State ex rel. Danstar Builders v. Indus. Comm., 2005 Ohio 365 (OH 2/3/2005)
| Decision Date | 03 February 2005 |
| Docket Number | Case No. 04AP-309. |
| Citation | 2005 Ohio 365 |
| Parties | State ex rel. Danstar Builders, Inc., Relator, v. Industrial Commission of Ohio and Donald Knight, Jr., Deceased, Lisa Knight, Widow-Claimant, Respondents. |
| Court | Ohio Supreme Court |
Gibson & Robbins-Penniman, and J. Miles Gibson; Isaac, Brant, Ledman & Teetor, and Douglas J. Suter, for relator.
Jim Petro, Attorney General, and Charissa Payer, for respondent Industrial Commission of Ohio.
Pencheff & Fraley Co., LPA, and Joseph A. Fraley, for respondent Lisa Knight.
DECISION
ON OBJECTIONS TO MAGISTRATE'S DECISION
{¶1} Relator, Danstar Builders, Inc., commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order granting the application of respondent Donald Knight, Jr., for an additional award for the violation of a specific safety requirement ("VSSR"), and to find that claimant is not entitled to the award.
{¶2} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) In her decision the magistrate concluded: (1) relator was the employer of the decedent for purposes of a VSSR, (2) the commission did not abuse its discretion in failing to address the affidavit of Dr. Staubus, and (3) relator's compliance with OSHA requirements is irrelevant. Accordingly, the magistrate determined the requested writ of mandamus should be denied.
{¶3} Relator has filed objections to the magistrate's decision, rearguing the same issues presented to the magistrate. For the reasons set forth in the magistrate's decision, the objections are overruled.
{¶4} Relator's first objection contends the magistrate improperly concluded the earlier determination of whether decedent was an independent contractor is res judicata for purposes of the VSSR hearing. Relator submits that the magistrate's conclusion is erroneous, as a "VSSR claim is separate and distinct from the workers' compensation claim." (Objections, 1.) As the magistrate noted, however, the issue of relator's employment relationship to the decedent was twice previously litigated and determined to final conclusion. Relator posits no persuasive reason it should have the opportunity to again litigate an issue finally determined adversely to it.
{¶5} In its second objection, relator contends the magistrate erred in concluding the commission did not need to explain its failure to rely upon the report of Alfred E Staubus, Ph.D. As the magistrate noted, the commission properly concluded that "decedent's unilateral negligence will only bar an award where the employers [sic] first found to be in compliance with the relevant safety code provisions." (Magistrate's Decision, ¶25.) (Citations omitted.) Because the staff hearing officer found relator was not in compliance with the relevant safety code provisions, the decedent's alleged negligence is not a bar. Accordingly, as a matter of law, the staff hearing officer was not required to explain the failure to rely on the report of Dr. Staubus.
{¶6} Finally, relator contends that in its installation of slide guards, it provided protection equivalent to the lifelines, safety belts and lanyards required under the pertinent Ohio Administrative Code provisions. As the magistrate observed, however, the slide guards were not in place at the time decedent fell. As a result, even if slide guards may be deemed comparable protection, relator failed to comply with the appropriate administrative regulations.
{¶7} Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ of mandamus is denied.
Objections overruled; writ denied.
MAGISTRATE'S DECISION
Rendered on September 28, 2004.
Gibson & Robbins-Penniman, and J. Miles Gibson; Isaac, Brant, Ledman & Teetor, and Douglas J. Suter, for relator.
Jim Petro, Attorney General, and Charissa Payer, for respondent Industrial Commission of Ohio.
Pencheff & Fraley Co., LPA, and Joseph A. Fraley, for respondent Lisa Knight.
{¶8} Relator, Danstar Builders, Inc., has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which granted the application of respondent Donald Knight, Jr. ("decedent") an additional award for the violation of a specific safety requirement ("VSSR"), and ordering the commission to find that claimant is not entitled to that award.
Findings of Fact:
{¶9} 1. On December 31, 2001, decedent sustained an injury in the course of and arising out of his employment which ultimately resulted in his death on January 11, 2002, when he fell to the ground from the roof of a house under construction. His claim was allowed for:
* * * Bilateral distal radius fracture orif; bilateral acute trauma carpal tunnel (wrists); skull fracture; fracture frontal lobe; compression fracture dorsal vertebra; fracture maxillary antrum; compartment syndrome right forearm early complicated trauma.
{¶10} 2. On September 13, 2002, decedent's widow, Lisa Knight ("claimant"), filed an application for an additional award for a VSSR. Claimant alleged that decedent's death was the result of relator's failure to provide lifelines, safety belts and lanyards, or catch platforms along the edge of the house's roof, as required by Ohio Adm.Code 4121:1-3-09(F)(1) and 4121:1-3-03(J)(1).
{¶11} 3. The staff hearing officer ("SHO") made the following findings of fact with regard to decedent's injuries and whether or not relator had violated the safety requirements as follows:
It is further the finding of the Staff Hearing Officer that the decedent's death was the result of the employer's failure to provide lifelines, safety belts and lanyards, or catch platforms along the edge of the house's roof, as required by OAC section 4121:1-3-09(F)(1), and OAC section 4121:1-3-03(J)(1) as required by and, the Code of Specific Requirements of the Industrial Commission relating to construction.
The decedent sustained fatal injuries to his head when he fell to the ground from the roof of a house under construction. He was in the process, along with a couple of co-workers, of putting down plywood sheathing on the roof when he slipped on a patch of ice and fell off of the roof all the way to the ground. He was not wearing a safety belt at the time, and no lifeline had been erected in the area. There was no catch platform or slide guard around the edge of the roof, or any other equivalent type of fall protection in place. There is no dispute that he fell more than six feet from the roof to the ground. The claimants in this case are the minor dependents of the decedent.
The claimants have cited and alleged a violation of the following specific safety code requirements:
OAC sections 4121:1-3-03(J)(1) and 4121:1-3-09(F)(1).
Section 4121:1-3-03(J)(1) requires that an employer provide safety belts, lifelines and lanyards in cases where an employee is exposed to a risk of falling more than six feet. It is the employee's responsibility to wear or use these items once provided. Section 4121:1-3-09(F)(1) requires an employer to install catch platforms around the edge, or eaves of a pitched roof with a rise of four inches in twelve or greater. The provision of safety belts and a secured lifeline may be used in lieu of catch platforms. The evidence is clear in this case that at the time of the decedent's fall there was no lifeline with safety belts, or catch platforms in place. The Staff Hearing Officer relies on the OSHA citation no. 1, item 3 contained in the file in making the above findings of fact. These findings of fact were not specifically contested at the record hearing. Therefore, the Staff Hearing Officer finds that the employer was in violation of the specific safety requirement rules cited by the claimants in this case.
{¶12} 4. In defense of claimant's allegation of a VSSR, relator raised numerous arguments. First, relator argued that decedent was not an employee of relator on the date of the incident in question, but, rather, was a subcontractor. The SHO determined this issue as follows:
* * * Furthermore, the employer raised this same defense to the allowance of the claim at the original District Hearing Officer and Staff Hearing Officer allowance hearings conducted on 02/25/2002 and 04/08/2002, and the Commission issued orders from those hearings finding the decedent to have been an employee, not an independent contractor, of the employer, for purposes of workers' compensation coverage. The Staff Hearing Officer finds that the employer's independent contractor defense is res judicata, as that issue has already been decided by the Commission through final orders. In addition, the employer's argument that any doubt as to whether the decedent was an employee or an independent contractor must be construed in favor of the employer, pursuant to the standard of strict construction per the case of State ex rel. Burton v. Industrial Commission (1989), 46 Ohio St.3d 170, is not found persuasive, as the strict construction standard applies only to the...
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