THE STATE EX REL. BYINGTON BUILDERS, LIMITED, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
Slip Opinion No. 2018-Ohio-5086
No. 2017-0690
SUPREME COURT OF OHIO
December 20, 2018
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip Opinion No. 2018-Ohio-5086.]
Workers’ compensation—Violation of specific safety requirement—Industrial Commission did not abuse its discretion in granting additional award—Record contained evidence supporting commission’s finding that specific safety requirement applied, that employer violated it, and that violation was proximate cause of injury—Court of appeals’ judgment denying of writ of mandamus affirmed.
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. 2018-OHIO-5086
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip Opinion No. 2018-Ohio-5086.]
(No. 2017-0690—Submitted July 31, 2018—Decided December 20, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 15AP-407, 2017-Ohio-2623.
I. INTRODUCTION
{¶ 1} This is a workers’ compensation case in which appellee Industrial Commission awarded appellee Thomas Trousdale additional compensation for the violation of a specific safety requirement (“VSSR”) by appellant, Byington Builders, Ltd. (“Byington Builders”). Byington Builders asks this court to reverse the Tenth District Court of Appeals’ judgment denying its request for a writ of mandamus compelling the commission to vacate its VSSR award.
{¶ 2} Byington Builders raises two issues in this appeal: (1) whether the commission abused its discretion by finding that Byington Builders violated a specific safety requirement and (2) whether the commission abused its discretion by failing to find that the proximate cause of Trousdale’s injuries was his own “unilateral negligence.” We affirm the denial of the writ.
II. FACTS AND PROCEDURAL HISTORY
A. Trousdale’s Employment and Injury
{¶ 3} On September 2, 2011, Trousdale fell from the pitched roof of a two-story apartment building in Sandusky, while working for Byington Builders. Trousdale was an experienced roofer and a union carpenter who had been assigned to install caps at the peak of the roof. On his way to get more caps, Trousdale stepped on some loose shingles midway down the roof, slipped, slid down the surface, went over the edge, fell 22 feet, and hit the ground, landing on his buttocks. He was transported to a hospital by ambulance.
{¶ 4} Trousdale filed a claim for workers’ compensation benefits. The claim was allowed for compression fracture; lumbar compression fracture; buttock, left-hip, and left-elbow contusion; disc protrusion; stenosis; chronic compression deformities of thoracic and lumbar vertebrae; substantial aggravation of pre-existing disc protrusion and of degenerative disc disease; and severe and chronic major depressive disorder.
B. Trousdale’s VSSR Claim
1. Application
{¶ 5} On November 8, 2012, Trousdale filed an application for an additional award for a VSSR. Trousdale claimed that Byington Builders violated specific safety requirements set forth in former
{¶ 6}
2. Hearing
{¶ 7} A staff hearing officer (“SHO”) for the commission took evidence at a hearing that was held on November 12, 2014. At the hearing, the owner of Byington Builders, Aaron Byington (“Byington”), stipulated that the roof from which Trousdale fell had a pitch of 6 inches in 12, was 22 feet above the ground, and had no parapet. Trousdale testified that he thought the pitch was 8 inches in 12 but that he could not be certain and that “[s]ix 12, eight 12 is not very much of a difference by looking.” It is therefore undisputed that the pitch was at least 6 inches in 12—i.e., that the roof gained 6 inches in height for every 12 inches in length.
{¶ 8} Trousdale, Byington, and Thomas Mock, Byington Builders’ “lead man” on the job, all testified that on the day that Trousdale fell, no catch platforms had been installed and no safety belts, harnesses, or lifelines were being used by anyone working on the apartment roof. Byington admitted that he did not require his employees to use safety harnesses and that
{¶ 9} Trousdale testified that a few days before he fell, another Byington Builders employee fell from the same roof and landed on an apartment balcony. According to Trousdale, Byington Builders made no changes in the use of safety equipment after this incident. Coworker Rodney Clift, a fellow union carpenter, also testified that an employee fell from the roof and landed on a balcony. Byington Builders presented no testimony or other evidence at the hearing disputing the fact that another employee fell from the same roof a few days before Trousdale did.
{¶ 10} The parties presented conflicting testimony about whether any safety harnesses and lifelines were available at the job site. Byington, Mock, and Pengob all testified that they had made Trousdale aware that safety harnesses and lifelines were kept in an equipment trailer that, according to Byington, was located ten feet from the building from which Trousdale fell. By contrast, Trousdale testified that he never saw the trailer or any harnesses, ropes, lanyards, or roofing brackets on the job site and that neither Byington nor any supervisor ever told him that he was required to get safety equipment from a trailer. Clift also testified that he never saw a trailer or any safety equipment at the job site.
3. Order
{¶ 11} In the commission’s order, mailed on November 20, 2014, the SHO denied Trousdale’s VSSR application in part and granted it in part. The SHO found that
{¶ 12} The SHO resolved the factual dispute regarding the availability of the safety equipment in Byington Builders’ favor but found that “[e]ven when construing the evidence in favor of the Employer, [i.e.,] that the safety equipment was on-site and that the Injured Worker knew of its availability,” Byington Builders still violated the provision. Mere availability did not suffice, because “[e]ven assuming safety belts were available, [
{¶ 13} The SHO awarded additional compensation in the amount of 40 percent of Trousdale’s maximum weekly rate due to this VSSR, finding that the violation was serious and noting that another worker had fallen off the same roof a few days before Trousdale fell.
{¶ 14} Byington Builders moved for a rehearing, arguing that
C. Byington Builders’ Mandamus Action
{¶ 15} In April 2015, Byington Builders filed its mandamus complaint asking the Tenth District Court of Appeals to issue a writ directing the commission to vacate its prior decisions and to enter an order denying Trousdale’s request for a VSSR award. In support of its claim that the commission abused its discretion, Byington Builders again asserted that it had not violated
{¶ 16} A Tenth District magistrate recommended that the court deny the writ. 2017-Ohio-2623, at ¶ 51. Taking guidance from State ex rel. Avalotis Painting Co. v. Indus. Comm., 91 Ohio St.3d 137, 742 N.E.2d 1124 (2001), in which this court discussed
{¶ 17} Byington Builders objected to the magistrate’s recommendation, reiterating its prior arguments and asserting that the facts in Avalotis are distinguishable from those in this case. The Tenth District overruled Byington Builders’ objections and adopted the magistrate’s decision as its own. Byington Builders filed a timely appeal of the Tenth District’s judgment.
III. ANALYSIS
A. Requirements for a VSSR Award
{¶ 18} “An award for a VSSR is ‘a new, separate, and distinct award’ over and above standard workers’ compensation benefits. It is not covered by an employer’s
B. Requirements for a Writ of Mandamus
{¶ 19} To prevail on its claim for mandamus relief, Byington Builders 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. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-Ohio-4525, 41 N.E.3d 1233, ¶ 13. “The interpretation of a specific safety requirement is within the final jurisdiction of the commission and may be corrected in mandamus only upon a showing that the commission abused its discretion.” Precision Steel at ¶ 21. “[B]ecause a VSSR award is a penalty imposed on an employer, specific safety requirements must be strictly construed and all reasonable doubts concerning the interpretation of a particular safety regulation must be resolved in favor of the employer.” Id.
C. The Industrial Commission Did Not Abuse Its Discretion
1. The Specific Safety Requirement Applied
{¶ 20} Chapter 4123:1-3 of the Ohio Administrative Code applies to the construction and repair of buildings.
2. Byington Builders Violated the Specific Safety Requirement
a. The Requirements of Ohio Adm.Code 4123:1-3-09(F)(1)
{¶ 21} This case hinges on what
i. The plain text of Ohio Adm.Code 4123:1-3-09(F)(1) resolves the issue
{¶ 22}
{¶ 23} Because Byington Builders admits that it did not install catch platforms, the question becomes whether safety harnesses attached to securely fastened lifelines were used. This depends on what “used” means. “Use” is not a defined term in the applicable division of the Ohio Administrative Code, so this court must afford the word its common meaning. State ex rel. Parks v. Indus. Comm., 85 Ohio St.3d 22, 25, 706 N.E.2d 774 (1999) (“ ‘The [commission’s] rules for specific safety requirements have the effect of legislative enactments’ and therefore are ‘subject to the ordinary rules of statutory construction’ ” [brackets sic]), quoting State ex rel. Miller Plumbing Co. v. Indus. Comm., 149 Ohio St. 493, 496-497, 79 N.E.2d 553 (1948);
{¶ 24} The dictionary definition of “use” is “to put into action or service * * * EMPLOY.” Webster’s Third New International Dictionary 2523 (2002). Byington Builders would have “use” mean “make available.” But the safety-and-hygiene rules already have a word with that definition: “ ‘Provide’ means to make available,”
{¶ 25} Because the applicable rule employs the word “used” rather than the
ii. The plain meaning of the rule is consistent with the commission’s interpretation, which is not “patently illogical”
{¶ 26} This court is “normally obligated to defer to the commission’s interpretation of its own rules,” State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 79-80, 661 N.E.2d 724 (1996), and this straightforward reading of the text of
{¶ 27} While “[t]he commission has the discretion to interpret its own rules * * *, where the application of those rules to a unique factual situation gives rise to a patently illogical result, common sense should prevail.” State ex rel. Harris v. Indus. Comm., 12 Ohio St.3d 152, 153, 465 N.E.2d 1286 (1984), abrogated on other grounds, State ex rel. AK Steel Corp. v. Davis, 123 Ohio St.3d 458, 2009-Ohio-5865, 917 N.E.2d 797. Citing this principle, Byington Builders argues that it is illogical to require an employer to install lifelines that an employee might choose not to use.
{¶ 28} However, we are not convinced that Byington Builders’ situation is unique or that the application of
iii. Ohio Adm.Code 4123:1-3-03(J)(1) does not alter the requirements of Ohio Adm.Code 4123:1-3-09(F)(1)
{¶ 29} Byington Builders’ primary argument is that
{¶ 30}
Lifelines, safety belts or harnesses and lanyards shall be provided by the employer, and it shall be the responsibility of the employee to wear such equipment when exposed to hazards of falling where the operation being performed is more than six feet above ground or above a floor or platform, except as otherwise specified in this chapter, and when required to work on stored material in silos, hoppers, tanks, and similar storage areas. Lifelines and safety belts or harnesses shall be securely fastened to the structure and shall sustain a static load
of no less than three thousand pounds.
(Emphasis added.) This is a general rule relating to personal protective equipment. By contrast,
{¶ 31}
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
{¶ 32} Here, it is possible to give effect to both
{¶ 33}
{¶ 34} For these reasons, the Tenth District’s focus on Avalotis, 91 Ohio St.3d 137, 742 N.E.2d 1124—and Byington Builders’ attempts to distinguish it—are misplaced. In Avalotis, a painter stood on a narrow I-beam, without a lifeline, in order to paint the beam above. He lost his balance and fell four stories. This court considered the only rule at issue—the predecessor to
b. Byington Builders Violated Ohio Adm.Code 4123:1-3-09(F)(1)
{¶ 35} It is undisputed that (1) Byington Builders required Trousdale to work on a roof with a pitch greater than four inches in twelve, that was more than 16 feet from the ground, and that had no parapet, (2) Byington Builders did not install catch platforms, and (3) safety belts or harnesses
3. Byington Builders’ Violation Proximately Caused Trousdale’s Injuries
a. Evidence Supports The Commission’s Finding of Probable Cause
{¶ 36} The commission did not abuse its discretion by finding that Byington Builders’ compliance with
b. The “Unilateral Negligence” Defense Is Inapplicable
{¶ 37} Byington Builders argues that the proximate cause of Trousdale’s injuries was his own “unilateral negligence in failing to utilize the available safety equipment” and that under State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162, 524 N.E.2d 482 (1988), Trousdale’s negligence precludes his receipt of a VSSR award.
i. Byington Builders’ VSSR bars its assertion of unilateral negligence
{¶ 38} In Frank Brown & Sons, this court held that an injured worker’s “unilateral negligence in removing the top cross brace” from a scaffold “without first installing a corresponding cross brace beneath, contrary to instructions” precluded his receipt of a VSSR award. Id. at 164. In its analysis, this court recounted the facts of State ex rel. Lewis v. Indus. Comm., Franklin App. No. 83AP-756, 1984 WL 4703 (Mar. 15, 1984), in which the injured worker had “voluntarily switched off a punch press safety device despite specific rules to the contrary,” leading to his injury. Frank Brown & Sons at 164. The court of appeals had “denied the writ seeking a VSSR award, finding that the employer had fully complied with the applicable safety regulations and the claimant’s unilateral act violated the safety requirement.” Id. The court of appeals in Frank Brown & Sons then concluded, “Here, too, the scaffold was properly assembled and in compliance with the applicable safety requirement until appellee’s removal of the cross brace.” Id.
{¶ 39} These cases illustrate the rule that dispatches Byington Builders’ unilateral-negligence argument—i.e., that this defense “is available only if the employer first complies with the applicable safety requirement.” (Emphasis added.) State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125, 969 N.E.2d 252, ¶ 16 (despite injured worker’s statement that he did not need any safety equipment to perform the task he was set to complete, employer could not take advantage of unilateral-negligence defense since it did not satisfy VSSR requiring it to provide electrical-safety equipment).
{¶ 40} As this court has explained, “the defense is not actually about an employee’s
{¶ 41} Because Byington Builders failed to comply with
ii. Trousdale was not unilaterally negligent
{¶ 42} Moreover, even if the applicable rule had required Byington Builders to do no more than make safety equipment available to Trousdale and Byington Builders had done so, this case does not fit the mold of those that have allowed employers to avoid a VSSR award due to the injured worker’s unilateral negligence. This is not a case in which a rogue employee disregarded direct instructions to use certain safety equipment, or disabled an employer-provided safety device. Compare Frank Brown & Sons, 37 Ohio St.3d 162, 524 N.E.2d 482; Lewis, Franklin App. No. 83AP-756, 1984 WL 4703; Quality Tower Serv. To the contrary, Byington Builders’ owner and supervisors never instructed any employees to use safety equipment and no employees—including the two supervisors—were using any safety equipment on this job, with the approval of the owner.
{¶ 43} Accordingly, Trousdale’s failure to use safety equipment was hardly unilateral, and Byington Builders’ claim that Trousdale was negligent makes little sense. Byington Builders casts the decision to leave safety equipment in the equipment trailer on this particular job as the educated decision of experienced roofers. In light of this position, Byington Builders’ argument that Trousdale was negligent implies that its entire crew, including its supervisors and owner, were also acting negligently.
{¶ 44} Had Byington Builders required its crew to use safety harnesses attached to lifelines that were securely attached to the structure and had Trousdale alone, unbeknownst to Byington Builders, failed to heed that instruction, we would likely view this case differently. As it is, because Byington Builders failed to comply with the applicable specific safety requirement and because Trousdale’s actions did not constitute “unilateral negligence,” the defense is inapplicable.
IV. CONCLUSION
{¶ 45} For the reasons above, the commission did not abuse its discretion in granting Trousdale a VSSR award, and the Tenth District correctly denied Byington Builders’ request for a writ of mandamus. We affirm the Tenth District’s judgment.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEGENARO, JJ., concur.
KENNEDY, J., dissents, with an opinion.
KENNEDY, J., dissenting.
{¶ 46} Because the plain language of
{¶ 47} While working as a roofer for Byington Builders, Trousdale fell from a roof and sustained injuries. He was awarded workers’ compensation benefits and then sought an additional award for a violation of
{¶ 48} Byington Builders filed this mandamus action in the Tenth District Court of Appeals, seeking to vacate the VSSR award. The Tenth District denied the writ, and a majority of this court affirms, holding that
{¶ 49} The majority’s analysis in affirming the court of appeals disregards the standard of review, which requires the court to strictly construe specific safety requirements and to resolve all doubts concerning the meaning and applicability of a particular requirement in favor of the employer. State ex rel. 31, Inc. v. Indus. Comm., 152 Ohio St.3d 350, 2017-Ohio-9112, 96 N.E.3d 246, ¶ 21, citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). A VSSR award is a penalty imposed on an employer, id., and we have explained that specific safety requirements must establish “ ‘specific and definite requirements or standards of conduct * * * [that] are of a character plainly to apprise an employer of his legal obligation toward his employees,’ ” (alterations in Precision Steel) State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, 47 N.E.3d 109, ¶ 17, quoting State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972), paragraph one of the syllabus. In other words, an employer cannot be penalized for failing to comply with a safety requirement unless “mandatory specific duties are apparent to an employer interpreting [the] provision.” State ex rel. Oliver v. Southeastern Erectors, Inc., 76 Ohio St.3d 26, 28, 665 N.E.2d 1108 (1996).
{¶ 50}
{¶ 51} Nonetheless, the majority’s analysis focuses on the word “use,” explaining that “[t]he dictionary definition of ‘use’ is ‘to put into action or service * * * EMPLOY.’ ” (Ellipsis and capitalization sic.) Majority opinion at ¶ 24, quoting Webster’s Third New International Dictionary 2523 (2002). It reasons that because
{¶ 52} Another rule,
{¶ 53} The majority’s attempt to buttress its analysis as being consistent with the commission’s interpretation of
{¶ 54}
{¶ 55} Accordingly, I would reverse the judgment of the court of appeals and issue a writ of mandamus compelling the commission to vacate the VSSR award against Byington Builders.
Christopher S. Clark, for appellant.
Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant Attorney General, for appellee Industrial Commission.
Kademenos, Wisehart, Hines, Dolyk & Zeiher Co., L.P.A., and Janet L. Phillips, for appellee Thomas Trousdale.