THE STATE EX REL. R. BAUER & SONS ROOFING & SIDING, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 95-2633
SUPREME COURT OF OHIO
December 2, 1998
84 Ohio St.3d 62 | 1998-Ohio-310 | 701 N.E.2d 995
Submitted August 19, 1998. APPEAL from the Court of Appeals for Franklin County, No. 94APD06-865.
{¶ 1} Appellant, R. Bauer & Sons Roofing & Siding, Inc. (“Bauer“), seeks a writ of mandamus ordering appellee Industrial Commission to vacate its award of additional compensation to appellee Michael R. McClellan for Bauer‘s alleged violations of specific safety requirements (“VSSR“). The Court of Appeals for Franklin County denied the writ. Bauer appeals as of right.
{¶ 2} On August 16, 1990, McClellan sustained an industrial injury while working for Bauer. He fell approximately seventeen feet from a church roof as he attempted to remove the gutters, breaking his back and causing him to become paraplegic. McClellan‘s workers’ compensation claim was allowed for “fracture of back, multiple injuries, closed head injury.”
{¶ 4} A commission investigator looked into McClellan‘s accident and filed his report in February 1992. In November 1992, McClellan sent notice that he was amending his VSSR application to include a violation of
{¶ 5} The first time the commission heard the cause, it found a violation only of
“On the date of injury, claimant was in the process of removing the gutter from a church roof. Work on the roof itself had been completed one week to one month earlier. Claimant was sitting or kneeling on the roof to reach down and work on the gutter, reportedly because the ground sloped and the work could not be done from a ladder. The area of roof at which claimant was working was approximately 20 feet long and, because of the slope of the ground, the distance from the ground to the roof was 11 feet, 8 inches at one end and 17 feet, 5 inches at the other end * * *. The undisputed affidavits of the claimant and of Tony Mills place claimant at or near the 17 foot, 5 inch location when claimant slipped and fell to the ground, causing the injuries of record.
“On the initial application, claimant alleged a violation of [Ohio Adm.Code] 4121:1-3-09, and specifically 4121:1-3-09(F)(1). A reading of (F)(1) shows that that section makes reference to safety belts and a lifeline [as] being an acceptable alternative to the use of catch platforms. By letter dated November 10, 1992, claimant‘s counsel requested an amendment of the application to allege a violation of 4121:1-3-03(J)(1), the section dealing with safety belts, lifelines and lanyards. This requested amendment of the application is hereby allowed, as merely
clarifying the previously stated claim, and * * * it [is] found that allowing this amendment does not unfairly prejudice the employer. “No violation of 4121:1-3-09(F)(1) is found. The clear intent of the provisions in 4121:1-3-09 is to provide protection to employees who are performing work on the roof itself, as opposed to merely working from a roof, out of convenience, as was the case here.
“A violation of 4121:1-3-03(J)(1) is found. The proof establishes that claimant was performing an operation more than 15 feet from the ground when he fell and that safety belts and lanyards were not provided by the employer. It is noteworthy that the Division of Safety and Hygiene had performed a safety survey for this employer, at this job site, on or about July 23, 1990, and one of the findings was that the roof was ‘not provided with a catch platform or other equal safety guards.’ While the employer was actually performing work ON the roof at the time of this safety survey, at the least this employer, reportedly in business for 35 years, should have been put on notice that some type of safety precautions were [sic ] needed when work was being performed FROM the roof.
“It is ordered therefore that an additional award of compensation be granted to the claimant in the amount of 35 per cent of the maximum weekly rate under the rule of ’STATE EX REL ENGLE V. INDUSTRIAL COMMISSION,’ 142 Ohio St. 425 [27 O.O. 370, 52 N.E.2d 743].” (Emphasis sic.)
{¶ 6} Both McClellan and Bauer moved for rehearing pursuant to
“It is found that the employer violated Section 4121:1-3-09(F)(1) by failing to provide a catch platform for the roof from which the claimant fell. * * *
“The employer‘s argument that the first word of the paragraph, ‘on,’ relates to a requirement that the work being performed must be on the roof itself (as opposed to sitting on the roof while removing the gutters), is not well taken. Grammatically analyzed, the [g]ist [of the] sentence reads: ‘On pitched roofs ... catch platforms shall be installed.’ This is differentiated [from] the next paragraph
which reads: ‘On flat roofs ... a standard guardrail substantially fixed in place may be used.’ In both instances, the [word] ‘on’ relates to the type of guarding which should be used with each kind of roof, not the type [of] work being performed. Furthermore, the claimant states in his affidavit of June 16, 1993, that not only [were] the removal and repair of gutters a typical part of a roofing contract, but that [they were] a particular part of the contract that the employer had with the church. The employer has not provided any evidence to the contrary. [Ellipsis sic.] ” * * *
“It is therefore ordered that an additional award of compensation be granted to the claimant in the amount of 40 per cent of the maximum weekly rate under the rule of ’STATE EX REL. ENGLE V. INDUSTRIAL COMMISSION,’ 142 Ohio St. 425 [27 O.O. 370, 52 N.E.2d 743].”
{¶ 7} Bauer requested the instant writ of mandamus in the court of appeals after its second request for rehearing was denied. A referee found a violation of the catch-platform requirement, but not the safety-belt/lifeline requirement charged in McClellan‘s amendment. The referee concluded that the amendment was untimely because, even if it was a mere clarification under
{¶ 8} On both parties’ objections, the court of appeals denied all relief, finding that Bauer violated both the catch-platform and the safety-belt/lifeline requirements. While the court adopted the referee‘s findings as to the request for rehearing and application of the catch-platform rule, it agreed with the commission‘s allowance of McClellan‘s amendment, concluding that the amendment deadline was merely advisory.
Dunlevey, Mahan & Furry, L.P.A., Gary W. Auman and D. Patrick Kasson, for appellant.
Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant Attorney General, for appellee Industrial Commission.
Gibson & Robbins-Penniman and Diane Burris, for appellee McClellan.
{¶ 9} Three questions are presented for our review: (1) Did the commission abuse its discretion in allowing the amendment of McClellan‘s VSSR application to allege a violation of
VSSR Application Amendment
{¶ 10} Bauer first argues that McClellan‘s amendment was untimely under
“Claimant or his representative may submit an amendment of his [VSSR] application * * * beyond the expiration of two years following the date of injury * * *. Any such amendment must be submitted within thirty days of the receipt by the claimant or his counsel of the report of the investigation by the industrial commission into the alleged safety violation. * * * Such amendment shall set forth
all specific safety requirements omitted from the application made prior to the expiration of the two-year period which the claimant alleges were the cause of the injury * * *, but which were omitted by reason of mistake or incompleteness.” (Emphasis added.)
{¶ 11} The commission‘s rules are subject to the canons of statutory construction, State ex rel. Miller Plumbing Co. v. Indus. Comm. (1948), 149 Ohio St. 493, 496-497, 37 O.O. 197, 199, 79 N.E.2d 553, 555, including the canon that words be given their plain and ordinary meaning. State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm. (1979), 57 Ohio St.2d 51, 54, 11 O.O.3d 214, 216, 386 N.E.2d 1107, 1109. Thus, Bauer points out that most dictionaries define “must” in terms of necessity or obligation. See, e.g., Webster‘s Third New International Dictionary (1986) 1492. Bauer argues that the italicized sentence in Paragraph (A)(1) forbids amendments filed more than thirty days after claimant‘s receipt of the commission‘s VSSR report. We would accept Bauer‘s argument had we not already overridden the commission‘s authority to refuse those amendments that merely clarify the original charges.
{¶ 12} Fueled by the principle that “technical rules of procedure should not be allowed to defeat an otherwise valid claim under the Workers’ Compensation Act,” State ex rel. Dillon v. Dayton Press, Inc. (1983), 6 Ohio St.3d 295, 299, 6 OBR 357, 360, 453 N.E.2d 566, 569, we have on at least three occasions clarified the underlying principles governing either the thirty-day amendment deadline in
{¶ 13} Likewise, in State ex rel. Bailey v. Indus. Comm. (1986), 23 Ohio St.3d 53, 54, 23 OBR 127, 128, 491 N.E.2d 308, 310, we specifically held that the claimant could clarify his VSSR application under former Paragraph (D) “despite the running of the statute of limitations for such amendments.” See, also, State ex rel. Kirby v. Loewendick, 64 Ohio St.3d at 435, 596 N.E.2d at 462 (confirming that “[r]egardless of whether the commission can refuse to consider an amended application filed more than thirty days after the claimant‘s receipt of its investigation [under Paragraph (A)(1) ], it need not consider a violation that is raised for the first time after the [two-year] statute of limitations has expired“).
{¶ 14} And most recently, in State ex rel. Oliver v. Southeastern Erectors, Inc. (1996), 76 Ohio St.3d 26, 665 N.E.2d 1108, we implicitly found a claimant‘s amendment to his VSSR application timely, even though he had filed it more than thirty days after his receipt of the commission‘s investigation report. See [State ex rel.] Oliver v. Southeastern Erectors (June 23, 1994), Franklin App. No. 93APD04-597, unreported. The commission maintained in Oliver that the claimant‘s amendment was untimely under Paragraph (A)(1), but we did not specifically dispose of this argument due to our finding that the claimant‘s amendment charged a VSSR that either was similar to or referred to the VSSRs cited in his application. We were satisfied that these references and similarities provided sufficient notice to the employer of the added VSSR. Id. at 28-29, 665 N.E.2d at 1111. Inherent in this finding is the conclusion that the amendment “merely clarified” the previously alleged violations, without “rais[ing] any unstated claim,” within the meaning of Paragraph (A)(1).
{¶ 15} Accordingly, we hold, based on Dillon and its progeny, that claimants may amend their VSSR applications to clarify prior charges regardless
{¶ 16} Bauer also argues that McClellan‘s amendment alleges a previously unstated claim, not merely a clarification. Bauer insists that the reference in
{¶ 17} In Oliver, the claimant also alleged in his application a violation of
“[T]he omitted and cited provisions are sufficiently related so as to adequately apprise the parties of a potential violation of
Ohio Adm.Code 4121:1-3-03(J)(1) as well. Accordingly,Ohio Adm.Code 4121:1-3-03(J)(1) should be treated as having been raised initially.” Id., 76 Ohio St.3d at 28-29, 665 N.E.2d at 1111.
{¶ 18} On this authority, we find McClellan‘s amendment acceptable as a clarification under
Catch-Platform Requirement as Applying to Gutter Removal
{¶ 19} Bauer next argues that “roofing,” for the purpose of
{¶ 20}
“Activities within the scope of this code, generally referred to herein as ‘construction,’ include the demolition, dismantling, excavation, construction, erection, alteration, repair * * * of buildings and other structures.
“This code covers construction activities of employees whose employer engages in such work as its principal business. It also covers employees of other employers when the activities are performed in the course of new construction or substantial reconstruction of all or part of an existing structure, as well as
substantial demolition or razing of an existing structure, but does not cover employees of such other other employers when the activities are performed in the ordinary course of maintenance work.”
{¶ 21}
“(F)(1) Catch platforms for pitched roofs.
“On pitched roofs with a rise of four inches in twelve or greater, sixteen feet or more above ground, and not having a parapet of at least thirty inches in height, catch platforms shall be installed. The platform shall extend two feet beyond the projection of the eaves and shall be provided with a standard guardrail substantially fixed in place. Safety belts attached to a lifeline which is securely fastened to the structure may be used in lieu of a catch platform.
“(2) For flat roofs.
“On flat roofs, not having a parapet of at least thirty inches in height, a standard guardrail substantially fixed in place may be used. Safety belts attached to a lifeline which is securely fastened to the structure may be used in lieu of a standard guardrail.”
{¶ 22} Contrary to Bauer‘s argument,
{¶ 23} Thus,
Rehearing
{¶ 24} But Bauer alternately argues that even if
{¶ 25} The court of appeals implied, by adopting the referee‘s report, that McClellan‘s affidavit did not constitute new and additional proof for the purpose of the rehearing standard in
{¶ 26} This finding overlooks the real mistake of law that undermines the commission‘s and court of appeals’ decisions in this cause — their combined failure to recognize that the catch-platform and the safety-belt/lifeline requirements are alternative safety measures and cannot be applied simultaneously. Again,
Judgment reversed in part and affirmed in part.
MOYER, C.J., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.