State ex rel. Johnson v. Hilltop Basic Resources, Inc.State ex rel. Johnson v. Hilltop Basic Resources, Inc.
Workers’ compensation—Application filed asserting violations of specific safety requirements against open-pit sand and gravel mine and plant—Applicability of
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No. 99AP-926.
Per Curiam.
{¶ 1} Appellee and cross-appellant, Hilltop Basic Resources, Inc., is an open-pit sand and gravel mine and plant. On August 2, 1996, claimant Emmett L. Johnson, Jr., the appellant and cross-appellee herein, was severely injured on the job. A workers’ compensation claim was promptly allowed.
{¶ 2} On August 1, 1997, claimant filed the first of four applications asserting violations of specific safety requirements (“VSSR“). Claimant later dismissed the application with the intent to refile “under a different regulation.”
{¶ 3} On July 30, 1998, claimant refiled, alleging three violations of
“Claimant was cleaning build-up of material from fluted self-cleaning counterweight pulley when the conveyor was turned on without any warning and he was caught between the counterweight pulley and the conveyor.”
” ‘Two factors contributed to the accident. First, the conveyor power was not shut off and the conveyor was not blocked against hazardous motion before work was performed. Secondly, there was no startup warning alarm provided at the start switch in the mud picker‘s booth and the entire length of the conveyor was not visible from the mud picker‘s booth. The conveyor was started from the booth without an alarm and without checking to see that the conveyor was clear, while the switch in the primary control room was off.’ ”
{¶ 5} On January 26, 1999, claimant filed an amended application. On it, claimant added the following description to his accident narrative:
“Darrell Dodge was not authorized to turn on the conveyor. The conveyor was not in a safe condition because it was not blocked against motion while being maintained.”
{¶ 6} The application, for the first time, additionally alleged violations of two sections of
{¶ 7} Three weeks later, on February 18, 1999, claimant filed a second amended application. It repeated the narrative description of the previous one and added a violation of
{¶ 8} Appellee Industrial Commission of Ohio, through a staff hearing officer (“SHO“), denied claimant‘s application in a lengthy order that made three key findings. First, it deemed
“[A]ny claim of a violation under either of these code sections must fail because claimant worked as a plant maintenance man outdoors for the employer, which is engaged in the business of rock, sand, and gravel mining in an open pit. This distinction is important because the former code section (Chapter 4121:1-5) deals with workshops and factories and clearly, claimant works out of doors thus rendering that code section wholly inapplicable. (Interestingly, claimant attempted to portray his work as being indoors in his description of injury wherein he stated that his normal work duties were performed ’ * * * within some form of structural enclosure constituting a workshop, factor[y], or construction site.’ This simply is not true. Claimant‘s work was outdoors.)” (Emphasis sic.)
“[I]n filing his subsequent Applications, claimant materially alters the description of injury and turns to an entire[ly] separate body of law (Ohio Revised Code 1567) in an effort to state a colorable claim. With each successive permutation of the injury described, claimant‘s theory of the cause of injury alters as well. The only constant throughout all these variations is that claimant was somehow injured while working near a conveyor belt. The Staff Hearing Officer finds that this is grossly insufficient to apprise the employer of the mechanism of injury claimed and to reasonably inform the employer of what particular deficiency claimant is alleging so that they might be able to defend themselves in the matter. Because the description of injury materially changed with each successive IC-8 filed by claimant, the Staff Hearing Officer finds little ‘conceptual similarity’ between claimant‘s first Application and the ‘amendments’ he filed early in 1999, and because they were filed beyond the 2 year Statute of Limitations, they are time-barred * * *.” (Emphasis sic.)
{¶ 10} Six days after the SHO hearing, State ex rel. Petrie v. Atlas Iron Processors, Inc. (1999), 85 Ohio St.3d 372, 708 N.E.2d 716, issued. That case held that an outdoor fenced-in scrapyard could be considered a workshop for purposes of
“The Claimant has not submitted any new and relevant evidence nor has the claimant shown that the order of 4/22/1999 was based on an obvious mistake of fact.
“Pursuant to
OAC 4121-3(20)(G) , a Staff Hearing Officer reviews a motion for rehearing under the following criteria:” ‘(a) In order to justify a rehearing of the commission‘s order, the motion shall be accompanied by new and additional proof not previously considered and relevant to the specific safety requirement violation.
” ‘(b) A rehearing may also be indicated in exceptional cases where the order was based on an obvious mistake of fact.’
“For the reason explained below the claimant‘s motion fails to satisfy either criteria cited above.
“In the instant case the claimant‘s motion is first premised on the submission of new case law, namely, State ex rel. Petrie v. Industrial Commission of Ohio [1999], 85 Ohio St.3d 372, 708 N.E.2d 716, as proporting [sic] to be additional proof not previously considered.
“The submission of this case is not found to be new and additional proof because new proof as contemplated by this rule would include such items as new witness affidavits, records, documents, or other similar items that tend to establish the truth of a proposition advanced.
“The submission of new case law is not the type of objective neutral proof that can be evaluated and weighed as the above listed items can[;] therefore, the submission of the previously cited case law is not found to be new and additional proof as outlined by
rule 4121-3-20 .“Furthermore, the hearing officer‘s language in regar[d] to determining that the area where the accident occurred is not a workshop, and his findings regarding the legal requirements for amending a VSSR application are both clearly legal not factual findings, and those findings are consequently outside of
Rule 4121-3-20(G) [,] which permits rehearing for obvious mistakes of fact.” (Emphasis sic.)
{¶ 11} In a mandamus action in the Court of Appeals for Franklin County, claimant alleged that the commission had abused its discretion. The court, in adopting the decision of its magistrate, issued a writ ordering further consideration on the question of the applicability of
{¶ 12} We must determine the applicability of two administrative code chapters as well as the timeliness of claimant‘s two amended applications. We hold that the court of appeals determined all of the issues correctly, and its judgment is hereby affirmed.
A. Applicability of Ohio Adm.Code Chapter 4121:1-5
{¶ 13} The parties disagree on the applicability of
{¶ 14} Hilltop discusses—generally accurately—two recent key decisions and the principles that had determined the applicability of
{¶ 15} In conformity with these tenets, the chapter governing workshops and factories was for years limited to indoor work, since “workshop” or “factory” clearly implied a building. That changed two years ago.
{¶ 16} In State ex rel. Parks v. Indus. Comm. (1999), 85 Ohio St.3d 22, 706 N.E.2d 774, claimant was a tree trimmer injured after contacting an electrical line. He alleged a violation of
{¶ 17} We overturned that decision, stressing two things: (1) the existence of a specific safety requirement under
“[C]ommon sense must prevail where the application of those rules gives rise to a patently illogical result. * * * The risk presented by the combination of clearing tree limbs in the vicinity of power lines rarely, if ever, occurs indoors. Thus, imposing the general ‘workshop or factory’ limitation on the rule regulating this activity would essentially eliminate the application of the entire provision.” Id. at 25, 706 N.E.2d 774.
Consequently, “activities that are regulated in
Ohio Adm.Code 4121:1-5-23(E) and are obviously conducted outdoors must be considered an exception to the rule thatOhio Adm.Code Chapter 4121:1-5 protects activities occurring indoors in workshops or factories.” (Emphasis added.) Id.
{¶ 18} In conclusion, we held:
“[W]here specific safety requirements regulate activities that can be performed indoors or outdoors, the
Ohio Adm.Code 4121:1-5-01(A) workshops and factories restriction limits an employer‘s reasonable expectations of liability to VSSRs that are committed indoors. However, the rule must be different where activity is regulated but cannot be performed indoors. In that case, the employer cannot reasonably expect exemption becauseOhio Adm.Code 4121:1-5-01(A) does not apply exclusively to workshops and factories.” (Emphasis sic.) Id., 85 Ohio St.3d at 26, 706 N.E.2d 774.
{¶ 19} Parks did not find that the claimant was injured in a workshop or factory. It found that when a two-prong test was met, a penalty for a VSSR could be
{¶ 20} Petrie was injured while working on a conveyor in a fenced-in scrapyard. The commission refused to apply
“The fence, in this case, indeed set forth the boundaries of work activity. It also served to keep unauthorized nonemployees out, and, in so doing, established its confines as a place accessible only to employees for the purpose of carrying out the company‘s business.” Id.
{¶ 21} Contrary to Hilltop‘s representation, the commission in the present case premised its finding that
B. Applicability of Ohio Adm.Code Chapter 4121:1-3
{¶ 22} Claimant‘s objection to the commission‘s determination that
{¶ 23}
{¶ 24} Claimant cannot overcome the many obstacles to demonstrating that his activity was within this definition. Hilltop is an open gravel mine. While its product may be used by the construction industry, “construction,” as defined in
C. Timeliness of Amended Applications
{¶ 25} At issue are claimant‘s two amended applications, filed January 26, 1999, and February 18, 1999. An adjudication of timeliness is important to claimant, since, without it, he cannot pursue violations alleged under
{¶ 26}
{¶ 27} These deficiencies, however, are not necessarily fatal to an amended application. An amendment that merely clarifies a previously alleged violation may be filed without regard to these time limits. State ex rel. R. Bauer & Sons Roofing & Siding, Inc. v. Indus. Comm. (1998), 84 Ohio St.3d 62, 66-67, 701 N.E.2d 995.
{¶ 28} In a well-reasoned order, the commission concluded that the claimant‘s amendments raised new claims and fell outside Bauer. See the SHO order quoted above.
{¶ 29} Indeed, claimant raises an entirely new set of allegations in invoking
{¶ 30} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Taft, Stettinius & Hollister, L.L.P., Charles M. Stephan and Eric K. Combs, for appellee and cross-appellant.
Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant Attorney General, for appellee.