission as the exclusive fact-finder. Turner Constr. Co., 142 Ohio St.3d 310, 2015-Ohio-1202, 29 N.E.3d 969, at 112; State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165, 169, 429 N.E.2d 433 (1981). Here, the commission‘s hearing officer stated that Seidita‘s testimony at the hearing established that “his work area was merely a crawl space” and that he was often required “to actually roll out оnto the safety netting” in order to weld plates
{117} When the use of personal protective equipment is impractical, the employer must in certain circumstances provide a safety net as fall protection.
{118} Armstrong also contends that there wаs no evidence before the commission that the chain-link fencing failed to comply with
{119} The interpretation of a specific safety requirement is a matter for the commissiоn‘s determination and may be corrected in mandamus only upon a showing that the commission abused its discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 1, 4, 460 N.E.2d 251 (1984). Armstrong has failed to demonstrate that the commissiоn abused its discretion when it issued a VSSR award, and the court of appeals properly denied Armstrong‘s request for a writ of mandamus. We affirm.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Icе Miller, L.L.P., Corey V. Crognale, and Jennifer McDaniel, for appellant.
Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Commission.
Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro, and Robert J. Foley Jr., for appellee Frank P. Seidita.