The opinion
[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 411.]
THE STATE EX REL. KENTON STRUCTURAL & ORNAMENTAL IRON WORKS,
INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as State ex rel. Kenton Structural & Ornamental Iron Works, Inc. v.
Indus. Comm., 2001-Ohio-90.]
Workers’ compensation—Alleged violation of specific safety requirement—Ohio
Adm.Code 4121:1-5-15(A) and (C)—Overloading of chains used to move
large tubing frames resulting in death of employee—Industrial
Commission’s determination that overloading was the proximate cause of
the accident not an abuse of discretion, when—Amount of VSSR award
granted by commission not an abuse of discretion, when.
(No. 99-1504—Submitted February 27, 2001—Decided May 23, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-498.
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Per Curiam.
{¶ 1} In 1995, David A. Hastings, David W. Winters, and Jerry R. Hart
worked for appellant, Kenton Structural & Ornamental Iron Works, Inc.
(“Kenton”). On March 20, the men were moving large tubing frames from one part
of the plant to another, using an overhead crane. One of the frames was composed
of six-inch-by-six-inch segments of one-quarter-inch metal tubing. While
estimates vary, the frame was approximately ten feet by fifteen feet by thirteen feet.
It weighed 9,384 pounds.
{¶ 2} Hart and Hastings selected two chains that had successfully moved
similar loads just days earlier. The chains were three-eighths of an inch thick and
six feet long. A four-inch-wide metal oval ring was attached to each end. The
evidence is unclear as to exactly how the chains were rigged to the frame, although
the parties appear to agree that they were in a double sling configuration. Thus, the
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chains were not perpendicular to the load, but were hooked up at an angle. Co-
worker Gregory L. Brown later indicated that this was normal procedure. The crane
had lifted the frames slightly off the floor when one chain suddenly snapped.
Instantly, the other chain snapped and the frame crashed to the ground, toppling
onto Hastings. Hastings died at the scene.
{¶ 3} An inspection of the site shortly after the accident recovered two
broken chain links. One was the same size as links of the chain in question. The
other was not.
{¶ 4} After a workers’ compensation claim was allowed, appellee Stacie R.
Hastings, David’s widow, applied for additional compensation, charging Kenton
with several violations of specific safety requirements (“VSSR”). At a hearing
before appellee Industrial Commission of Ohio, testimony focused on two topics:
(1) the rated load capacity of the chains, and (2) a possible defect in one of the links.
As to the former, steel industry consultant William W. Merrell testified that
attached to one of the fatal chains was a manufacturer’s tag listing the lifting
capacity at six thousand six hundred pounds. The other chain was assumed to be
the same. Evidence also demonstrated that rigging chains at an angle reduces the
chain’s lifting capacity. A chart entitled “Cam-Alloy Chain Sling Working Load
Limits” revealed that chains used at a forty-five-degree angle could carry only
seventy percent of the maximum working load limit. Merrell testified that this is a
universal principle of physics that would apply regardless of the chain’s
manufacturer.
{¶ 5} Merrell also stated that one of the chains, upon testing, was discovered
to have a defective master link. He added that this defect could not be detected by
mere visual inspection.
{¶ 6} Among the findings made by the commission, two are relevant:
“2) 4121:1-5-15(C) requires all hoisting or haulage equipment [to] have a
safety factor of no less than five. No violation of this section is found.
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“Per the testimony of expert witness Mr. Merrell, chains used for hauling
come from the manufacturer with a safety factor of five. Such a safety factor is
required of this type of equipment[,] as it is subject to abuse due to the nature of
the work involved. Mr. Merrell further indicated [that] there was no reason to
assume the chains involved in this accident came with a safety factor of less than
five. There has been no evidence presented to indicate [that] the chains in question
did not come with a safety factor of five.
“Mr. Merrell testified that after the accident he was able to inspect the
chains involved and found that one of the broken links had a defect and thus
probably did not meet the safety factor of five at the time of the accident.
However, he went on to state [that] there would have been no way to detect this
defect, even with close inspection, before the accident. * * * Per State ex rel.
M.T.D. Products [Inc.] v. Stebbins (1975), 43 [Ohio St.2d] 114 [72 O.O.2d 63, 330
N.E.2d 904], there is no violation for a one time malfunction of safety equipment
when such is not foreseeable. Mr. Merrell clearly indicates that there is no way
the employer could have become aware of the defect before the accident.
“***
“3) 4121:1-5-15(A) requires equipment such as * * * hoisting or haulage
lines * * * chains * * * and attachments used to handle material or equipment shall
be used in accordance with the manufacturer’s recommendations. A violation of
this section is found.
“Section (A) includes the use of chains as hoisting and haulage equipment.
Both Winters and Hart state [that] chains were being used, and are what broke, at
the time of the accident. * * * [T]he frame in question weighed 9,384 pounds. *
* * Mr. Merrell testified [that] the manufacturer’s tags, one of which was still
attached to one of the chains, showed the manufacturer’s ratings for the chains.
He stated [that] both of the tags gave a rating of 6,600 pounds for each individual
chain. * * * A rating of 6,600 pounds for each chain would amount to a total load
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limit rating of 13,200 per the previously noted OSHA note taking sheet and the
report of BWC Investigator Garver. * * * A sketch in [the] file from Mr. Winters
* * * and the previously noted OSHA reports indicate the chains were running at
a 45 degree angle. * * * The Cam-Alloy Chain Sling Working Load Limits chart
on file indicates that chains used at a 45 degree angle can carry only 70 percent of
their maximum manufacturer’s recommended load capacity. * * * Mr. Merrell
stated this part of the chart would be true of all manufacturers’ chains because it
is based on physics.
“Based on the facts and evidence stated above it is found [that the two
chains involved in the accident were each] being used at a 45 degree angle which
reduced [their] capacity by 30 percent. Therefore, 6,600 [minus] 30 percent
[equals] 4620. 4620 time[s] 2 [equals] 9,240 total manufacturer’s recommended
load capacity for the chains as they were used at the time of the accident. Since
the load that was being hoisted weighed 9,384 [pounds] it is found [that] the chains
were not used in accordance with the manufacturer’s recommendations as they
were used to hoist a load that exceeded the manufacturer’s rated load capacity.
This violation was the direct cause of injury[,] as the breaking of the overloaded
chains is what led to the hoisted load falling and ultimately hitting the decedent.
“Because of the extent and serious nature of the injuries involved in this
case, the number of violations found by OSHA, and the fact [that] OSHA found a
number of the violations to be serious, an additional award of compensation is
granted to the widow claimant in the amount of 50 percent of the maximum weekly
rate * * *.”
{¶ 7} Reconsideration was denied.
{¶ 8} Kenton filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in assessing a
VSSR. The court of appeals found the decision to be supported by “some evidence”
and denied the writ.
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January Term, 2001
{¶ 9} This cause is now before this court on an appeal as of right.
{¶ 10} Kenton makes four challenges to the VSSR award: (1) lack of “some
evidence,” (2) internal inconsistencies, (3) unilateral decedent negligence, and (4)
the award’s excessiveness. None of these challenges has merit.
1. “Some evidence”
{¶ 11} The commission concluded that the chains (1) had a vertical
combined lifting capacity of thirteen thousand two hundred pounds and (2) were
angled at forty-five degrees. Kenton claims that there is no evidentiary basis for
either finding. We find this argument unpersuasive.
{¶ 12} Kenton’s first assertion is simply wrong. Kenton ignores the
Teledyne manufacturer’s tag on one of the chains that specifically rated it at six
thousand six hundred pounds. Kenton, moreover, does not dispute that the other
unmarked chain was the same type. The tag is, therefore, “some evidence” that
each chain was maximally rated at six thousand six hundred pounds when used
vertically.
{¶ 13} The second issue—rigging angle—is important because of the
numbers involved. At exactly forty-five degrees the chains’ combined maximum
load was reduced to 9,240 pounds. The frame weighed 9,384 pounds. With only
a one-hundred-forty-four-pound difference, a variance of a few degrees, according
to Kenton, could bring the chains into compliance.
{¶ 14} Kenton maintains that because the evidence relied on by the
commission estimated the rigging angle at “approximately” forty-five degrees, it is
insufficient to establish that the angle was exactly forty-five degrees. Given the
strict construction directive in favor of an employer accused of a VSSR, Kenton
argues that an abuse of discretion must be found. State ex rel. Burton v. Indus.
Comm. (1989), 46 Ohio St.3d 170, 545 N.E.2d 1216. We disagree.
{¶ 15} The commission is the ultimate arbiter of evidentiary weight and
credibility. State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d
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481, 6 OBR 531, 453 N.E.2d 721. In that capacity, it chose not to attach undue
weight to the qualifier “approximately.” The angle of the chains could not be
determined with utter precision after the accident and will never be known. Any
assessment—even under the most rigorous scientific scrutiny—will always be an
approximation or estimate.
{¶ 16} This is not a situation where the commission itself chose a number.
OSHA arrived at the forty-five-degree figure. The commission merely decided that
the term “approximately” did not undermine the credibility of that assessment.
Therefore, we find there was no abuse of discretion.
2. Internal inconsistency
{¶ 17} Ohio Adm.Code 4121:1-5-15(A) and (C) address the use of hoisting
equipment, including chains. Section (A) demands use according to the
manufacturer’s specifications, which would include maximum rated load capacity.
Ohio Adm.Code 4121:1-5-15(C) requires the chain to have a minimum safety
factor of five, meaning that the chain must withstand five times the maximum rated
load.
{¶ 18} The commission found that the chain had been overloaded and that
the excess weight caused it to snap. Hence, a violation of Ohio Adm.Code 4121:15-
15(A) was found. The commission also found that the chain did not satisfy Section
(C). It did not, however, find a violation of Section (C), because the noncompliance
was due to an undetectable chain defect. This defect, the commission concluded,
invoked State ex rel. M.T.D. Products, Inc. v. Stebbins (1975), 43 Ohio St.2d 114,
72 O.O.2d 63, 330 N.E.2d 904, which held that a single unforeseen failure of a
safety device could not form the basis of a VSSR.
{¶ 19} Kenton criticizes the order as internally inconsistent as to the cause
of the accident. It claims that the commission named overloading as the accident’s
cause for purposes of Section (A), but then claimed that the link defect caused the
failure of the safety factor as to Section (C).
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{¶ 20} Kenton’s real objection addresses the conclusion that an overloaded
chain caused the accident, under the theory that moderate overloading would not
have mattered if the requisite safety factor existed. Consequently, since the chain’s
safety factor was reduced by an unforeseeable defect, Kenton would be protected
from all VSSRs involving the chain—4121:1-5-15(A) and (C).
{¶ 21} However, the safety factor is really not an issue unless there is
overloading. When the load is within the manufacturer’s specifications, the safety
factor is not relied on to keep the load suspended. Consequently, the determination
that overloading was the proximate cause of an accident is not an abuse of
discretion.
{¶ 22} Moreover, to reverse the relevant inquiry is to allow Ohio Adm.Code
4121:1-5-15(C) to subsume 4121:1-5-15(A), rendering the latter meaningless.
Unless grossly overloaded, an overloaded chain that snaps necessarily lacks the
requisite safety factor strength as well. If safety factor becomes the primary focus,
the same argument will always be made: but for the diminished safety factor,
overloading would have been irrelevant. This leaves little incentive for an
employer to observe maximum-rated-load recommendations. We cannot endorse
such a dangerous disregard for these specifications.
{¶ 23} We conclude, therefore, that the commission’s analysis was not
internally inconsistent. Again, unless severely overloaded, an overloaded chain
may prompt two VSSR allegations—excess weight and insufficient safety factor.
Here, the commission’s review began where it must: with inquiry into the
possibility of overloading. In this case, the commission found that the chains were
overloaded and that the overloading was the proximate cause of the accident. It
then proceeded to the next alleged VSSR—the chain safety factor. There, the
commission indeed found failure. Analysis, however, was not complete until the
commission determined whether there was any defense to this failure, and it
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answered that question affirmatively. It concluded that failure was the result of an
undetectable defect for which Kenton could not be held responsible.
{¶ 24} Thus, it was not inconsistent to find that overloading was the cause
of the accident, while the defect was the cause of the safety factor deficiency.
3. Unilateral negligence of the decedent
{¶ 25} Kenton maintains that decedent was unilaterally negligent in rigging
the chains at a forty-five-degree angle, foreclosing the VSSR award. We do not
accept this argument.
{¶ 26} Employee negligence bars a VSSR award only where an employee
deliberately removes a safety device or otherwise renders a compliant device
noncompliant. State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm. (1988), 37
Ohio St.3d 162, 524 N.E.2d 482. It does not apply where the employee simply
makes a mistake that results in injury.
{¶ 27} In State ex rel. Cotterman v. St. Marys Foundry (1989), 46 Ohio
St.3d 42, 544 N.E.2d 887, a plant supervisor selected the wrong chains for a job,
and, as here, died when the chains failed. His employer argued that because the
decedent picked the wrong chains when the right ones were available, no liability
attached.
{¶ 28} We disagreed. We found that there was no evidence that “the
decedent voluntarily chose the incorrect chain. In fact, the commission stated that
his decision ‘must be considered an aberration attributable to human error.’ ” Id.
at 47-48, 544 N.E.2d at 892. Stressing that safety requirements were designed to
protect employees from just such errors in judgment, id. at 47, 544 N.E.2d at 892,
we found that the decedent’s act did not bar an award.
{¶ 29} Our case is analogous. There is no evidence that decedent
knowingly rigged the chains in a way to harm himself or others. To the contrary,
co-worker Gregory Brown averred that claimant hooked up the chains in the
customary manner. Brown stated that he did not know that angled rigging
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decreases the load capacity of the chains, and there is no evidence that decedent
knew either. Accordingly, decedent’s tragic mistake does not bar a VSSR.
4. Award Amount
{¶ 30} The amount of a VSSR award can vary from fifteen to fifty percent,
inclusive, of the maximum award established by law. Section 35, Article II, Ohio
Constitution. The commission levied the maximum penalty “because of the extent
and serious nature of the injuries involved in the case, the number of violations
found by OSHA, and the fact OSHA found a number of the violations to be
serious.” Kenton alleges that the commission abused its discretion in relying in
part on OSHA violations. We reject this contention.
{¶ 31} State ex rel. St. Marys Foundry Co. v. Indus. Comm. (1997), 78 Ohio
St.3d 521, 678 N.E.2d 1390, recognized the commission’s considerable discretion
in setting the amount of a VSSR. We wrote:
“[T]he commission’s discretion in assessing VSSR amounts is limited only
by this constitutional [percentage] standard and * * * the commission commits an
abuse of discretion, correctable in mandamus, only by assessing an award outside
this range.” (Emphasis added.) Id. at 524, 678 N.E.2d at 1392.
{¶ 32} The violation in this case resulted in death, and the award fell within
the constitutional parameters. The commission did not abuse its discretion. The
judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
COOK, J., concurs in judgment.
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Kegler, Brown, Hill & Ritter, Timothy T. Tullis and David M. McCarty, for
appellant.
W. Michael Shay, for appellee Stacie R. Hastings.
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Betty D. Montgomery, Attorney General, and Jon D. Grandon, Assistant
Attorney General, for appellee Industrial Commission.
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