THE STATE EX REL. GLUNT INDUSTRIES, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 2010-1948
Supreme Court of Ohio
May 16, 2012
132 Ohio St.3d 78, 2012-Ohio-2125
Submitted March 20, 2012
Raymond L. Katz, for appellant.
[Cite as State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125.]
Per Curiam.
{¶1} Appellee, Thomas E. Hamrick II, has alleged that his employer, appellant Glunt Industries, Inc., committed a violation of a specific safety requirement (“VSSR“). The requirement in question directs employers to supply protective apparatus to employees working on specified electrical equipment. Hamrick asserts that this violation proximately caused his industrial injury, and he now seeks additional workers’ compensation benefits for that alleged violation.
{¶2} On April 19, 2006, Glunt experienced a plantwide power failure, and Hamrick, an electrician, alleges that he was told to investigate. Hamrick went first to the plant‘s main electrical breaker cabinet. It is undisputed that he was not using or wearing any electrical safety equipment.
{¶3} The main breaker cabinet housed two separate breakers, each with a separate cover panel that had to be removed in order to access the circuitry inside. The right side of the breaker had 440/480 volts, and the left side, 4,160. Hamrick denied that the cabinet had high-voltage warning signs or signs specify-
{¶4} While Hamrick was standing in front of the cabinet, it exploded, and he was seriously injured. The inquiry that followed focused heavily on whether Hamrick had accessed the higher-voltage left side of the breaker cabinet—an action that Glunt claimed was forbidden by company policy. Physical evidence established that the higher-voltage left side of the cabinet was damaged, but it did not conclusively establish that Hamrick had opened the cabinet on that side. Glunt‘s safety manual, for example, indicated that when two unequal circuits were adjacent, a minor shock from the lower-voltage side could rebound into the higher circuit and cause an explosion.
{¶5} Hamrick‘s memory of events is inconsistent, due at least in part to the massive head trauma he sustained. Hamrick‘s earliest and most detailed statement of record indicates that he opened the cabinet‘s higher-voltage left side and inadvertently crossed some wires. A later affidavit disavowed any memory of his actions just before the explosion. Still later, Hamrick testified that he was certain that he had never opened the left panel, only the right.
{¶6} Hamrick‘s VSSR application was heard by a staff hearing officer (“SHO“) for appellee Industrial Commission of Ohio. At issue was
Unless the electrical conductors or equipment to be worked on are isolated from all possible sources of voltage or are effectively grounded, the employer shall provide protective equipment approved for the voltage involved, such as rubber gloves with protectors, rubber sleeves, hot line tools, line hose, line guards, insulator hoods, blankets, and access boards.
(Emphasis added.)
{¶7} Glunt admitted that with the possible exception of safety gloves, it had not provided Hamrick with the safety equipment required by
{¶8} Glunt additionally tried to disavow a causal relationship between the absence of safety equipment and Hamrick‘s injuries. Glunt argued that it would
{¶9} The SHO granted Hamrick‘s VSSR application after first determining that
{¶10} In finding that the provision had been violated, the SHO stressed that
{¶11} After the commission denied reconsideration, Glunt filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had abused its discretion in finding a VSSR. The court of appeals disagreed and denied the writ, prompting Glunt‘s appeal to this court as of right.
{¶12} A VSSR award has been characterized as a penalty. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). Thus, the specific safety regulation must be strictly construed in the employer‘s favor, and all reasonable doubts concerning its applicability must be resolved in the employer‘s favor. Id.
{¶13}
{¶14} Glunt believes that Hamrick caused the explosion by opening the higher-voltage left breaker panel. This prompted considerable debate at the hearing as to whether Hamrick was authorized to work on circuitry over 440/480 volts. No one disputes, however, that Hamrick was permitted to service equipment with a voltage of 440/480 or below, which would include the main breaker‘s right-side circuit. This alone negates Glunt‘s claim that Hamrick‘s mere presence at the main breaker cabinet was unauthorized. The evidence, moreover, suggests at least two possible causes for the explosion that implicate the cabinet‘s
{¶15} We find that Glunt‘s main breaker cabinet was “equipment to be worked on” that was covered by
{¶16} Glunt also argues that the absence of safety equipment did not proximately cause Hamrick‘s injury, because even if it had been available, Hamrick would not have used it. Glunt bases this assertion on Hamrick‘s statement that he did not need any safety equipment for the task he was performing when he was injured. Glunt‘s statement, however, is only conjecture, given Hamrick‘s necessary proximity to a 4,160-volt circuit, and it goes less to proximate cause than it does to the defense of unilateral claimant negligence. This defense, however, is available only if the employer first complies with the applicable safety requirement. Compare State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162, 524 N.E.2d 482 (1988) (award denied because employer fully complied with specific safety requirement, and claimant‘s injury was caused by his own negligence). Glunt cannot take advantage of this defense, since it did not satisfy
{¶17} The judgment of the court of appeals is affirmed.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Jennifer A. Flint, for appellant.
Michael DeWine, Attorney General, and Charissa D. Payer, Assistant Attorney General, for appellee Industrial Commission.
Harrington, Hoppe & Mitchell, Ltd., Kevin P. Murphy, and Matthew G. Vansuch, for appellee Hamrick.