State ex rel. Precision Steel Servs., Inc. v. Indus. Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Precision Steel Servs., Inc. v. Indus. Comm., Slip Opinion No. 2015-Ohio-4798.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2015-OHIO-4798

THE STATE EX REL. PRECISION STEEL SERVICES, INC., APPELLANT, v.

INDUSTRIAL COMMISSION OF OHIO, ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Precision Steel Servs., Inc. v. Indus. Comm.,

Slip Opinion No. 2015-Ohio-4798.]

Mandamus—Workers’ compensation—Violation of a specific safety requirement—

Neither Ohio Adm.Code 4123:1-5-14(G)(1) nor 4123:1-5-15(B) sets forth

a specific safety requirement regarding a safety latch on a hook attached to

a crane—Judgment reversed—Writ granted.

(No. 2013-1628—Submitted June 23, 2015—Decided November 24, 2015.)

APPEAL from the Court of Appeals for Franklin County, No. 11AP-1083,

2013-Ohio-4381.

_______________________

Per Curiam.

{¶ 1} This is an appeal of a mandamus case challenging an award to a

workers’ compensation claimant of additional compensation for the violation of a

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specific safety requirement (“VSSR”). Appellant, Precision Steel Services, Inc.,

alleged that appellee Industrial Commission abused its discretion when it

determined that Precision Steel violated the safety regulations in Ohio Adm.Code

4123:1-5-14(G)(1) by failing to repair or replace a crane hook that was missing a

safety latch and those in Ohio Adm.Code 4123:1-5-15(B) by failing to remove the

crane from service due to the missing latch, proximately causing injury to appellee

Melvin E. Myers in the course and scope of his employment.

{¶ 2} Because neither rule at issue sets forth a specific safety requirement

regarding a latch on a hook attached to a crane, the commission’s decision that

Precision Steel violated the rules was an abuse of discretion. Therefore, we issue a

writ of mandamus requiring the commission to vacate its order granting Myers’s

application for a VSSR award and to enter a new order stating that Precision Steel

did not violate Ohio Adm.Code 4123:1-5-14(G)(1) and 4123:1-5-15(B).

Facts

{¶ 3} Myers was employed as a burn-table operator and fabricator by

Precision Steel. On March 1, 2008, Myers was injured when a magnet holding a

1,200-pound piece of metal fell onto his left hand. Fred M. Freeman, special

investigator of the Safety Violations Investigative Unit of the Bureau of Workers’

Compensation, investigated the incident. Freeman’s report stated that Myers was

using a Kone XLD ten-ton double-box-girder top-running crane with an 8,000-

pound electric magnet attached by a wire rope to turn over a metal piece that he

was welding. The record is not entirely clear as to the exact configuration of the

crane or the device, but the parties agree that the wire rope holding the magnet had

loops or “eyes” at both ends. The upper eye of the wire rope was attached to the

crane, while a smaller eye at the bottom of the wire rope was attached to the eye of

the magnet with a hook. The hook holding the magnet did not have a latch or clip

closing it. As Myers was maneuvering the metal piece, the eye of the magnet

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slipped off the hook on the bottom of the wire rope and both the magnet and the

piece of metal fell onto his hand.

{¶ 4} Myers’s workers’ compensation claim was allowed for numerous

injuries, including amputation of his left hand. He received compensation for his

medical expenses and lost wages.

{¶ 5} Approximately two years after the accident, Myers applied for an

additional award for VSSR. He alleged that Precision Steel had violated Ohio

Adm.Code 4123:1-5-14(G)(1) and 4123:1-5-15(B) and (D) and that those

violations had caused his injury.1

{¶ 6} Ohio Adm.Code 4123:1-5-14 applies to various types of power-

driven cranes. Subsection (G) states,

Specific requirements that apply to all paragraphs of this rule.

(1) Defective safety devices or load-carrying equipment. Defective

crane safety devices or load-carrying equipment shall be repaired or

replaced.

The provisions of Ohio Adm.Code 4123:1-5-15 apply to hoisting and haulage

equipment, including slings, lines, and ropes. Subsection (B) states, “Equipment

shall be removed from service when there is evidence of a defect, damage, or

distortion which may weaken such equipment.”

{¶ 7} A staff hearing officer determined that Ohio Adm.Code 4123:1-5-

14(G)(1) applied because Myers was operating a power-driven crane. The hearing

officer stated that “the evidence shows that the crane causing [Myers’s] injury had

a defective safety device. The defect was that the safety latch was not present on

1

Prior to the hearing, Myers dismissed his claim based on Ohio Adm.Code 4123:1-5-15(D), and it

is not part of this appeal.

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the crane hook” and that “the equipment should have been repaired or replaced

according to [Ohio Adm.Code] 4123:1-5-14(G)(1).”

{¶ 8} The hearing officer further determined that “the lack of a safety latch

amounted to a defect which weakened the equipment (the magnet came off because

a safety latch was missing)” and that Precision Steel should have removed the crane

from service under Ohio Adm.Code 4123:1-5-15(B). The hearing officer

concluded that Precision Steel failed to comply with both regulations and that the

failure proximately caused Myers’s injury. The hearing officer granted a VSSR

award to Myers.

{¶ 9} Precision Steel filed this mandamus action in the court of appeals,

alleging that the commission’s order was an abuse of discretion. The matter was

referred to a magistrate, who determined that the “safety devices or load-carrying

equipment” in Ohio Adm.Code 4123:1-5-14(G)(1) referred to the crane equipment

identified in Ohio Adm.Code 4123:1-5-14(C) through (F) and that those sections

did not mention a hook safety latch. According to the magistrate, Precision Steel

could not have violated the rule because the rule provided no notice to repair or

replace a defective hook safety latch on a crane.

{¶ 10} Next, the magistrate determined that the commission failed to

address the significance of the definition of “equipment” in Ohio Adm.Code

4123:1-5-15(A) when considering whether the hook or safety latch can be viewed

as equipment for purposes of section (B) of that rule. The magistrate concluded

that the commission abused its discretion and that a writ of mandamus should be

issued.

{¶ 11} All parties filed objections. The court of appeals issued a limited

writ, but for reasons other than those stated by the magistrate. The court concluded

that it was unreasonable to describe the latch as a safety device if it was a

component of the crane. But the court stated that it was within the commission’s

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discretion to determine that the bottom hook was a component of a type of crane

covered by Ohio Adm.Code 4123:1-5-14 and, as such, that rule applied to the facts.

{¶ 12} The court reasoned that the bottom hook could be “load-carrying

equipment” for purposes of Ohio Adm.Code 4123:1-5-14(G)(1). The court ordered

the commission to consider whether the crane, when configured with a bottom

hook, was load-carrying equipment that was defective for lack of a safety device.

{¶ 13} The appellate court did not disturb the commission’s finding that

Precision Steel had violated Ohio Adm.Code 4123:1-5-15(B). The court issued a

limited writ that ordered the commission to readjudicate Myers’s claim based on

Ohio Adm.Code 4123:1-5-14(G)(1).

{¶ 14} This matter is before the court on Precision Steel’s appeal as of right.

Legal Analysis

{¶ 15} An award for a VSSR is “a new, separate, and distinct award” over

and above standard workers’ compensation benefits. It is not covered by an

employer’s workers’ compensation premium. State ex rel. Newman v. Indus.

Comm., 77 Ohio St.3d 271, 272, 673 N.E.2d 1301 (1997). 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. Supreme Bumpers Inc. v.

Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, 781 N.E.2d 170, ¶ 46.

{¶ 16} Precision Steel asserts that it could not have violated Ohio

Adm.Code 4123:1-5-14(G)(1) and 4123:1-5-15(B) because neither rule specifically

requires a latch to be attached to a crane hook. Therefore, Precision Steel maintains,

the commission abused its discretion when it determined that Precision Steel

violated the rules for failure to provide a latch on a crane hook. We agree.

{¶ 17} A “specific requirement” is more than a general course of conduct

or general duty or obligation flowing from the employer-employee relationship;

rather, it “embraces such lawful, specific and definite requirements or standards of

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conduct * * * [that] are of a character plainly to apprise an employer of his legal

obligation toward his employees.” State ex rel. Trydle v. Indus. Comm., 32 Ohio

St.2d 257, 291 N.E.2d 748 (1972), paragraph one of the syllabus. Specific safety

requirements must “ ‘forewarn the employer and establish a standard which [the

employer] may follow.’ ” (Brackets sic.) State ex rel. G & S Metal Prods., Inc. v.

Moore, 79 Ohio St.3d 471, 476, 683 N.E.2d 1135 (1997), quoting State ex rel.

Howard Eng. & Mfg. Co. v. Indus. Comm., 148 Ohio St. 165, 75 N.E.2d 201 (1947),

paragraph one of the syllabus. Neither Ohio Adm.Code 4123:1-5-14(G) nor Ohio

Adm.Code 4123:1-5-15(B) establishes a specific safety requirement in the context

of this case.

Ohio Adm.Code 4123:1-5-14 applies to power-driven cranes and hoists

{¶ 18} Subsections (C) through (F) of Ohio Adm.Code 4123:1-5-14 define

overhead electric traveling cranes, electric jib cranes, electric single-rail cranes and

hoists, and electric gantry cranes and set forth specific safety requirements with

respect to each type. Precision Steel is alleged to have violated subsection (G),

which states, “Defective crane safety devices or load-carrying equipment shall be

repaired or replaced.” The terms “safety devices” and “load-carrying equipment”

are not defined in the rule. Undefined words and phrases in administrative rules

must be construed within the context in which they are written. State ex rel. Baroni

v. Colletti, 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 18.

{¶ 19} Nothing in subsections (C) through (F) of Ohio Adm.Code 4123:1-

5-14 refers to a hook on a crane or hoist. There is no language in the rule that

plainly apprised Precision Steel that a latch on a crane hook constituted either a

“safety device” or “load-carrying equipment” for purposes of Ohio Adm.Code

4123:1-5-14(G)(1). As such, there could be no VSSR for failure to provide a latch

on the crane hook.

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Ohio Adm.Code 4123:1-5-15(B) applies to hoisting and haulage equipment

{¶ 20} The court of appeals agreed with the commission that Precision Steel

violated Ohio Adm.Code 4123:1-5-15(B), which states, “Equipment shall be

removed from service when there is evidence of a defect, damage, or distortion

which may weaken such equipment.” However, “equipment” is not defined in Ohio

Adm.Code 4123:1-5-15(B). There is no specific reference in the rule to a hook as

part of hoisting or haulage equipment. The rule does not plainly apprise Precision

Steel that a latch on a crane hook constituted “equipment” within the meaning of

Ohio Adm.Code 4123:1-5-15(B), and Precision Steel could not have violated the

rule for failure to remove the crane from service.

{¶ 21} 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. State ex rel. Roberts v. Indus.

Comm., 10 Ohio St.3d 1, 4, 460 N.E.2d 251 (1984). This court is “normally

obligated to defer to the commission’s interpretation of its own rules, [but] we will

not defer when the commission’s interpretation implicitly adds language to the text

of the rule.” State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 79-80, 661

N.E.2d 724 (1996). Furthermore, because 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 78; State ex rel. Burton v. Indus.

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

{¶ 22} Here, neither rule included language placing an employer on notice

of a legal obligation to (1) put a latch on a hoist hook, (2) replace a latch on a hook

if one is missing, or (3) remove the crane from service because a latch was not on

a hook. Nevertheless, the commission construed the generic terms “device” and

“equipment” to include a latch on a hook. This constituted an abuse of discretion.

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{¶ 23} In light of our resolution of this matter, Precision Steel’s assertion

that the commission’s assessment of a 50 percent VSSR penalty violated its right

to due process is moot.

{¶ 24} Precision Steel requested oral argument in this matter. Oral

argument in an appeal as of right is subject to the court’s discretion. S.Ct.Prac.R.

17.02(A). In exercising that discretion, we consider “whether the case involves a

matter of great public importance, complex issues of law or fact, a substantial

constitutional issue, or a conflict among courts of appeals.” State ex rel. Davis v.

Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444,

¶ 15, citing State ex rel. United Auto., Aerospace & Agricultural Implement

Workers of Am. v. Ohio Bur. of Workers’ Comp., 108 Ohio St.3d 432, 2006-Ohio-

1327, 844 N.E.2d 335, ¶ 25-26. These issues are not present in this matter, and we

deny Precision Steel’s request.

{¶ 25} In conclusion, we reverse the judgment of the court of appeals and

grant a writ of mandamus requiring the commission to vacate its order and to issue

a new order denying Myers’s application for an additional award for VSSR.

Judgment reversed

and writ granted.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FRENCH, JJ., concur.

PFEIFER and O’NEILL, JJ., dissent.

LANZINGER, J., not participating.

___________________

O’NEILL, J., dissenting.

{¶ 26} Appellee Melvin E. Myers was using a ten-ton double-box-girder

top-running crane with an 8,000-pound electric magnet to turn over a 1,200-pound

piece of metal that he was welding. The hook holding the magnet and the piece of

metal did not have a latch closing it, although the manufacturer clearly indicated

that the safety latch was a critical part of the equipment that must be used to safely

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operate the crane and magnet. As Meyers was working, both the magnet and the

piece of metal slipped off the hook and crushed his hand. Meyers filed for workers’

compensation benefits, which were granted, and he also filed a claim for additional

compensation due to the violation of a specific safety requirement (“VSSR”), which

was contested by the employer, appellant, Precision Steel Services, Inc. At the

VSSR hearing, the Industrial Commission heard testimony from Meyers’s

supervisor that the manufacturer’s recommendations indicated that a hook with a

safety latch should always be used when operating the crane with the magnet. The

supervisor also testified that a crane at Precision Steel that did not have a latch

would be taken out of service until the latch was replaced. Obviously, this one was

not. Incredibly, the majority concludes that the Industrial Commission abused its

discretion when it defined the terms “device” and “equipment” in two Ohio

Administrative Code sections to include the safety latch on the crane hook.

{¶ 27} The majority mistakes this court’s role here. The starting point in

any VSSR case is the Ohio Constitution. The Ohio Constitution states that the

decisions of the Industrial Commission in VSSR cases are final. Article II, Section

35, Ohio Constitution (the commission “shall have full power and authority to hear

and determine whether or not an injury, disease or death resulted because of the

failure of the employer to comply with any specific requirement for the protection

of the lives, health or safety of employees”); see also State ex rel. Burton v. Indus.

Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989), citing State ex rel. Berry

v. Indus. Comm., 4 Ohio St.3d 193, 448 N.E.2d 134 (1983) (the interpretation of a

specific safety requirement is within the final jurisdiction of the commission). It is

not the Supreme Court’s role to interpret rules for the commission in VSSR cases.

See State ex rel. Internatl. Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d

428, 2009-Ohio-3502, 912 N.E.2d 85, ¶ 10, 22 (“The interpretation of a specific

safety requirement lies exclusively with the commission”). It is not our role to

advance alternate theories that support one outcome or another. Rather, it is our

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role to determine whether the decision made by the Industrial Commission is

supported by the evidence in the record.

{¶ 28} In VSSR cases, this court has explained that when the record

contains some evidence to support the commission’s findings, the findings will not

be disturbed. State ex rel. Fiber-Lite Corp. v. Indus. Comm., 36 Ohio St.3d 202,

204, 522 N.E.2d 548 (1988). That is the end of the inquiry. If there is some

evidence in the record to support the commission’s determination that a VSSR

occurred, this court is without authority to disturb that determination. See id. Thus,

it is only if the record is devoid of some evidence to support the commission’s

interpretation of its own rules that this court is authorized to issue a writ of

mandamus correcting the commission’s determination. That is not the case here.

{¶ 29} Here, the commission determined that Precision Steel violated two

separate safety regulations. Ohio Adm.Code 4123:1-5-15(B), regarding hoisting

and haulage equipment, provides that “[e]quipment shall be removed from service

when there is evidence of a defect, damage, or distortion which may weaken such

equipment.” The commission determined that the absence of the safety latch on

the hook amounted to a defect that weakened the equipment. The majority calls

this an abuse of discretion because there is no specific reference in the rule to a

hook latch as part of the hoisting or haulage equipment.

{¶ 30} However, the record includes testimony from Precision Steel’s

operations manager that a safety latch was a necessary feature for use of the crane

hook and that the latch should always be used when the magnet is connected. It is

an exercise in semantics to assert that a safety latch that is required by the

manufacturer’s instructions is not equipment. Similarly, it is unreasonable to

expect that the rule must delineate each and every specific part or piece of a ten-ton

overhead power crane that may qualify as equipment. The commission did not add

language to the rule, as the majority implies; it simply determined that hoisting and

hauling equipment for the ten-ton crane included the safety latch on the crane’s

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hook. The majority’s analysis in this case does not answer the critical question

before us: If a safety latch that would have averted this horrible accident is not

equipment, what would be considered equipment? And more important for future

cases, Who gets to decide what is considered equipment? I suggest that the right

answer is the Industrial Commission of Ohio.

{¶ 31} The second rule at issue in this case is Ohio Adm.Code 4123:1-5-

14(G)(1). This rule requires that “[d]efective crane safety devices or load-carrying

equipment shall be repaired or replaced.” The commission determined that the

absence of the latch on the hook warranted a finding that the crane had a defective

safety device pursuant to Ohio Adm.Code 4123:1-5-14(G)(1). As the Tenth

District correctly observed, “failure to use a safety device does not mean that the

unused safety device itself is defective.” 10th Dist. Franklin No. 11AP1083, 2013-

Ohio-4381, ¶ 34. However, as the court of appeals also observed, Ohio Adm.Code

4123:1-5-14(G)(1) states that defective “load-carrying equipment” shall be repaired

or replaced, and it is possible that the hook without its safety latch constituted

defective load-carrying equipment.

{¶ 32} I would affirm the Tenth District’s decision in this case in every

respect. The commission’s interpretation of its rules must be upheld when it is

supported by some evidence in the record. State ex rel. Fiber-Lite, 36 Ohio St.3d

at 204, 522 N.E.2d 548. Thus, the finding that Precision Steel violated Ohio

Adm.Code 4123:1-5-15(B) should be affirmed. And this case should be remanded

to the commission for it to determine whether the use of the hook without the safety

latch constituted a failure to repair or replace defective load-carrying equipment in

violation of Ohio Adm.Code 4123:1-5-14(G)(1).

{¶ 33} The majority’s decision in this case ignores the Ohio Constitution

and this court’s own case law. This court’s choosing the winner in this case

unlawfully usurps the authority of the commission. The cost of that usurpation is

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workplace safety. The Tenth District properly resolved this case, and its decision

should be affirmed. I dissent.

PFEIFER, J., concurs in the foregoing opinion.

___________________

Willacy, LoPresti & Marcovy, Salvatore J. LoPresti, Timothy A. Marcovy,

and Michael S. Lewis, for appellant.

Michael DeWine, Attorney General, and John R. Smart, Assistant Attorney

General, for appellee Industrial Commission.

Vanderhorst & Burgy, L.L.C., and Michael A. Vanderhorst, for appellee

Melvin E. Myers.

___________________

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