State, ex rel. Mosser Constr., Inc., v. Indus. Comm., 90-280

• Citation: 61 Ohio St.3d 445,575 N.E.2d 193
• Decision Date: 14 August 1991
• Docket Number: No. 90-280,90-280
• Parties: The STATE, ex rel. MOSSER CONSTRUCTION, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.
• Court: United States State Supreme Court of Ohio

Page 445

61 Ohio St.3d 445

575 N.E.2d 193

The STATE, ex rel. MOSSER CONSTRUCTION, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee, et al.

No. 90-280.

Supreme Court of Ohio.

Submitted March 19, 1991.

Decided Aug. 14, 1991.

Appellant Mosser Construction, Inc. contracted to remove ductwork from a Martin Marietta plant in Woodville, Ohio. On January 28, 1985, Mosser employees Robert D. Besgrove, Jr., and decedent Donald F. Saam were removing a long section of duct pipe. The section, four feet in diameter, penetrated a work platform that was approximately thirty feet above the plant floor. The section to be removed ran vertically between the roof and work platform.

Once the pipe was removed, it had to be lowered to the floor below. However, it would not fit back through the hole from which it had been removed due to flanges built into the pipe. Thus, Besgrove and decedent decided to raise the half-ton pipe with a chain "come-along," swing it over the guardrail of the work platform and then lower it to the floor. Once the pipe was raised, it left a four-by-four foot opening in the platform. Decedent fell through this hole shortly after the pipe was raised. He did not survive.

Following allowance of a workers' compensation death claim, the widow-claimant applied to appellee Industrial Commission ("commission") for an additional award, alleging violation of a specific safety rule ("VSSR"), namely, Ohio Adm.Code 4121:1-3-04(D)(1) (failure to guard or cover floor opening). A commission staff hearing officer found a violation and assessed a thirty-five percent additional award, determining in part:

" * * * [T]he work platform from which decedent fell meets the definition of a floor opening as set forth in [Ohio Adm.Code] 4121:1-3-04(B)(2). The opening into which the decedent fell was the opening from which ductwork had just been removed. The opening was 4' by 4'.

"The opening was required to be guarded by a standard guard railing according to 4121:1-3-04(D)(1). The employer admits that there was no guard railing around the opening.

"The employer argues that there is an exception to this requirement if compliance with the requirement would have created or increased another hazard. * * *

" * * *

"The Staff Hearing Officer * * * notes that the employer has discussed difficulties in following the guarding requirement * * *. The Staff Hearing Officer finds that, while guarding may have been difficult, there is no showing that it was not possible. The Staff Hearing Officer notes that this hearing officer asked superintendent R.D. Besgrove at hearing whether a guardrail could have been installed prior to raising of the ductwork creating the opening. The witness replied in part, ' * * * the guardrail was probably not thought of and it would have restricted us a little bit getting the pipe out of there * * *.' Thus, there is a showing only of some difficulty in following the requirement but not an impossibility."

Appellant's rehearing motion was denied.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in finding a VSSR. The appellate court disagreed and denied the writ.

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

Arter & Hadden, Douglas M. Bricker and Judith E. Trail, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., Merl H. Wayman, Columbus, Michael L. Squillace, Cincinnati, and Jetta Mencer, Coshocton, for appellee.

PER CURIAM.

Ohio Adm.Code 4121:1-3-04(D)(1) states in part:

"Floor openings shall be guarded by a standard guard railing and toeboard or cover. * * * " Appellant admits that the fatal floor opening was unprotected. It instead argues that: (1) appellant could not have satisfied Ohio Adm.Code 4121:1-3-04(D)(1) without violating another specific safety requirement, and (2) the commission improperly interpreted Ohio Adm.Code 4121:1-3-04(D)(1). Neither challenge has merit.

Appellant asserts that immediate placement of adequate protection around or over the newly created opening could not have been accomplished without placing employees beneath the suspended pipe. This, appellant contends, would have violated either Ohio Adm.Code 4121:1-3-07(F) ("[n]o employee shall be permitted to pass under or be under loads handled by * * * hoists * * * ") or 4121:1-5-15(D) (employees shall not be required to work or pass under suspended loads). Appellant thus claims that it should not be penalized for choosing to comply with one specific safety requirement at the inevitable expense of another.

We are unpersuaded by appellant's assertion. Again, the commission found that appellant could have satisfied the relevant provision without violating another. When asked by the staff hearing officer why a guardrail wasn't constructed around the pipe before it was removed, negating the need to place workers under the suspended pipe, Besgrove testified only that "there was very limited room up there * * * " and that "the guardrail was probably not thought of and it would have restricted us a little bit getting the pipe out of there * * *." While the method suggested by the hearing officer may have been inconvenient, it was not impossible.

Appellant cites State, ex rel. Harris, v. Indus. Comm. (1984), 12 Ohio St.3d 152, 153, 12 OBR 223, 224, 465 N.E.2d 1286, 1288, in which this court stated that "where the application of * * * [a specific safety requirement] to a unique factual situation gives rise to a patently illogical result, common sense should prevail. * * * " Appellant claims that it is "patently illogical" to require an employer to guard a hole before it is created. We disagree. Where the only safe way to guard a floor opening is to implement precautions beforehand, it is not "patently illogical" for the commission to find that an employer's failure to do so constituted a VSSR.

In a related contention, appellant claims that the commission improperly construed Ohio Adm.Code 4121:1-3-04(D)(1) as requiring protection before an opening was created. This, too, is unpersuasive. The commission did not penalize appellant for failing to guard an anticipated opening. It penalized appellant for admittedly failing to guard an existing hole. The staff hearing officer's reference to the erection of a guardrail before the pipe was removed was a response to the appellant's claim that the hole could not have been guarded without violating a different specific safety requirement.

The factual determination of a specific safety rule violation rests with the commission. State, ex rel. A-F Industries, v. Indus. Comm. (1986), 26 Ohio St.3d 136, 26 OBR 117, 497 N.E.2d 90. In the case at bar, the appellant concedes that it did not comply with Ohio Adm.Code 4121:1-3-04(D)(1). Besgrove's testimony is "some evidence" supporting the commission's conclusion that compliance was not impossible. Practical inconvenience does not excuse noncompliance with a specific safety requirement.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.

SWEENEY, DOUGLAS, HERBERT R. BROWN and RESNICK, JJ., concur.

MOYER, C.J., HOLMES and WRIGHT, JJ., dissent.

HOLMES, Justice, dissenting.

The majority opinion errs both in the review of the facts that were before the commission, and the appropriate law to be applied to these facts. First, we are dealing here with the issue of whether or not a penalty should have been levied against this employer and are not reviewing a workers' compensation award for injury or death of the employee--these have already been applied for and granted. The authority to award additional compensation to an employee injured or killed as a result of an employer's alleged violation of a specific safety requirement arises out of Section 35, Article II, Ohio Constitution. This court held, in State, ex rel. Trydle, v. Indus. Comm. (1972), 32 Ohio St.2d 257, 61 O.O.2d 488, 291 N.E.2d 748, paragraph one of the syllabus, that:

"The term 'specific requirement' * * * does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are of a character plainly to apprise an employer of his legal obligation toward his employees."

In that an award for a violation of a specific safety requirement is deemed a penalty, the safety requirement must be strictly construed, with all reasonable doubts concerning the interpretation of the safety standard to be construed against the applicability of the standard...