State ex rel. Richmond v. Indus. Comm'n

• Decision Date: 17 April 2014
• Docket Number: No. 2012–1786.,2012–1786.
• Parties: The STATE ex rel. RICHMOND, Appellant, v. INDUSTRIAL COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

139 Ohio St.3d 157

10 N.E.3d 683

The STATE ex rel. RICHMOND, Appellant,

v.INDUSTRIAL COMMISSION et al., Appellees.

No. 2012–1786.

Supreme Court of Ohio.

Submitted Feb. 4, 2014.

Decided April 17, 2014.

Boyd, Rummell, Carach, Curry, Kaufmann & Bins–Castronovo Co., L.P.A., and Walter Kaufmann, for appellant.

Cohen, Todd, Kite & Stanford, L.L.C., and Jill T. O'Shea, Cincinnati, for appellee Lamar Advertising of Youngstown, Inc.

Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant Attorney General, for appellee Industrial Commission.

PER CURIAM.

{¶ 1} We affirm the court of appeals in this challenge to the denial of an additional award for violation of a specific safety requirement (“VSSR”). The appellant, Darrin C. Richmond, alleged that his employer, appellee Lamar Advertising of Youngstown, Inc. (“Lamar”), violated Ohio Adm.Code 4123:1–3–03(J)(1), resulting in his injury. The Industrial Commission, also an appellee, denied the award, and Richmond filed an action in mandamus in the Tenth District Court of Appeals. The magistrate of that court and the three-judge panel found that Richmond had not established by a preponderance of the evidence that the commission had abused its discretion in denying the award.

{¶ 2} We hold that the commission did not abuse its discretion in (1) considering evidence of industry standards in determiningwhether Lamar complied with the safety requirement, (2) concluding that a hook ladder, when properly secured, can be part of a billboard structure, and (3) considering Richmond's negligence in deciding to deny a VSSR award.

{¶ 3} We affirm.

Facts and procedural posture

{¶ 4} Richmond was injured when he fell from a ladder as he was working on a billboard in the course and scope of his employment with Lamar. His claim was allowed for various physical and psychological conditions. In addition to his workers' compensation benefits, Richmond sought an additional VSSR award. Before the Industrial Commission, Richmond alleged that Lamar had violated several safety rules associated with workshops and factories and the construction industry.

{¶ 5} The commission staff hearing officer (“SHO”) considered a report from the Safety Violations Investigation Unit of the Bureau of Workers' Compensation and testimony from Richmond and his supervisor, Brian Conley. Conley testified that the ladder issued to Richmond was standard for the industry and for Lamar. It was a 14–foot straight ladder with a double hook at the top. The ladder issued to Richmond had been purchased in 2006 and upon examination after the accident, was found to be in good condition.

{¶ 6} Lamar issued fall-protection equipment to its employees, consisting of a safety harness and double lanyard. The safety harness wraps around the worker's body, and the lanyard attaches the safety harness to a structure or safety cable.

{¶ 7} To prevent falls, employees use a double lanyard and are required to be “tied off” on one of the lanyards at all times. A catwalk that spans the bottom of the billboard has a fixed cable along its base. Employees are trained to attach one lanyard to this cable when working from the catwalk or when moving the ladder. Before ascending a ladder, they first make sure that the ladder is securely fixed and then attach one lanyard to a tie-off point on the ladder before releasing the other from the catwalk.

{¶ 8} Billboards are equipped with ladder stops at each end to prevent the hook ladder from slipping off the side of the billboard. Employees are required to inspect the billboard before beginning work to ascertain whether the ladder stops are in place. Employees are instructed to stop work and call the office if there are any safety issues.

{¶ 9} Richmond's affidavit states that on the day of the accident, he secured the ladder and attached the lanyard to the tie-off point on the ladder, but the ladder slipped off the billboard and dragged him off with it. However, when the employer found the ladder after the accident, the lanyard was hooked to a rung on the ladder, not to the ladder's tie-off point. Richmond initially asserted that there were no ladder stops on the billboard that day. However, when the employer inspected the billboard immediately after the accident, it found the ladder stops in place and intact. Richmond eventually admitted that he could not be certain that the stops were not in place, and he now concedes that he mistakenly placed the ladder between the stop and the billboard's edge instead of between the stops.

{¶ 10} Richmond's supervisor testified that the hook ladder was standard for the outdoor-advertising industry. He explained that when engaged properly, the ladder is considered part of the billboard structure and that OSHA regulations expressly adopt that view. He also testified that the ladder stops are there to prevent the ladder from slipping off the edge of the billboard.

{¶ 11} The SHO denied Richmond's VSSR claim. First, the SHO found that two of the regulations cited by Richmond apply only to factories and workshops, rather than outdoor billboards, and therefore could not support a VSSR. The SHO found other regulations to be “merely definitional” and therefore also did not support a VSSR. Finally, the SHO considered the specific safety requirement cited by Richmond as supporting the remaining claim, Ohio Adm.Code 4123:1–3–03(J)(1). That regulation requires that safety harnesses and lanyards be provided to employees by the employer, that it is the responsibility of the employee to wear them when working more than six feet off the ground, and that the lifeline and safety belt or harness be “securely fastened to the structure.” (Emphasis added.)

{¶ 12} After reviewing the evidence, including evidence of industry standards, the SHO found that when the Werner hook ladder used in this case is secured to the billboard structure properly, it becomes part of the structure. Therefore, attaching the lanyard and harness securely to the ladder rather than to the billboard satisfies the requirement that they be secured to “the structure.” The SHO concluded that the employer satisfied all elements of the regulation at issue and that Richmond had not established by a preponderance of the evidence that any of the alleged safety requirements had been violated. The SHO noted Richmond's testimony that he did not check the ladder stops to make sure they were in place.

{¶ 13} Richmond filed this mandamus action in the Tenth District Court of Appeals, requesting that the commission be ordered to grant him the VSSR award he seeks. Among his arguments was that the SHO improperly relied on evidence that the manner in which the ladder was used was acceptable as the industry standard by an OSHA regulation.

{¶ 14} The court's magistrate found that Lamar had not violated a safety requirement. Specifically, she found no abuse of discretion in the SHO's findings that Lamar provided lifelines and harnesses that when properly engaged, were securely fastened to the structure, and that when the hooks were properly placed over the top of the billboard and the ladder was within the stops, the ladder was part of the structure. The magistrate also found no error in the SHO's consideration whether the use of the ladder satisfied OSHA standards. The magistrate ultimately decided that Richmond had not demonstrated that the commission abused its discretion in failing to grant him the VSSR award.

{¶ 15} Richmond filed five objections to the magistrate's report, and the Tenth District panel overruled all five. Lamar filed a single objection regarding a minor mistake in the magistrate's summary of the SHO's order, to which Richmond did not respond. The Tenth District sustained that objection but otherwise adopted the magistrate's decision.

{¶ 16} Richmond appealed to this court.

Analysis

{¶ 17} To establish entitlement to a VSSR award, a claimant must show that a specific safety requirement (“SSR”) is applicable to the employer, that the employer violated that SSR, and that the violation proximately caused the injury. State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, 781 N.E.2d 170, ¶ 46. The interpretation of SSRs rests with the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193, 194, 448 N.E.2d 134 (1983); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). But because a VSSR award is a penalty, all reasonable doubts concerningits interpretation must be resolved in favor of the employer. Id.

{¶ 18} Richmond presents three propositions of law in his appeal. He proposes that the Industrial Commission abused its discretion in relying on a federal OSHA rule exemption as the basis for denying the VSSR award. He proposes that the commission's finding that a portable hook ladder is part of a “structure” for purposes of the safety requirement is illogical and negates its purpose. And he proposes that the commission's decision denying the VSSR award based on Richmond's negligence is contrary to law. For the reasons explained below, Richmond's propositions are not well taken, and we affirm.

The Industrial Commission does not improperly adopt another agency's rules merely by considering industry standards or another administrative agency's treatment of the same industry or equipment

{¶ 19} To obtain a VSSR award, a claimant must demonstrate that the employer violated one of the “specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission.” State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972), paragraph one of the syllabus. Violations of other regulations, such as OSHA's, will not, by themselves, support a VSSR claim. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 1, 2–3, 460 N.E.2d 251 (1984). Conversely, compliance with OSHA regulations, by itself, does not mandate a denial of a VSSR claim. State ex rel. Danstar...