State ex rel. Donohoe v. Indus. Comm. of Ohio, 2010 Ohio 1317 (Ohio App. 3/30/2010)
| Decision Date | 30 March 2010 |
| Docket Number | No. 08AP-201.,08AP-201. |
| Citation | 2010 Ohio 1317 |
| Parties | State ex rel. Catherine M. Donohoe, Relator, v. The Industrial Commission of Ohio and The Kenny Huston Co., Respondents. |
| Court | Ohio Court of Appeals |
Reminger Co., LPA, Patrick Kasson and Mick L. Proxmire, for relator.
Richard Cordray, Attorney General, and Douglas R. Unver, for respondent Industrial Commission of Ohio.
Lardiere Law Office, LLC, and Christopher L. Lardiere, for respondent The Kenny Huston Company.
DECISION
{¶1} Relator, Catherine Donohoe ("relator"), is the surviving spouse of Patrick Donohoe ("decedent"), who was fatally injured in an industrial accident while employed by respondent, The Kenny Huston Company ("employer"). Relator filed this original action seeking a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order denying relator's application for an additional award for alleged violations of specific safety requirements ("VSSR"), and to either enter an award granting the application or remand the matter to the commission to fulfill its duty as the fact finder.
{¶2} This court referred the matter to a magistrate, pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals. The parties stipulated the pertinent evidence and filed briefs. The magistrate rendered a decision, including findings of fact and conclusions of law, which is appended to this decision. Therein, the magistrate determined that the commission did not abuse its discretion by denying relator an additional award for a VSSR. The magistrate therefore recommended that this court deny relator's request for a writ of mandamus.
{¶3} Relator has filed timely objections to the magistrate's decision, which provide:
The commission and the employer have filed memoranda contra to relator's objections. Therefore, this matter is now before this court for a full, independent review.
{¶4} This case arises from a tragic accident that occurred on August 30, 2004 during the construction of a new firehouse at the Ohio National Guard in Springfield, Ohio. On that date, decedent was employed as a mason tender and was responsible for supplying mason layers with materials, including bricks and mortar. At the time of the accident, decedent was assisting Burt Selby and Todd Jenkins who were laying brick for the south vestibule parapet wall. Mr. Selby and Mr. Jenkins performed their work on a platform located on the inside of the parapet wall. As these two individuals began to run out of materials, they called for decedent. At some point, Mr. Jenkins heard what he thought sounded like a hard hat hitting the ground. After calling for decedent a few times and receiving no response, Mr. Selby and Mr. Jenkins went to check on decedent. At that point, they found decedent on the ground and struggling to breathe after having suffered a fall. There were no eyewitnesses to the fall.
{¶5} Minutes after the accident, government employees Mark Smith and Aldino Stazzone arrived at the accident site and observed that no access ladder was present. Instead, they observed an employee transporting a ladder to the accident site with a forklift. They also observed various work being performed to the scaffold in and around the south vestibule.
{¶6} During the VSSR hearing, Mr. Selby and Mr. Jenkins and Eric Albaugh testified that there was an access ladder for the platform located on the inside of the parapet wall. They also indicated that there was no reason for decedent to have been on or around the scaffold because it was not a part of their work area on the date of the accident.
{¶7} The parties submitted competing expert reports reconstructing the circumstances of decedent's fall. Specifically, in support of the VSSR application, Richard Hayes opined that there were no lifelines used despite working 15 feet off the ground, no ladder was present at the accident site, and the scaffold lacked proper guarding. As a result, Mr. Hayes concluded: "Mr. Donohoe's injury and ultimate death is a direct result of a fall from an unprotected or unguarded area of the scaffolding." (Stipulated Evidence, at 94.)
{¶8} On the other side, John R. Messineo, Jr. opined that he believed an extension ladder was in place, and, if it had become displaced, decedent could have requested for it to be replaced by Javier Rivera, the forklift operator. Additionally, Mr. Messineo opined that lifelines were not required because the extension ladder provided safe access to the platform located only 12 feet and 10 inches above the ground. Finally, he opined that the scaffold was in the process of being dismantled and should not have been used by decedent. Therefore, he concluded: "Patrick Donohoe's choice to improperly use the scaffolding outside the rear wall of the south vestibule as access to the work platform on August 30, 2004 was contrary to his training and Kenny Huston safety policies, and this was a cause of his fatal injury." (Stipulated Evidence, at 103-04.)
{¶9} The employer also submitted a report by Mari S. Truman, the purpose of which was to determine the height from which decedent fell. Given that the fall occurred near a concrete footer, Ms. Truman could not conclusively determine the height from which decedent fell. Specifically, she opined: "he either impacted the corner of the cement footer following a rear-fall from as low as 1 to 3 feet above standing height, or he was, in fact, at a height of about 12 to about 15 feet when his fall began." (Stipulated Evidence, at 128.)
{¶10} In her report, Ms. Truman referenced an injury reconstruction analysis apparently performed by Sandra Metzler in December 2005. However, this reconstruction analysis was omitted from the stipulated evidence before this court.
{¶11} After presiding over a hearing on June 19, 2007, a staff hearing officer ("SHO") denied the VSSR in an order that provided:
The facts indicate that no one saw the decedent fall, no one has knowledge where he was when he fell ie., did he fall from the scaffold or did he fall climbing up/down the scaffold. Furthermore, no one knows why he was where he was at the time of his fall. The two other workers present on the date and time of this fatal injury could not provide this information (See Burt Selby transcript page 47 and Todd Jenkins transcript page 67). There was evidence presented that he was bringing the two workers cans of soda from the trailer below, but that was merely speculative. Consequently, the decedent-widow can not prove by a preponderance of the evidence that there was a violation of a specific safety requirement, if there was a violation, which section was violated and whether that violation caused the decedent's death. As such, the instant application for a violation of the specific requirement is denied.
All evidence was reviewed and considered.
{¶12} Upon relator's motion for rehearing, the commission held:
Given the lack of eye witness evidence and the conflicting evidence submitted by the parties, it was not a clear mistake of law for the Staff Hearing Officer to conclude that the widow-claimant had not met her burden.
{¶13} The instant matter presents the unique scenario where relator alleges multiple safety violations, a number of which could have caused decedent's injuries and resultant death, while no one witnessed decedent's fall.
{¶14} We note the similarities between the instant matter and the case of State ex rel. Shelly Co. v. Steigerwald, 121 Ohio St.3d 158, 2009-Ohio-585. In Shelly, a decedent's widow sought a VSSR award for several alleged safety violations. Id. at ¶1. The decedent in Shelly died on the scene of an accident after having been run over by a seven-ton service vehicle traveling in reverse at one-to-two miles per hour. Id. at ¶1-4. There were no witnesses to the accident. Id. at ¶5. As a result, the record lacked witness testimony regarding the issue of whether the vehicle's reverse signal alarm was working at the time of the accident, in accordance with the requirements of Ohio Adm.Code 4121:1-3-06(D)(2)(a). Basing her decision primarily upon post-accident vehicle inspections, the staff hearing officer granted a VSSR award after finding that the alarm was not working at the time of the accident. Id. at ¶14. After the commission denied a motion for rehearing, Shelly Company sought a writ of mandamus based partly upon the commission's reliance upon the post-accident reports. Id. at ¶15, 27. Our court denied the writ, and on review, the Supreme Court of Ohio noted:
This case is, by necessity, built upon inference, because no one witnessed the accident and no one can definitively state that the backing alarm was working or not working when the mishap occurred. The commission has substantial leeway in evaluating the evidence before it and drawing inferences from it. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936; State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶34. That authority encompasses VSSR cases[.]
Id. at ¶28. The Shelly court then referenced State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, wherein the Supreme Court of Ohio held:
This court has never required direct evidence of a VSSR. To the contrary, in determining the merits...
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