Appellant first contends that the court of appeals’ interpretation of Ohio Adm. Code 4121: l-3-10(C)(ll) violаtes the constitutional mandate that a safety regulation be a specific requirement. Seсond, appellant contends that appellee’s unilateral negligence precludеs a finding of VSSR liability. We agree with both contentions.
As to appellant’s first contention, Section 35, Article II of the Ohio Constitution states that the commission must determine whether the injury resulted from the employer’s failure “* * * to comply with any specific requirement.” Elaborating, this court, in State, ex rel. Holdosh, v. Indus. Comm. (1948),
Ohio Adm. Code 4121:1-3-10(0) (11) provides that “[t]he poles, legs, or uprights of scaffolds shall be plumb and securely and rigidly braced to prevent swaying and displacement.” In this case, the commission determined that appellant had violated that provision, relying on appellant’s faulty supervision in permitting the placement of cross braces over stringer braces. The commission found that the juxtaposition of braces constituted an improper assembly, yet failed to cite any specific requirement specifying the order of brace installation. The court of аppeals found that the assembly was not improper in and of itself, but became improper once appellee removed the cross brace. The court denied relief, howevеr, on the basis that Ohio Adm. Code 4121:l-3-10(C)(ll) imposed on appellant a duty to ensure that the scaffolds were securely braced at all times and to take additional precautions if necessary. It was the court’s finding that, in this case, appellant failed to comply with this burden.
The court of appeаls’ interpretation of Ohio Adm. Code 4121:l-3-10(C) (11) fails to plainly apprise the
This court similarly rejects the appellate court’s suggestion that the employer owes an absolute duty to ensure that the scaffolding remains seсure at all times. Such language is not contained in Ohio Adm. Code 4121:1-3-10(C)(11). While the regulation does require that the employer provide a securely and rigidly braced scaffold, it does not impose a duty of constant surveillance over the equipment.
Appellant’s second contention is also well-taken. A VSSR award is precluded by claimant’s unilateral negligence in removing the top cross bracе without first installing a corresponding cross brace beneath, contrary to instructions. In State, ex rel. Lewis, v. Indus. Comm. (Mar. 15, 1984), Franklin App. Nо. 83AP-756, unreported, the claimant voluntarily switched off a punch press safety device despite specific rules to the contrary. Operation of the press subsequent to the safely feature’s еlimination resulted in claimant’s injury. The Lewis court denied the writ seeking a VSSR award, finding that that employer had fully cоmplied with the applicable safety regulations and the claimant’s unilateral act violatеd the safety requirement. Elaborating, the court stated that:
“There was no regulation in force at thе time applicable to the punch press used by relator that any method for switching the machinе to an unguarded condition be kept within the exclusive control of the employer.
“Since therе was evidence that the machine was guarded until the guard was avoided by relator’s unilateral act, the Industrial Commission did not abuse its discretion in failing to find that the employer violated a specific sаfety requirement.” Id. at 5.
Here, too, the scaffold was properly assembled and in compliance with the applicable safety requirement until appellee’s removal of the cross braсe.
The Lewis decision comports with several of our previous decisions which hold that VSSR awards penаlize an employer. State, ex rel. Whitman, v. Indus. Comm. (1936),
Accordingly, we find that the Industrial Commission abused its discretion in granting appellee a VSSR award. The judgment of the court of appeals is hereby reversed and the rеquested writ of mandamus directing the commission to deny claimant’s VSSR application is allowed.
Judgment reversed and writ allowed.