State ex rel. Mees v. Industrial Commission, 71-477

• Decision Date: 01 March 1972
• Docket Number: No. 71-477,71-477
• Citation: 279 N.E.2d 861,29 Ohio St.2d 128
• Parties: , 58 O.O.2d 319 The STATE et rel. MEES, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 128

29 Ohio St.2d 128

279 N.E.2d 861, 58 O.O.2d 319

The STATE et rel. MEES, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee.

No. 71-477.

Supreme Court of Ohio.

March 1, 1972.

On October 23, 1967, the appellant, Sam Edward Mees, while employed by the Edgerton Metal Products Company, Inc., suffered an injury which resulted in the amputation of all fingers on his left hand, except numbers four and five, and over half of the palm of his left hand, and a stiffness in finger number four. The injury occurred while the appellant was operating a 150 ton Bliss, OBI mechanical power press which was equipped with dies designed to trim metal parts which measured approximately 6 18 . At the time of the accident, appellant was inserting a part into the press, and while his hand was in the die area the ram 'came down by itself' catching his hand between the dies and causing the injury. The trim press was equipped with a safety device, known as a sweep guard, which appellant claims did not knock his hand from the die area. The maintenance superintendent stated that he inspected the press after the accident and found it to be operating properly and that the sweep guard was perfectly adjusted and operating properly.

On December 21, 1967, appellant filed a claimant's application for compensation with the Bureau of Workmen's Compensation. The claim was allowed, with the following awards being made:

                Temporary total
                 to 1/19/60              $3,262
                Permanent partial from
                 10/23/67 to 10/11/70     7,595
                Total medical services      908
                                        -------
                Amount paid by Bureau   $11,765
                

On April 1, 1969, appellant filed an application with the Industrial Commission for an additional award for violation of a specific safety requirement. Such application was made under favor of Section 35, Article II of the Ohio Constitution, which provides, in part:

'* * * Such board shall have full power and authority to hear and determine whether or not any injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *.'

On October 29, 1970, a hearing was held before the Industrial Commission which resulted in the commission finding 'that the claimant's injuries were not caused by the employer's violation of any specific safety requirement; therefore, the said application is denied.'

On January 4, 1971, appellant filed a petition in mandamus in the Court of Appeals for Franklin County, seeking to have that court command the Industrial Commission to vacate its order, to grant him an additional award of compensation, and for such other relief as he may be entitled in the premises. On May 18, 1971, the Court of Appeals rendered its decision, saying:

'A review of the entire record * * * indicates there was evidence before the respondent from which it could have concluded there was not a violation of a specific safety requirement. Thus, we cannot substitute our judgment for respondent's, or find that respondent abused its discretion in this case, even though we might well have decided otherwise.

'Therefore, the writ of mandamus is denied and the petition dismissed at relator's cost.'

The cause comes to this court upon an appeal as of right.

Larrimer & Larrimer and Craig Aalyson, Columbus, for appellant.

William J. Brown, Atty. Gen., and Michael J. Hickey, Columbus, for appellee.

PER CURIAM.

The question presented for our review is whether the Industrial Commission abused its discretion in denying appellant's application for an additional award. As the court said in the syllabus of State, ex rel. Stuber v. Indus. Comm. (1933), 127 Ohio...