State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm'n of Ohio

• Decision Date: 27 September 2018
• Docket Number: No. 2017-0790,2017-0790
• Citation: 112 N.E.3d 894,154 Ohio St.3d 180,2018 Ohio 3892
• Parties: The STATE EX REL. JACKSON TUBE SERVICE, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.
• Court: Ohio Supreme Court

154 Ohio St.3d 180

112 N.E.3d 894

2018 Ohio 3892

The STATE EX REL. JACKSON TUBE SERVICE, INC., Appellant,

v.INDUSTRIAL COMMISSION OF OHIO, et al., Appellees.

No. 2017-0790

Supreme Court of Ohio.

Submitted April 10, 2018

Decided September 27, 2018

Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and Joshua R. Lounsbury, Dayton, for appellant.

O'Donnell, J.{¶ 1} Jackson Tube Service, Inc., appeals from a judgment of the Tenth District Court of Appeals denying its request to compel the Industrial Commission to vacate its order that granted Chad Thompson's application for an additional award due to the violation of a specific safety requirement ("VSSR") and to issue an order denying the application based on the defense of impossibility.

Case History

{¶ 2} Thompson, an industrial electrician in the maintenance department of Jackson Tube, was injured on November 18, 2009, while in the process of reinstalling a flywheel in a cutoff machine. A crane held the suspended flywheel in a sling as Thompson and a coworker worked beneath it, trying to move the flywheel into position, but the sling broke, dropping the flywheel, which struck Thompson and broke both legs. His workers' compensation claim was allowed for bilateral femur fracture and right femoral shaft nonunion.

{¶ 3} Thompson also filed an application for a VSSR award, alleging violations of numerous sections of the Ohio Administrative Code related to hoisting and haulage equipment, power-driven cranes and hoists, and cranes, hoists, and derricks.

{¶ 4} At a hearing on the VSSR application, Thompson testified, "It's my understanding that there is a fixture for that application that's offered by the manufacturer, and that was only noted after the accident when we had gone back and taken a look." (Emphasis added.) However, Jackson Tube's maintenance supervisor, Ron Kimrey, and its manager of safety and training, David Booher, both testified that they were not aware of an alternative way to perform the job in a fashion that absolutely kept an individual from being under the flywheel while it was placed back onto the cutoff machine.

{¶ 5} A staff hearing officer granted the VSSR application, determined that Thompson's injury occurred when he was required to work under a suspended load in violation of Ohio Adm.Code 4123:1-5-15(D), and rejected Jackson Tube's argument that it was impossible to comply with the specific safety requirement ("SSR"). In reaching that conclusion, the hearing officer relied on Thompson's understanding that the manufacturer offered a fixture that could have been used to perform the task differently. Thus, the hearing officer concluded the employer's violation of Ohio Adm.Code 4123:1-5-15(D) constituted a VSSR.

{¶ 6} Jackson Tube filed a motion for rehearing under Ohio Adm.Code 4121-3-20(E)(1)(b), alleging that the order granting Thompson's application was based on an obvious mistake of fact or clear mistake of law. In support of its motion, Jackson Tube offered Kimrey's affidavit, which stated that Thermatool, the manufacturer of the cutoff machine, verified that it "does not manufacture or provide a device or mechanism to assist in removing or replacing the flywheel." Kimrey further attested that "Thermatool's engineer, Dan Lungo, has also * * * indicated that he is not aware of any device or mechanism designed to assist in removing or replacing the flywheel on the Cut Off Machine used at Jackson Tube." And although Lungo told Kimrey that "the only way to replace the flywheel * * * without using a crane and sling is to unbolt the machine from the floor and use heavy machinery to tilt the machine onto a 45 degree angle," Kimrey explained that he had researched the availability of a device to support the machine at a 45 degree angle and "can state that no such device exists."

{¶ 7} In denying the motion for rehearing, the hearing officer determined that Jackson Tube did not meet the criteria for rehearing set forth in Ohio Adm.Code 4121-3-20(E)(1) and stated that an obvious mistake of fact is not shown merely because a hearing officer relies on evidence or testimony that is contrary to or inconsistent with evidence presented by the opposing party.

{¶ 8} Jackson Tube filed a complaint seeking a writ of mandamus in the Tenth District Court of Appeals alleging that the commission had abused its discretion when it rejected Jackson Tube's impossibility defense and when it denied the motion for rehearing.

{¶ 9} A magistrate concluded that the commission did not abuse its discretion when it determined that Jackson Tube failed to establish a clear mistake of fact to justify rehearing or when it concluded that Thompson was entitled to an award for a VSSR. The magistrate noted that the commission relied on Thompson's testimony that Thermatool, the manufacturer of the cutoff machine, offered a fixture that would help support the flywheel while it was being reinstalled and that Jackson Tube had offered no evidence to the contrary. In addition, the magistrate determined that Kimrey's affidavit did not conclusively prove that it was impossible for Jackson Tube to comply with the SSR.

{¶ 10} The court of appeals adopted the magistrate's findings of fact and conclusions of law and denied Jackson Tube's request for a writ of mandamus.

{¶ 11} Jackson Tube filed this appeal, raising the following propositions of law for our review:

The Court of Appeals erred when it rejected Jackson Tube's "impossibility" defense.

The Court of Appeals erred when it failed to address SHO Cromley's denial of Jackson Tube's motion for a rehearing.

Positions of the Parties

{¶ 12} Jackson Tube asserts that when compliance with a specific safety requirement is impossible, an application for a VSSR award should not be granted. In this case, it contends that there was no way to repair the cutoff machine without requiring employees to work under the suspended flywheel and that Thompson's "understanding" about the existence of a fixture that allowed the flywheel to be removed without using a crane has no basis in fact and has been wholly refuted by contrary testimony. Jackson Tube further maintains that it is impossible to unbolt the cutoff machine from the floor and use heavy machinery to tilt it to a 45 degree angle because no device exists that could support the machine at that angle. Lastly, it argues that the commission abused its discretion when it denied the motion for rehearing, as it relied upon a mistake of fact when it granted a VSSR award.

{¶ 13} Neither the commission nor Thompson filed an appellee's brief.

Issue

{¶ 14} This case presents an issue of first impression: whether impossibility is a defense to a VSSR claim.

Legal Analysis

{¶ 15} The crux of the dispute in this case arises from Ohio Adm.Code 4123:1-5-15(D), which states, "Employees shall not be required to work or pass under suspended loads, nor shall the crane operator be required to carry a suspended load over employees."

{¶ 16} To prevail on its mandamus claim seeking to have the commission ordered to vacate its VSSR award, Jackson Tube must demonstrate that the commission's decision to issue a VSSR award was an abuse of discretion. See State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm. , 144 Ohio St.3d 243, 2015-Ohio-4525, 41 N.E.3d 1233, ¶ 13. An abuse of discretion occurs when the record contains no evidence to support the commission's order. State ex rel. Burley v. Coil Packing, Inc ., 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).

Impossibility as a Defense to Violating an SSR

{¶ 17} In the context of VSSR awards, this court has previously considered cases where the employer raised impossibility as a defense, but in those cases, we found the record contained some evidence that it was not impossible for the employer to comply with the regulation at issue. See State ex rel. Mosser Constr., Inc. v. Indus. Comm. , 61 Ohio St.3d 445, 575 N.E.2d 193 (1991) (Where removal of a section of duct pipe left an unguarded opening in a work platform that Donald Saam fell through and did not survive, Mosser Construction, Inc., argued impossibility to comply with the regulation. This court held that the commission did not abuse its discretion in granting a VSSR award and in finding that while it would have been difficult to follow the guarding requirement, it was not impossible); see also State ex rel. Go-Jo Industries v. Indus. Comm. , 83 Ohio St.3d 529, 700 N.E.2d 1264 (1998) (Where Rodney Gist had reached into a cartoner machine to remove a carton and the machine pulled his hand, the commission determined that Go-Jo Industries violated the regulation to equip the machine with means to disengage its power and granted a VSSR award. We acknowledged that it would be impossible to comply with the SSR if the controls had to be within easy reach of all possible positions but concluded that there was " ‘some evidence’ supporting the conclusion that [Gist's] presence at the site of injury was not abnormal, irregular, or unusual in the performance of his duties").

{¶ 18} Neither case, however, fully developed the concept of impossibility as a defense to a VSSR award.

Impossibility as a Defense to Violating an OSHA Standard

{¶ 19} Federal courts have considered impossibility as an affirmative defense to a charge of violating an Occupational Safety and Health Administration ("OSHA") standard and have held that to establish this defense, the employer must demonstrate (1) that compliance with the standard's requirements is impossible or would have precluded performance of the work and (2) that no alternative means of employee protection had been available. See Brock v. Dun-Par Engineered Form Co. , 843 F.2d 1135, 1136 (8th Cir.1988) (concluding that the employer has the burden to establish that alternative means of compliance were not available); Bancker Const. Corp. v. Reich , 31 F.3d 32, 34 (2d Cir.1994) (holding the employer failed to establish that it was impossible to comply with a requirement that employees working in trenches be...