State, ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster

• Decision Date: 26 February 1986
• Docket Number: No. 85-649,85-649
• Citation: 22 Ohio St.3d 191,22 OBR 275,489 N.E.2d 288
• Parties: , 22 O.B.R. 275 The STATE, ex rel. COMMERCIAL LOVELACE MOTOR FREIGHT, INC., Appellant, v. LANCASTER et al.; Industrial Commission of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 191

22 Ohio St.3d 191

489 N.E.2d 288, 22 O.B.R. 275

The STATE, ex rel. COMMERCIAL LOVELACE MOTOR FREIGHT, INC., Appellant, v. LANCASTER et al.; Industrial Commission of Ohio, Appellee.

No. 85-649.

Supreme Court of Ohio.

Feb. 26, 1986.

William L. Gorth, claimant herein, was injured on December 28, 1978 when an overhead loading dock door fell on him while he was maneuvering a forklift truck ("tow motor") out of a tractor trailer onto a loading dock. The incident occurred within the scope of claimant's employment and, as a consequence, resulted in the Bureau of Workers' Compensation awarding claimant benefits for a "ventral hernia, cervical strain."

On July 3, 1980, claimant filed for an additional award for violation of a specific safety requirement. This application was subsequently investigated twice. On June 16, 1982, Special Investigator Robert L. McCollum noted the following findings of fact:

(1) At the time of Gorth's injury, he was in the process of unloading carton goods from a tractor-trailer; (2) in connection therewith Gorth was "operating a tow motor, make and model unknown" which was " * * * approximately 3 or 4 years old"; and (3) the company had " * * * removed the overhead guards from all tow motors, including the one involved in the injury of record," but that claimant did " * * * not know why the guards were removed by the employer."

In the second investigative report dated August 18, 1982, Special Investigator James G. Johnson reported essentially the same findings with the exception of the following notation: "When unloading trucks clearance will not allow overhead protection. (See C-105-R of claimant.)" The form which Johnson was referring to was the claimant's affidavit. However, no such inference or statement to that effect exists in this document. Instead, the claimant explicitly states therein that he does not know why the guards were removed by the employer.

In addition to these reports, appellant submitted the affidavit of Robert Hamilton, vice president of fleet maintenance of Commercial Lovelace Motor Freight. In explaining the absence of overhead protective equipment on the company's tow motors, Hamilton stated:

"Because of variations in truck body, yard and dock heights, I must make sure that the masts (the 'rails' on the front of the powered industrial trucks to which the 'forks' are attached) on the powered industrial trucks I buy are of limited height and that they come without overhead guards. The reason is that if the masts are too high and if the powered industrial trucks have overhead guards, they will not be able to enter many truck bodies without hitting the tops of trailers and trucks."

Hamilton further explained that because Commercial Lovelace has no overhead guards on its tow motors, the operators are instructed never to raise the forklifts higher than is necessary to move safely across the dock and in and out of the truck body and, more importantly, that the trucks are equipped with "lift stops" making it impossible to raise the cargo above the operator's head.

On January 4, 1983, a hearing was held before a commission staff hearing officer. During this hearing the claimant represented that on more than one occasion he had used new trucks while working for appellant that were equipped with overhead protection and, although used without problems, their overhead protection equipment was removed by appellant. In addition, the staff hearing officer made the following personal note regarding the subject matter of the hearing:

"This hearing officer is very familiar with the use of fork lift trucks; military occupational specialty (MOS) having been Stevedore Operations Officer. Smaller size fork lift trucks are operated in ship's holds, box cars, warehouses, etc. I have never seen one without overhead protection. The day after this hearing, a fork truck was seen operating in a 'straight' (smaller than ansemi [sic] ) truck (with the factory supplied protection, of course). Of course, it is recognized that quite small trucks may not be able to accommodate some fork trucks. But, the overhead protection does not add significant height or width to the machine, nor impede its maneuverability significantly."

Based on the evidence presented, the staff hearing officer issued the following finding:

"It is further the finding of the Hearing Officer that the claimant's injury/disability was the result of the Employer not having the forklift truck equipped with a substantial overhead guard as required by [Ohio Adm.Code] 4121:1-5-13(E)(1), the Code of Specific Safety Requirements of the Industrial Commission relating to All Workshops and Factories.

"It is therefore ordered that an additional award of compensation be granted to the Claimant in an amount equal to 25 per cent of the maximum weekly rate under the rules of State, ex rel. Engle, v. Industrial Commission [1944], 142 Ohio St. 425 ."

Appellant thereafter instituted a writ of mandamus in the court of appeals on the ground that the commission abused its discretion in finding Commercial Lovelace guilty of a violation of a specific safety requirement. A reviewing referee recommended that the court of appeals grant the requested writ of mandamus and order the commission to vacate its order awarding benefits for violation of a specific safety standard. However, the court rejected the referee's recommendation and denied appellant's complaint.

The cause is now before this court upon an appeal as of right.

Vorys, Sater, Seymour & Pease, Robert E. Tait and P. Douglas Barr, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Sheryl L. Creed, Columbus, for appellee.

PER CURIAM.

The issue before us, based upon the procedural posture of this case, is whether the commission abused its discretion in finding appellant violated a specific safety requirement. ¹ For the attendant reasons, we affirm the judgment below and decline to issue the requested writ.

For this court to grant a writ of mandamus with respect to a decision by the Industrial Commission, it is incumbent upon the relator to demonstrate that the commission committed an abuse of discretion. State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St.3d 38, 471 N.E.2d 465. An abuse of discretion "implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency." State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 590, 113 N.E.2d 14 . An abuse of discretion will be found only where there exists no evidence upon which the commission could have based its decision. State, ex rel. Morris, v. Indus. Comm., supra, 14 Ohio St.3d at 39, 471 N.E.2d 465; State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 423 N.E.2d 99 ; State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St.2d 77, 397 N.E.2d 403 .

The safety requirement in question, Ohio Adm.Code 4121:1-5-13(E)(1)(b) provides, in pertinent part:

"(E) Overhead Protection

"(1) High-lift rider trucks shall have a substantial overhead guard as protection against falling objects, constructed in a manner that does not interfere with visibility. Opening shall not exceed six (6) inches in one of the two dimensions, width or length, and shall extend over the operator under all normal truck operation, including forward tilts.

" * * *

"(b) Exception

"Where headroom conditions are such that overhead protection cannot be used (such as loading of truck bodies, rail cars, etc.) means of limiting the lift height shall be provided and the load shall not extend above the operator's head."

Appellant argues that the tow-motor vehicle used by claimant was in compliance with the exception above, by virtue of its use to unload semi-trailer trucks. This contention, however, is belied by claimant's assertion that tow motors had been used successfully prior to the time the overhead protection was removed. Similarly, the staff hearing officer indicated that, in his experience, removal of overhead protection equipment in most if not all instances was neither necessary nor desirable. In contrast, appellant's vice president, Robert Hamilton, averred that removal of the overhead guards was necessary to give the tow motors clearance to "enter many truck bodies without hitting the tops of trailers and trucks." The existence of conflicting evidence was sufficient to meet the "some evidence" standard (see, e.g., State, ex rel. GF Business Equip., Inc., supra) and compels us to uphold the commission's discretionary determination as to the validity of the conflicting evidence. Institutionally, we cannot reweigh the evidence nor can we substitute our own judgment for that of the commission where some evidence exists to support the commission's determination.

Appellant offers a second argument to support its request for a writ by noting that Ohio Adm.Code 4121:1-5-01(A) indicates that "[i]nstallations or constructions built or contracted for prior to " * * * [August 1, 1977] shall be deemed to comply" (emphasis added) with the Code as long as such installations or constructions complied "with the provisions of any applicable code which was in effect prior to said date." Since overhead protection on forklifts was not mandated prior to August 1, 1977, appellant argues it should not be penalized by any subsequent administrative provision.

We find this argument unconvincing as did the court of appeals below for two reasons. First, forklift vehicles of the nature in question do not appear to be trade fixtures within the purview of the phrase "installations or constructions." Second, even if we assume arguendo the tow motors were "installations" or "constructions," appellant's assertion of when the tow motor was purchased was not substantiated with any objective specificity, but rather upon claimant's and co-workers' estimations of the age of the vehicle. Accordingly, we are compelled to reject this imaginative...