The opinion
[Cite as State ex rel. AK Steel Corp. v. Davis, 123 Ohio St.3d 458, 2009-Ohio-5865.]
THE STATE EX REL. AK STEEL CORPORATION, APPELLANT, v.
DAVIS ET AL., APPELLEES.
[Cite as State ex rel. AK Steel Corp. v. Davis,
123 Ohio St.3d 458, 2009-Ohio-5865.]
Workers’ compensation — Violation of specific safety requirement — Former
rule’s definition of “feed rolls” strictly construed in favor of employer.
(No. 2008-1962 — Submitted September 15, 2009 — Decided
November 12, 2009.)
APPEAL from the Court of Appeals for Franklin County, No. 07AP-687,
2008-Ohio-452.
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Per Curiam.
{¶ 1} Appellant, AK Steel Corporation, challenges appellee Industrial
Commission of Ohio’s determination that it violated a specific safety requirement
that caused appellee Cheryl L. Davis’s injury. Davis was hurt on a mill that
tempered coils of stainless steel. An expert described the mill:
{¶ 2} “This unit consists of two unguarded counter-rotating work rolls
which receive coil stock from a payoff reel, pulls it in and rolls it to improve the
hardness and surface finish. After going through the work rolls the stack is
rewound on the recoiler.”
{¶ 3} The payoff reel was on the mill’s entry side, where the operator’s
helper typically stood. The opening on this side was 32 inches wide and 38½
inches high, and the distance from the payoff reel to the work rolls was
approximately 43 inches. The work rolls were separated from the payoff reel by a
large board that, in some respects, resembled a table. Its main function is not
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certain from the record, but it is clear that, secondarily, it prevented anyone from
moving or standing between the payoff reel and the work rolls.
{¶ 4} The two work rolls were stacked vertically. The distance between
the two was less than the thickness of the steel sheeting, so the steel was tempered
as it passed through. The two rolls were powered by a 350-horsepower mill drive
on the bottom roll. There was no permanent motor on the top roll, but a drive
shaft could be inserted to allow the operator to jog the rolls if necessary. The
recoiler was independently powered by a 100-horsepower tension drive.
{¶ 5} The mill had two operating modes. When the mill was in polish
mode, the two work rolls were outrunning. This made it impossible for a person to
be caught between the mill’s work rolls. When in production, i.e., tempering,
mode, the two work rolls were inrunning, which created a nip point approximately
46 inches from the payoff reel. The configuration of the machine and the
presence of the board suggested that the nip point was not easily accessible, but it
is undisputed that it was not guarded.
{¶ 6} The mill, when in production mode, could move between 250 and
500 feet of steel per minute, which created an inadvertent hazard. At that speed, it
was extremely difficult to see that the rolls were moving because the surface of
the rolls was so uniform and reflective. As one operator stated, it looked like
“two mirrors turning.” The machine, moreover, was silent when it was running.
Operator Scott McKee described his experience with the temper mill:
{¶ 7} “You’ve got to remember that those rolls are turning because there
is no buzz, no bells, no noise.
{¶ 8} “You can walk by, you can look and, if they don’t have – there’s
[sic] no marks, nothing to let you know but your own experience that you’ve
turned that [sic] rolls on. * * * [Y]ou always have to be aware.”
{¶ 9} Two people were routinely assigned to the mill — an operator and
a helper. One of the operator’s key responsibilities was to make sure that the
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work rolls were always clean, and there were two approved ways to clean them.
One was to reverse the rolls’ direction by putting the mill in polish mode and then
using a long squeegee to remove the impurity. The other was to turn the mill off
and to wipe away any spot by hand. Under no circumstances was an employee
ever to touch a moving work roll with his or her hand.
{¶ 10} On November 13, 2002, McKee was assigned to operate the mill,
and Davis was assigned as his helper. The two were preparing for the shift’s first
production run when Davis apparently turned from the mill to grab her coffee. At
the same time, McKee turned the mill on in production mode and immediately
commented that there was a spot on one of the work rolls. Davis, unaware that
the mill was on, grabbed a rag and, in her own words, “stood on [her] tiptoes and
leaned in and attempted to wipe [the spot] off.” Before McKee could yell a
warning, the inrunning rolls grabbed the rag and, with it, Davis’s hand. McKee
immediately hit the emergency stop, but it was too late to prevent injury.
{¶ 11} After her workers’ compensation claim was allowed, Davis filed
an application for additional compensation, ultimately alleging that AK Steel had
violated a specific safety regulation that required that “[p]ower-driven feed rolls,
when exposed to contact, shall be guarded so as to prevent the hands of the
operator from coming into contact with the in-running rolls at any point.” See
Bulletin 203, Section 207, in effect when the mill was installed. Because the nip
point was not guarded, the commission granted Davis’s application and denied
rehearing.
{¶ 12} AK Steel filed a complaint in mandamus in the Court of Appeals
for Franklin County. The parties debated, among other things, whether the mill’s
two work rolls were “feed rolls” as defined in Bulletin 203, Section 2.8. That
provision defined “feed rolls” as “rolls which perform no other function than to
feed material to the point of operation.” (Emphasis added.) AK Steel offered two
responses, one of which was that because the work rolls also tempered the steel as
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it passed through, the rolls were not the single-function apparatus defined in
Section 2.8.
{¶ 13} The court of appeals acknowledged that the rolls performed two
functions. It held, however, that this court’s 1984 decision in State ex rel. Harris
v. Indus. Comm. (1984), 12 Ohio St.3d 152, 12 OBR 223, 465 N.E.2d 1286,
expanded the definition of “feed rolls” to include rolls that performed a dual or
secondary function. The writ was denied, and AK Steel has appealed to this court
as a matter of right.
{¶ 14} The court of appeals acknowledged that the work rolls performed
more than one function but considered that to be immaterial based on Harris. The
appeals court interpreted Harris as expanding Bulletin 203’s definition of feed
rolls to encompass rolls that had multiple functions. AK Steel has now appealed
as a matter of right, and we now take this opportunity to clarify Harris.
{¶ 15} Harris was injured while cleaning an offset printing press. He
applied for additional compensation, asserting that his employer had violated
Ohio Adm.Code 4121:1-5-05(H), a successor version of the specific safety
requirement now at issue. The commission denied his application after finding
that the ink rolls were not feed rolls because they performed more than one
function. This court on appeal acknowledged both that a feed roll, by definition,
could perform just one function and that the ink rolls had multiple functions, but it
nevertheless characterized the ink rolls as feed rolls:
{¶ 16} “This, [appellees] contend, illustrates a secondary function which,
according to Ohio Adm.Code 4121:1-5-01(B)(13), feed rolls cannot perform.
{¶ 17} “Appellant [claimant] submits that the clear facts of the case
illustrate that the ink rolls are, in fact, feed rolls. We agree. Ohio Adm.Code
4121:1-5-[01](B)(43) defines the ‘point of operation’ as ‘the area of the press
where material is actually positioned and work is being performed during any
process * * *.’ This definition, although referring particularly to mechanical
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January Term, 2009
power presses, provides a more sensible approach to the problem presented by the
facts of the instant appeal. The ink rolls in question clearly feed material to the
area of the press where work is being performed during the printing process.
{¶ 18} “The commission has the discretion to interpret its own rules;
however, where the application of those rules to a unique factual situation gives
rise to a patently illogical result, common sense should prevail. Appellant’s
contention that Ohio Adm.Code 4121:1-5-05(H) was violated is well supported
by the facts. The commission abused its discretion in determining otherwise.”
Harris, 12 Ohio St.3d at 153, 12 OBR 223, 465 N.E.2d 1286.
{¶ 19} Contrary to the court of appeals’ interpretation, Harris did not
expand the single-function requirement; it never substantively addressed it,
choosing instead to rely on an inapplicable definition of “point of operation,”
from which it concluded that the ink rolls were feed rolls. This reasoning violated
three key tenets. First, it did not strictly construe the specific safety requirement
against its applicability to the employer. An award to an employee for a violation
of a specific safety requirement (“VSSR”) is a penalty to the employer, and hence
any doubts concerning the applicability of a specific safety requirement must be
resolved in the employer’s favor. State ex rel. Burton v. Indus. Comm. (1989), 46
Ohio St.3d 170, 172, 545 N.E.2d 1216. Second, by failing to address the
exclusion of dual-function rolls from the definition of “feed rolls,” the Harris
court did not construe the requirement in a way that would have plainly apprised
the employer of its legal obligations. State ex rel. Trydle v. Indus. Comm. (1972),
32 Ohio St.2d 257, 61 O.O.2d 488, 291 N.E.2d 748, paragraph one of the
syllabus. Obviously, when a requirement clearly confines protection to a single-
function machine, an employer with a multifunction machine would have no
expectation that the requirement also covers it. Finally, Harris in effect deleted
language from the administrative rule when it ignored the single-function
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limitation of the definition. This, too, was improper. State ex rel. Lee v. Karnes,
103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 25-27.
{¶ 20} We accordingly clarify that the limitation to a single function is
still a part of the definition of “feed rolls” in Section 2.8 of Bulletin 203. The
commission therefore abused its discretion in implicitly finding that the temper
mill’s work rolls were “feed rolls.”
{¶ 21} The judgment of the court of appeals is hereby reversed. We issue
a writ of mandamus ordering the commission to vacate its order allowing a VSSR
award and to issue an order denying the award.
Judgment reversed
and writ granted.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
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Frost, Brown, Todd, L.L.C., Christine L. Robek, and Robert A. Dimling,
for appellant.
Stocker Pitts Co., L.P.A., Thomas R. Pitts, and M. Scott Kidd, for appellee
Cheryl Davis.
Richard Cordray, Attorney General, and Sandra E. Pinkerton, Assistant
Attorney General, for appellee Industrial Commission.
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