THE STATE EX REL. GO-JO INDUSTRIES, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 96-1018
SUPREME COURT OF OHIO
Submitted October 13, 1998—Decided November 10, 1998.
83 Ohio St.3d 529 | 1998-Ohio-23
APPEAL frоm the Court of Appeals for Franklin County, No. 95APD03-324.
{¶ 2} As lead operator of the Cartoner, claimant had many duties, including ensuring that product requirements and quotas were met. Towards this end, there was testimony that claimant had been instructed to keep the production line moving “no matter what.” In order to do so, it was imperative to immediately remove from the Cartoner partially opened L-shaped cartons.
{¶ 4} At the time of injury, the line was experiencing an unusually high number of L-cartons. For this reason, claimant positioned himself at what he considеred from experience and observation of superiors to be a strategic place on the line to watch for L-cartons. Claimant spotted an L-carton and reached into the Cartoner to remove it. Before he could withdraw his hand, the transport system indexed. Lacking an accessible means of stopping the machine, claimant had his hand pulled into the system, resulting in the injury of recоrd.
{¶ 5} After his workers’ compensation claim was allowed, claimant moved appellee Industrial Commission of Ohio for additional compensation, alleging that Go-Jo had violated several specific safety requirements (“VSSRs“). Among those VSSRs alleged were
“Rule 4121: 1-5-05. AUXILIARY EQUIPMENT.
” * * *
“(C) Power-driven conveyors — chain, bucket, belt, hook and screw.
” * * *
“(2) Conveyors exposed to contact.
“All conveyors, where exposed to contact, shall be equipped with mеans to disengage them from their power supply at such points of contact.
” * * *
“(D) Machinery control.
“(1) Disengaging from power supply.
“Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. * * *”
{¶ 6} On October 22, 1993, a commission staff hearing officer (“SHO“) found a violation of “[T]he Motion for Rehearing [is] granted for the reason [that] it has demonstrated that the order of 10/22/93 was based on an obvious mistаke of fact, in accordance with “Based on a review of the evidence in file, it is concluded that the Jones Cartoner, which is the machinery upon which claimant was injured, is not a conveyor and it was incorrect for the Hearing Officer to rule that it was a convеyor. “The Jones Cartoner is part of the overall production process but it actually is a self contained automated packing system which is fed materials (which in this case is [sic] plastic bags of soap) by a conveyor belt. After receiving the bags of soap[,] the Jones Cartoner packages the soap in containers and then these containers are fed into an out-feed сonveyor system. “Consequently, while the Jones Cartoner is separated by conveyor belts leading materials to and away from it, that area itself is not a belt driven conveyor area, but it is a packaging unit separate and apart from the conveyor belts of this production system. “Pursuant to Industrial Commission Rule 4121-3-20, the order of October 22, 1993 is vacated. Claimant‘s Application is ordered set for reheаring.” {¶ 7} On rehearing, on August 22, 1994, a third SHO found a violation of “It is further the finding of the Staff Hearing Officer that the claimant‘s injury was the result of the failure of the employer to install a panic button or other disengagement device adjacent to the conveyor as required by 4121:1-5-05(C)(2) and (D)(1) * * *. ” * * * “It is ruled, however, that the ‘transportation system’ (claimant‘s own choice of words) or ‘transport system’ (employer‘s choice of words) of the Jones IMV Cartoner is in fact a conveyor within any definitions of the term. “In addition to the various dictionary definitions submitted, the undersigned specifically adopts the definition of the American Society of Mechanical Engineers * * *. Absent an Administratively adopted definition, the following is ruled authoritative: ” ‘Conveyor — a horizontal, inclined, or vertical device for moving or transporting bulk material, packages, or objects, in a path predetermined by the design of the device, and having points of loading and discharge, fixed or selective. * * *’ “The undersigned rules that the ‘transport system’ is a ‘chain conveyor’ as further defined at the same citation. See also, the ‘Accident Prevention Manual for Industrial Operations‘, 1977 Edition, pp. 696, 701 & 702, which is helpful both for its definitions and illustrations * * *. “The affidavit of employer‘s enginer [sic] Michael Duta, is instructive: while denying that the transport [system] of the Jones Cartoner is a conveyor, he explains at Paragraph 6 that the machine‘s lugs are attached to ‘drive chains.’ Keenan Baker likewise denies that the transport system is a ‘conveyor‘, but that it ’ * * * has a gear drive, and there are plastic fingers that are attached to a chain that is internal to the machine * * *.’ In a word: it is a horizontal chain conveyor pursuant to ” * * * “[The] Employer has stipulated that until the date of injury or record, no ‘means of disengagement’ had been installed on the conveyor side of its Jones IMV Cartoner. “Having found the claimant to have been injured on said Jones IMV Cartoner at its conveyor component, it is held that the same was a proximate consequence of employer‘s failure to install a ‘panic button’ as illustrated conspicuously at Exhibit 1[b] or some other means of disengagement, and that, therefore, [the] employer was in violatiоn of ” * * * “It is further independently held that [the] employer was in violation of ” * * * {¶ 8} A subsequent motion for rehearing was denied. {¶ 9} Go-Jo filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abusеd its discretion in finding the two violations. The court of appeals was unpersuaded and denied the writ. {¶ 10} This cause is now before this court upon an appeal as of right. Buckingham, Doolittle & Burroughs, Timothy C. Campbell and Richard A. Hernandez, for appellant. Betty D. Montgomery, Attorney General, and Patsy Thomas, Assistant Attorney General, for appellee Industrial Commission. Ben Scheerer Law Offices and Thomas R. Pitts, for appellee Gist. {¶ 11} The two specific safety requirements before us are power-disengagement requirements. Go-Jo concedes that there was no power-disengagement devicе at the location where claimant was injured. At issue is the applicability of those provisions and the evidentiary support underlying the commission‘s determination that they were violated. For the reasons to follow, we find that the commission did not abuse its discretion in assessing these penalties. {¶ 12} This section provides: “All conveyors, where exposed to contact, shall be equipped with means to disengage them from their рower supply at such points of contact.” {¶ 13} Go-Jo opposes, on two grounds, the commission‘s conclusion that the Jones Cartoner was a conveyor. Go-Jo initially argues that this conclusion was barred by the commission‘s March 2, 1994 order. Go-Jo contends that the March 2 order specifically found that the Cartoner was not a conveyor, and that the commission was subsequently bound by that determination. Appellees dispute the order‘s conclusive effect, describing the order as simply interlocutory. We agree. {¶ 14} The March 2, 1994 order was generated by Go-Jo‘s request for reconsideration, and was promulgated pursuant to {¶ 15} Our holding is further supported by the mechanics of {¶ 16} Further, Go-Jo argues that there is not “some evidence” to support the August 22, 1994 conclusion that the Cartoner was a conveyor. Go-Jo contends alternatively that even if the Cartoner was a conveyor, it was an internal conveyor, which exempts Go-Jo from liability. Neither assertion has merit. {¶ 17} “[A] horizontal, inclined, or vertical device for moving or transporting bulk material, packages, or objects, in a path predetermined by the design of the device, and having рoints of loading and discharge, fixed or selective. Included are skip hoists, and vertical reciprocating an[d] inclined reciprocating conveyors. Typical exceptions are those devices known as industrial trucks, tractors, trailers, tiering machines (except pallet load tierers), cranes, hoists, power shovels, power scoops, bucket drag lines, trenchers, platform еlevators designed to carry passengers or an operator, manlifts, moving walks, moving stairways (escalators), highway or railway vehicles, cableways, tramways, dumbwaiters, pneumatic conveyors, robots, or integral transfer devices.” {¶ 18} In finding that the apparatus at issue fell within this definition, the SHO relied on, among other things, photos of the Cartoner submitted at hearing. There was, therefore, “some evidence” suрporting the SHO‘s finding. {¶ 19} Go-Jo alternately responds that even if the Cartoner was correctly found to be a conveyor, it was an “internal conveyor” to which no liability attaches, {¶ 20} The Ford decision—which we affirmed at 67 Ohio St.3d 121, 616 N.E.2d 228—is distinguishable from this case. Ford involved an employee who worked in a plant powerhouse, which supplied steam to the rest of the plant by way of coal-fired boilers. Coal was carried to the boilers by a series of enclosed drag bucket conveyors. On the date of injury, Ford and a co-worker were repairing one of those conveyors. {¶ 21} In order to determine which buckets were broken, Ford removed a hinged cover on top of the conveyor enclosure and observed the passing buckets as his companion operated the conveyor. When a damagеd bucket was finally spotted, Ford told his co-worker to stop the machine. Ford then climbed into the conveyor before his fellow employee had a chance to “lock out” the machine‘s power source. Ford was killed when the conveyor was unknowingly reactivated from a remote location. {¶ 22} Ford‘s widow alleged a violation of ” “Because neither ‘accessible’ nor ‘course of operation’ is defined in the Revised or Administrative Code, the interpretation of these terms is within the commission‘s final jurisdiction. * * * In this case, decedent was killed inside an enclosed conveyor. If the conveyor and its attached drag buckets had been moving at the time, decedent could not have entered the enclosure. Only if the conveyor was first stopped could decedent have gained access to the area in which he died. Given the commission‘s duty to strictly construe specific safety requirements in the employer‘s favor * * *, the commission did not abuse its discretion in finding that a location which is accessible only during cessation of operation was not ‘accessible’ in the ‘course of operation,’ and was not made so merely because the convеyor subsequently started running.” (Citations omitted; emphasis sic.) Id., 67 Ohio St.3d at 122-123, 616 N.E.2d at 229-230. {¶ 23} The basis for our decision in Ford is inapplicable here. The decision in Ford did not rest on the mere fact that the conveyor was enclosed. Our decision instead was based on the inaccessibility of the disengagement device during the course of operation. Here, the location of the accident was readily accessible to claimant during the course of the Cartoner‘s operation. Thus, the circumstances that excused a violation of {¶ 24} Considеring all of the above, we rule that the commission did not abuse its discretion in finding a violation of {¶ 25} This section provides: “Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply.” {¶ 26} In response to the finding of noncompliance, Go-Jo asserts two defenses: (1) that claimant was not the Cartoner‘s “operator,” and (2) the practical impossibility of comрliance. We find neither contention to be persuasive. {¶ 27} Go-Jo initially argues that because the Cartoner was automated, it had no “operator,” thereby removing claimant from the scope of {¶ 28} His employer asserted the automated nature of the machine as a defense—a defense that we rejected, writing: “Fetzer also argues that claimant was not entitled to the protection of {¶ 29} The same principles are equally applicable here. Neither the Cartoner‘s automation nor the necessity for mobility in claimant‘s performance of his job duties precludes a finding that he was indeed the machine‘s “operator.” {¶ 30} Go-Jo also cites State ex rel. Owens-Corning Fiberglas Corp. v. Indus. Comm. (1980), 62 Ohiо St.2d 145, 16 O.O.3d 165, 404 N.E.2d 140, to support its position. In Owens-Corning, the claimant worked on an assembly line, folding fiberglass batts as they passed by on a conveyor belt. The next employee removed the fiberglass batts and stacked them, whereupon a third worker transferred the fiberglass batts to an adjacent packing machine. While claimant was working at a separate conveyor, he somehow placed his foot onto the packing machine and was hurt. {¶ 31} In alleging a violation of the same specific safety requirement now before us, claimant in Owens-Corning alleged that he was the operator of the packing machine. We disagreed with claimant‘s argument that the term “operator” {¶ 32} Go-Jo‘s reliance on Owens-Corning is misplaced. In the case at bar, claimant was working at the machine which injured him—the Jones Cartoner. This is not a situation where claimant was injured by equipment apart from that at which he was working. Owens-Corning does not, therefore, compel a finding that claimant was not the “operator” of the Cartoner. Accordingly, we find no abuse of discretion in this regard. {¶ 33} Finally, Go-Jo directs us to the following passage from State ex rel. Harris v. Indus. Comm. (1984), 12 Ohio St.3d 152, 154, 12 OBR 223, 225, 465 N.E.2d 1286, 1288: “It would be impossible to comply with {¶ 34} Harris articulates an important workers’ compensation ruling. However, where—as here—there is “some evidence” supporting the conclusion that claimant‘s presence at the site of injury was not abnormal, irregular, or unusual in the performance of his duties, the commission did not abuse its discretion in distinguishing Harris. {¶ 35} For all of these reasons, we affirm the judgment of the court of appeals. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Per Curiam.