THE STATE EX REL. AVALOTIS PAINTING COMPANY, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 99-1029
SUPREME COURT OF OHIO
March 14, 2001
91 Ohio St.3d 137 | 2001-Ohio-243
[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 137.]
(No. 99-1029—Submitted January 9, 2001—Decided March 14, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-798.
Per Curiam.
{¶ 1} Avalotis Painting Company (“Avalotis“), appellant, sought a writ of mandamus to vacate appellee Industrial Commission of Ohio‘s order finding Avalotis in violation of a specific safety requirement (“VSSR“). The Court of Appeals for Franklin County denied the writ, finding that the commission did not abuse its discretion in granting this VSSR. Avalotis appeals as of right.
{¶ 2} In September 1994, appellee Robert Gordon suffered traumatic injuries when he fell four stories while painting in an industrial building for Avalotis. He was standing on one narrow I-beam in order to paint another bеam above him when he lost his balance and landed on the concrete floor below. At the time of his accident, no lifeline from which Gordon could have tied-off had been rigged, and he had no other way both to secure himself and paint where his foreman had instructed him to work.
{¶ 3} Gordon‘s workers’ compensation claim was recognized for a host of conditions, including paraplegia. He аpplied for additional compensation, alleging Avalotis‘s VSSR, and the commission granted his application. The commission
{¶ 4} The court of appeals rejected Avalotis‘s argument that Gordon bore responsibility for rigging his own lifeline in his work area and that his injury therefore resulted from his own failure to use this safety equipment, which was available elsewhere at the worksite. The court insteаd found that the commission could reasonably construe
{¶ 5} Three issues are presented for our review: (1) Did the commission abuse its discretion in finding that Avalotis had to rig the lifeline in order to “provide” it for the purpose of
Ohio Adm.Code 4121:1-3-03(J)(1)
{¶ 6}
“Lifelines, safety belts and lanyards shall be provided by the employer and it shall be the responsibility of the employеe to wear such equipment when * * * exposed to hazards of falling [because] the operation being performed is more than fifteen feet above ground or above a floor or platform * * *. Lifelines and safety belts shall be securely fastened to the structure * * *.” 1979-1980 OMR 4-25, 4-28.
{¶ 7} A “lanyard” is “a rope, suitable for supporting one person. One end is fastened to a safety belt or harness and the other еnd is secured to a substantial object or a safety line.” A “lifeline” is defined as “a rope suitable for supporting one person to which a lanyard or safety belt (harness) is attached.” A “safety belt оr harness” is “a device, worn around the body, which, by reason of its attachment to a lanyard and lifeline or a structure, will prevent an employee from falling.”
{¶ 8} Avalotis argues that in assigning the responsibility to actually rig a lifeline to the employer, thе commission‘s construction tacks onto
{¶ 9} The court of appeals rejected these arguments, again because the lifeline was not in place at the site from which Gordon fell. The court explained:
“[T]he commission did not abuse its discretion in defining and applying ‘provide’ * * * to the facts of this case. Specifically, we find that the commission did not abuse its discretion when it interpreted
Ohio Adm.Code 4121:1-3-03(J) to require the employer to have a lifeline in place in the area where their employees are instructed to work. A lifeline is useless if it‘s not in place for the employee to tie off. This interpretation is reasonable and logical and, thereforе, affords [Avalotis] notice of its obligation pursuant to the code.”
{¶ 10} In reaching this conclusion, the court of appeals adopted its magistrate‘s report, which distinguished a lifeline from either a lanyard or a safety belt because, under
{¶ 11} Testimony showed that the responsibility for rigging this particular lifeline belonged to another shift and, furthermore, that it required a crew of employees to do it. Thus, while Gordon, who knew how to rig a lifeline, could have been more cautious and demanded the installation of a lifeline from his foreman, as a practical matter, it was not his job. He, therefore, had no basis to enforce this specific safety requirement, particularly after his foreman had just told him what he was to do and where.
{¶ 12} Accordingly, the commission was justified in applying
Foreman‘s Instruction
{¶ 13} The commission found thаt by directing Gordon to skin out on beams to paint them, Gordon‘s foreman specifically ordered him to work without a lifeline. Avalotis claims that the commission ignored testimony describing the practice оf skinning and found a VSSR because Gordon‘s foreman told him to paint without any safety protection whatsoever. The court of appeals agreed and consequently found an abuse of discretion becausе no evidence supported the conclusion that skinning was performed, in effect, without tying off at all.
{¶ 14} The court of appeals considered this abuse of discretion harmless in view of the other еvidence establishing the instant VSSR; however, we see no abuse of discretion at all. Evidence in the record supports the commission‘s conclusion. Gordon‘s foreman testified that while he knew Gordon‘s work area had not been rigged with a lifeline, he thought that a lifeline could not be rigged in that space and that skinning was the only way to get the job done. He was wrong on all counts. A lifeline was rigged shortly after Gordon‘s accident, and
Evidence of a VSSR
{¶ 16} The court of appeals found evidence from which the commission could determine a VSSR, holding:
“[W]e conclude that the commission did not abuse its discretion when it determined that [Avalotis] failed tо provide the requisite safety equipment. There was ‘some evidence’ in the record to support the commission‘s determination that the area where claimant was working was not rigged with a lifelinе; that the claimant was too far away from any other objects to which he could have tied off; that looping his lanyard around the beam on which he was working would have made it impossible to pеrform the work he was instructed to do; and that the claimant was, indeed, instructed by his foreman * * * to work in an area [that] was not rigged with a lifeline.”
{¶ 17} Avalotis contends that the commission failed to articulate рrecisely how it violated the standard in
“[T]he commission did comply with [State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245]. There was no rigging for [Gordon] to tie off where he was ordered to work. That alone is a sufficient explanation as to how [Avalotis] failed to make a lifeline available.”
{¶ 18} Based on the foregoing, the commission did not abuse its discretion in any respect by finding Avalotis in violation of
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, for appellant.
Betty D. Montgomery, Attorney General, and William J. McDonald, Assistant Attorney General, for appellee Industrial Commission of Ohio.