State ex rel. Go-Jo Industries v. Indus. Comm.

• Decision Date: 10 November 1998
• Docket Number: GO-JO,No. 96-1018,96-1018
• Citation: 700 N.E.2d 1264,83 Ohio St.3d 529
• Parties: The STATE ex rel.INDUSTRIES, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 529

83 Ohio St.3d 529

700 N.E.2d 1264

The STATE ex rel. GO-JO INDUSTRIES, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.

No. 96-1018.

Supreme Court of Ohio.

Submitted Oct. 13, 1998.

Decided Nov. 10, 1998.

On August 21, 1990, appellee-claimant, Rodney L. Gist, was employed as a "lead operator" of a machine for appellant, Go-Jo Industries. The process to which claimant was assigned involved the packaging of powdered soap products. The process started with a Protopak machine that filled plastic bags with soap. The bags were then put on a conveyor belt and transported to a work table. There, workers inserted small nozzles into the bags. Once the task was completed, the bags were transferred to a second conveyor, which carried them to a machine called the Jones Cartoner ("Cartoner"). The Cartoner had several functions. It unfolded a product carton, dropped the soap bag into it, and then sealed the carton. Cartons were moved within the Cartoner by a transport system. This system had a gear drive and plastic lugs or fingers that were attached to a chain that was inside the machine. Cartons were advanced by indexing the fingers via a brake clutch.

As lead operator of the Cartoner, claimant had many duties, including ensuring that product requirements and quotas were met. Towards this end, there was testimony that claimant had been instructed to keep the production line moving "no matter what." In order to do so, it was imperative to immediately remove from the Cartoner partially opened L-shaped cartons.

The Cartoner had a photoelectric sensor that was to stop the machine when it detected an L-carton. The sensor on this particular Cartoner had a history of occasionally failing to detect L-cartons. On such occasions, claimant had seen supervisors remove L-cartons by hand without first stopping the machine, in order to eliminate downtime.

At the time of injury, the line was experiencing an unusually high number of L-cartons. For this reason, claimant positioned himself at what he considered from experience and observation of superiors to be a strategic place on the line to watch for L-cartons. Claimant spotted an L-carton and reached into the Cartoner to remove it. Before he could withdraw his hand, the transport system indexed. Lacking an accessible means of stopping the machine, claimant had his hand pulled into the system, resulting in the injury of record.

After his workers' compensation claim was allowed, claimant moved appellee Industrial Commission of Ohio for additional compensation, alleging that Go-Jo had violated several specific safety requirements ("VSSRs"). Among those VSSRs alleged were Ohio Adm.Code 4121:1-5-05(C)(2) and (D)(1). Those sections provide:

"Rule 4121: 1-5-05. AUXILIARY EQUIPMENT.

" * * *

"(C) Power-driven conveyors--chain, bucket, belt, hook and screw.

" * * *

"(2) Conveyors exposed to contact.

"All conveyors, where exposed to contact, shall be equipped with means to disengage them from their power supply at such points of contact.

" * * *

"(D) Machinery control.

"(1) Disengaging from power supply.

"Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. * * * "

On October 22, 1993, a commission staff hearing officer ("SHO") found a violation of Ohio Adm.Code 4121:1-5-05(C)(2). Go-Jo successfully moved for rehearing. In granting the motion on March 2, 1994, a second SHO wrote:

"[T]he Motion for Rehearing [is] granted for the reason [that] it has demonstrated that the order of 10/22/93 was based on an obvious mistake of fact, in accordance with OAC 4121-3-20(G)(1)(b). The obvious mistake of fact is the finding that the machinery upon which the claimant sustained his injury was a conveyor for purposes of OAC 4121:1-5-05(C)(2).

"Based on a review of the evidence in file, it is concluded that the Jones Cartoner, which is the machinery upon which claimant was injured, is not a conveyor and it was incorrect for the Hearing Officer to rule that it was a conveyor.

"The Jones Cartoner is part of the overall production process but it actually is a self contained automated packing system which is fed materials (which in this case is [sic ] plastic bags of soap) by a conveyor belt. After receiving the bags of soap[,] the Jones Cartoner packages the soap in containers and then these containers are fed into an out-feed conveyor system.

"Consequently, while the Jones Cartoner is separated by conveyor belts leading materials to and away from it, that area itself is not a belt driven conveyor area, but it is a packaging unit separate and apart from the conveyor belts of this production system.

"Pursuant to Industrial Commission Rule 4121-3-20, the order of October 22, 1993 is vacated. Claimant's Application is ordered set for rehearing."

On rehearing, on August 22, 1994, a third SHO found a violation of Ohio Adm.Code 4121:1-5-05(C)(2) and (D)(1), writing:

"It is further the finding of the Staff Hearing Officer that the claimant's injury was the result of the failure of the employer to install a panic button or other disengagement device adjacent to the conveyor as required by 4121:1-5-05(C)(2) and (D)(1) * * *.

" * * *

"It is ruled, however, that the 'transportation system' (claimant's own choice of words) or 'transport system' (employer's choice of words) of the Jones IMV Cartoner is in fact a conveyor within any definitions of the term.

"In addition to the various dictionary definitions submitted, the undersigned specifically adopts the definition of the American Society of Mechanical Engineers * * *. Absent an Administratively adopted definition, the following is ruled authoritative:

" 'Conveyor--a horizontal, inclined, or vertical device for moving or transporting bulk material, packages, or objects, in a path predetermined by the design of the device, and having points of loading and discharge, fixed or selective. * * * '

"The undersigned rules that the 'transport system' is a 'chain conveyor' as further defined at the same citation. See also, the 'Accident Prevention Manual for Industrial Operations', 1977 Edition, pp. 696, 701 & 702, which is helpful both for its definitions and illustrations * * *.

"The affidavit of employer's enginer [sic ] Michael Duta, is instructive: while denying that the transport [system] of the Jones Cartoner is a conveyor, he explains at Paragraph 6 that the machine's lugs are attached to 'drive chains.' Keenan Baker likewise denies that the transport system is a 'conveyor', but that it ' * * * has a gear drive, and there are plastic fingers that are attached to a chain that is internal to the machine * * *.' In a word: it is a horizontal chain conveyor pursuant to Ohio Adm.Code 4121:1-5-05.

" * * *

"Particular reliance is placed in the photographs at Exhibits 1[a] through 1 [c] inclusive. The undersigned concludes that the same illustrate the very definition of a conveyor both as commonly understood and as defined by the American Society of Mechanical Engineers.

"[The] Employer has stipulated that until the date of injury or record, no 'means of disengagement' had been installed on the conveyor side of its Jones IMV Cartoner.

"Having found the claimant to have been injured on said Jones IMV Cartoner at its conveyor component, it is held that the same was a proximate consequence of employer's failure to install a 'panic button' as illustrated conspicuously at Exhibit 1[b] or some other means of disengagement, and that, therefore, [the] employer was in violation of OAC 4121:1-5-05(C)(2) * * *.

" * * *

"It is further independently held that [the] employer was in violation of OAC 4121:1-5-05(D)(1) in that there was no 'panic button' or other 'means of disengagement' from its power supply within easy reach of the operator. Reliance is placed in claimant's own statement both to investigator Karen Brigner and his immediately taken statement at Exhibit # 2. Particular reliance is placed in the manufacturer product illustration at Exhibit 1[C] which depicts a model performing duties apparently identical to those alleged by claimant directly opposite the site where he sustained the injury of record. Not only was the claimant the 'lead operator' by job description, he was 'any employee authorized to operate the specific equipment' as defined by OAC 4121:1-5-01(S)(24) * * *. It is clear, moreover, from Exhibit 1[C] that the manufacturer contemplated the necessity of the operator working at that site as part of his or her routine duties. His situation is clearly distinguishable from the facts of State ex rel. Harris v. Indus. Comm. [(1984), 12 Ohio St.3d 152, 12 OBR 223, 465 N.E.2d 1286].

" * * *

"The photograph at the top of Exhibit 1[A] demonstrates that the control panel and sole stop button in effect on the date of claimant's injury was on the other end of the machine. The same and the middle photograph demonstrate that what [the] employer admits to be another conveyor is between the site of the injury and the control box, rendering access doubly impossible. Reliance is also placed in the sworn statements of Gerald Ivery and Donald Butler as well as those of the claimant."

A subsequent motion for rehearing was denied.

Go-Jo filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in finding the two violations. The court of appeals was unpersuaded and denied the writ.

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

Buckingham, Doolittle & Burroughs, Timothy C. Campbell, Akron, and Richard A. Hernandez, Columbus, for appellant.

Betty D. Montgomery, Attorney General, and Patsy Thomas, Assistant Attorney General, for appellee Industrial Commission.

Ben Scheerer Law Offices, and Thomas R. Pitts, Akron, for appellee Gist.

PER CURIAM.

The two specific safety requirements before us are power-disengagement requirements. Go-Jo concedes that there was no...