State ex rel. Truckey v. Industrial Commission

• Decision Date: 01 March 1972
• Docket Number: No. 71-507,71-507
• Citation: 29 Ohio St.2d 132,279 N.E.2d 875
• Parties: , 58 O.O.2d 321 The STATE ex rel. TRUCKEY, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant, et al.
• Court: Ohio Supreme Court

Page 132

29 Ohio St.2d 132

279 N.E.2d 875, 58 O.O.2d 321

The STATE ex rel. TRUCKEY, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant, et al.

No. 71-507.

Supreme Court of Ohio.

March 1, 1972.

Syllabus by the Court

The Industrial Commission's denial of an employee's application for an additional award for violation of a specific safety requirement constitutes an abuse of discretion where the uncontested evidence shows that an employer has violated a specific safety requirement resulting in injury to an employee.

This is an action in mandamus initiated in the Court of Appeals by Charles Truckey, appellee herein, against the Industrial Commission, appellant herein.

On December 6, 1967, the relator, at his place of employment, was struck in the head by a piece of a 36-inch grinding wheel which shattered while being test-run on a grinding machine. The protective guard on the grinding machine had been removed due to the fact that the wheel was of a size which would have rubbed against the guard. The purpose of the test-running was to determine whether the wheel was 'running true.' It was subsequently to be cut down to fit the machine, at which time the guard would have been reinstalled.

Relator's application for workmen's compensation benefits was allowed, and approximately $3,600 was paid for medical bills and lost wages.

Relator subsequently filed an application with the Industrial Commission for an additional award, alleging that the circumstances were sufficient to constitute a violation of a specific safety requirement, thus entitling him to recovery under Section 35, Article II of the Constitution of Ohio. The application was denied by the commission and a subsequent motion for rehearing was dismissed on August 19, 1970.

Relator then initiated this action in the Court of Appeals fof the issuance of a writ of mandamus requiring respondent to determine the amount of the additional award to relator, as provided in R.C. § 4121.131.

The Court of Appeals allowed the writ, and an appeal as of right was then filed in this court.

Shapiro, Kendis & Petro, and Alan J. Shapiro, Cleveland, for appellee.

William J. Brown, Atty. Gen., R. Patrick Baughman, and James W. Brown, Columbus, for appellant.

STERN, Justice.

Relator contends in his complaint that the uncontradicted facts clearly and convincingly establish that he was injured as a result of a violation of Section IC-5-09.03(8a) of Bulletin IC-5. ¹ If this contention is correct, the Industrial Commission must award relator an amount as prescribed in Section 35, Article II of the Ohio Constitution.

Respondent contends that the writ should not issue unless an abuse of discretion by the Industrial Commission can be shown. This statement of the law cannot be disputed, for Section 35, Article II of the Ohio Constitution, provides exclusive jurisdiction in the Industrial Commmission in the determination of disputed factual situations involving violation of a safety regulation. Slatmeyer v. Indus. Comm. (1926), 115 Ohio St. 654, 155 N.E. 484; State ex rel. Howard Engineering & Mfg. Co. v. Indus. Comm. (1947), 148 Ohio St. 165, 74 N.E.2d 201; State ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24.

An 'abuse of discretion' would exist if the uncontradicted facts indicate that the relator was injured, as a result of a violation, by an employer, of a specific safety regulation.

In this case, the uncontradicted facts indicate that the machine was being operated without the requisite guard. Such operation, unless falling within the exceptions ² noted in IC-5-09.03(A), consitutes a violation of...