THE STATE EX REL. INTERNATIONAL TRUCK & ENGINE CORPORATION, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 2008-1341
Supreme Court of Ohio
Submitted May 19, 2009—Decided July 23, 2009
122 Ohio St.3d 428, 2009-Ohio-3502
Katz, Teller, Brant & Hild L.P.A., and Laura A. Hinegardner, urging affirmance for amicus curiae the Ohio Psychological Association.
Collis, Smiles & Collis, L.L.C., Terri-Lynne B. Smiles, and Elizabeth Y. Collis, urging affirmance for amicus curiae the Ohio Psychiatriс Physicians Association.
American Civil Liberties Union of Ohio Foundation, Inc., Carrie L. Davis, and Jeffrey M. Gamso, urging affirmance for amici curiae Ohio Chapter of the American Academy of Pediatrics, Ohio Academy of Family Physicians, Society for Adolescent Medicine, National Association of Social Workers, National Center for Youth Law, Center for Adolescent Health & The Law, Ohio Now Education and Legal Fund, Ohio Domestic Violence Network, Action Ohio Domestic Violence, Break The Cycle, and Weave, Inc.
Per Curiam.
{¶ 1} Appellee Edward C. Moritz has alleged that he was injured as a result of a violation of a specific safety requirement (“VSSR“) by appellant International Truck & Engine Corporation (“ITE“). Moritz prevailed administratively and at the court of appeals, and ITE has appealed.
{¶ 3} Investigation revеaled that before the mishap, the hoist had been sticking when manually pulled and ITE had attempted to correct that problem by replacing the Teflon rollers. In the process, however, the wrоng nut was used to reattach the assembly. This eventually caused the accompanying bolt—and with it the assembly‘s cross-member—to dislodge, causing the accident.
{¶ 4} After his workers’ compensation claim was allowed, Moritz filed a VSSR application. He alleged a violation of
{¶ 5} Appellee Industriаl Commission of Ohio, through its staff hearing officer, found a violation of that section:
{¶ 6} “[T]he injured worker has presented sufficient evidence that the employer failed to correctly repair load carrying equipment. The employer replaced defective rollers which were attached to the overhead rail trolley which is connected to the hoist equipment, but the employеr failed to correctly install the correct bolt which holds the system in place. The failure of the employer to properly repair the overhead trolley caused the bolt to dislodge which caused the hoist to swing out and strike the injured worker. The Staff Hearing Officer finds this failure to properly repair the overhead trolley system was the proximate cause of the accident.”
{¶ 7} Rehearing was denied.
{¶ 8} ITE filed a complaint in mandamus in the Court of Appeals for Franklin County to compel the commission to vacate its order. ITE argued that it should not be assessed an additional amount for a VSSR for the inadvеrtent use of one improper nut/bolt unit in replacing the defective roller. The court of appeals disagreed, holding that “[a]lthough [ITE] replaced the defective equipment, it did so improperly and only created a new defect that caused the injury.” State ex rel. Internatl. Truck & Engine Corp. v. Indus. Comm., Franklin App. No. 07AP-547, 2008-Ohio-2953, 2008 WL 2440347, ¶ 3.
{¶ 9} ITE now appeals as of right to this court.
{¶ 10} The interpretation of a specific safety requirement lies exclusively with the commission. State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm. (1956), 166 Ohio St. 47, 50, 1 O.O.2d 190, 139 N.E.2d 41. The provision at issue,
{¶ 11} In urging an affirmative response, ITE contends that the strict construction required for a specific safety requirement mandates a finding that it satisfied
{¶ 12} ITE next challenges the commissiоn‘s characterization of the relevant defect and ITE‘s response to it. ITE argues that if the defect was the sticking roller, it was promptly fixed without further problem with or to the roller. If, on the other hand, the defect was the incorrect nut/bolt assembly, that, too, was replaced as soon as ITE learned of it. According to ITE, this negates any possibility of a VSSR.
{¶ 13} ITE‘s position assumes the existence of a single defect—either the roller or the nut/bolt assembly. The commission, however, found two defects—the roller and the nut/bolt assembly. ITE created the second, independent defect when it attempted to correct the first. In defending this conclusion, the commission states that the transport system must be viewed as a whole—i.e., as “load-carrying equipment“—and not as its component parts. ITE‘s repair of a component part is irrelevant, the commission claims, if the load-carrying unit as a whole—the focus of the specific safety requirement—was still unsafe. We agree.
{¶ 14} ITE proposes that insertion of the wrong nut/bolt unit into the roller assembly was a negligent, not a deliberate, act, and that under State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, 874 N.E.2d 1162, it cannot
{¶ 15} In its final argument, ITE suggests that it made a good-faith effort to comply with the specific safety requirement and therefore no VSSR liability should attach. Prior decisions do not support this proposition.
{¶ 16} In State ex rel. Supreme Bumpers, 98 Ohio St.3d 134, 2002-Ohio-7089, 781 N.E.2d 170, the employer tried to satisfy a specific safety requirement for minimizing air contaminants by installing exhaust hoods and applying liquid glue to the polishing wheels in its plating facility. Testimony established that despite these measures, nickel and chrome dust saturated the workplace. The dust caused a carcinoma that eventually killed an employee.
{¶ 17} The commission found a VSSR despite the employer‘s measures. It found that although the employer‘s measures were enumerated in the Ohio Administrative Code as acceptable methods for reducing airborne particulates, they were not effective under the circumstances. We upheld that decision.
{¶ 18} A similar result was reached by the Tenth District Court of Appeals in State ex rel. Moore v. Indus. Comm. (1985), 29 Ohio App.3d 239, 29 OBR 301, 504 N.E.2d 1125. The relevant specific safety requirement listed many work activities, including chipping of various materials, for which eye protection was required that “effectively protect[ed] against the hazard involved.” Seе former
{¶ 19} Moore was working beside an employee who was chipping metal with a wood chisel. Moore had been given, and was wearing, protective glasses. The glasses, however, had no side shields and thus offered only limited protection. When his neighbоr‘s chisel splintered, metal fragments flew sideways into Moore‘s eye, and he lost the eye as a result.
{¶ 20} The commission denied Moore‘s application for a VSSR award. Moore filed a petition for a writ of mandamus in the court of common pleas, which granted the writ. The court concluded that even though the employer had provided safety glasses, they did not effectively protect Moore against the hazard to which he was exposed due to the lack of side shields. The court of appeals affirmed.
{¶ 21} In most of the VSSR cases that have come before us, the employеr has made some effort to satisfy the applicable safety regulation. The cited cases, however, demonstrate that such attempts do not immunize an employer from a VSSR award when the еfforts are inadequate and someone is injured. See also
{¶ 22} The commission has been delegated the task of interpreting specific safety requirements. In this case, it concluded that ITE‘s corrective actions did not constitute the “repair” contemplated by
{¶ 23} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Vorys, Sater, Seymour & Pease, L.L.P., and Robert E. Tait, for appellant.
Richard Cordray, Attorney General, Sheryl Creed Maxfield, First Assistant Attorney General, and John R. Smart, Assistant Attorney General, for appellee Industrial Commission of Ohio.