Opinion

State Ex Rel. Glunt Industries, Inc. v. Industrial Commission

  • 132 Ohio St. 3d 78
  • 2012 Ohio 2125
Court
Ohio Supreme Court
Filed
May 16, 2012
Status
Published
On the bench
Brown, Cupp, Lanzinger, Lundberg, McGee, O'Connor, O'Donnell, Pfeifer, Stratton
Cited by
7 cases
Authority
More cited than 61.0%

The opinion

[Cite as State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-

2125.]

THE STATE EX REL. GLUNT INDUSTRIES, INC., APPELLANT, v. INDUSTRIAL

COMMISSION OF OHIO ET AL., APPELLEES.

[Cite as State ex rel. Glunt Industries, Inc. v. Indus. Comm.,

132 Ohio St.3d 78, 2012-Ohio-2125.]

Workers’ compensation—Violation of specific safety requirement—Ohio

Adm.Code 4123:1-5-23(A) applies when “equipment to be worked on”

has not been isolated from all possible sources of electricity or is not

properly grounded—Claimant’s failure to request required safety

equipment is no defense to failure to provide it.

(No. 2010-1948—Submitted March 20, 2012—Decided May 16, 2012.)

APPEAL from the Court of Appeals for Franklin County, No. 09AP-260,

2010-Ohio-4600.

__________________

Per Curiam.

{¶ 1} Appellee, Thomas E. Hamrick II, has alleged that his employer,

appellant Glunt Industries, Inc., committed a violation of a specific safety

requirement (“VSSR”). The requirement in question directs employers to supply

protective apparatus to employees working on specified electrical equipment.

Hamrick asserts that this violation proximately caused his industrial injury, and he

now seeks additional workers’ compensation benefits for that alleged violation.

{¶ 2} On April 19, 2006, Glunt experienced a plantwide power failure,

and Hamrick, an electrician, alleges that he was told to investigate. Hamrick went

first to the plant’s main electrical breaker cabinet. It is undisputed that he was not

using or wearing any electrical safety equipment.

{¶ 3} The main breaker cabinet housed two separate breakers, each with

a separate cover panel that had to be removed in order to access the circuitry

SUPREME COURT OF OHIO

inside. The right side of the breaker had 440/480 volts, and the left side, 4,160.

Hamrick denied that the cabinet had high-voltage warning signs or signs

specifying the voltage. Hamrick knew that the voltage on the left side was higher

than on the right, but he did not know by how much.

{¶ 4} While Hamrick was standing in front of the cabinet, it exploded,

and he was seriously injured. The inquiry that followed focused heavily on

whether Hamrick had accessed the higher-voltage left side of the breaker

cabinet—an action that Glunt claimed was forbidden by company policy.

Physical evidence established that the higher-voltage left side of the cabinet was

damaged, but it did not conclusively establish that Hamrick had opened the

cabinet on that side. Glunt’s safety manual, for example, indicated that when two

unequal circuits were adjacent, a minor shock from the lower-voltage side could

rebound into the higher circuit and cause an explosion.

{¶ 5} Hamrick’s memory of events is inconsistent, due at least in part to

the massive head trauma he sustained. Hamrick’s earliest and most detailed

statement of record indicates that he opened the cabinet’s higher-voltage left side

and inadvertently crossed some wires. A later affidavit disavowed any memory

of his actions just before the explosion. Still later, Hamrick testified that he was

certain that he had never opened the left panel, only the right.

{¶ 6} Hamrick’s VSSR application was heard by a staff hearing officer

(“SHO”) for appellee Industrial Commission of Ohio. At issue was Ohio

Adm.Code 4123:1-5-23(A):

Unless the electrical conductors or equipment to be worked

on are isolated from all possible sources of voltage or are

effectively grounded, the employer shall provide protective

equipment approved for the voltage involved, such as rubber

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January Term, 2012

gloves with protectors, rubber sleeves, hot line tools, line hose, line

guards, insulator hoods, blankets, and access boards.

(Emphasis added.)

{¶ 7} Glunt admitted that with the possible exception of safety gloves, it

had not provided Hamrick with the safety equipment required by Ohio Adm.Code

4123:1-5-23(A). Glunt attempted to excuse that failure by arguing that the safety

requirement did not apply. It denied that the main breaker cabinet was

“equipment to be worked on” within the meaning of Ohio Adm.Code 4123:1-5-

23(A), claiming that company policy prohibited any employee—including

Hamrick—from working on equipment exceeding 440/480 volts. According to

Glunt, Hamrick had been negligent in accessing the main breaker—a claim that, if

true, might shield Glunt from VSSR liability.

{¶ 8} Glunt additionally tried to disavow a causal relationship between

the absence of safety equipment and Hamrick’s injuries. Glunt argued that it

would have provided safety equipment if Hamrick had asked for it, and

speculated that even if the equipment had been provided, Hamrick would not have

used it.

{¶ 9} The SHO granted Hamrick’s VSSR application after first

determining that Ohio Adm.Code 4123:1-5-23(A) applied. The hearing officer

rejected Glunt’s contention that the main breaker was not “equipment to be

worked on,” based on his belief that Glunt had specifically ordered Hamrick to

check that breaker on the date of injury.

{¶ 10} In finding that the provision had been violated, the SHO stressed

that Ohio Adm.Code 4123:1-5-23(A) imposed a clear duty upon Glunt to provide

appropriate safety gear that was not contingent upon the employee’s requesting

the gear. Glunt’s noncompliance, in turn, precluded it from asserting claimant

negligence as a defense. Ultimately, the SHO concluded that Glunt’s violation

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was the proximate cause of Hamrick’s injuries and awarded the additional

compensation requested.

{¶ 11} After the commission denied reconsideration, Glunt filed a

complaint in mandamus in the Court of Appeals for Franklin County, alleging that

the commission had abused its discretion in finding a VSSR. The court of appeals

disagreed and denied the writ, prompting Glunt’s appeal to this court as of right.

{¶ 12} A VSSR award has been characterized as a penalty. State ex rel.

Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). Thus,

the specific safety regulation must be strictly construed in the employer’s favor,

and all reasonable doubts concerning its applicability must be resolved in the

employer’s favor. Id.

{¶ 13} Ohio Adm.Code 4123:1-5-23(A) applies when the “equipment to

be worked on” has not been isolated from all possible sources of electricity or is

not effectively grounded. Glunt has argued that the main breaker was not

equipment to be worked on because company policy prohibited employees from

working on it. The SHO rejected this proposition after he concluded that a Glunt

supervisor had ordered Hamrick to investigate the main breaker on the date of

injury. There is, however, no evidence supporting this finding. Glunt perceives

this error to be fatal. We disagree.

{¶ 14} Glunt believes that Hamrick caused the explosion by opening the

higher-voltage left breaker panel. This prompted considerable debate at the

hearing as to whether Hamrick was authorized to work on circuitry over 440/480

volts. No one disputes, however, that Hamrick was permitted to service

equipment with a voltage of 440/480 or below, which would include the main

breaker’s right-side circuit. This alone negates Glunt’s claim that Hamrick’s mere

presence at the main breaker cabinet was unauthorized. The evidence, moreover,

suggests at least two possible causes for the explosion that implicate the cabinet’s

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January Term, 2012

lower-voltage right side—the side Hamrick was unquestionably authorized to

service.

{¶ 15} We find that Glunt’s main breaker cabinet was “equipment to be

worked on” that was covered by Ohio Adm.Code 4123:1-5-23(A). We

additionally find that Glunt did not satisfy the requirement, because it did not

supply Hamrick with “protective equipment approved for the voltage involved.”

Glunt’s claim that Hamrick could have requested safety equipment fails for the

reason stated by the SHO. Ohio Adm.Code 4123:1-5-23(A) imposes a clear duty

on the employer to supply safety equipment that is not contingent upon employee

request.

{¶ 16} Glunt also argues that the absence of safety equipment did not

proximately cause Hamrick’s injury, because even if it had been available,

Hamrick would not have used it. Glunt bases this assertion on Hamrick’s

statement that he did not need any safety equipment for the task he was

performing when he was injured. Glunt’s statement, however, is only conjecture,

given Hamrick’s necessary proximity to a 4,160-volt circuit, and it goes less to

proximate cause than it does to the defense of unilateral claimant negligence.

This defense, however, is available only if the employer first complies with the

applicable safety requirement. Compare State ex rel. Frank Brown & Sons, Inc.

v. Indus. Comm., 37 Ohio St.3d 162, 524 N.E.2d 482 (1988) (award denied

because employer fully complied with specific safety requirement, and claimant’s

injury was caused by his own negligence). Glunt cannot take advantage of this

defense, since it did not satisfy Ohio Adm.Code 4123:1-5-23(A).

{¶ 17} The judgment of the court of appeals is affirmed.

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

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SUPREME COURT OF OHIO

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Jennifer A. Flint, for

appellant.

Michael DeWine, Attorney General, and Charissa D. Payer, Assistant

Attorney General, for appellee Industrial Commission.

Harrington, Hoppe & Mitchell, Ltd., Kevin P. Murphy, and Matthew G.

Vansuch, for appellee Hamrick.

______________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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