State ex rel. US Tubular Prods. v. Indus. Comm'n
| Decision Date | 23 June 2020 |
| Docket Number | No. 18AP-795,18AP-795 |
| Citation | 2020 Ohio 3427 |
| Parties | State ex rel. US Tubular Products, Inc. d.b.a. Benmit Hydro-Testers Division, Relator, v. Industrial Commission of Ohio et al., Respondents. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Edward D. Murray, and Aletha M. Carver, for relator.
On brief: Dave Yost, Attorney General, and Natalie J. Tackett, for respondent Industrial Commission of Ohio.
On brief: Mario Gaitanos, for respondent John R. Roush.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
{¶ 1} Relator, US Tubular Products, Inc., d.b.a. Benmit Hydro-Testers Division, filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order finding relator had violated a specific safety requirement ("VSSR"), and that violation was the proximate cause of injuries to respondent John R. Roush.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found the commission abused its discretion in granting an additional VSSR award under Ohio Adm.Code 4123:1-5-05(D)(1). Accordingly, the magistrate recommends this court grant relator's request for a writ of mandamus.
{¶ 3} The commission filed the following two objections to the magistrate's decision:
{¶ 4} No objections have been filed to the magistrate's findings of fact. After an independent review of the same, we adopt those findings of fact as our own. As set forth in more detail in the magistrate's decision, this case involves a "hydro tester," a diesel-powered machine that pressure tests pipes for leaks. The typical process to pressure test a pipe requires the collaborative effort of two employees situated on opposite ends of the pipe. Both employees manually attach a cap called a swage to their respective ends of the pipe. The employee at the north end of the pipe then attaches a hose to the north swage; when water flows out of an opening on the south swage, the employee at the south end of the pipe closes a slide valve on the swage, then retreats to a marked safety zone located approximately 20 feet away from the pipe. The employee at the north end of the pipe closes the pressure value on the hydro tester and pressurizes the pipe. After the pressure test is complete, the employee at the north end of the pipe opens a pressure valve to relieve the pressure and then signals to the employee on the south end of the pipe that it is safe to re-approach the pipe. The instrument panel, the means to shut off the hydro tester, and the valve to turn off the pressure are all located near the north end of the pipe at the hydro tester unit, a location well out of reach of the employee at the south end of the pipe during the typical testing process.
{¶ 5} On the day of the accident, Roush was working at the south end of the pipe and Phil Dronso was working on the north end of the pipe. After closing the slide valve on the south end of the pipe and waiting in the safety zone, Roush believed Dronso gave him a hand signal to re-approach the pipe. Roush approached the pipe when it remained pressurized and was unscrewing his end of the pipe when the north swage blew off, hurling the body of the pipe into Roush and causing him extensive injuries. Roush applied for a VSSR award based on relator's alleged failure to comply with Ohio Adm.Code 4123:1-5-05(D)(1), which states, in pertinent part: "[m]eans shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply."1
{¶ 6} Following a hearing, the staff hearing officer ("SHO") determined relator failed to comply with Ohio Adm.Code 4123:1-5-05(D)(1). The SHO found relator's contention that Roush worked merely as a "test hand" and not a "true operator of the equipment" to be unpersuasive, and instead found Roush to be the "second test operator of the pipe" under the definition of operator set forth in Ohio Adm.Code 4123:1-5-01(B)(92). (May 23, 2017 SHO Order at 4.) Specifically, the SHO states:
The Injured Worker's job duties consisted of working in coordination with the first test operator. The job of testing the pressurized pipe at the time of the industrial injury is found to require two operators working together to test the pipe. The Injured Worker's job duties as the second test operator were an integral part of the operation. The second test operator removed a swage from the tested pipe and put a swage on the next pipe to be tested. Additionally, the second test operator opened and closed an air vent after the pipe had been filled with water. The second test operator's duty of closing the pipe is instrumental in pressuring the pipe. Accordingly, the Injured Worker is found to be an operator of the equipment at issue.
(May 23, 2017 SHO Order at 4.) Therefore, because Roush was an operator, and all the controls to the machine were located at least 12 feet away from Roush at the time of the injury, the SHO found relator violated Ohio Adm.Code 4123:1-5-05(D)(1). Finally, the SHO found that relator's failure to comply with Ohio Adm.Code 4123:1-5-05(D)(1) was the proximate cause of Roush's injuries.
{¶ 7} After initially denying relator's motion for a rehearing, the commission granted relator's request for reconsideration, and a hearing was held in January 2018 on the issue of its authority to exercise its continuing jurisdiction and the merits of the VSSR request for rehearing. The commission, by a two-to-one vote, determined it did not have authority to exercise its continuing jurisdiction and the SHO order would remain in full force. The order states: "All evidence was reviewed and considered prior to rendering this decision." (Jan. 9, 2018 SHO Order at 2.)
{¶ 8} Considering relator's request for a writ of mandamus, the magistrate concluded the commission abused its discretion in two ways: (1) determining Roush to be an "operator" of the hydro tester as the predicate for a violation of Ohio Adm.Code 4123:1-5-05(D)(1), and (2) finding that Roush's lack of means to disengage the hydro tester from its power supply was the proximate cause of his injuries. The commission's objections correspond to both conclusions.
{¶ 9} In its first objection, the commission asserts the magistrate erred in determining Roush was not an "operator" of the hydro tester at the time of the industrial injury. The commission contends the magistrate went beyond the constraints of our standard of review, which only asks this court to determine whether some evidence supports the commission's order, and notes this issue was a central, highly contested issue in the case with evidence presented supporting each side both at the May 2017 hearing before the SHO and upon the rehearing in January 2018. The commission emphasizes that the interpretation of a specific safety requirement is within the final jurisdiction of the commission, and the commission's determination that Roush was an operator of the hydro tester is supported by Roush's affidavit and testimony. We agree.
{¶ 10} "To be entitled to an additional award for a VSSR, a claimant must show that (1) a specific safety requirement applied, (2) the employer violated that requirement, and (3) the employer's violation caused the injury." State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, ¶ 15. "[B]ecause a VSSR award is a penalty imposed on an employer, specific safety requirements must be strictly construed and all reasonable doubts concerning the interpretation of a particular safety regulation must be resolved in favor of the employer." Id. at ¶ 21. However, (Emphasis sic.) State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 70.
{¶ 11} "The interpretation of a specific safety requirement is within the final jurisdiction of the commission and may be corrected in mandamus only upon a showing that the commission abused its discretion." Precision Steel at ¶ 21. "So long as some evidence supports the commission's order, there was no abuse of discretion, and the court must uphold the decision." State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-Ohio-4525, ¶ 13; State ex rel. Bob Marshall Ents., Inc. v. Indus. Comm., 10th Dist. No. 11AP-816, 2013-Ohio-943, ¶ 10, citing Supreme Bumpers at ¶ 71 ().
{¶ 12} "In order to trigger the mandate of [Ohio Adm.Code 4123:1-5-05(D)(1)], the claimant must be an 'operator' of the [machine]." State ex rel. Ohio Paperboard v. Indus. Comm., 152 Ohio St.3d 155, 2017-Ohio-9233, ¶ 12. An "[o]perator" is defined as "any employee assigned or authorized to work at the specific equipment." Ohio Adm.Code 4123:1-5-01(B)(92).
{¶ 13} Considering the issue of whether Roush was an "operator," the magistrate in this case took issue with the commission ignoring State ex rel. Platt v. Diamond Internatl. Corp., 10th Dist. No. 85AP-979 (Jan. 29, 1987), and State ex rel. Owens-Corning Fiberglas Corp. v. Indus. Comm., 62 Ohio St.2d 145 (1980). Based on these cases, the...
To continue reading
Request your trial