State of Ohio ex rel. Precision Steel Services, Inc., Relator, v. The Industrial Commission of Ohio and Melvin E. Meyers, Respondents.
No. 11AP-1083
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 3, 2013
2013-Ohio-4381
DORRIAN, J.
(REGULAR CALENDAR)
Rendered on October 3, 2013
Willacy, LoPresti & Marcovy, Salvatore J. LoPresti, Timothy A. Marcovy, and Michael S. Lewis, for relator.
Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.
Vanderhorst & Burgy LLC, Michael A. Vanderhorst, and Kristin L. Burgy, for respondent Melvin E. Meyers.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
DORRIAN, J.
{¶ 1} Relator, Precision Steel Services, Inc. (“Precision“), commenced this original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio (“commission“) to vacate an award of additional workers’ compensation benefits to respondent Melvin E. Meyers (“claimant“). The commission found that claimant was entitled to additional benefits based on Precision‘s violation of a specific safety requirement (“VSSR“). We assigned the matter to a magistrate of this court pursuant to
{¶ 2} We adopt the magistrate‘s findings of fact as set forth in ¶ 64 through ¶ 94 of the appendix to this decision, but we do not accept in full the magistrate‘s conclusions of law. Rather, for different reasons, as discussed below, we grant a writ of mandamus ordering the commission to vacate its prior order and issue a new order adjudicating claimant‘s VSSR application.
I. Summary of Facts and Commission Proceedings
{¶ 3} Stated succinctly, the facts are that, on March 1, 2008, claimant suffered injuries while welding a 1,200-pound metal part. Claimant attempted to use an overhead crane to move the part so that he could weld its reverse side when both the part and a large electromagnet (“magnet“) holding the part fell, crushing claimant‘s left hand necessitating its amputation.
{¶ 4} The stipulated evidence does not include photos of the crane as configured at the time of the incident, and the record is not entirely clear as to the exact configuration of the devices used to attach the magnet to the crane‘s upper hook at that time.1 The parties are in agreement, however, that the magnet was connected to an upper hook of the overhead crane by a wire rope or cable that had loops, or “eyes,” at both ends. The upper hook of the crane fit into the loop at the top of the wire rope. A smaller hook at the bottom of the wire rope (the “bottom hook“) connected the magnet to the wire rope. The claimant prepared drawings of these attachments showing the bottom hook as a component that itself consisted of two loops, one of which fit into the bottom eye of the wire rope and the second of which fit into the top of the magnet.
{¶ 5} The Ohio Bureau of Workers’ Compensation Safety Violations Investigation Unit (“SVIU“) investigated the incident. SVIU investigator Fred M. Freeman reported that the employer had initially described the cause of the accident as the fact that “the safety latch attaching the magnet to the metal hook was missing at the time of the incident.” Freeman‘s observation is consistent with the premise that a safety latch should have been in place on the bottom hook at the time of the accident.
{¶ 7} The commission awarded claimant workers’ compensation benefits for his injuries. On February 12, 2010, claimant filed an application for an additional VSSR award for violation of a specific safety requirement under the provisions of the
{¶ 8} As to the first of the two rules, i.e.,
{¶ 10} Precision thereafter filed this original action, claiming that the commission abused its discretion in granting claimant an additional award of VSSR benefits. It sought a writ ordering the commission to vacate its order and to enter an order denying claimant‘s application for additional VSSR benefits, claiming that Precision had not violated either of the two rules. It further challenged the commission‘s implicit finding that the two rules constituted specific, as opposed to general, safety requirements, noting that neither rule specifically required the use of a safety latch when attaching a magnet to a crane hook.
II. The Magistrate‘s Decision
{¶ 11} In reviewing the parties’ arguments, the magistrate noted the well-settled principle that a “VSSR award is deemed a penalty to the employer subject to the rule of strict construction with all reasonable doubts concerning the interpretation of the safety standard to be construed against the applicability of the standard to the employer.” (Magistrate‘s Decision, ¶ 101.) The magistrate further found it to be “firmly established that the determination of disputed factual situations as well as the interpretation of a specific safety requirement is within the final jurisdiction of the commission, and subject to correction in mandamus only upon a showing of an abuse of discretion.” (Magistrate‘s Decision, ¶ 102.) Moreover, the commission must interpret its rules reasonably and “may not effectively rewrite its own safety rules in the guise of interpreting them.” (Magistrate‘s Decision, ¶ 103.).
{¶ 12} The first rule at issue in this case is
{¶ 13} The second rule at issue in this case is
(A) Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope, chain metal mesh and synthetic web, and attachments used to handle material or equipment shall be used in accordance with the manufacturer‘s recommendations.
(B) Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.
{¶ 14} The magistrate concluded that the SHO was required to consider the definition of equipment provided in subsection (A) of the hoisting and haulage equipment rule—even though the VSSR application referenced only subsection (B) of the rule—because Precision “cannot have violated the safety rule [in subsection (B) of
{¶ 15} In summary, the magistrate issued a three-part decision, recommending that we order the commission to (1) vacate its prior order; (2) enter a new order finding that Precision did not violate
III. Parties’ Objections and Analysis
{¶ 16} Claimant, Precision, and the commission have all filed timely objections to the magistrate‘s decision. In considering these objections, we are mindful, as was the
{¶ 17} In order to establish a VSSR, an employee must prove that: (1) there exists an applicable and specific safety requirement in effect at the time of the injury; (2) the employer failed to comply with the requirements; and (3) the failure to comply was the cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972).
{¶ 18} The determinative question in this case is, thus, whether the commission‘s interpretation and application of the two safety regulations at issue gives rise to a patently illogical result. Stated differently, the issue in this mandamus action is whether the commission abused its discretion in finding that the lack of a safety latch on the hook to which the magnet was attached constituted a violation of either, or both, commission rules upon which the claimant based his VSSR claim, i.e.,
Objections relative to Ohio Adm. Code 4123:1-5-14
{¶ 19} Both the claimant and the commission raise in their first objections issues concerning the interpretation and applicability of subsection (G) of
Claimant‘s Objection 1
{¶ 20} Claimant‘s first objection, which we sustain, states:
Where a relevant term is not defined by the code, its interpretation is exclusively within the authority of the commission. The magistrate erred in finding OAC 4123:1-5-
14(G)‘s reference to “defective crane safety devices or loadcarrying equipment” is limited to those safety devices or equipment listed in OAC 4123:1-5-14(C)-(F). The terms “equipment” and “load-carrying equipment” are not synonymous and the magistrate cannot substitute his definition in place of the commission‘s.
{¶ 21}
{¶ 22} In addition, Subsection (G) of
(G) Specific requirements applicable to all paragraphs of this rule:
(1) Defective safety devices or load-carrying equipment.
Defective crane safety devices or load-carrying equipment shall be repaired or replaced.
(Emphasis added.)
{¶ 23} The SHO noted that the claimant “was operating a power driven crane” at the time of his injury and found that “[
{¶ 24} Accordingly, as interpreted by the magistrate, subsection (G) requires repair or replacement of defective safety devices or load-carrying equipment only if the defective equipment is specifically identified in paragraphs (C) through (F) of
{¶ 25} In his first objection, claimant challenges the magistrate‘s determination that the word “equipment” in subsection (G)(1) of
{¶ 26} Subsection (G) of the crane rule applies by its own terms to “all paragraphs” of
{¶ 27} The SHO, thus, interpreted
{¶ 28} The commission has authority to interpret its rules in the first instance, and we are required to defer to the commission‘s interpretation of its own rules. To our knowledge, the commission has not interpreted
{¶ 29} The magistrate‘s interpretation of
{¶ 30} We therefore reject the magistrate‘s conclusion of law that the term “safety devices or load-carrying equipment” in subsection (G)(1) included only equipment specifically identified in paragraphs (C) through (F). Rather, in interpreting its own rule, the commission found that the bottom hook was a component of a type of crane described in
{¶ 31} We therefore sustain the claimant‘s first objection and reject the magistrate‘s conclusion of law that the commission abused its discretion in finding that
Commission‘s Objection 1
The commission‘s first objection states:
The commission‘s finding that the employer was on notice that the crane‘s hook safety latch was a “safety device” under the
Ohio Adm. Code 4123:1-5-14(G)(1) was supported by some evidence, including the manufacturer‘s specifications requiring the crane‘s hook to have a safety latch, and the employer‘s safety supervisor‘s testimony that he knew this requirement prior to the worker[‘s] injury.
{¶ 32} Our finding that the commission did not abuse its discretion in finding that
{¶ 33} Having reviewed the commission‘s arguments in support of this objection, we construe it as positing that it was within the commission‘s discretion to determine that
{¶ 34} The commission argues that the absence of a safety device on the bottom hook is equivalent to the use of a “defective crane safety device,” in violation of
{¶ 35} In addition, the SHO in its resolution of the issue whether Precision violated the second rule at issue in this case,
{¶ 36} Accordingly, the SHO‘s justification for finding that Precision violated
{¶ 37} Our conclusion that the bottom hook was not a defective safety device does not, however, mandate a finding that Precision complied with
{¶ 38} Arguably, Precision violated
Objections Relative to Ohio Adm.Code 4123:1-5-15
{¶ 40} All three parties have raised objections to the magistrate‘s decision relative to
(A) Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope, chain metal mesh and synthetic web, and attachments used to handle material or equipment shall be used in accordance with the manufacturer‘s recommendations.
(B) Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.
{¶ 41} We begin by addressing the second objections of both the claimant and the commission, both of which challenge the magistrate‘s conclusions concerning interpretation of the word “equipment” in
{¶ 42} Claimant‘s second objection states:
The magistrate erred in finding that the commission failed to determine that a hook which is missing its safety latch is “equipment” as used in [
Ohio Adm.Code] 4123:1-5-15 .
The commission‘s second objection is similar. It states:
Where
Ohio Adm.Code 4123:1-5-15 required: “equipment shall be removed from service when there is evidence of a defect” and there was some evidence to support the SHO‘s interpretation that the crane with hook was the: “equipment” referred to in the regulation, the magistrate erred in requiring the commission to reconsider whether the hook safety latch alone was the “equipment” described in the regulation.
{¶ 43} In finding that Precision violated
{¶ 44} In this case, the SHO concluded, albeit without express discussion, that the bottom hook was equipment within the scope of subsection (B). This conclusion is revealed by the SHO‘s statements “the lack of a safety latch amounted to a defect which weakened the equipment,” and “the crane should have been removed from service and not in use, as required by
{¶ 45} We find that the commission was not required to interpret the word “equipment” in subsection (B) of the rule as necessarily being equivalent to the word “equipment” in subsection (A) of the rule. The commission found that the rule applied if the component at issue may reasonably be deemed to be hoisting and haulage equipment. “Equipment” is a common word, the meaning of which may easily be determined. The rule does not provide that the subsection (A) “definition” applies to all other paragraphs of
{¶ 46} We therefore sustain the second objections of both the claimant and the commission.
Precision‘s first objection
{¶ 47} Precision‘s first objection states that the magistrate erred in his findings concerning
A.
Ohio [Adm.]Code 4123:1-5-15 does not specifically require a safety latch.
B. “Equipment” under
Ohio [Adm.]Code 4123:1-5-15(A) does not define “Equipment” under (B).C. Even if
Ohio [Adm.]Code 4123:1-5-15(B) is read in conjunction with section (A), neither section specifically requires a safety latch, nor specifically defines a safety latch to be “equipment” as used in the rules.D. Even if
Ohio [Adm.]Code 4123:1-5-15(A) ‘s definition of “equipment” applies to (B), there is no “evidence of a defect, damage, or distortion which may weaken such equipment.”
{¶ 48} We acknowledge that
{¶ 49} In its argument relative to part (C) of its first objection, Precision contends that
{¶ 50} It has long been recognized in Ohio that “[t]he term, ‘specific requirement,’ as used in Section 35, Article II of the Constitution of Ohio, does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are of a character plainly to apprise an employer of his legal
{¶ 51} Courts have on numerous occasions considered the question of whether a rule adopted by the commission imposes a specific safety requirement or, alternatively, a general requirement that imposes a “general course of conduct” or “general duties or obligations flowing from the relationship of employer and employee.” In 1964, for example, the Supreme Court of Ohio considered a rule that provided as follows:
Whenever practicable, the platform of swing scaffold shall be so lashed or secured while in use that they cannot sway from the structure.
State ex rel. Fast & Co. v. Indus. Comm., 176 Ohio St. 199, 200 (1964).
{¶ 52} The Supreme Court held that the rule was specific because the employer was left with no discretion in terms of what it should do in regard to the use of a particular piece of equipment, i.e., it required a “specific thing to be done in relation to the use of [a] scaffold.” Id. at 201. Even though the rule included the phrase “when practicable,” the court observed that the word “practicable” has a definite meaning, and that the rule imposed a definite obligation on the part of the employer. It noted that “the fact that the method of securance is not delineated by the rule [does not] render the rule general,” in that both the requirement and the result to be accomplished are specific, and recognized that “[d]ue to the varying situations encountered in this type of work it would not be feasible to delineate specific methods.” Id.
{¶ 53} Similarly, in this case, an employer who causes employees to use hoisting and haulage equipment is specifically notified by
{¶ 54} By adopting the SHO‘s order granting the VSSR award, the commission impliedly determined that
Sufficiency of the Evidence
{¶ 55} In section (D) of Precision‘s first objection, Precision challenges the SHO‘s conclusion as to the existence of a “defect, damage, or distortion which may weaken” the hoisting equipment here at issue. (Emphasis added.) We reject Precision‘s argument that a violation of
{¶ 56} We therefore overrule Precision‘s first objection.
Precision‘s Due Process Objection
{¶ 57} Precision‘s second objection asserts as follows:
The Magistrate Erred in Not Ruling Upon Precision‘s Argument that the Commission Violated Precision‘s due process of law under the 14th Amendment to the U.S. Constitution and Art. I, §16 of the Ohio Constitution.
{¶ 58} The commission imposed a 50-percent award for violation of the two rules at issue, noting that “[t]he additional award of compensation is granted to the Injured Worker in the amount of percent of maximum weekly rate under the rule of State ex. rel. Engle v. Indus. Comm. (1944), 142 Ohio St. 425.” (Corrected Order, 4.) Precision acknowledges that the Supreme Court of Ohio has found that the
{¶ 59} We note that the Supreme Court of Ohio in 1997 specifically considered, and rejected, a similar argument that the commission must consider and explain the impact of factors such as the severity of the injury, the egregiousness of the violation, and the inherent dangerousness of involved machinery, just as the commission must consider and explain nonmedical factors in permanent disability cases. State ex rel. St. Marys Foundry Co. v. Indus. Comm., 78 Ohio St.3d 521 (1997). Rather, the court held that “the commission need not explain how it calculated the amount of the VSSR award.” Id. at 523, citing State ex rel. Jeep Corp. v. Indus. Comm., 42 Ohio St.3d 83, 85-86 (1989), and State ex rel. Smith v. Huguelet, 57 Ohio St.3d 1, 2 (1991). In addition, the commission has “considerable discretion” in setting the amount of a VSSR award and abuses that discretion only by assessing an award outside the constitutional 15- to 50-percent range. State ex rel. Kenton Structural & Ornamental Iron Works, Inc. v. Indus. Comm., 91 Ohio St.3d 411, 417 (2001), quoting St. Marys Foundry Co. at 524.
{¶ 60} In any event, we have concluded that the commission‘s order must be vacated based on its faulty reasoning relative to the first rule at issue,
{¶ 61} We therefore overrule Precision‘s second objection.
IV. Conclusion
{¶ 62} For the reasons discussed above, the commission‘s objections are sustained in part and overruled in part, the claimant‘s objections are sustained, and Precision‘s objections are overruled. We therefore grant a limited writ of mandamus ordering the commission to vacate its August 9, 2011 corrected order (with the exception of that
Commission‘s objections sustained in part and overruled in part; claimant‘s objections sustained; Precision‘s objections overruled; limited writ of mandamus granted.
KLATT, P.J., and CONNOR, J., concur.
State of Ohio ex rel. Precision Steel Services, Inc., Relator, v. The Industrial Commission of Ohio and Melvin E. Meyers, Respondents.
No. 11AP-1083
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 27, 2012
(REGULAR CALENDAR)
M A G I S T R A T E ’ S D E C I S I O N
Rendered on November 27, 2012
Willacy, LoPresti & Marcovy, Salvatore J. LoPresti, Timothy A. Marcovy, and Michael S. Lewis, for relator.
Michael DeWine, Attorney General, and John R. Smart, for respondent Industrial Commission of Ohio.
Vanderhorst & Burgy LLC, Michael A. Vanderhorst, and Kristin L. Burgy, for respondent Melvin E. Meyers.
IN MANDAMUS
{¶ 63} In this original action, relator, Precision Steel Services, Inc. (“relator” or “Precision Steel“), requests a writ of mandamus ordering respondent Industrial Commission of Ohio (“commission“) to vacate its order granting the application of respondent Melvin E. Meyers (“claimant“) for an additional award for violation of a specific safety requirement (“VSSR“) and to enter an order denying the application.
{¶ 64} 1. On March 1, 2008, claimant sustained a crush injury to his left hand while employed as a “burner-fabricator” at a factory operated by relator. On the date of injury, claimant was using an overhead crane with an attached magnet to move a metal part that he was welding. There was evidence showing that as he was maneuvering the part into position on the welding table, the lifting eye of the magnet slipped off the hook on the bottom of the wire rope causing the magnet and metal part to fall on his left hand. There were two hooks involved in the rigging of the magnet to the overhead crane. There was evidence that the lower hook on the bottom of the wire rope did not have a safety latch at the time of the injury.
{¶ 65} 2. The industrial claim (No. 08-315503) is allowed for:
Amputation of left hand, below elbow; crushing injury of left hand; open wound of left hand, with complications; open wound of left second, third, fourth and fifth fingers, with complications; multiple open fractures of left hand; brief depressive reaction; generalized anxiety disorder; panic attacks; depressive disorder with elements of post traumatic stress disorder.
{¶ 66} 3. On February 12, 2010, claimant filed an application for a VSSR award.
{¶ 67} 4. The VSSR application prompted an investigation by the Safety Violations Investigative Unit (“SVIU“) of the Ohio Bureau of Workers’ Compensation (“bureau“).
{¶ 68} 5. On June 14, 2010, the SVIU investigator visited the site of the accident at the facility operated by Precision Steel. The investigator met with Plant Operations Manager, Jordan Demchyna. He also photographed the overhead crane, welding table, electric magnet and other items related to the accident.
{¶ 69} 6. On August 10, 2010, the SVIU investigator met with claimant and obtained his affidavit. Claimant‘s affidavit executed August 10, 2010 avers:
[Two] I began my employment with Precision Steel Services, Inc[.] in July 26, 2001[.] I was hired to perform the job of burner/fabricator and I held this position at the time of my injury[.] My job duties involved operating the burn table and fabricating parts[.] I was in the process of welding a part at the time of my injury.
[Three] I arrived for overtime day-shift work on March 1, 2008 and reported to my regular work area[.] I reviewed my work orders and began fabricating a part on the welding
[Four] I was in the process of turning over the part so I could perform additional welding activities when the incident occurred[.] I had the pendent control for the crane in my right hand and my left hand was resting on the weld table as I was using the electric magnet to turn the part[.] As I was maneuvering the part into position the lifting eye of the magnet slipped off the hook on the bottom of the wire rope causing the metal part and magnet to fall on top of my hand[.] My hand was crushed and remained trapped under the metal part[.] It took approximately five coworkers to lift the metal part off of my hand[.] An ambulance was called and I was transported to St[.] Vincent‘s Hospital for medical treatment[.]
[Five] My injury occurred because the hook on the bottom of the wire rope did not have a safety latch to keep the magnet from coming off of it[.]
[Six] I viewed the photographs that Investigator Freeman has in his possession[.] The crane, magnet, and welding table accurately depict my work area and the tools I was using at the time of my injury[.] The cable the magnet is attached to has been changed[.] The bottom hook on the cable was removed and replaced with a clevis attachment[.]
{¶ 70} 7. The SVIU investigator obtained company documents relating to the accident. One of the documents is a two-page form captioned “Occupational Injury/Illness Investigative Report.” This form was completed by hand by Tony Sumner on the date of injury.
{¶ 71} In response to the pre-printed query “Describe accident in detail,” Sumner wrote:
He was using a 10 ton magnet to put part on its back. The magnet slipped off the hook [and] the part fell 2-3 [feet] onto his hand pinching it between the part [and] weld table[.]
{¶ 72} Under the caption “Cause and Prevention Action,” the form asks if “[r]epair or modification [is] needed.” In response, Sumner wrote: “Safety latch needed.” Sumner also indicated that the repair had been completed.
Mel was using 10 ton magnet to lay part on it‘s back, the magnet [slipped] off hook (no safety pin) part fell about 2 to 3 feet on to his hand pinching his hand between part and weld table!
{¶ 74} 9. The SVIU investigator also obtained the handwritten statement of Larry Eckenrode, stating:
[W]e all picked the plate off of Mel[‘s] hand[.] He was flipping the plate before that when the magnet came off the hook and that‘s how his hand got smash[ed][.]
{¶ 75} 10. On September 8, 2010, the SVIU investigator issued his report of investigation. Under “Discussion,” the report states:
[Three] Investigator Freeman observed and photographed the Burn Bay of Precision Steel Services, Inc[.] where the incident of record occurred[.] Investigator Freeman also observed and photographed the involved Kone XLD 10-ton double box girder top running crane, welding table, and 8,000 lb. electric magnet[.] The employer stated Injured Worker Melvin E[.] M[e]yers was in the process of fabricating a metal part, approximately twenty inches by forty-five inches, on the welding table at the time of the incident[.] The employer continued Mr[.] M[e]yers was using the electric magnet attached to the overhead crane to turn the part over when the magnet slipped off the hook and the magnet and part fell onto his hand[.] The employer further stated Mr[.] M[e]yers should have used a lifting clamp or nylon sling to turn the part over instead of using the electric magnet[.] The employer indicated the part weighed approximately 1,200 lbs[.] The employer further stated the 1 1/4” ribs on the metal part struck Mr[.] M[e]yers’ hand[.]
[Four] The employers stated the safety latch attaching the magnet to the metal hook was missing at the time of the incident of record[.] The employer further stated a safety latch was installed on the metal hook after the incident[.]
* * *
[Nine] Injured Worker Melvin E[.] M[e]yers had an opportunity to view the photographs obtained by Investigator Freeman at the time of the on-site investigation[.] Mr. M[e]yers stated the crane, magnet, and welding table accurately depict his work area and the tools he was using at the time of his injury[.] He further stated the cable the magnet is attached to has been changed[.] Melvin E[.] M[e]yers indicated the bottom hook on the cable was removed and replaced with a clevis attachment[.]
{¶ 76} 11. The SVIU investigator also obtained Occupational Safety and Health Administration (“OSHA“) form 301 completed by Precision Steel on March 3, 2008. In response to the pre-printed query “[w]hat happened,” Precision Steel wrote:
Magnet slipped off hook [and] part fell 2 to 3 [feet] onto his hand, pinching his hand between the part [and] the weld table.
{¶ 77} 12. In June 2011, relator obtained affidavits from six of its employees. Affidavits were obtained from Jordan Demchyna, Larry Eckenrode, Anthony Johnson, Leonard Gamble, Dana Burchell, and Anthony Smith.
{¶ 78} 13. The affidavit of Demchyna executed June 9, 2011 avers:
[Two] In March of 2008, my position was that of Operation‘s Manager.
[Three] I did not work on March 8, 2008, but was advised of the accident shortly after it occurred. I did not know the extent of Meyers’ injuries.
[Four] I conducted an investigation the following morning. I spoke with Tony Sumner who had completed an incident report.
[Five] Upon entering the Burn Bay, I checked out crane #4, the 10-ton crane used by Melvin Meyers at the time of the accident. I noted the safety clasp on the crane‘s hook was missing.
[Six] A search was conducted, but the safety clasp was never found. At no time prior to this accident did anyone report that the safety clasp on the #4 crane was missing or defective in any manner.
{¶ 79} 14. The affidavit of Eckenrode executed June 9, 2011 avers:
[One] I have been employed at Precision Steel since Feb. 15, 2008. In March of 2008, my position was that of laborer/crane operator.
[Two] The day Melvin Meyers was injured; I was operating the 20-ton crane in the Burn Bay.
[Three] I heard a large “boom” and looked over at Melvin Meyers. His hand was trapped under a piece of steel that had fallen from the crane. Jimmy Vance, Mike Van Dusen and I lifted the steel off of Meyers’ hand. We then called 911.
[Four] After Melvin left, I inspected the work area. I recall the electro-magnet was on it‘s [sic] side and the rope cable was still attached to the electro-magnet.
[Five] I specifically recall that the rope cable was not attached to the crane when we were moving the steel from Meyers’ hand. Had the rope cable been attached to the crane, it would have interfered with our lifting the fallen piece of steel.
[Six] The description contained in SVIU Exhibit 15 (attached hereto) is incorrect. The “little hook” was not missing the safety clip. The hook with safety clip was intact and attached to the electro-magnet.
[Seven] In my capacity as laborer/crane operator, I used the #4 10-ton crane on a daily basis. I used it before and after the Meyers accident. At no time prior to the accident of March 8, 2008, did I ever notice any defect in the crane or the hook attached to the crane. The safety clasp was always present.
(Emphasis sic.)
{¶ 80} 15. The affidavit of Johnson executed June 9, 2011 avers:
My particular job required me to use the #4 10-ton crane. I used it practically every day. In particular I would use the 10-ton crane to ”put parts on a skid or pull parts from burning table and then put on skids.”
When using any crane in the burn bay, I never noticed any defective parts and specifically, I do not recall any defective hooks. Any crane hook I used had a safety clasp on the hook. If I had noticed a hook without a safety clasp, I would have “told maintenance.”
(Emphasis sic.)
My particular job required me to use the #4 10-ton crane. I used it practically every day. In particular I would use the 10-ton crane to ”loan [sic] material on the tables; to unload the material from the burn tables and to place the finished material on the pallet.”
When using any crane in the burn bay, I never noticed any defective parts and specifically, I do not recall any defective hooks. Any crane hook I used had a safety clasp on the hook. If I had noticed a hook without a safety clasp, I would have “shut the power off, put a lock-out tag on it and then notified my supervisor.”
(Emphasis sic.)
{¶ 82} 17. The affidavit of Burchell executed June 9, 2011 avers:
My particular job required me to use the #4 10-ton crane. I used it practically every day. In particular I would use the 10-ton crane to ”pull parts from the burn table to be cleaned and I would also use it to carry scrap to a scrap pile.”
When using any crane in the burn bay, I never noticed any defective parts and specifically, I do not recall any defective hooks. Any crane hook I used had a safety clasp on the hook. If I had noticed a hook without a safety clasp, I would have “notified maintenance.”
(Emphasis sic.)
{¶ 83} 18. The affidavit of Smith executed June 10, 2011 avers:
My particular job required me to use the #4 10-ton crane. I used it practically every day. In particular I would use the 10-ton crane to ”pull parts out of the plate and put the parts on the skid. Sometimes I use it to move scrap from the ground to the hopper.”
When using any crane in the burn bay, I never noticed any defective parts and specifically, I do not recall any defective hooks. Any crane hook I used had a safety clasp on the hook. If I had noticed a hook without a safety clasp, I would have “I would tell my supervisor and if the supervisor didn‘t do anything before I need to use it again, I would get maintenance.”
(Emphasis sic.)
{¶ 85} 20. At the hearing, Demchyna testified. On cross-examination by claimant‘s counsel, the following exchange occurred:
MR. VANDERHORST: You would agree, wouldn‘t you, that a safety hook, latch, is recommended for any time you‘re lifting a load with a hook?
MR. DEMCHYNA: Yes, sir.
MR. VANDERHORST: Okay. And in particular, hooking up to an electro magnet you want a safety hook latch?
MR. DEMCHYNA: Hooking up anything, yes.
MR. VANDERHORST: And a, purpose of that safety latch is just to keep a load from coming off the hook, if the hook should twist a certain, far enough direction?
MR. DEMCHYNA: Yes, sir.
MR. VANDERHORST: Okay. In fact, the manufacturer‘s recommendations indicate that you should always use a hook with a safety latch when you‘re connecting it to the magnet, correct?
MR. DEMCHYNA: Yes, sir.
MR. VANDERHORST: Okay. And you were aware of that back at the time of Melvin‘s injury, there should be safety latches?
The Court Reporter: Yes?
MR. DEMCHYNA: Yes, sir, sorry.
* * *
MR. MARGELEFSKY: Okay. In your capacity as operations manager how often did you inspect the cranes or the equipment, such as the cables and the hooks?
MR. DEMCHYNA: Personally, I do not.
MR. MARGELEFSKY: Okay.
MR. DEMCHYNA: That‘s annual OSHA inspections done by an outside source.
MR. MARGELEFSKY: Okay. If someone has a problem with the crane, the hook, the cables, who do they talk to as far as repairs?
MR. DEMCHYNA: Maintenance.
MR. MARGELEFSKY: Okay. Are you aware of anybody calling to your attention or to maintenance, I assure maintenance reports to you?
MR. DEMCHYNA: Yes, sir.
MR. MARGELEFSKY: Okay. Any problems with the hooks on the crane or on the rope cables demonstrated in the video?
MR. DEMCHYNA: No, sir.
* * *
MR. VANDERHORST: And you indicated an annual inspection of the cranes?
MR. DEMCHYNA: Yes.
MR. VANDERHORST: What about between those annual inspections?
MR. DEMCHYNA: Daily visual inspections, nothing documented, no record inspection.
MR. VANDERHORST: Nothing documented?
MR. DEMCHYNA: No.
MR. VANDERHORST: No pieces of paper that would document it?
MR. DEMCHYNA: No.
HEARING OFFICER SPIDEL: I‘m gonna interrupt you, Mr. Vanderhorst, I just want to make sure, because earlier when you were testifying I thought you said you did not inspect the cranes; is that correct?
MR. DEMCHYNA: Correct.
HEARING OFFICER SPIDEL: Okay. Just making sure I heard correctly, thank you.
MR. DEMCHYNA: Yes, ma‘am.
MR. MARGELEFSKY: I don‘t believe he‘s saying he inspected it. You said there‘s daily inspections but that would be by whom?
MR. DEMCHYNA: Operators.
MR. MARGELEFSKY: Operators.
(Tr. 49-50, 56, 63-64.)
{¶ 86} 21. At the hearing, Mr. Eckenrode testified on direct examination by relator‘s counsel:
MR. MARGELEFSKY: Would you tell Ms. Spidel what you remember from that day?
MR. ECKENRODE: I was standing at the other side of the building and obviously heard a loud boom so when I heard that I looked down, looked like he was trapped so ran down there. Two burners also seen at the same time and we lifted the weldment off of his hand and pulled it out and then he went and sat down and then that‘s when we called 911.
MR. MARGELEFSKY: So you and two other people?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. Do you remember whether the magnet was still attached to the weldment?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Do you remember whether or not the cable was still attached to the magnet?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Do you recall whether the cable was attached to the crane?
MR. ECKENRODE: No.
MR. MARGELEFSKY: No, you don‘t remember, or no, it was not?
MR. ECKENRODE: Oh, it was not.
MR. MARGELEFSKY: Okay.
MR. ECKENRODE: Attached to the -
MR. MARGELEFSKY: And then how do you remember that? Why do you remember that?
MR. ECKENRODE: Because when we were lifting the weldment off of him we noticed it because the cable was a stiff cable and it would have stopped us from proceeding lifting the weldment, and that‘s how I know it was dangling on the side.
MR. MARGELEFSKY: Okay. Again, in your capacity at the time working in the burn bay you indicated that you used crane number 4?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: How often would you use crane number 4?
MR. ECKENRODE: All the time.
MR. MARGELEFSKY: All right. The rope cable that was attached to crane, crane number 4 on the day of the accident, was that the same rope cable that was on that crane regularly?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. The hook that was at the bottom of that cable, was that hook on there regularly?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. And so when you used it you would know whether or not there was a safety latch on that hook, correct?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. Do you recall a time when that lower hook did not have a safety latch?
MR. ECKENRODE: Not from what I recall.
MR. MARGELEFSKY: Do you recall ever having to call maintenance and tell them that there was a problem with that hook?
MR. ECKENRODE: No.
MR. MARGELEFSKY: Okay. So we‘ve established two things, number one, when you lifted the weldment off of Mr. M[e]yers the electro magnet was connected to the cable with the hook that attached the cable to the rope?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. So in - to the best of your recollection there‘s no way the magnet slipped off that lower hook?
MR. ECKENRODE: No.
MR. MARGELEFSKY: Okay. Cable was still attached?
MR. ECKENRODE: Yes.
MR. MARGELEFSKY: Okay. And the, the cable was not attached to the crane?
MR. ECKENRODE: No.
(Tr. 79-83.)
{¶ 87} 22. Following the June 15, 2011 hearing, an order was mailed on August 3, 2011. That order indicates that it was electronically signed by SHO Spidel.
{¶ 88} 23. On August 9, 2011, a corrected order was mailed. The corrected order indicates that it was electronically signed by Spidel.
{¶ 89} 24. The corrected order states:
Pursuant to the continuing jurisdiction provision of
R.C. 4123.52 , the Staff Hearing Officer‘s order, mailed August 3, 2011, is VACATED and the following order is put in its place:
* * *
It is the order of the Staff Hearing Officer that the Injured Worker was employed on the date of injury, 03/01/2008, by the Employer as a Burner/Fabricator and sustained an injury in the course of and arising out of employment when he was utilizing an overhead crane, with an attached electric magnet to move a piece of steel, when the magnet slipped off the hook and the magnet and piece of steel fell onto his hand.
It is further the finding of the Staff Hearing Officer that the Injured Worker‘s injury was due to the Employer‘s failure to comply with
R.C. Sections 4123:1-5-14 (G) (1) and4123:1-5-15(B) .The Injured Worker dismissed the request to consider
R.C. Section 4123:1-5-15(D) . Therefore, no finding is made on that Code Section.The Injured Worker was injured on 03/01/2008 when he was using a crane while in the process of welding a part. He was fabricating a part on the welding table, using an overhead 10-ton crane with attached electric magnet to lift the pieces into place. He had been working on fabricating the part between 3 to 5 hours at the time of his injury. He was in the process of turning over the part so he could perform additional welding activities when the incident occurred. He used the pendant control for the crane in his right hand and his left hand was resting on the weld table as he was using the electric magnet to turn the part. As he was maneuvering the part into position, the lifting eye of the magnet slipped off the hook on the bottom of the wire rope, causing the metal part and magnet to fall on top of his hand. His hand was crushed and remained trapped under the metal part. It took approximately five co-workers to lift the metal part off of his hand. An ambulance as called and he was transported to St. Vincent‘s Hospital for medical treatment.
The Injured Worker has cited the following Code Sections pertaining to the power driven crane he was operating, Code Section
R.C. 4123:1-5-14 and4123:1-5-15 .The Hearing Officer finds that
[R.C.] 4123[:]1-5-14 (G) (1) , pertaining to power driven cranes and hoists, is applicable to this case.Injured Worker was operating a power driven crane, identified in the Investigation Report of 09/08/2010, as a Kone XLD 10-ton double box girder top running crane with
8,000 pound electric magnet at the time he was injured. (Investigative Report paragraph 3; SVIU Exh. 9).
The Code Section states:
Section (G) Specific requirements applicable to all paragraphs of this rule, (1) Defective safety devices or load carrying equipment.
Defective crane safety devices or load carrying equipment shall be repaired or replaced.
The Hearing Officer finds the preponderance of the evidence shows that the crane causing Injured Worker‘s injury had a defective safety device. The defect was that the safety latch was not present on the crane hook. The facts supporting this conclusion are as follows:
(1) The Employer told the safety investigator that the safety latch attaching the magnet to the metal hook was missing at the time of the incident of record. (SVIU Report, paragraph 4).
(2) The Injured Worker told the investigator that the hook on the bottom of the wire rope did not have a safety latch to keep the magnet from coming off of it. (SVIU Report, paragraph 8).
(3) The Employer‘s Occupational Injury/Illness Investigative Report completed on the date of injury by Tony Sumner answers the question: “repair or modification needed” with: “safety latch needed.” (SVIU Exh. 5).
(4) Mr. Eckenrode, another crane operator at the time Injured Worker was injured, also completed a statement in conjunction with the Employer‘s investigation of the injury, and indicated, “the magnet came off the hook.” (SVIU Exh. 5).
(5) The Accident/Injury Report completed by Supervisor, Albert Morales, on 03/01/2008, the date of injury, indicated, “magnet slipped off the hook, no safety pin.” (SVIU Exh. 5).
(6) The OSHA 301 form noted “magnet slipped off the hook and part fell.” (SVIU Exh. 15).
(7) The testimony was offered at hearing that a search was conducted for the clasp but none was ever found[.] (Transcript, Page 95).
The Hearing Officer finds that the magnet would not have slipped off if a safety hook had been present.
Further, the testimony of the Employer‘s witnesses do not support that a safety latch was present at any time before or at the time of the industrial injury. The Employer‘s witnesses testified that they were not aware whether a safety latch was present or not.
Mr. Demchyna, Operations Manager, who was responsible for overseeing safety for the Employer, agreed that a safety latch was recommended for lifting a load with a hook (Transcript Page 49, Lines 7-22). When questioned, “In particular, hooking up to an electromagnet you want a safety hook latch?” He answered, “Hooking up anything, Yes” (Page 49, Lines 12-16)[.] He also agreed that the manufacturer‘s recommendations indicate that you should always use a hook with a safety latch when you are connecting it to the magnet (Page 49, Lines 23-25 through Page 50, Lines 1-3)[.] He further testified that he knew at the time of the Injured Worker‘s injury that there should be safety latches. (Page 50, Lines 4-10)[.] Mr. Demchyna indicated he never personally inspected the crane or the equipment such as cables or hooks. (Page 56, Lines 1-7)[.] Rather, he indicated inspections were made of the hooks by OSHA inspectors, (Page 56, Lines 9-11) and that inspections were done by operators, but that no record was kept of any inspections. (Page 63, Lines 18-25 through Page 64, Lines 1-23)[.] He testified that if there was a problem, someone would talk to maintenance and maintenance would report to him. (Page 56, Lines 12-25)[.]
The Hearing Officer finds Mr. Demchyna‘s testimony was not persuasive that a safety latch was present, only that he did not personally inspect to see whether one was there or not.
Mr. Eckenrode testified on behalf of the Employer, and was not found to be a credible witness by this Hearing Officer. On the date of injury, he made a statement that the magnet came off the hook causing Injured Worker‘s injury. In his testimony at hearing, he indicated that the cable was still attached to the magnet. (Page 80, Lines 8-16)[.] When questioned, he responded that “he did not recall” whether
there was a time when there was no safety latch on the hook. (Page 82, Lines 12-16)[.]
The witness statements on behalf of the Employer from Mr. Johnson, Mr. Gamble, and Mrs. Smith are similarly unpersuasive in confirming whether a safety latch was, or was not, ever on the crane. They only indicated that they never noticed the hook without a safety clasp. The Hearing Officer finds the self serving affidavits of these witnesses unpersuasive.
Therefore, the Hearing Officer finds the weight of the evidence supports that there was no safety latch on the crane at the time of Injured Worker‘s injury. The Hearing Officer finds that the violation of
[R.C.] 4123:1-5-14 and4123:1-5-15 was the cause of Injured Worker‘s injury.Specifically, the Hearing Officer finds that the safety latch was missing at the time of Injured Worker‘s injury and therefore the equipment should have been repaired or replaced according to
[R.C.] 4123:1-5-14 (G) (1) .Secondly, the crane should have been removed from service and not in use, as required by
R.C. 4123:1-5-15 (B) pertaining to Hoisting and Haulage Equipment which states:Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.
The Hearing Officer finds the lack of a safety latch amounted to a defect which weakened the equipment (the magnet came off because a safety latch was missing). If a safety latch were present, the magnet would not have come off and crushed Injured Worker‘s hand.
Additionally, the testimony of the Employer‘s witnesses supports that a safety latch was a necessary safety feature for use of the crane and hook.
The Hearing Officer finds that the Employer cannot abdicate responsibility and argue that Injured Worker is negligent for failure to report a lack of a safety latch. The review of evidence submitted by the Employer showed a complete lack of safety protocol. There was no clear reporting protocol for when a safety violation was perceived. Mr. Demchyna specifically indicated any reports of problems with machinery would be given strictly to maintenance. The
testimony of Mr. Eckenrode, now a supervisor, indicated that if there were a problem the problem would be reported to supervisors or maintenance. The Employer specifically stated that there was no written documentation or record of machinery being checked on a regular basis. Therefore, the Hearing Officer is unable to conclude that there was any clear responsibility on anyone‘s part to identify if a safety latch was missing and there was no clear evidence as to who was to report same. The Code Section requires repair, replacement or removal from service of defective safety devices or load carrying equipment. The Hearing Officer finds this responsibility is strictly the burden of the Employer and the Employer has not shown by a preponderance of the evidence that they met this burden.
The Employer‘s argument that they had no notice of a “defect” as required by State ex. rel. M.T.D. Products vs. Stebbins (1975), 43 Ohio St.2d 144, is unpersuasive. M.T.D. Products and it‘s progeny apply to cases where there is an equipment malfunction or when something is not working the way it is supposed to. The Hearing Officer finds the holding of M.T.D. Products is not applicable when a safety feature is not present at all.
The Court in State of Ohio ex rel. Monsanto Company, Relator v. Industrial Commission of Ohio and Gregory J. Stebbins (1975) WL 181678 (Ohio App. 10 Dist) clearly explained that one malfunction of a properly installed and properly working safety device does not violate a specific safety requirement.
In this case, the Hearing Officer finds the weight of the evidence shows there was no safety device in place, no safety latch in place on the crane. MTD Products in [sic] inapplicable because there was not a compliant safety device (i.e. safety latch) present that malfunctioned. The Hearing Officer finds there was none present at all.
Therefore, the Employer‘s request to find no violation of a specific safety requirement as there was a “one time violation” of a specific safety requirement that they did not have knowledge of, is found not well taken.
Therefore, the Hearing Officer finds that the Employer was in violation of the aforementioned Code Sections and that the violation of the Code Sections was the proximate cause of the Injured Worker‘s injury. If a safety latch were in place, the magnet would not have fallen on Injured Worker‘s hand.
It is therefore ordered that a 50% award is granted for violation of Code Sections
[R.C.] 4123:1-5-14 and4123:1-5-15 .The additional award of compensation is granted to the Injured Worker in the amount of percent of maximum weekly rate under the rate under the rule of State ex. rel. Engle v. Indus Comm. (1944), 142 Ohio St. 425.
(Emphasis sic.)
{¶ 90} 25. On September 2, 2011, relator moved for rehearing pursuant to
{¶ 91} 26. Relator‘s memorandum argued that the issuance of the two orders created “confusion and an apparent lack of clarity” that compels a rehearing.
{¶ 92} 27. Claimant, through counsel, filed a written response or “answer” to relator‘s motion for rehearing. Claimant attached as an exhibit to his “answer” a copy of an e-mail sent by SHO Spidel to relator‘s counsel on August 17, 2011. The Spidel e-mail states:
I wrote the vssr order and when I received the first draft back from the typist it needed numerous corrections. I submitted the corrections to our local typist to be completed. Unfortunately, when I was out ill, another hearing officer mistakenly signed my uncorrected version of the order. When I returned, I had the typist finish the corrections I had originally made. We had to do it as a “corrected order” only because the order had gone out already.
{¶ 93} 28. On October 25, 2011, another SHO mailed an order denying a rehearing. The SHO‘s order explains:
It is hereby ordered that the Motion for Rehearing filed 09/02/2011 be denied. The Employer has not submitted any new and relevant evidence nor shown that the order mailed 08/09/2011 was based on an obvious mistake of fact or on a clear mistake of law.
Further, the 08/17/2011 e-mails from the Staff Hearing Officer to Michael Margelefsky, an Employer representative, e-mails not attached to the Employer[‘]s request for a rehearing but provided by the Injured Worker‘s Counsel, show that the corrected order mailed 08/09/2011 was done under the Industrial Commission[‘]s continuing jurisdiction pursuant to
ORC 4123.52 to correct a clerical error.
Conclusions of Law:
{¶ 95} It is the magistrate‘s decision that this court issue a writ of mandamus, as more fully explained below.
{¶ 96} At the outset, the magistrate finds that the commission had continuing jurisdiction to issue the SHO‘s corrected order mailed August 9, 2011. The corrected order properly vacated the SHO‘s order mailed August 3, 2011 that was mistakenly issued.
{¶ 97} A mistake of fact—which includes clerical error—justifies invocation of continuing jurisdiction. State ex rel. Schirtzinger v. Mihm, 81 Ohio St.3d 459 (1998). Under the circumstances disclosed through the SHO‘s order mailed October 25, 2011 that denied relator‘s motion for rehearing, the commission clearly had continuing jurisdiction to issue the SHO‘s corrected order. The August 17, 2011 e-mails clearly show the circumstances and propriety of the issuance of the corrected order. See State ex rel. Ranco North Am. v. Indus. Comm., 10th Dist. No. 05AP-290, 2006-Ohio-1474.
{¶ 98} The commission determined that relator had violated two specific safety requirements and, on that basis, imposed a VSSR penalty.
{¶ 99} First, the commission determined that relator had violated
{¶ 100} Second, the commission determined that relator had violated
{¶ 101} It is well-settled that a VSSR award is deemed a penalty to the employer subject to the rule of strict construction with all reasonable doubts concerning the interpretation of the safety standard to be construed against the applicability of the standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354 (1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
{¶ 102} It is also firmly established that the determination of disputed factual situations as well as the interpretation of a specific safety requirement is within the final
{¶ 103} Of course, the commission‘s authority to interpret its own safety rules is not unlimited. Strict construction does require that the commission‘s interpretation be reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d 333, 342 (1997). The commission may not effectively rewrite its own safety rules when it interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996).
{¶ 104} Paragraph one of the syllabus of State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972) states:
The term, “specific requirement,” as used in Section 35, Article II of the Constitution of Ohio, does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are of a character plainly to apprise an employer of his legal obligation toward his employees.
Id.
{¶ 105} According to relator, neither of the two safety rules it was found to have violated specifically require a latch on a crane hook. Citing the above authorities, relator argues that, regardless of the desirability of placing a latch on a crane hook, it did not violate either of the two safety rules and thus, the commission abused its discretion by entering a VSSR award.
{¶ 106} Relator‘s contention requires a thorough analysis of the context in which the two rules are found in the code.
{¶ 107} Analysis begins with the observation that
{¶ 108} Thereunder,
{¶ 109} Thereunder, we find paragraph (C) captioned “Overhead electric traveling cranes,” paragraph (D) captioned “Electric jib cranes,” paragraph (E) captioned “Electric
{¶ 110} Under paragraph (G) we find the first of the two specific safety rules at issue here. That is,
(G) Specific requirements applicable to all paragraphs of this rule.
(1) Defective safety devices or load-carrying equipment.
Defective crane safety devices or load-carrying equipment shall be repaired or replaced.
{¶ 111} The second specific safety rule at issue here is found at
(B) Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.
{¶ 112} Because
Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope, chain, metal mesh and synthetic web, and attachments used to handle material or equipment shall be used in accordance with the manufacturer‘s recommendations.
Ohio Adm.Code 4123:1-5-14(G)(1)
{¶ 113} The commission, through the corrected order of its SHO found a violation of
{¶ 114} Here, relator points out that
{¶ 116} Interestingly,
{¶ 117} Under
{¶ 118}
{¶ 119}
{¶ 120} It is clear that
{¶ 121} Accordingly, the magistrate concludes that
{¶ 122} The specific safety rule at issue here,
Ohio Adm.Code 4123:1-5-15(B)
{¶ 123} As earlier noted, the second specific safety rule at issue here,
{¶ 124} In her corrected order, the SHO fails to address the significance of
{¶ 125} Accordingly, based upon the above analysis, it is the magistrate‘s decision that this court issue a writ of mandamus ordering the commission to vacate the corrected order of its SHO mailed August 9, 2011 (with the exception of that portion of the order that vacates the SHO‘s order mailed August 3, 2011) and to enter a new order that, in a manner consistent with this magistrate‘s decision, determines that relator did not violate
/S/ MAGISTRATE
KENNETH W. MACKE