State ex rel. 31, Inc. v. Indus. Comm'n of Ohio
| Decision Date | 21 December 2017 |
| Docket Number | No. 2016–0968,2016–0968 |
| Citation | 96 N.E.3d 246,2017 Ohio 9112,152 Ohio St.3d 350 |
| Parties | The STATE EX REL. 31, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees. |
| Court | Ohio Supreme Court |
Black, McCuskey, Souers & Arbaugh, Brian R. Mertes, and Rod A. Moore, Canton, for appellant.
Michael DeWine, Attorney General, and Andrew J. Alatis, Assistant Attorney General, for appellee Industrial Commission.
Phillips & Mille Co., L.P.A., Nicholas E. Phillips, and Stewart S. Wilson, Middleburg Heights, for appellee Duane Ashworth.
{¶ 1} This is an appeal in a mandamus case in which appellant, 31, Inc., challenges the order of appellee Industrial Commission granting an additional award for the violation of a specific safety requirement ("VSSR"). The commission determined that 31, Inc. had violated the "nip point" rule found in Ohio Adm.Code 4123:1–5–11(D)(10)(a), thereby causing an industrial injury to appellee Duane Ashworth.1
{¶ 2} The Tenth District Court of Appeals denied the request for a writ, concluding that the commission did not abuse its discretion.
{¶ 3} We hold that the nip-point rule did not apply here because an administrative-code provision applicable to the rubber and plastics industry expressly covered the machine that Ashworth was operating. Therefore, we reverse the judgment of the court of appeals and issue a writ of mandamus ordering the commission to issue a new order that denies Ashworth's application for a VSSR award.
{¶ 4} 31, Inc. processes rubber to make products that are used to repair tires. Ashworth was employed by 31, Inc. as a calender operator. A calender is defined as "a machine equipped with two or more metal rolls revolving in opposite directions and used for continuously sheeting or plying up rubber or plastic compounds and for frictioning or coating fabric with rubber or plastic compounds." Ohio Adm.Code 4123:1–13–01(B)(3).
{¶ 5} Ashworth operated a calender with three rolls. A coworker would insert a ball of rubber between the top and middle rolls on one side of the calender, and as it came out of the opposite side, Ashworth's job was to grab the rubber with both hands and peel it off the bottom roll into a tank containing a chemical solution to cool it.
{¶ 6} On the day of the accident, as Ashworth grabbed the rubber to pull it off the roll, it caught the fingers on his right hand and pulled his hand into a three-inch space between the rolls. When he was unable to remove his hand, he pulled an emergency cable that immediately stopped the rolls.
{¶ 7} Ashworth filed a workers' compensation claim that was allowed for multiple injuries to his hand. He also applied for an additional award for a VSSR, alleging that 31, Inc. had violated Ohio Adm.Code 4123:1–5–11(D)(10)(a), a workshop-and factory-safety rule.
{¶ 8} Ohio Adm.Code 4123:1–5–11(D)(10) provides:
over roll surface.
(b) Exception.
Machinery covered expressly by requirements contained in other codes of specific requirements of the Ohio bureau of workers' compensation.
{¶ 9} 31, Inc. argued that the exception in Ohio Adm.Code 4123:1–5–11(D)(10)(b) applied because the calender was expressly covered by Ohio Adm.Code 4123:1–13–03, a rule that provides specific safety guidelines for calenders used in the rubber and plastics industry. A staff hearing officer rejected this argument, finding that both Ohio Adm.Code 4123:1–13–03and 4123:1–5–11(D)(10)(a) applied to the calender, citing State ex rel. Hartco, Inc., Custom Coated Prods. v. Indus. Comm. , 38 Ohio St.3d 181, 527 N.E.2d 815 (1988), in which this court held that Ohio Adm.Code 4123:1–5–11(D)(10)(a) applied to a reroll machine used in the rubber and plastics industry.
{¶ 10} The staff hearing officer nevertheless denied Ashworth's VSSR application, concluding that "the nip point guarding provisions were not practical on the calender machine" and that the machine was equipped with alternative means of protection, such as extra safety lines and emergency-stop cords as required for the rubber industry.
{¶ 11} Ashworth moved for a rehearing. A staff hearing officer granted the motion.
{¶ 12} On rehearing, a staff hearing officer concluded that Ohio Adm.Code 4123:1–5–11(D)(10)(a) applied, and the hearing officer granted the VSSR application. The hearing officer rejected 31, Inc.'s argument that the exception in Ohio Adm.Code 4123:1–5–11(D)(10)(b) applied, finding that the administrative rules for the rubber industry supplement—but do not supplant—the workshop and factory rules, citing Hartco .
{¶ 13} 31, Inc. filed a complaint for a writ of mandamus, alleging that both the decision to grant a rehearing and the decision to order a VSSR award were contrary to law and not supported by some evidence, see State ex rel. McKee v. Union Metal Corp. , 150 Ohio St.3d 223, 2017-Ohio-5541, 80 N.E.3d 491, ¶ 11 ().
{¶ 14} The court of appeals concluded that the commission did not abuse its discretion when granting the rehearing motion or the VSSR award. The court determined that Hartco , which interpreted the same Administrative Code provisions at issue here, held that the rules for the rubber and plastic industries supplement but do not supplant the rules for workshops and factories. The court of appeals denied the writ. 2016-Ohio-3526, 2016 WL 3430692, ¶ 7–8.
{¶ 15} The direct appeal filed by 31, Inc. is now before the court.
{¶ 16} At the outset, we deny 31, Inc.'s request for oral argument. Granting oral argument in a direct appeal is subject to the court's discretion. S.Ct.Prac.R. 17.02(A). This case does not present an issue that necessitates oral argument, and the parties' briefs are sufficient to resolve the issues raised. See State ex rel. Woods v. Oak Hill Community Med. Ctr ., 91 Ohio St.3d 459, 460, 746 N.E.2d 1108 (2001).
{¶ 17} 31, Inc.'s argument that the commission's decision to grant a rehearing was an abuse of its discretion is resolved by our analysis of the merits of the VSSR claim. Regarding the VSSR, 31, Inc. argues that the rule in Ohio Adm.Code 4123:1–5–11(D) (10(a) relating to "nip points" does not apply to calenders, because of the exception in Ohio Adm.Code 4123:1–5–11(D)(10)(b) for "machinery covered expressly by requirements contained in other codes of specific requirements of the Ohio bureau of workers' compensation."
{¶ 18} 31, Inc. maintains that there are express safety requirements for calender machines in Ohio Adm.Code 4123:1–13–03, which is within the chapter that applies to the rubber industry. That rule requires employers to protect employees either by providing safety trip cords that immediately stop the calender's rolls when the cord is pushed or pulled, Ohio Adm.Code 4123:1–13–03(A), or by locating the calender where employees cannot come into contact with the roll bites, Ohio Adm.Code 4123:1–13–03(B). 31, Inc. argues that because this rule expressly covers calenders, the exception in Ohio Adm.Code 4123:1–5–11(D)(10)(b) applies.
{¶ 19} We agree. Ohio Adm.Code 4123:1–13–03 expressly establishes safety controls for calenders. For the commission to require 31, Inc. to comply with the nip-point rule, it must ignore the rule that expressly covers the safety controls for calender machines. While we defer to the commission's reasonable interpretation of its own rules, State ex rel. Richmond v. Indus. Comm ., 139 Ohio St.3d 157, 2014-Ohio-1604, 10 N.E.3d 683, ¶ 28, we find that the commission's failure to apply the rule that expressly covers calender machines was not reasonable, and thus was an abuse of its discretion.
{¶ 20} Furthermore, the court of appeals' reliance on Hartco is misplaced because that case is factually distinguishable. Hartco involved a reroll machine used in the rubber industry. The injured worker alleged that the employer had failed to guard the nip point on the reroll machine in violation of former Ohio Adm.Code 4121:1–5–11(D)(10)(a).2 The Hartco court concluded that because no specific rules within the chapter of the Administrative Code dealing with the rubber industry applied to the reroll machine, the general rules for that industry applied but merely supplemented—and did not supplant—the workshop and factory rules, including the nip-point rule, that applied to all workers. 38 Ohio St.3d at 817, 527 N.E.2d 815. Here, unlike in Hartco , the calender was expressly covered in Ohio Adm.Code 4123:1–13–03.
{¶ 21} Because a VSSR award is a penalty, a specific safety requirement must be strictly construed and all reasonable doubts concerning the interpretation must be resolved in favor of the employer. State ex rel. Burton v. Indus. Comm ., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). A plain reading of the rules indicates that Ohio Adm.Code 4123:1–5–11(D)(10)(a) does not apply to calenders, because of the exception in Ohio Adm.Code 4123:1–5–11(D)(10)(b) for "[m]achinery covered expressly by requirements contained in other codes of specific requirements of the Ohio bureau of workers' compensation." The commission's decision that 31, Inc. violated Ohio Adm.Code 4123:1–5–11(D)(10)(a) is contrary to law, because the rule did not apply.
{¶ 22} 31, Inc. has met its burden of showing a clear legal right to the relief requested and is entitled to a writ of mandamus. See State ex rel. M.T.D. Prods., Inc. v. Stebbins , 43 Ohio St.2d 114, 119, 330 N.E.2d 904 (1975). Therefore, we reverse the judgment of the court of appeals and issue a writ of mandamus that orders the commission to vacate its order allowing a VSSR award and to issue a new order that denies Ashworth's VSSR-award application.
Judgment reversed and writ granted.
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