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STATE OF OHIO, ex rel.PRECISION STEEL SERVICES, INC.,
Appellant-Relator,
-v-
TI-IE INDUSTRIAL COMMISSIONOF OI-IIO,
Appe i lee-Re spondent,
and
MELVIN MYERS
Appellee-Claimant.
SUPREME COURT OF OHIOCASE NO. 2013-1628
On Direct Appeal as of Right from anAction Originating in the Franklin CourityCourt of Appeals, Tenth Appellate DistrictCase No. I IAPD-1083
APPELLAN'I' PRIECISION STEEL SERVICES, INC.'S MERIT BRIEF
SALVATORE J. LoPRESTI, ESQ. (006500)TIMOTHY A. MARCOVY, ESQ. (0006518)*MICHAEL S. LE WIS, ESQ. (0079101)WILLACY, LoPRESTI & MARCOVY330 Western Reserve Building1468 West Ninth StreetCleveland, Ohio 44113T: (216) 241-7740 1 F:(216) 241-6031E: sjl@w(mlaw.eomE: [email protected]: [email protected]
COUNSEL FOR APPELLAN'!,PRECISION STEEL SERVICES, INC.
MAg2 4 Z014
CLFFW WMRREME COURT OF
^.3
JOHN R. SMART, ESQ. (0042357)*Assistant Attorney GeneralWorkers' Compensation Section150 E. Gay St., 22"a FloorColumbus, OH 43215T: (614) 466-6696 1 F: (614) 728-9535E: john.smartnohioattorneygeneral.gov
COUNSEL FOR APPELLEEINDUSTRIAL COMMISSION OF OHIO
MICI-IAEL A. VANDERIIORST, ESQ.*(0023705)
VANDERHORST & BURGY, LLC3150 N. Republic Blvd., Suite 4Toledo, Ohio 43615I': (419) 472-9041 1 F: (419) 472-9071E: michaelv a, ,vandblaw.com
t1NSE[, FOR CLAIMANT;LVIN E. MYERS
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I. TABLE OF CONTENTS
1. TABLE OF CONTENTS .............. .................... .....................:......................................... ii
II. TABLE OF AUTHORITIES ..............................................................,.............................. iv
111. STATEMENT OF THE CASE ..................... ............ . . .. . ..........................,.1
IV. STA"hEMENT OF FACTS ........... ....................,..................................................................1
A. Facts Regarding Incident ...............................................................................................1
B. Magistrate Macke's Decision ............................................ ......... .......,. .....................7
1. Oliio Adm.Code 4123:1-5-14(G)(1) ........................................................................7
2. Ohio Adm.Code 4123:1-5-14(13) .............................................................................7
C. Tenth District Court of Appeal's Decision ...... ............................. ......... .....................&
1. Ohio Adm.Code 4123:1-5-14(G)(1) ........ ................................................................8
2. Ohio Adm.Code 4123:1-5-14(B) .............................................................................9
V. LAW & ARGUMENT......................................................................................................... 9
PROPOSITION OF LAWI: Ohio Admin. Code 4123:1-5-14(G)(J) and 4123:1-5-15(B)do not specifically require a latch to be attached to a crane hook and, therefore, theCominission's deterniination that Precision violated thoserules for failure to provide alatch on a crane hook was an abuse of discretion.......................................... ............ 9
A. VSSRs and the Strict Construction Requirement ....................................................9
B. Ohio Admin. Code 4123:1-5-14(G)(1) does not require a latch on a cranehook ........... . .........................................................................................................13
C. Ohio Admin. Code 4123:1-5-15(B) does not require a latch on a cranehook........................................................................................................................ 17
tI
D. The Industrial Commission of Ohio violated Ohio Law, and committed agross abuse of discretion, by its decisions finding that Precisionproximately caused Clainiant's injuries by not providing a working safetylatch on its crane hook in violation of Ohio Admin. Code 4123:1-5-14( .(-'..r)(I) and 4123:1-5-15(B), when Precision had no prior notice of thelatch being rn:issing. ... ....... .. ......... .. ................... ................. . .....19
PROPOSITION OF LAW lI: The Industrial Commission of Ohio's order assessinga 50% penalty against Precision without explaining how the Commission exercised itsdiscretion denied Precision its rights to due process of law and ability to meaningfullyparticipate in the penalty phase of the VSSR proceeding........................................... 22
VI. CONCLUSION ...............................:.......................................................................28
CERTIFICATE OF SERVICE ..........................................................................................29
A PPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A^Mx
Notice of Appeal to Supreme Court of Ohio (October 15. 2013) ........................ .I
Court of Appeals Judgment Entry (October 3, 2013) .................................... ........4
Court of Appeals Decision (October 3, 2013) . . . . . .. . .. ... . . . .... . ... .... ... ..... . ....... .. .5
Magistrate's Decision (November 27, 2012) ...................................... ...... .....23
Commission's Staff Hearing Officer's Corrected Order (mailed August 9, 2011).........46
U.S. Const. 14a' Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .. . . . ..51
Ohio Const., Art. I, Sec. 16 (due process clause)....... ... .... ................................. 52
Ohio Const., Art. II, Sec. 35 ............. ........................................................53
Ohio Admin. Code 4123:1-3-07 ...................................................................54
Ohio Admin. Code 4123:1-5-14 .......................................................... ......63
Ohio Admin. Code 4123:1-5-14...................................................... ...... ... .... 68
iii
11. TABLE OF AUTHORITIES
Page No
A. CASES
Chambers v_ Mississippi (1973)410 U.S. 284 ................................................................................
Indus. Comm. v. Carden (1935)129 Ohio St. 344 ............, ...............................................,....
...........................2 3
.......................................21
Mackey v. Montrym (1979)
443 U.S. I . ... ......... . ....................................................................................................23
Matltews v. Eldridge (1976)424 U.S. 319 ...............................................,.....,..............,.....................................................23
Ri.chards v. Stratton (1925)112 Ohio St. 476, 147 N.E. 645 ..................... ......... .................... .........................................21
Sorrell v. Thevenir
69 Ohio St.3d 415, 1994-C)hio-38....... .....................................................................................23
State ex rel. .flllstate Ins. Co. v. Bowen (1936)130 Ohio St. 347 ............ ....................................................................... ...... ......... .........23
State ex rel. Blystone v. Indus. C'omm. ( l 0th Dist. 1983)14 Ohio App.3d 238, 470 N.E.2d 495 ..................... ....................................... . ........................2 5
State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm. (.1979)57 Ohio St.2d 51, 386 N.E.2d 1107 ...................................................................................14, 20
State ex rel. Burton v. Indus. Comm. (1989)46 Ohio St.3d 170, 545 N.E.2d 1216........................................................................... 10, 11, 17
5tate ex rel. Davidson, v. Indus. Comm. (1945)145 Ohio St. 102, 60 N'.E.2d 664 .............................................................................................10
State ex. rel. Finley v Dusty Drilling Co. ( 10" Dist. 1981)2 Ohio App.3d 323, 325........................................................................................................... 27
State ex rel. F'rigidaire Div., General Motors Corp. v. Industrial Comm. ( 1998)35 Ohio St.3d 105, 518 N.E.2d 1194 ....................................,..................................................27
iv
Page No
State ex rel. Gay v: Mihm (1994)68 Ohio St.3d 315, 626 N.E.2d 666 ............................................... .................................... 26, 27
State, ex rel. Haines, v. Indus. Comm. (1972)29 Ohio St.2d 15, 278 N.E.2d 24........ ......... ... ...... ......... ......................................... .........10
State ex rel. Ilaylett v. Ohio Bur. of Worker•s' Comp.87 Ohio St.3d 325, 1999-Ohio-134..... .. ......... . ............................... . ......................................... 23
State ex rel. Holdosh v. Indus. Comm. (1948)149 Ohio St. 179, 78 N.E.2d 165 ............................................................. ........................10, 17
State ex rel. International Truck v. Indus. Comm.
122 Ohio St.3d 428, 2009-Ohio-3502 ....................... ......... ......... ............................14, 15, 16
State ex rel. International Truck v. Indus. Comm.
10th Dist. No. 07AP-547, 2008-Ohio-2953 .....................................................................,14, 15
State ex rel. Kenton Struc. & Orn. Iron Works, Inc. v. Indus. Comrn.91 Ohio St.3d 411, 746 N.E.2d 1065, 200I-Ohio-90.................... .. ................... .. ......... . ......... 25
State ex rel. Lamp v. J.A. Croson Co. (1996)75 Ohio St.3d 77, 661 N.E.2d 724 ...........................................................................................11
State ex rel. M T. D.Products; Inc. v. Stebbins (1975)43 Ohio St.2d 114, 330 N.E.2d 904 .......................... ......... .............................................21. 22
State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983)6 Ohio St.3d 481, 453 N.E.2d 721 ................ ............................. ....,.,.................................26
State ex rel. Nicholls v. Indus. Comm.
81 Ohio St.3d 454, 1998-Ohio-616 ........................... ................... ........................................27
State ex rel. Noll v. Indus. Comm. (1991)57 Ohio St. 3d 203 ......................................,. ......... ................... ........................................26
State ex rel. Precision Steel Services v. Indus. Comm. and :Meyers10"' Dist. No. 11AP-1083, 2013-Ohio-4381 ..... ...... ..................................................... passim
State ex rel. Rae, v. Indus. Comm. (1939)136 Ohio St. 168, 24 N.E.2d 594 .................... ......... .......................................................10, 16
State ex rel. St. tL^^1ary's FoundryCo. v. Indus. Comm.
78 Ohio St.3d 521, 678 N.E. 2d 1390, 1997-Ohio-25 ............................ .................. .........22
v
Page_No
State ex rel. Sanor .Sawmill, Inc. v. lndus. Comm.101 Ohio St.3d 199, 2004-Ohio-718 ...................................... ..........................
State ex rel. Smith v. Lazar Elee. & Constr.10`h Dist. No. 01 AP-673. 2002-Ohio-2012 .......................................................................24, 25
State ex rel. Stephenson v. Indus. Comm. (1987)31 Ohio St.3d 167, 509 N.E.2d 946 .....................................................................
State ex rel. Taylor v. Indus. Comm.
.26
70 Ohio.St3d 445, 449, 1994-Ohzo-445 ..................................................................................21
State, ex rel. T rydle, v. Indus. Camm. (1972)32 Ohio St.2d 257, 291 N.E.2d 748 . .................................................................................>..9. 13
State ex rel: White v. U.S. Gypsum Co. (1990)49 Ohio St.3d 134, 551 N.E.2d 139 .........................................................................................26
B. CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS
U.S. Const. 14'^ Amend . ........... .. ....... ..... .......... ........................................:22, 23
Ohio Const. Art. 1. § 16 .............................. ......... ......... ......... ......... .....:............................22, 23
Ohio Const., Art. II. §35 ........................................................... ...........................9, 10, 17, 22, 24
Ohio Admin. Code 4123:1-3-07 ..................................................................... ..................12, 13, 19
Ohio Admin. Code 4123:1-5-14 ..................................................................... ......... ........... passim
Ohio Adinin. Code 4123:1-5-15 .......................... ................................................>... passim
vi
III. STATEMENT OF THE CASE
Relator Precision Steel Services, Inc., ("Precision") filed a mandamus action in the Tenth
District Court of Appeal to obtain judicial review and correction of Respondent Industrial
Commission of Ohio's ("Commission") gross abuse of its decisional discretion and violation of its
clear legal duties in the decision made in claim number 08-315503 that penalized Precision 50%
in a VSSR proceeding. The Commission's corrected order found the proximate cause of claimant's
injuries to be: "If a safety latch were in place, the magnet would not have fallen on Injured
Worker's hand," The regulations upon which Claimant and Comiission relied, Ohio Admin. Code
4123:1-5-14(G)(1) and 4123:1-5-15(B), are general, not specific, safety requirements. Neither rule
plainly apprises Precision of a legal obligation to provide a latch on the hook.
Magistrate Macke issued his decision recommending a writ be issued ordering the
Commission to vacate its order as to the Ohio Admin. Code 4123:1-5-14(G)(1) violation, finding
it did not apply. Magistrate Macke also recommended a writ be issued ordering the Commission
vacate its order with regard to Ohio Admin. Code 4123:1-5-15(B) as the Commission failed to
consider if the latch was "equipment" within the meaning of Ohio Admin. Code 4123:1-5-15(A).
All parties filed objections to the Magistrate's Decision. Upon those objections, the Tenth
Appellate District ordered a limited writ be granted as to Ohio Admin. Code 4123:I-5-14(G)(1),
It further found the Commission did not abuse its discretion in penalizing Precision for a violation
of Ohio Admin. Code 4123:1-5-15(B). The Tenth District Court of Appeals refused to consider
Precision's constitutional arguments with respect to the 50% penalty assessed against Precision.
IV. STATEMENT OF FACTS
A. Facts Regarding Incident
Claimant's claim arose from a March 1, 2008 incident when Claimant suffered industrial
I
injuries, including crushing and amputation injuries to his left hand, in the course of and arising
out of his employment with I'recision. Precision did not dispute the claim and, for nearly two years,
the Claimant participated under the Act for those benefits to which he was entitled.
On February 12, 2010, Claimant filed an Application for Additional Award for Violation
of a Specific Safety Requirement (the "application"), [Joint Stipulation of Evidence "Stip.Ev."
filed with the Court of Appeals, p.l.] Claimant's application alleged Precision violated Ohio
Admin. Code Sections 4123:1-5-15(B) and 4123:1-5-14(G)(1).' Claimant's application alleged the
injury occuri-ed due to: "Cable holding part I was welding came off of hook[.] part fell crushing
hand between part a»d table[.] I-look had safety [latch] missing that was supposed to hold cable on
to hook[.]" [Id.] Precision answered denying Claimant's allegations. [Id., p.5.]
Subsequently, the Bureau's Safety Violation Investigation Unit ("SVIU") conducted an
investigation and submitted its report to the claim file. [Stip.Ev. pp. 10-59.] Within the report, the
Claiinant stated in an affidavit that while using the crane he was maneuvering a part into position
when the "eye of the magnet slipped off the hook on the bottom of the wire rope causing the metal
part and magnet to fall on top of my hand." [Id., pp. ] 4-15.] At the time of the incident, claimant
was operating a Kone XLD double box girder top running crane. [Id., p.42.] Claimant further
alleged that his "injury occurred because the hook on the bottom of the wire rope did not have a
safety latch to keep the magnet from coming off of it." [Id.] Claimant also submitted a drawing to
explain the parts and what was, in his opinion, the cause his of injuries. [Id. at 58-59.] The
Claimant's drawing represents that the crane hook directly attached to the crane had a safety clip
or latch. [Id.] Below the crane hook was a wire rope with an eyelet at each end. [Id.] Attached to
' Claimant also alleged a violation of Ohio Admin. Code 4123:1-5-15(D), which hedismissed administratively. Said regulation is not before this Court.
2
the bottom eyelet was a small connecting hook joining the eyelet to the magnet. [Id.] It is the small
connecting hook that claimant alleges "was missing safety clip[.]" [Id., p.58.] In his affidavit,
Claimant makes no assertions as to how long that bottom clip was missing prior to this incident.
[Id., pp.] 4-I 5.] Claimant never testified that he informed Precision of a missing or broken latch.
Reports and witness statements from Precision were also made part of the SVIU report.
Mr. Tony Sumner reported that, after the accident occurred, a safety latch was missing, but does
not indicate from which hook. [Stip. Ev. p.30.] Mr. Larry Eckenrode stated the magnet came off
the hook. [Id., p.32.] In a subsequent affidavit, Mr. Eckenrode stated that the "little hook" was not
missing the safety clip. [Id., pp.88-89.] t-te testified that he used that crane on a daily basis, never
saw a defect in the hooks, and stated the safety clasp was alwavs present. [Id.] Mr. Albert Morales,
claimant's supervisor, reported the incident and the condition of the hook post-accident. [Id., p.33.]
Mr. Morales stated that, upon his observation after the accident, there was no safety latch on the
hook, but does not indicate which hook. [Id.] Mr. James Vance does not discuss a safety latch or
hook in any significant way. [Id. at 34.] Precision's OSHA Form 301 stated the magriet fell onto
claimant's hand, but does not indicate the latch was missing prior to the accident. [Id., at 36.]
Precision also produced four notarized statements from einployees. Mr. Anthony Johnson
testified he used the crane at issue almost daily, never noticed defective parts including hooks, and
the crane hooks he used always had a clasp on the hook. [Stip.Ev, p.90.] Mr. Leonard Gamble
testified he was working on the day claimant was injured. [Id., p.91.] He used the crane at issue
almost daily, never noticed defective parts including hooks, and the crane hooks he used always
had a clasp on the hook. [Id.] Mr. Dana Burchell testified he used the crane at issue almost daily,
never noticed defective parts including hooks, and the crane hooks he used always had a clasp on
the hook. [Id., p.92.] Mr. Anthony Smith similarly testified that all the crane hooks he used had a
3
clasp. [Id., p.93.] All four employees stated that if they had noticed a hook without a safety clasp
that they would have notified maintenance andlor locked out the machine. [Id., pp.90-94.]
Prior to the VSSR hearing, Precision submitted a position statement outlining its arguments
against the claimant's VSSR application noting the regulations did not require a safety latch on a
hook and if they did, Precision had no notice of the defect. [Stip.Ev. pp.94-100.] On June 15, 2014,
the claimant's application was heard by the Commission's staff hearing officer. At the hearing,
claimant alleged the accident happened when the "hook slipped out of the eye" on the bottom hook
because there was no latch. [Stip.Ev. pp.l l 1-13, Hearing Transcript "Tr." at pp. 10-19.]2 When
asked by his counsel if the latch would have prevented the magnet from slipping off, claimant did
not say it would, instead he testified: "I never had it happen to nle before but that day for soine
reason it came off. God knows why." (Emphasis added.) [Stip.Ev. p.l 13, Tr. pp. 18-19.] According
to Claimant, the latch on that small hook had been missing for three years. [Stip.Ev. p.111, Tr. pp.
I 1-12.] Claimant admitted, however, that Precision had previously provided a safety latch on the
hook, but that as soon as it was, "it was gone again, it's like it was getting in somebody's way.'°
Stip.Ev. p.116, Tr. pp. 30-32.] Claimant testified that he did not know how the latch disappeared
but alleged his fellow employees would just snap parts off machines if it got in their way. [Id.]
Mr. Jordan Demchyna, an operations manager for Precision, also testified. Following the
incident, Mr. Denichyna investigated the scene of the incident. [Stip.Ev. p.123, Tr. 60.] Pursuant
to hisinvestigation he found, after the accident occurred, that the block hook (the larger top hook
on Claimant's drawing) was missing its safety latch. [Id.] In a previously submitted affidavit, Mr.
Demchyna noted that he had searched for the clasp after the accident, but was unable to find it.
2 Where Precision refers to the Hearing Transcript contained in the Stip.Ev., Precision isidentifying the Stip.Ev. page where the information and the more narrow Tr, page to assistthis Court in locating the information.
4
[Stip.Ev. p.87.] He testified that annual OSHA inspections were performed on the cranes by
outside sources. [Stip.Ev. p.122, Tr. 56.] He also testified that if any defect is discovered with a
crane, the procedure is to lock it out, tag it out, and call maintenance. [Stip.Ev. pp.122, 124, Tr.
pp. 56, 62-63.]
Mr. Larry Eckenrode provided testimony on behalf of Precision. Consistent with his
affidavit, he testified that the little hook had a safety latch. [Compare, Stip.Ev., pp.88-89 and p.130,
Tr. 85.] He further stated the magnet unit slipped off the top, not the bottom, hook. [Stip.Ev. p.131,
Tr. 89.] I-le could not recall if the safety latch was present on the top hook after the accident.
[Stip.Ev. p131, Tr. 90.] Mr. Eckenrode further testified that if any defect is discovered with a
crane, the procedure is to call maintenance immediately. [Stip.Ev. p.130, Tr. 85.]
In support of a heightened penalty, claimant submitted a Report of Investigation regarding
an alleged and unrelated VSSR. [Stip.Ev., pp.77-84, 101-02.] It was an all.__eged VSSR occurring
before the instant matter, [Stip.Ev. p.121, Tr. 5I-52..] Using this information, Claimant argued
Precision should be assessed the maximum penalty of 50%. [Stip.Ev., pp,126-27, 134-35, Tr. 70-
74, 104-107.]
The matter was taken under advisement and the "original" order mailed on August 3, 2011.
[Stip.Ev., pp,156-60.] Subsequently the Commission sua sponte issued a second, "corrected" order
mailed on August 9, 2011. [Stip.Ev., pp.161-65.] The Commission found that "[i]f a safety latch
were in place, the magnet would not have fallen on Injured Worker's hand." [Id., p. 164.]
In support of the Commission's determination of a violation of Ohio Admin. Code 4123:1-
5-14(G)(1), the commission found:
(1) The Employer told the safety investigator that the safety latch attaching the magnetto the metal hook was missing at the time of the i»cident of record. (SVIU Report,paragraph 4).
5
(2) The Injured Worker told the investigator that the hook on the bottom of the wirerope did not have a safety latch to keep the magnet from coming off of it. (SVIU Report,paragraph 8).
(3) The Employer's Occupational Injury/illness Investigative Report completed on thedate of injury by 'I'ony Sumner answers the question: "repair or modification needed"with: "safety latch needed." (SVIU Exh. 5).
(4) Mr. Eckenrode, another crane operator at the time Injured Worker was injured, alsocompleted a statement in conjunction with the Employer's investigation of the injury,and indicated, "the magnet came off the hook. (SVIU Exh. 5).
(5) The Accident/Injury Report completed by Supervisor, Albert Morales, on03/01 /2008, the date of injury; indicated, "magnet slipped off the hook, no safety pin."(SVIU Exh. 5).
(6) 'I'he USI-IA 301 form noted "magnet slipped off the hook and part fell (SVIU Exh.15).
(7) The testimony was offered at hearing that a search was conducted for the clasp butnone was ever found (Transcript, Page 95).
[Stip.Ev., p.162.]
'flie Commission concluded the latch was absent from the hook at the time of claimant's
injury and therefore the equipment should have been repaired or replaced according to 4123:1-5-
14(G)(1). The Commission made no explanation of how the regulation required a latch.
The Commission's determined Precision violated Ohio Admin. Code 4123:1-5-15(B)
stating 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). If a safety latch were present, the magnet
would not have come off and crushed Injured Worker's hand." [Stip.Ev., p.163] Again, the
Commission made no explanation of how the regulation required a latch on a crane hook.
The Commission's corrected order found there was no "clear responsibility on anyone's
part to identify if a safety latch was missing[.]" [Stip.Ev., p.164,] TheColnrnission rejected, sub
silentio, Precision's argument that it had no notice of a defect. [ld.] The correct order concluded
6
that "[i]f a safety latch were in place, the snagnet would not have fallen on Injured Worker's hand."
[Id., p. 164.] Thereafter, the Commission assessed a 50% penalty against Precision.
Precision filed its motion for reconsideration citing several grounds for the corrected order
to be vacated and the matter re-heard. [Stip.Ev., pp.166-70.] Claimant filed a response addressing
the same. [Stip.Ev., pp.171-79.] Commission denied Precision's motion. [Id., pp.199-200.]
On December 8, 2011, relator, Precision Steel Services, Inc., filed a mandamus action in
the 10' District Cout-t of Appeals. Stcxte ex rel. Precision Steel Services v. Meyers, 10t' Dist. No.
11 AP-1083, 2013-Ohio-4381, !i94.
B. Madstrate Macke's Decision
1. Ohio Adm.Code 4123:1-5-14(G)(1)
'The Magistrate recommended a writ be issued ordering the Commissiori to vacate its
finding that Ohio Adm.Code 4123:1-5-14(G)(1) applied to the case. The Magistrate concluded that
subsection (G) of the rule, which mandates repair or replacement of "defective safety devices or
load-carrying equipment," did not apply in this case because the word "equipment" in subsection
(G) included only "the specifically identified devices and equipment found throughout paragraphs
(C) through (F) at OhioAdm.Code4123:1-5-14." 3Precitision, ¶13 and ^, 120. The magistrate
concluded that Ohio Adnn.Code 4123:1-5-14(G)(1) did not apply because "a hook safety latch is
not among the devices and equipment specified throughout (C) through (.F)." Id. at T120.
2. Ohio Adm.Code 4123:1-5-15(B)
The second rule at issue in this case is Ohio Adm.Code. 4123:1-5-15, titled "hoisting and
haulage equipment." The Magistrate concluded that the Commission was required to consider the
definition of equipment provided in subsection (A) of 4123:1-5-15 -- even though the VSSR
' Ohio Adm.Code 4123:1-5-14(A) and (B) are reserved,
7
application referenced only subsection (B) of the rule -- because Precision "cannot have violated
the safety rule [in subsection (B) of Ohio Adm.Code. 4123:1-5-15] if the hook or hook safety latch
is not the '[e]quipment' defined by Ohio Adm.Code 4123:1-5-15(A)." Id. at ¶14 and ¶124. The
Magistrate concluded a writ should issued because the Commission's hearing officer "failed to
determine whether the hook or hook safety latch at issue can be viewed as '[e]quipment' within the
meaning of Ohio Adm.Code 4123:1-5-15(A) of the rule." Id. at ¶124.
C. Tenth District Court of Appeal's Decision
1. Ohio Adm.Code 4123:1-5-14(G)(1)
The court sustained claimant's objection and decided the Commission properly interpreted
4I 23:1-5-14(G)(1) as imposing an obligation on employers to repair or replace in-y defective safety
devices or load-carrying equipment - whether or not specifically identified by regulation.
The Court overruled, in part, the commission's objection arguing it did not abuse its
discretion in its application of the rule. The court sustained the part of theCommission's objection
consistent with the claiinant's, but held that it was unreasonable for the commission to accept an
order that found "the absence of a safety latch on the bottom hook warranted the conclusion that
the bottom hook was a defective safety device." Precision at ¶36.
In granting a limited writ, the court ordered the commission to determine whether use of
the crane without a latch on the bottom hook of the crane violated Ohio Adm. Code 4123:1-5-
14(G)(1). On this issue, the court has determined the matter must be returned to the commission
for hearing on the issues of wbether (1) the crane when configured with the bottom hook was load-
carrying equipment for purposes of the rule; (2) the bottom hook was defective for lack of a safety
device; and (3) Precision, with prior knowledge oj'its defective nature, allowed its continued use
without repairing or replacing it.1'recision at ¶41138-39. Thereby, the VSSR penalty was vacated.
8
2. Ohio Adm.Code 4123:1-5-15(B)
All three parties raised objections to the magistrate's determination that "equipment" under
subsection (A) defined "equipment" under subsection (B). The court agreed that the magistrate
erred in his reasoning. In response to Precision's objectiojis, the court stated: "[w]e acknowledge
that Ohio Adm.Code 4123:1-5-15 does not include a specific reference to safety latches, nor does
it specifically require a safety latch on crane hooks, nor does it specifically define a safety latch as
eqvipment." Despite this acknowledgement, the court determined that the regulation - which states
"Equipment shall be removed from service when there is evidence of a defect, damage, or
distortion which may weaken such equipment" -- plainly appraised Precision of a specific duty to
remove the crane from service when a latch on a hook is not present. The court determined the
commission's order was not abuse of discrction on this issue.
V. LAW AND ARGUMENT
PROPOSITION OF LAW 1:
Ohio Admin. Code 4123:1-5-14(G)(1) and 4123:1-5-15(B) do not specifically requirea latch to be attached to a crane hook and, therefore, theCommission's determinationthat Precision violated those rules for failure to provide a latch on a crane hook wasan abuse of discretion.
A. VSSRs and the Strict Construction Reguirement
A claimant must establish the following three prongs before an additional award for
violation of a specific safety requirement may be granted: (1) That there exists an applicable and
specific safety requirement in effect at the time of the injury; (2) that the employer failed to comply
with the requirement; and (3) that the failure to comply was the cause of the injury in question.
State, ex rel. Trydle, v. Indus. Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972).This test arises
out of the Constitution of Ohio, Article lI, Section 35, whicli mandates, in pertincnt part:
9
*** Such board shall have full power and authority to hear and determine whether ornot an injuty *** resulted because othe failure of the employer to comply with anvspecific requiYement for the protection of the lives, health or safety of emplo,yes, enactedby the General Assembly or in the form of an order adopted by such board, and itsdecision shall be final; and for the purpose of such investigations and inquiries it mayappoint referees. ***
(Emphasis added.) In the instant matter, the Commission's corrected order found the proximate
cause of claimant'sinjuries to be: "If a safety latch were in place, the magnet would not have fallen
on Injured Worker's hand." [Stip.Ev,; p.164. See, also, Comm.'s Answer at T,3, and Cl.'s Answer
at unnumbered Tl, which admit ¶24 of Precision's Complaint alleging the absence of a safety latch
to be the proximate cause of claimant's injuries.] Assuming, pro arguendo, that the Commission
was correct in finding the lack of a latch to be the proxirnate cause of claimant's injuries, the Ohio
Constitution requires that the proximate cause (here, the latch) be specifically required. No
applicable specific safety requirement mandated a latch on a hook.
Iri State ex rel. Holdosh v. Indus. Conam., 149 Ohio St. 179, 78 N.13.2d 165 (1948), this
Court held:
As ordinarily understood, a`specific requirement' is one which demands thatsome particular and definite act or thing be done. By several of its decisions, thiscourt is committed to the principle that the term, `specific requirement,' as used inSection 35, Article II of the Constitution, does not comprehend a general course ofconduct or general duties or obligations flowing from the relation of employer andemployee, but embraces such lawful, specific and definite requirenients orstandards of conduct as are prescribed by statute or by orders adopted andpromulgated by the Industrial Commission, and which are of a character plainlyto apprise an employer of his legal obligations toward his employees.
(Emphasis added.) Id., 149 Ohio St. at 181-82, citing, State ex rel. Rae, v. Indus. Comm., 136 Ohio
St. 168, 24 N.E.2d 594 (1939); State ex rel. Davidson, v. Indus. Coznm., 145 Ohio St. 102, 60
N.E.2d 664 (1945). See also, Tiydle, 32 Ohio St.2d 257, at para. one of the syllabus; and, State, ex
rel_ Haines, v. Indus. Comm., 29 Ohio St.2d 15, 17, 278 N.E.2d 24 (1972).
"Because a VSSR award is a penalty, *** it must be strictly construed, and all reasonable
10
doubts coticerning the interpretation of the safety standard are to be construed against its
applicability to the employer." (Emphasis added.) State ex rel. Burton v. Indus. Comm., 46 Ohio
St.3d 170, 172, 545 N.E.2d 1216 (1989). The commission mav not effectively rewrite its own
safety rules when it interprets them. State exrelLcrmp v. JA. Croson Co., 75 Ohio St.3d 77, 81,
661 N.E.2d 724 (1996).
In the instant matter, Claimant filed a VSSR application that cited the sections of the safety
requirementslie claimed were violated. The Commission's order found and the Tenth District
affimed, in part, violations of Ohio Admin. Code 4123:1-5-14(G)(1) and 4123:1-5-15(B) for
Precision's alleged failure to provide a latch on a hook. [Stip.Ev., pp.1, 161-65.] The
Commission's and Tenth District's interpretation of these rules and its application to the facts is
unsupported and in violation of strict construction.
Were this Court to follow Commission's and the Tenth District's reasoning, the
Commission could define any word after an injury and obtain any end they want by such a results-
oriented definition. This interpretation removes the "specific" from "specific safety requirement."
If a word or a rule is vague or left undefined and must be "interpreted" by the Commission, then
it was not specific enough prior to the incident to plainly apprise the employer of its duties to the
employee. See, generally, State ex rel. Sanor Sawmill, Inc. v. Irrdus. Comm., 101 Ohio St.3d 199,
2004-()hio-718. In Sanor Sawmill the term "[c]ircular rip saws (power feed)" was unclearly
defined. Id., atJ[14. The Commission erroneously determined the saw in question was a circular
rip saw and that the employer violated the rule. The Court of Appeals denied the employer's writ
and affirmed the Commission. This Court reversed and granted a writ holding:
{^25} A specific safety requirement must plainly apprise a» employer of its legalobligation to its employees. *** Where the code does not define the relevant apparatusand the cited provision refers to equipment that is not part of the machine in question,it is an abuse of discretion to apply that requirement to the employer.
11
Precision's regulation is more non-specific than the one considered in Sanor Sawmill.
Sunor Sawmill identified the equipment as a circular rip saw (power feed). The rules cited against
Precision identified "device" and "equipment" under 4123:1-5-14(G)(1) and "equipment" under
and 4123:1-5-15(B). By looking strictly at the administrative rules cited by claimant, there was no
way for Precision to know that the generic terms "device" or "equipment" meant: (1) it had to
provide a latch on a the hoist hook and (2) that it had to replace a latch on a lloist hook if one was
missing. Providing or replacing a latch may be a good idea, but no rule cited by the Claimant,
Commission, or the Court of Appeals specifically defines those words to mean latch on a hook or
requires the latch to be provided. The Court of Appeals even admits that the hook and safety latch
are not specifically required by Ohio Admin.Code 4123:1-5-15(B). Precision at ^48. Therefore,
Precision could not violate a safety rule which does not exist.
The Court of Appeals attempts to justify affirming a penalty for an alleged violation of
these general requirements by stating: "As in Fast & Co., it would not be feasible for the
commission to delineate each and every component of hoisting and haulage equipment that is
covered by the "repair or replace" requirement." Precision at IJ53. Not only is it feasible for the
Commission to draft specific requirements regarding latches and hooks, but it has been
accomplished in other rules and is required for a violation to be found. lJnder the "Constrtiction"
rules,4 codified as Ohio Admin. Code 4123:1-3-07(G)(3), the rule states that in the use of derricks5:
Hoist hooks used with bucket, cage or skip shall be equipped with a safety latchdesigned to prevent the load from being accidentally detached. [Appx. p.61.]
4 Given the worksite and operations of Precision, the regulations regarding "Workshop andFactories," and not "Construction," are applicable.
5 4123:1-3-07(B)(1) states "`Derrick' means an apparatus consisting of a mast or equivalentmembers held at the top by guys or braces, with or without a boom, for use with a hoistingmechanism and operating ropes." Derricks are similar to, but not the same as, cranes.
12
This regulation, which does not apply to the instant matter, plainly apprises an employer
that when operating a derrick and using a hook, a latch must be equipped to prevent the load from
being accidentally detached. This regulation clearly apprises any employer of the duty to be
perfoxmed (equip liooks with latches) and the harm to be prevented (load detachment). It is
specific. Unlike 4123:1-3-07(G)(3), the instant regulations (both (G)(1) and (B)) do not give rise
to any duty of Precision to provide latches on a hook. Since, the proximate cause of claimant's
injuries was the absence of a latch on a hook, there must be a regulation requiring Precision to
provide or replace a latch on a hook. Since Precision is not required to have a latch on a hook under
the at-issue regulations, Precision did not violate the safety regulations. To analogize to common-
law negligence, the Court of Appeals and Commission found a breach without first finding the
requisite duty. Claimant's VSSR application fails the first prong of Trydle as these rules do not
apply to this circumstance. Wherefore, the decision below on this issue must be reversed, and a
writ vacating the Commission's corrected order must be issued as no requirement to provide or
replace a latch on a hook exists under Ohio Adn7in. Code. 4123:1-5-14(G)(1) or 4123:1-5-15(B).
B. Ohio Admin. Code 4123:1-5-14(G)(1) does not reguire a latch on a crane hook .
Neither Ohio Admin. Code 4123:1-5-14(G)(1) or 4123:1-5-15(B) specifically require a
latch on a crane hook.l-lad the Commission or Administrator desired to specifically require a latch
of a crane hook for "Workshops and Factories", it knows how to make and has made such a
regulation under "Construction." Compare, Ohio Admin. Code 4123:1-3-07(G)(3).
Ohio Admin. Code 4123:1-5-14(G)(1) states:
(G) Specific requirements applicable to alI paragraphs_of this rule.(1) Defective safety devices or load-carrying equipment.Defective crane safety devices or load-carrying equipment shall be repairedor replaced.
(Emphasis added.)
13
F irst, this regulation - without any reasonable doubt concerning the interpretation - does
not apply nor plainly apprise Precision of an obligation to supply a latch on its crane hook. Second,
nothing in the entire rule (4123:1-5-14), to which (G)(1) is applicable, mentions a latch on a crane
hook. Third, the Commission's determination was not that the Iatch was defective, but entirely
"missing."Fhis regulation applies when a safety device is required and has been supplied, but was
not working correctly. Here, the latch is not required and it was absent, not defective.
Further, Ohio Admin. Code 4123:1-5-14(G) specifically states it is applicable pnly to the
paragraphs of this rule. The clear meaning of (G)(1) is that if any of the specifically required safety
devices found in 4123:1-5-14(C)-(F) are "defective," then that specifically required safety device
must be repaired or replaced. Nowhere within the cited rule is a latch on a crane hook required.
Claimant has admitted that the cited regulation does not specifically require such a latch. [Cl.'s
Answer, at unnumbered T1. 1 admitting Preeision'sComplaint at^, 32.] The Magistrate's Decision
found this to be the plain reading of (Cr)(1). Precision at ¶TI 113-122.
The Court of Appeals and the Commission's order is result-oriented and unlawfully
fabricates a latch reqiairement under 4123:1-5-14(G)(1). State ex rel. Brilliant Elec. Sign Co. v.
Indus. Comm., 57 Ohio St.2d 51, 53-54, 386 N.E.2d 1107 (1979). The Tenth District incorrectly
determined the Commission acted reasonably in its interpretation that employers must remove any
and all defective devices or equipment whether or not that device or equipment is specifically
required by any paragraph of Ohio Admin. Code 47 23:1-5-14, The Court of Appeals incorrectly
relied upon State ex rel. Internatl. Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428,
2009-Ohio-3502. International Truck is the only other case to address Ohio Admin. Code 4123:1-
5-14(G)(I ). This Court's analysis in International Truck adopted the analysis ofMagistrate Macke
- the same Magistrate in this matter. Compare, State ex rel. Internatl. Truck & Engine Corp. v.
14
Inclus. Comm., 10t'•' Dist. No. 07AP-547; 2008-Ohio-2953. In the instant matter, the court rejected
the Magistrate's interpretation as inconsistent with International Truck, stating: "Neither nut/bolt
systems nor rollers are specifically identified as equipment in the rule[.]" Precision atI(28.
The Tenth District's reliance on .lnternational a'ruck is misplaced. A review of the case
shows "roller" and "nutfbolt assembly" were necessary parts of an "overhead trolley," noting:
{¶2} *** [Claimant] had hooked a hoist to the transmission and was walking it to anassembly area when part of the system broke loose froln the overhead trolley rails.***
{^,, 31 Investigation revealed that before the mishap, the hoist had been sticking whenmanually pulled and ITE had attempted to correct that problem by replacing the Teflonrollers. In the process, however, the wrong nut was used to reattach the assembly. Thiseventually caused the accompanying bolt-and with it the assembly's cross-member-todislodge, causing the accident.
{116} "[T]he injured worker had presented sufficient evidence that the employer failedto correctly repair load carrying equipment. The employer revlaced defective rollerswhich were attached to the overhead rail trollev which is connected to the hoistequipment, but the employer failed to correctly install the correct bolt which holds thesystem in place. The failure of the employer to properly repair the overhead trolleycaused the bolt to dislodge which caused the hoist to swing out and strike the worker.The Staff I-Iearing Officer finds this failure to properly re ap ^ir the overhead trolleysystem was the proximate cause of the accident."
(Einphasis added.)
The violation in International Truck was that employer failed to properly repair an
overhead trolley. The Tenth IDistrict's decision ignored that the roller and nut/bolt assembly were
integral, component parts of the overhead trolley. The roller and nut/bolt assembly were not
separate devices or attachments, like a hook or a latch. "The overhead trolley referred to in
Internataonal Truck is identified in Ohio Adm.Code 4123:1-5-14(C), which states:
(C) Overhead electric traveling cranes. The term "overhead electric traveling crane"shall mean a crane consisting of a bridge mounted on trucks which runs on rails andthe hoistialg mechanism mounted on a trolley which moves transversely across thebridM, and may be controlled from a cab or from renrote or pendant controls.
(Emphasis added.)
15
As the trolley was "load carrying equipment" specifically identified in 4123:1-5-14(C), this
Court determined the Commission was correct in ordering it must be repaired pursuant to (G)(1).
In the instant matter, "hooks" are not "load carrying equipment" identified in (C); thus, Magistrate
Macke's interpretation was consistent with International 7ruck. Since sections (C)-(F) do not
require a latch on a cranehook, (G)(1) cannot be applicable. There can be no duty under (G)(1) to
repair a latch or even hook not specifically required. Unlike the rollers and nut/bolt assembly in
Intcr•national 7rrick, the latch and hook here are separate attachments, not integral components.
The Magistrate's decision here was consistent with Internatinnal 7ruck. The Tenth District's
rejection of his decision violates this Court's holding that case.
If the Commission desired a latch to be attached to every crane hook it should plainly state
so. Ohio Admin. Code4I23:1-5-14(G)(1) does not so state. Simply, this regulation does not put
Precision, nor any other employer, on notice that when operating this type of crane with a hook,
that a latch is mandated by a specific safety requirement to prevent the load froni being accidentally
detached. State ex rel. Rae, 136 Ohio St. at 173 (wherein the court held a safety reguirement must
be so specific as to `'forewarn the employer and establish a standard which he may follow.")
The Tenth District's decision and the Commission's corrected order is further flawed in
that the proximate cause it determined (the absence of a latch) was not a specifically required
safety device tander the rule it purportedly relied upon. Further, the absence of a latch does not
mean that the latch is a defective safety device - it means it is not there. The regulation requires
Precision, or any employer, to act (by repairing or replacing) onlywhen the device is itself
required, present and defective. Here, the latch was absent and not required. As such, the
Commission and the Tenth District abused their discretion and, therefore, a wr`st must be issued
directing the Commission to vacate its order and deny claimant's application.
16
C. Ohio Admin. Code 4123:1.-5-15(B) does not require a latch oia a crane hook.
The second regulation at issue is Ohio Admin. Code 4123:1-5-15, which states:
(B) Equipment shall be removed from service when there is evidence of a defect,damage, or distortion which may weaken such equipment.
Ohio Admin. Code 4123:1-5-15(B) does not specifically require a latch to be attached to
every crane hook. Strict construction requires "all reasonable doubts concerning the interpretation
of the safety standard are to be construed against its applicability to the employer." Burton, 46
Ohio St.3d at 172. Claimant admits that this regulation does not specifically require a latch. [Cl.'s
Answer, at unnumbered S(1 admitting Precision's Cornplaint at1[33.] The Court of Appeals even
admitted the regulation does not specifically require a latch on a crane hook. Precision at 'F48.
Ohio Admin. Code 4123:1-5-15($) is not a safety requirement specifically mandating the
attachment of latch to a crane hook. Ohio Const., Art. lI, §35; .lloldosh; Burton.
It was not until after the accident that the Commission defined "equipment" under this
regulation. A regulation is not being strictly construed if the scope of a generic word is defined
after the incident occurs. A specific safety regulation must plainly apprise an employer of his
specific duty before an incident occurs, not after. "Equipment" is endlessly broad and general. See,
generally, State ex rel. Sanor Sawmill, Inc., 101 Ohio St.3d 199.
Further, the Commission's order does not find that the latch was defective, damaged or
distorted, but that it was missing entirely. [Stip.Ev., p.] 64.] This is consistent with the claimant's
VSSR application which stated, "Hook had safety missing that was supposed to hold cable on to
hook[.]"[Id., p.1.] According to the Commission's order, the proximate cause of claimant's injuries
to be: "If a safety latch were in place, the magnet would not have fallen on Injured Worker's hand."
[Id., p.164.] Thus, the Commission determinedit was Precision's failure to provide a latch that
proximately caused claimant's injuries, not its failure to remove the crane from servicefor the lack
17
of a latch (which is not specifically required by Ohio Admin, Code 4123:1-5-15(_B).)[Id., p.164.]
The rule is not specific in its definition of "equipment," nor does it specify a duty to provide a
latch on a hook. If Precision has no duty to provide a latch, it lias no duty to remove the hooklcrane
from service when there is no latch.
The Tenth District stated that the rule was specific enough analogizing it to Stute ex re1.
Fast & Co_ v. Indus. Cornrn., 176 Ohio St. 199, 200 (1964). In Fast, the rule was:
Whenever practicable, the platform of swing scaffold shall be so lashed or securedwhile in use that they cannot sway from the structure.
The Fast Court held the rule was specific because it required a "specific thing to be done
in relation to the use of [a] scaffold." Id. at 201. The Court noted "the fact that the method of
securance is not delineated by the rule [does not] render the rule general," in that both the
requirement and the result are specific, and recognized that "[d]ue to the varying situations
encountered in this type of work it would not be feasible to delineate specific methods." 6 .Icl.
"l,he Court of Appeals attempts to justify its position in permitting these general
requirements stating that: "As in Fast & Co., it would not be feasible for the commission to
delineate each and every component of hoisting and haulage equipment that is covered by the
"repair or replace" requirement." Precision at ¶53. Not only is it feasible for the Commission to
draft specific requirements regarding latches and hooks, but it has been accomplished in other rules
and it is required in order for a violation to be found. See, Ohio Admin. Code 4123:1-3-07(G)(3).
6Fast would be analogous if the instant rule required a latch on the hook and Precisionwere arguing the rule did not tell it what kind of latch was required. The relator in Fast wasarguing the rule was not specific in when or how to secure/lash the scaffold. Precision'sargument is the rule never informed it what "equipment" was necessary because the wordis generic. I-laving a clear definition of "equipment" meaning latch on a hook was aprerequisite to Precision's duty to remove defective equipment from service.
18
The instant rule is not specific. It states:
Equipment shall be removed from service when there is evidence of a defect,damage, or distortion which may weaken such equipment.
In Fast a specific thing was to be performed (lash/secure) on a specific item (the scaffold.)
Here, aspecific action to be performed is "removing from service;" however, the item it is done
in relation to is general. "Equipment" is not specific. The Tenth District states "`Eguipment' is a
common word, the meailing of which may easily be determined." Preeisiofi at'^45. It is a common
word. It can mean nearly anything - that is what makes it general and not specifrc. The Court of
Appeals stated that "the SHO concluded, albeit without express discussion, that the bottom hook
was equipment within the scope of subsectiori (B)." [Id. at ¶44] Foremost, a hook is not
specifically defined as equipment under this rule. Second, the court read words not present in the
Commission's order. 'I'he Commission stated that the proximate cause of claimant's injuries was
the absence of a latch. The latch is theequipment. The latch is not specifically required by the rule.
Third, an absent latch is not defective, damaged, or distorted. It is just not there. Fourth, the absence
of a latch on a hook does not weaken a hook's ability to carry or move loads.
For all the above reasons, the Commission abused its discretion through itsord.er finding a
violation of Ohio Admin. Code 4123:1-5-15(B) as that regulation does not specify a requirement
for a latch on a hook and since its own factual findings fail to support that violation. Therefore, a
writ must be issued directing the Commission to vacate its order and deny claimalit's application.
D. The Industrial Commission of Ohio violated Ohio Law, and committed a grossabuse of discretion, by its decisions finding that Precision proximately causedClaimant's injuries by not providing a safety latch on its crane hook inviolation of Ohio Admin. Code 4123:1-5-14(G)(1) and 4123:1-5-15(B), whenPrecision had no prior notice of the hook being missing.
The Commission's corrected order rejected, without contrary evidence, Precision's
argument that it had no notice of the defect and therefore it was not liable for the one time
19
malfunction. Assuming, pro arguendo the latch is a specifically required safety device under the
regulations, Claimant admitted Precision had previously provided the latch on the hook, but that
as soon as Precision attached it, "it was gone again, it's like it was getting in somebody's way."
[Stip.Ev. p.116.] Claiinant testified he did not know how the latch disappeared but that he alleged
his fellow employees would just snap parts off if it got in their way. [Id.] All evidence, as cited by
the Commission, concluded the "defect" causing claimant's injury was a missing latch. Most
significantly, no employee, including claimant, testified that they reported the latch missing. There
is no evidence Precision had notice the latch was missing prior to the accident.
First, the Commission's order impermissibly adds language to the regulations and makes
determinations not supported by the record. The Commission's corrected order stated there was
"no clear reporting protocol" for perceived safety violations [Stip.Ev., p.164.] and no "clear
responsibility on anyone's part to identify if a safety latch was missing" or who was to report the
same. [Id.] 'rhere is no evidence to support this determination. All of Precision's testimony and
affidavits indicated employees were responsible for and would report defects in cranes and other
machinery to maintenance or their supervisor for repair. [Stip.Ev., pp. 90-94, 122, 124. 130.] "The
Commission abused its discretion in creating a duty to inspect and create reporting protocols which
does not specifically appear within said rules. Brilliant, 57 Ohio St.2d 51.
Second, there is no evidence of notice. The Commission stated the proximate cause was
that the latch - again, assuining it was required - was absent. Due to the latch being missing, the
Commission and Claimant contend the defect should have been remediated. There is no evidence
of prior notice of the alleged defect to Precision. That is undisputed. All affidavits and testimony
indicate that after the accident, when that individual observed the hook, the latch was missing.
Claimant alleges it was missing beforehand, but never testifies that he informed his employer. If
20
notice is not required, then employers would be strictly liable in VSSRs which is contrary to law.
State ex rel. Taylor v. Indus. Conzm., 70 Ohio.St.3d 445, 449, 1994-Ohio-445, citing, State ex rel.
M. T. D. Proclucts, dnc. v. Stebbins, 43 Ohio St.2d 114, 330 N.E.2d 904 (1975). No one reported
the latch was missing to Precision before the accident. Thus, there is no notice of the alleged defect.
The Court of Appeals recognizes this obligation that prior notice is necessary to hold Precision
liable for a violation of Ohio Admin.Code 4123.1-5-14(G)(1). Precision at 1138. Inexplicably, the
Court of Appeals does not apply the notice requirement to 4123:1-5-15(B) and holds Precision
strictly liable for the absence of a latch to which it had no notice (or duty to provide.)
In, Indus. Comin, v. Carden, 129 Ohio St. 344, 355-56 (1935), this Court held that when
the state of a thing is established by proof, the law presumes that the state of the thing continues
to exist until the contrary is shown. See, also, Richards i,. Stratton, 112 Ohio St. 476, 484, 147
N.E. 645 (1925) ("There is a presumption that a situation established continues until the contrary
is shown.") Once Precision installed the latch on the hook -- as Claimant testified Precision did -
Precision had reasonable assurances that its condition would not change. Precision reasonably
relied upon its employees, who worked everyday with these machines, to report missing, broken
or defective parts whether or not required by a VSSR or other safety regulation. Precision also
reasonably relied upon annual OS1-IA inspections by an outside source. Neither its employees nor
its inspections put Precision on notice that the latch it provided was absent.
This situation is analogous to State ex rel. Il%I. T. D. Products, Inc., 43 Ohio St.2d 114. In
M.T D., the safety device was installed, just as it was in the instant matter. In M. TD., the part
unexpectedly malfunctioned one tiine and the Court held the employer not liable because it had no
21
reason to know -- i.e. no notice -the malfunction would occur. '7 Here, Precision provided the part
and had no reason to believe that part had been removed, thereby no notice giving rise to its duty
to replace or repair the latch (assuming such a duty existed, which Precision dbesnot concede).
As such, the Commission abused its discretion through its order by creating additional
duties to inspect with impermissible language which does not specifically appear within said rules
and where there was no evidence to support Precision had no notice of a missing latch. Therefore,
a writ must be issued directing the Commission to vacate its order and deny claimant's application.
To do otherwise would unlawfully hold Precision strictly liable.
PROPOSITION OF LAW II:
The Industrial Commission of Ohio's order assessing a 50°I® penalty against Precisionwithout explaining how the Commission exercised its discretion denied Precision itsrights to due process of law and ability to meaningfully participate in the penaltyphase of the VSSR proceeding.
As Precision did not violate the regulations found by the Commission and cited by the
Claimant, any award is an abuse of discretion. Assuming, pro arguendo, the regulations were
applicable and Precision did violate them - propositions I'recision does not concede - the
Commission'sorder violated Precision's rights to due process.
Precision acknowledges that this Court previotisly held VSSR assessments do not need to
be explained and are constitutional, under Ohio Const. Art. II, §35, as long as they are within the
15-50% range. State ex rel. St. Mary's Foundry Co. v. .Indus. Comm., 78 Ol1io St.3d 521, 524, 678
N.L. 2d 1390, 1997-Ohio-25. The.St. .Mary's Court did not address, nor did the parties raise in that
case, any due process issues posed by the Commission's unbridled discretion in VSSR awards. In
' Clairriant was not certain this accident could have been prevented by the latch. Whenasked by his counsel if the latch would have prevented the magnet from slipping off,claimant did not say it would, instead he testified: "I never had it happen to me before butthat day for some reason it came off. God knows why." [Stip.Ev., p.113.]
22
the instant matter, the Commission penalized Precision 50%, the maximum assessment
permissible. This assessment was made in a single, terse sentence without anylustification by the
Comrnission as how it achieved that number. As of October 5, 2010, a 50% assessment amounted
to a penalty of $88,994.00. [Stip.Ev., pp. 63-64.] That number has since risen.
"The ' due course of law' provision of Section 16, Article I of the Ohio Constitution is the
equivalent of the `due process of law' provision in the Fourteenth Amendment to the United States
Constitution." Sorrell v. 7hevenir, 69 Ohio St.3d 415,422-423, 1994-Ohio-38; State ex rel. Haylett
v. Ohio Bur. of Workers' ConBp., 87 Ohio St.3d 325, 331, 1999-Ohio-134. 13Uth Art. 1, §16, and the
10, Amendment guarantee procedural due process, assuring "a reasonable opportunity to be heard
after a reasonablenotice of such hearing." State ex rel. 4llstale 1ns. Co: v. Bowen, 130 Ohio St.
347 (1936)at 115 of the syllabus. A meaningful opportunity to be heard in one's defense is a
fundamental right. Chambers v. Mississippi (1973), 410 U.S. 284, 294.
The United States Supreme Court and Ohio Supreme Court both use the test expressed in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) as the basis for due process analysis in
administrative hearings. See, e.g., !Llaekey v. Montrym, 443 U.S. 1, 10 (1979). Under that test, the
court must weigh three factors to determine whether the process in the administrative proceeding
is constitutionally adequate: (7 ) the private interest at stake, (2) the risk of an erroneous deprivation
of that interest and probable value of additional procedural safeguards, and (3) the government's
interest, including the function involved and the fiscal and administrative burdens that the
additional procedural requirements would entail. Mathews at 335. The Commission's decision
deprives Precision of the means to adequately prepare a defense to a VSSR. penalty, and by denying
it an opportunity to have a meaningful review on appeal or mandamus.
First, Precision has a significant financial interest at stake that can amount in hundreds of
23
thousands of dollars in continuously accruing penalties over the Claimant's lifetime. In 2010, it
was already $88,994.00 and is still rising. [Stip.Ev. pp. 63-64.] There is no more severe action
against a State Fund employer's interests than the assessment of a VSSR against it.
Second, depriving Precision of the reasons for the percentage of penalty against it is an
enormous deprivation of its rights to meaningfully defend against such penalties. Precision's.
Claimant's, and all employers' and claimants' interests are harmed by this deprivation of
meaningful review. Precision is not asking the general discretion of the Commission in VSSR
penalty percentage assessments be abolished. Precision merely requests its constitutional right --
the ability to meaningfully participate and defend against the penalty phase of a VSSR assessment.
Precision has a constitutional right to keep the penalties limited to "such arnount as shall be found
to be just[.]" Ohio Const., Art. II, §35. Claimants would also benefit from having the ability to
meaningfully participate and assert matters in support of penalties against their employer in a
VSSR assessment. It would give the parties a better understanding of what are and are not
permissible or relevant factors considered by the Commission in assessing penalties.
Third, the government's interest is served by ordering the explanation of the Cornmission's
exercise of its discretion, in that the likelihood of a decision based upon erroneous or illegal
inforrnation is minimized. In State ex rel. Smith v. Lazar F•lec. & Constr., IOth Dist. No. 01 AP-
673, 2002-Ohio-2012, the court stated that if the Commission cited a factor in assessing a VSSR
penalty violated a constitutional provision, that award would be subject to correction by issuance
of a writ of mandamus. Id., at *2. The Smith court considered a valid question: "whether the
motivating reason for awarding the [] percentage in this case is, per sc, invalid requiring a writ of
mandamus to be issued[?]" Id. Smith then notes that some factors such as severity of the injury,
the egregiousness of the violation, a machine's inherent dangerousness, and the training and
24
experience of the injured employee are valid factors to be considered in assessing a penalty. Id.
See, also, State ex rel. Blystone v. Indvt.s. Comm., 14 Ohio App.3d 238, 470N.E.2d 495 (10th Dist.
1983) (injured employee's removal of safety device is a factor that can be taken into account); and,
State ex rel. Kenton.S'truc. & Orn. Iron Works, Inc: v. Indus.Cornm., 91 Ohio St.3d 411, 417, 746
N.f,.2d 1065, 2001-Ohio-90 (the number and seriousness of violations found by OSHA is a factor
that can be taken into account.)
In the instant matter, the Commission provided no explanation of its determination. For
example, we do not know if the Commission considered the fact that Claimant knew, and thus was
complicit with, the removal of the latch. [Stip.Ev. p.l 16.] Blystone. More importantly, without an
explanation, we do not know if its reasons for penalizing Precision were valid or not. Of particular
concern is information submitted by the Claimant. [Id., pp.77-84.] Those pages contain a Report
of Investigation regarding an alleged, unproven, and unrelated VSSR. [Id.] It was alleged prior to
the instant matter. [Id., p.121.] Claimant used this information regarding a previously alleged
VSSR to argue that Precision should be assessed the maximum penalty of 50%. [Id., pp.126-27,
134-35.] Since the Commission did not explain its reasoning, we do not know if the Commission
relied upon this information. Unlike the reasons cited in Smith, Blystone, and Kenton, which were
all established facts, this was an unsupported allegation of a prior act, not relevant to the instant
circumstance. Certainly, mere allegation is invalid to justify a heightened penalty assessment.
The Commission's burden in disclosing the determining factors they use is minimal. The
Commission is required to explain its decisions in every other category of administrative orders.
In regards to temporary total disability, this Court granted a writ stating:
*** the Commission must specifically state which evidence and only that evidencewhich has been relied upon to reach [its] conclusion, and a brief explanation statingwhy the claimant is or is not entitled to the benefits requested. ***[T]h^:is court willno longer search the commission's file for `soine evidence' to support an order of the
25
commission not otherwise specified as a basis for its decision.
State, ex i•el. Mitchell, v. Robbins & Myers, 6 Ohio St.3d 481, 483-84, 453 N.E.2d 721, 724 (1983).
The Supreme Court extended 11itchell to loss of limb claims, stating that "when the
conimission does not indicate what factors it relied upon to reach its conclusion, an abuse of
discretion exists." State ex rel. White v. U.S. G}1sum ("o., 49 Ohio St.3d 134, 551 N.E.2d 139
(1990). In permanent total disability matters, this Court requires the Commission to explain how
an employee's age, education and work record affected the agency's decision. State ex rel.
,.Stephenson v. Inclus.Comm., 31 Ohio St.3d 167, 509 N.E.2d 946 (1987). The Stephenson court
stated, as Precision similarly proposes here, that, "[p]erhaps these factors were considered by the
commission, but because we find no indication in the commission's order that such factors were
considered by the commission in reaching its decision [therefore] we reverse[.]" Id. ln State ex rel.
:Voll v..Indus. Comm., 57 Ohio St.3d 203, 567 N.E.2d 245 (1991), this Court stated:
The time has come for the commission to recognize its responsibility to preparefact-specific orders which will be meaningful upon review. It is well-settled that thecommission has the exclusive authority to determine disputed facts and weight of theevidence. See State, ex rel. Milburn, v. Indus. Comm. (1986), 26 Ohio St.3d 119, 26OBR 102, 498 N.E.2d 440; State, ex rel. Hudson, v. Inr7ats. Conim. (1984), 12 OhioSt.3d 169, 12 OBR 237, 465 N.E.2d 1289; and Nteeks v. Ohio I3Yass Co. (1984), 10Ohio St.3d 147, 10 OBR 482, 462 N.E.2d 389. I-Iowever, a meanineful review can beaccomplished only if the commission prepares orders on a case-by-case basiswhich are fact-specific and whicir contain reasons explaining its decisions. Sincethe order of the commission in this case employs only boilerplate recitation of theStephenson factors, we order the commission to prepare an amended order. Such orderrnust specifically state what evidence has been relied upon to reach its conclusion and,most important, briefly explain the basis of its decision.
We are acutely aware of the vast number of cases which arise involving theseissues. Additional work will of necessity be encountered. However, we can neversimply use expedience in resolving these cases, for by doing so, iustice and fairnesswould be lost.
(Einphasis added.) Id., at 206.
State ex f-el. Gay v. Mihm, 68 Ohio St.3d 315, 319, 626 N.E.2d 666 (1994), stated:
26
The history of our seemingly constant battle to have the commission explain thereasoning for its decisions is long and storied. We have repeatedly emphasized ourfrustration with vague commission orders and, today, our frustration continues. Again,as in the past, we reiterate that the commission must prepare fact-specific ordersjustifying its decisions granting or denying requested benefits. * * *
The Corninission must explain reasons for permanent partial disability awards. State ex rel.
Frigidaire Div., General Motors Corp., v. Indus. Comrn., 35 Ohio St.3d 105, 518 N.E.2d 1194
(1998) at ¶T1-2 of the syllabus. 'I'he Commission must explain its reason for invoking continuing
jurisdiction. Stateex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 1998-Ohio-616.
Since the Commission is required to explain all other determinations, there is no greater
burden to explain a VSSR penalty. In fact, the need for the Commission to explain itself is reatest
in a VSSR penalty. Here, as of November 2010, a 15% assessment meant $26,698.00 and a 50%
assessment meant $88,994.00 in penalties against Precision. [Stip.Ev. pp. 63-64.] That is a
$62,296.00-plus range of discretion which has grown. Requiring the Commission to explain its
determinations as to temporary total disability, permanent total disability, loss of use, and
permanent partial disability, but not as to VSSR penalties -- which encompass the total sum of
those awards -- is incongruent with fairness and justice. Where, as here, due process rights are
violated by an inadequate Commission procedure, a writ of mandatnus rnust issue to correct the
abuse. State ex. rel. Finley v Dusty Drilling Co., 2 Ohio App.3d 323, 325 (10`h Dist. 19$1).
Since a VSSR penalty is subject to review for abuse of discretion, this Court must require
the Commission explain how that discretion was exercised. 'The Commission's order failed to
explain its exercise of discretion in assessing the maximum 50% penalty against Precision, denied
Precision of a meaningful opportunity to participate in the claims against it and on review, and is,
therefore, an unconstitutional violation of Precision's due process rights, and a writ correcting the
violation must be issued.
27
V7. CONCLUSION
For all of the foregoing reasons the judgment of the court of appeals must be vacated and
Precision's writ of mandamus be granted as it has a clear legal right to the writ requested and no
plain and adequate remedy in the ordinary course of the law. The Commission has a clear legal
duty to follow the United States and Ohio constitutions, and the statutes and administrative rules
of Ohio. Precision requests the Court to issue a writ of niandamus directing the Commission to:
(i) vacate, set aside and hold for naught its aforesaid orders granting Claimant's application
for VSSR and penalizing Precision in violation of its clear legal duty to follow the United States
and Ohio constitutions, and the statutes and administrative rules of Ohio and without any evidence
in support, and direct the Commission to deny claimaiit's application.; or,
(ii) vacate, set aside and hold for riatight its aforesaid orders granting Claimant's
application for VSSR and penalizing Precision in violation of its clear legal duty to follow the
United States and Ohio constitutions, and the statutes and administrative rules of Ohio and without
any evidence in support, and direct the Commission to rehear claimant's application in
conformance with its legal duties.
Respectfully submitted,
TIMO`IHY A. ivIARCOVY, ESQ. (000651MICHAEL S. LEWIS, ESQ. (0079101)WILLACY, LoPRESTI & MARCOVY14681tW est Ninth Street, Suite 330Cleveland. Ohio 44113P: (216) 241-7740 j I~ :(216) 241-6031E: [email protected]:msl(,a-)wlmlaw.com
COUNSEL FOR RELATORPRECISION STEEL SERVICES. INC.
28
CER1'IFIC ATE OF SERVICE
On this 21st day of March 2014, Relator's Brief was mailed via USPS pre-paid postageupon:JOHN R. SMART, ESQ. (0042357)Assistant Attorney General150 E. Gay St., 22nd FloorColumbus, OH 43215T: (614) 466-6696 1 F: (614) 728-9535E: [email protected] FOR APPELLEEINPtJSTRIAL COMMISSION OF OHIO
and,
MICI-IAEL A. VANDERHORST, ESQVANDE_,RI-IORST & BURGY, LLC3150 N. Republic Blvd., Suite 4'Toledo; Ohio 43615P: (419) 472-9041 J F: (419) 472-9071E: michaelv(q_)vandblaw.cornCOUNSEL FOR CLAIMANTMELVIN E. MYERS
(0023705)
iMICHAEL S. LEWIS. ESQ. (0079101)
29
APPENDIX
30
^^^^INIAL
IN I'HE SUPREME COURT OF 0HIO
STATE OF OHIO, EX R_EL.PRECISION STEEL SERVICES, INC.,
Appellant.
-v-
THE INDUSTRIAL COMMISSIONOF OHIO,
Appellee,
and
MELVIN E. MEYERS,
Appellee.
Supreme Ct Case No.:
On appeal from the Franklin CountyCourt of Appeals. Tenth AppellateD'zstrict Case Number: I I AP-1083
Appeal as of Right from Decisionrendered on October 3, 2013 in anOriginal Action Writ of Mandamus
`j^ ^
NOTICE OF APPEAL OF PRECISION STEEL SERVICES, INC.
SALVATORE J. LoPRESTI, ESQ. (006500)TIMOTIIYY A. MARCOVY, ESQ. (0006518)*MICHA..EL S. LEWIS, ESQe (0079101)WILLACY, LoI'RESTI & MARCOVY330 Western Reserve Building1468 West Ninth StreetCleveland, Ohio 44113T: (216) 241-7740 1 F: (216) 241-6031E: [email protected]: ta:mQwlmlaNv.comE: [email protected] FOR APPELLANTPRECISIO?^t STEE1.. SERVICES, INC.
*(counsel of recor°cl)
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SUPREMiE COUR-f OF OHIO
:f OHN R. SMART, ESQ. (0042357)Assistant Attorney Genera]Workers' Competisation Section150 E. Gay St., 22"d FloorColumbus, OH 43215T: (614) 466-6696 1 F: (614) 728-9535E: john.sznart(,ohioattnrneyl;eneral.govCOUNSEL FOR APPELLEEINDUSTRIAL CC)14%INfISSION OF OHIO
MICHAEL A. `'A.NDERHORST, ESQ.(0023705)
VANDERI-IOIZ.S'I' & BURGY, LLC3150 N. Republic F.3lvd.Suite 4Toledo, Ohio 43615P: (419) 472-9041 ; F: (419) 472-9071,^';: michaelv@vyandblaw. coxn
NSEL FOR APPELLEEVTN E.112YERS
Precision's Merit Brief -- Appx. 0001
NOTICE OF APP1 AL ^3F Al'PELLANT PREC1S10N STEEL SERVICES INC.
Appellant Precision Steel Services, Inc. hereby gives notice of appeal to the Supreme
Court of Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate
District, entered on October 3, 2013 in case captioned State ex r-el. Precision ,Steel Servzces, Inc.
v, The ,lttdustrial C"oinrnission of Ohio and Melvin Meyers, case numbered I lAP-10$3.
"Thzs case origiziated as an original action writ of mandamus action in the Franklin County
Court of Appeals, Tentla Appellate District, thus rnaking it with an appeal of right purstiant to
S.Ct.Prac.R. 5.01(A)(3). A date stamped copy of the court's judgment being appealed is attached
hereto and incorporated herein by reference.
Respectfully submitted,
SALVATORE J. LoPRE`;TI, ESQ. (0006500)TlMOT1IY A. MARCOVY, ESQ. (0006518)MICHAEL S. LEWIS, ESQ. (0079101)WILLACY, LoPRESTI & MARCOVY330 VJestern Reserve Building1468 West Ninth StreetCleveland, Ohio 44113P: (216) 241-7740 ; F: (216) 241-6031E; [email protected]: [email protected]: [email protected]
COUNTSEL FOR APPELLANTPRECI5ION STEEL, SERVICES, INC.
Precision's Merit Brief -- Appx. 0002
CER.TIFICA.TE OF SERVICE
On this 9th day of October 2013, .Appellant's Notice of Appeal was mailed via USPS pre-
paid postage upon:
COUNSEL FOR. APPELLEEINDUSTRIAL COMMISSION OF Ol-lIO
John R. Smart, Esq. (0042357)Assistarrt Att«rney General150 E. Gay St., 22a FloorColumbus; OH 43215T: (614) 466-6696 1 F: (614) 728-9535E: [email protected]
and,
COUNSEL FOR APPELLEEMELVIN E. MYERS
Michael A. Vanderhorst, Esq. (0023705)Vanderhorst & Burgy, LLC3150 N. Republic Blvd., St^te 4Toledo, Ohio 43615P: (419) 472-9041 1 F: (419) 472-9071E: [email protected]
ICHAEL S. LEWIS, ESQ. (0079101)
Precision's Merit Brief -- Appx. 0003
C?A0 f 9 - H74
IN THE COURT OF APPEALS OF OI:I IO
TENTH APPELLATE DISTRICT
State of Ohio ex rel.. Precision SteelServices, Inc>,
Relator,
V. No. iaAP-zo83
The Industrial Commission of Ohio (REGULAR CALENDAR)ailr3. Melvin E. Meyers,
Respondents.
3U.DGME1tiI'I' ENTRY
For the reasons stated in the decision of this court rendered liereiz7 on
October 3, 201.3, the 1ndustrial Comnaission's objectioris are sustained in part and
overruled in part, claimant Melvin E. Meyers' nbjections are sustained, and Precision
Steel Services, Inc.'s objections are overrLiled. We adopt the magistrate's findings of fact,.
but we do not accept in full the magistrate's conclusions of law as discussed in our
decision. We therefore grant a limited writ of maiidanlus ordei'ing the commission to
vacate its Augtast 9, 2oi1 corrected order (uith the exception of that portion of tl-ie order
that vacates the staff heariiig officer's order inailed AugList 3, ?oxt.), and to eriter a new
order consistent with this decision that adjudicates claimant's VSSR applica.tion. Costs
shall be assessed against relator:
Within three (3) days from the filing hereof, the c.lerk of this cotirt is
17ereby ordered to serve upon all parties not in default for faihire to appear notice of this
judgment and its date of entry i:ipon the journal.
Judge John A C.onnor
Precision's Merit Brief -- Appx. 0004
- -- - --- - --------- --- ----------- - --------
IN THE COURT OF APPEALS OF OHIO
TEN`I'H APPELLATE DISTRICT
State of Ohio ex rel. Precision SteelServices, Inc.,
Relator,
V. No, axA:P-io83
The Industrial Commission of Ohio (REGULAR CALENDAR)ancl Melvin E. Meyers,
Respondcnts,
D E C I S I U N
Rendered on October 3, 2013
14'illacy, LoPresti & Marcovy, ,ialvatore J. LoPresti,TimtltyA. Marcovy, a3id Michael S. Lewis, for relator.
Michael Z?eWine, Attorney General, and John R. sSmart, forresponderit Iizciustrial Commission of Ohio.
Vanderhorst &.hzirgy LLC, A!Ifchael A. Vanderhorst, andkrzstiia L. Burgy, for respondent Melvin E. Meyers.
IN MANDAMUSON OBJECTIONS TO TfIE MAGISTPATE`S DECISION
DORRIAN, J.
t} IZelator, 1'recision Steel Services, Inc. ("Precision"), commenced this
onginal action seeking a wri€ of mandamus ordering respondent Industrkl Commission
of Ohio ("commission") to vacate aii award of additional workers' compensation benefits
to respondent Melvin E. Meyers ("claimant"). 'fhe commission found that claimant was
entitled to additional benefits based on Precision's violation of a specific safety
requirement ("VSSR"). We assigned the matter to a magistrate of this court pursuazrt to
Civ.R. 53(D) and Loc.R. 13(M) of the TeTrth District Court of Appeals. The mag7strate:
issued a decision, attachecl hereto as azi appendix, which includes findi-ngs of fact and
Precision's Merit Brief -- Appx. 0005
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conclusions of law, as well as a recommendation that tlais court grant a writ of mandamus
requiring the commission to vacate its order and issue a new order.
{^ 2} We adopt the magistrate's fnclings of fact as set forth in ^ 64 through ^ 94
of the appendix to this decision, but we do not accept in full the magistrate's conclusiolrs
of law. Rather, for different reasons, as discussed below, we grant a writ of mandami?s
ordering the commission to vacate its prior order and issue a new order adjudicatilig
claimant's VSSR application.
1. Summary of Facts aaid Commission Proceedings
fj( 3} Stated succinctly, the facts are that, oi1 March t, 20o8, claimaait suffered^
injuries while welding a1,2oo-pound metal part. Claimant attempted to use an overhead
crane to move the part so that he could weld its reverse side when both the part and a
large electromagnet ("magnet") llolding the part fell, cru5hing claimant's left hand
rzecessitating its amputation.
(T 4) The stipulated evidence does not include photos of the crane. as configured
at the time of the incident, and the.record is not entirely clear as to the exact configuratioil
of the devices used to attach the magnet to the crane's upper hook at that time.z The
parties are in agreeanent, however, that the magnet was connected to an upper hook of the
overhead crane by a wire rope or cable that had loops, or "eyes," at both ends. The upper
hook of the crane fit into the loop at the top of the wii-e ro:pe. A smaller hook at the
bottom of the wire rope (the "bottom hook") coixnected the magnet to the wire rope. The
claiinant prepared drawings of these attachments showing the bottorz} hook as a
component that itself consisted of two loops, one of which fit into the bottom eye of the
wire rope aizd the second of which fit into the top of the .magnet_
{gi 5} The Oliio Bureau of Workers' Cognpensation Safety Violations Investigation
Unit ('",SVIli") investigated the i:ncideiit. SVIU investigator Fred M. Freeman reported
that the employer had iz-iitially described the cause of the accident as the fact that "the
safety latch attaching the magnet to the metal hook was missing at the time of the
incident." Freeman's observation is consistent with the premise that a safety latch should
have been in place ozl the bottom hook at the time of the accident.
The parties have subniitted a_joint stipulation of evidence that does not include all the exhibits produced at,he evidentiary heariny, before the staff hearing officer> In revievaing the evidence, we are aiso hampered bythe substandard. quality of the photographs reproduced in the joint stipulation of evidence.
Precision's Merit Brief -- Appx. 0006
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(^ 6j Investigator Freeman also included in his report an affidavit executed by
clairnant stating that the "lifting eye of the niagnet slipped off the hook on the bottom of
the wire rope causing metal part and magnet to fall on top of zny hand." (Meyers affidavit,
2.) The claimant also suggested that the bottozn hook should hav:e been equipped with a
safety latch, which would have prevented the eye of the magnet from slipping off the hook.
The claimant testified that his injury occizrred "because the hook on the bottom of the
wire rope did not have a safety latch to keep the magziet froin corning off of it." (Meyers
affidavit, 2.) Iz?.deed, Precision's operation manager acknowledged at the hearing that
"the inantifactzirer" had recommerid-ed that a safety latch sbould alwrays be tised wheiy-the
niagnet was attached to a hook and being used to lift a load. He did not, however, identify
whether "the rnanufact«rer" was the manufacturer of the overhead crane, the bottom
hook, or the the magnet.
^11 7) The coznmzssion awarded claimant workers' compensation benefits for his
injtiries. On rebruary 12, 2oro, claimant filed an application for an additional VSSR
award for violation of a specific safety requirement under the provisions of the Ohio
Cmnstitution, Article II, Section 35. A staff hearing officer ("SfiO"), heard the matter and
issued an order on August 9, zori, the text of which is reprod-Liced in the Magistrate's
Decision at Ti 89: 'f`he SHO found that "the Injured Worker's injuzy was due to the
Eniployer's failure to comply with [Ohio t1dm.Code] 4123:1-5-14(G)(1) and '1123;1-5-
i5(B)." (Aug. 9, 2011 Correcteci Order, 1.}
($ 8) As to the first of the two rules, i.e., Ohio Adm.Code 4123:1-5-14(G)(i), the
SHO found that "the crane causing [claimant's] injury had a defective safety device [and]
that [t]he defect was that the safety latch was iiot present on the crane hook." (Corrected
Order, 2.) This finding reflected the SHO's determination that the bottom hoolc was a
part of the overhead crane. The SHO further found that "the magnet would not have
slipped off if a safety hook had been present" and that "the safety latch was missing at the
time of Injured Worker's injury and therefore the eeluipment should have been repaired
or replaced according: to [Ohio Adm:.Code] 4123:7-5-14(Cl)(1)." (Corrected Order, 2-3.)
The SHO further noted that "the testixnoiiy of the Employer's witnesses do Yiot support
that a safety latch was present at aziy -time bef-c3re or at the time of the indi.7strial injuay."
(Correcfied C)rcier, 3.)
Precision's Merit Brief -- Appx. 0007
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{r 91 As to the second of the t-wo rules, i.e., Qhio Adm.Code 4123:1-5-13(B); the
SHO fouD.d that "the crane stiould have been removed from service and not in use, as
required by [Ohio Adm.Code] 4123:1-5-15(B), pez-taining to Hoisting and Haulage
Equiprnent " * * [bec:ause] the lack of a safety latch amounted to a de:fect which weakened
the equipment (the magnet came off because a safx;ty latch was missing)." (Corrected
Order, 3.) On Octobcr 25, 2011, the commission denied Precision's request for
reconsidera'tion and rehearing of the SHO's order.
{¶ 101 Precision thereafter filed this original action, claiming that the comrnissioii
abused itsdiscretion in granting c:laii`tiant m additional award-of VSSR benefits. `It sotight
a writ orderiirg the commission to vacate its order and to enter an order denying
claimant's application for additional VSSR benefits, claiming that Precision had not
violated either of the two rLiles. It further challenged the comniission's inxplicit finding
that the two rules constituted specific, as opposed to general, safety requirements, noting
that neither rule specifically required the use of a safety latch when attaching a niagnet to
a crane hook.
IIa The Magist.ryate'S Decision
{¶ 11} In reviewing the parties' arguments, the magistrate noted the well-settled
prrinciple that a'"VSS12 award is deemed a penalty to the exzaptoyer subject to the rule of
strict construction wwith all reasonable elniibts concerniiig the irzterpretation of the safety
standard to be construed against the applicability of the standard to the employer."
(Magistrate's Decision, T aoi.) The magistrate fuz-ther found it to be "firmly established
that the deterzninatzon of disputed factual situations as well as the interpretation of a
specific safety requirement is within the final juf•isdiction of the commission, and subject
to correction in mandamus only upon a showing of an abuse of discretion." (Magistrate's
Decision, ¶ 102.) Moreover, the conin:iission must interpret its rules reasonably and "inay
not effectively rewrite its oNvn safety rules in the guise of interpreting them." (Magistrate's
Decision, Ti 103.).
tT,12} The first rule at issue in this case is Ohio Adm.Code 4123;1-5.-14, which
es°tablishes requirernents for power-driven cranes and hoists. The magistrate disagreed
with the SI-IU's finding that Ohio Adin.Code 4123,1-5-14(G)(t) applied to the case. The
magistrate instead concluded that subsection (G) of the rL2le, which rn:andates repair or
replacement of "defective safety devices or load-cariying equipment," did not apply in this
Precision's Merit Brief -- Appx. 0008
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case because the word "equipment" in subsection (G) included only "tlie spec7ficalIy
identified devices and equipinent.found throughout paragraphs (C) ttirough (F) at Ohio
Adm.Code 4123:1-5-14." (Emphasis added.) (Magistrate Decision, 11 i2o). The magistrate
concluded that Ohio Adm.Code 4123:1-5-14(G)(x) did not apply because "a book safety
latch is not arnong the devices a7id equipment specified throug'hout (C) through (F)."
(Magistrate's Decision, T i2o.)
{^( 13) The second rule at issue in this case is Ofzio Adm.Code. 4123:1-5-1,, titled
"hoisting and hatilage equipment," which provides:- ._ ....._ . _ . .: _ ,. .:.
(A) Equipment such as slings; hoisting or haulage lines; wire ..rope, natural or synthetic fiber rope, chain metal mesh andsynthetic web, and attachments i3sed to handle material orequipnient shall be used in accordance with themanufacturer's recommendations.
(B) Equipment shall be removed from service when there isevidence of a defect, damage, or distorti:on which. tnay weakexisuch equipment.
{^ 14) The zr7agistrate concluded that the SHO was required to consider the
definition of eqtiipment provided in subsection (A) of the hoisting and haidage equipment
rule-even though the VSSR application referexlced only subsection (B) of the rule-
beca27se T'recisiUn. "cannot have violated the safety rule [in st7bsectioii (B) of Ohio
Adin.Cocle. 4t23:2-5-15] if the hook or hook safety latch is not the '[elctiiipment° defined
by Ohio Adm.Code 4123:1-5-75 (A)." (Emphasis added.) (Magistrate's Decision, ^ 124.)
The niagistrate further concluded that the SHO "failed to determine whether the hook or
hook safety latch at issue caii be viewed as '[e]quipment' witbin the meaning of Ohio
Adn-i.Code 4123:1-5-15(A) of the rule." (Magistrate Decision, ¶ 124.)
{^€15} In summary, the rnagistrate issued a three-part decision, recommending
that we order the Commission to (i) vacate its p-rior order; (2) enter a new order finding
that Precision did not violate Ohio Adzn.Code 4123:1-5-14(G)(z) (the power-driven crane
and hoist rule); and (3) reconsider whether the lack of a hook or hook safety latch
between the magnet and the crane hook involved "equipment," as defined in Ohio
Adm.Code 4123:1-5-x5(A) (the hoisting and haulage equipment rtile).
TIZ. Parties' abjections andAnalysis
{rJ 16} Claimant, Precision, and the commission have all filed timely objections to
the magistrate's decisiora. In considering these objections, we are minclftil, as was the
Precision's Merit Brief -- Appx. 0009
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magistrate, that the Supreme Court of Ohio has characterized a VSSR award as a penalty.
State ex rel. Glurtt.Industries, Inc. vt. Indus: Comnt., 132 Ohio St.3d 78, 2012-(7hio-2125,
5( 12, citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989). The
comrnission, however, has discretion to interpret its own rules. State ex rel_ Devore
Roofzrig & Painting v. .Frtdus. Carnrrr., 101 Ohio St.3d 66, 2004-Ohio-23, 11 22, citing State
ex red. Harris V. rndus. Comtn., 12 Ollio St.3d 152, 153 (1984), Tf, however, the application
of those rules to a unique factual sittration gives rise to a patently illogical result, ct^i-ilnton
sense should prevail. Id. This court niay not issue a writ of mandamus in the absence of a
finding that the commission abtasecl its d.iscretion. State ex ret. V 8rA Risk Serus. v. Ohio -
Bur. of 1Norkers' Cornp., ioth Dist. No. zxAF-742, 2012-Ohio-3583, 1 -18 ("Mandamus will
not lie to substitute a court's discretion for that of an administrative official unless the
administrative official's refiisal to perform the act constitutes an abuse of discretion.").
17) In order to establish a VSSR, an employee zntxst prove that: (i) there exists
an applicable and specific safety rectuirenient in effect at the time of the injury; (2) the
employer failed to comply with the requiremerits; and (3) the failure to comply was the
catise of the irijury in question. State ex ret. Trydle v. IndaEs. Comrrt., 32 Qhio St.2d 257
(z972).
1118) Tlie deteriniziative question in this case is, thus, whether the commission's
interpretation and application of the two safety regulations at issue gives rise to a patently
illogical result. Stated differently, the issue in this mandan?us action is Wlzether the
comxnissior^ abused its discretion in finding that the lack of a safety latch on the. hook to
which the magnet was attached constituted a violation of cither, or both, commission
rules upon which the claimtuxt based his VSSR claim, i.e,, Ohio Adm.Code 4123:1-5-14(G)
or 4123:1-5-15(B).
®b,1ec.:tzons relative to nh.toAflTn. Code 4123:1-5--14
M, ] 9} Tloth the claimant and the comznission raise in their first objections issi-les
concerning the ititerpreta-tion and applicability of subsection (G) of Obio Adrn.Code
4123:1-5-14, the power-driven cranes and hoists rule.
Clatrnant's Objection :1
111201 Claimant's first objection, whic_h we sustain, states:
Vilere a relevant term is not defined by the code, itsinterpretation is exclusively within tlie authority of thecommission. The niagistrate erred in finding OAC 4123:1-5-
Precision's Merit Brief -- Appx. 0010
----- --------
Iv.o. ixAP-ro83
14(G)'s reference to "defective crane safety devices or load-carrying equipment" is limited to those safety devices orequipment listed in OAC 4123:1-5--14(C)-(.p). The terms"eyuipment" and "load-carrying equiprrient" are notsynonymous and the nlagistrate cannot substitute hisdefinition in place of the comnlission's.
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{^ 21) Ofiio Adm.Code 4123:1-5-14 is a specific regulation governing power-driven
cranes and hoists, including overhead electric ts-avelirig cranes (subsection (C)), electric
jib cran.es (subsection (D)), electric single-rail cranes and hoists (subsection (E)), and
electric gantry cranes (subpectiori (F)). Sui^,ections (D), (E) d () ) each begin l^y
defining each of tiaose types of cranes. Each subsection, under a subheading labeled
"i3citiipment," imposes specific encrmerated safety requireznents for certain crane
c.omponents, e.g, brakes, rail stops, cabs, etc.
{¶22) In addition, Subsection (G) of Ohio Adm.Code 4123;1-5-14 provides:
(G) Specific requirements applicable to all paragraphs ofthisrule:
(i) Defective safety devices or load--carrying equipment.
Defective crane safety devices or load-carrying equipmentsball be repaired or replaced.
(Emphasis added.)
{^ 231 The SHO noted that the claimant'"w.as operatizig fi power driven crane" at
the time of his injury and forind that "[Ohio Adm.C:ocle) 4123[: j3-35-14(G)(:t), pertaining to
power driven cranes and hoists, is applicable to this case:" (Aug. 9, 2011 Corrected Order,
2.) The magistrate concluded, to the cozitrary, that "[i]t is clear that [subsectiozt: G's]
reference to '[d]efective safety devices or load-carrying equipment' is a reference to the
specifically identified devices and equipment found throughout paragraphs (C) through
(F)' ofthe rule" (Magistrate Decision, at T 120).
t^ 24} Accordingly, as interpreted by the magistrate, srtbsectiot] (G) requires repair
or replacement of defective safety devices oz' ioad-carrying equipme.n-t only if the defective
equiprnent is specifically identified in paragraphs (C) through (F) of Ohio Adm.Code
4123:1-5-r4. A necessary corollaty to the i-nagistrate's conclusion is that any crane
components not specifically identified in those subsections are not subject to the manciate
of subsection (G) that "defective safety devices or load-carrying equipment" be repaired or
Precision's Merit Brief -- Appx. 0011
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replaced. The magistrate concluded tliat Ohio Adm.Code 4123:1- ,-z4.(G) did not apply to
this case because no specific reference to crane hook safety latches appears in paragraphs
(C) through (F) of the rule: The ,SHO had, however, found that the rule was applicable to
this case because clai.mant was using a power-driven crane at the time of the accident, and
the crane had a defective safety device, which caused claimant's injury.
(^( 25} In his first objection, claimant chaIlenges the magistrate's determination
that the word "equipment" in subsection (G)(i) of Ohio Adm.Code 4323:1-5-14 applies
only to safety devices or equipment expressly identified in subsections (C) throtigh (F) of
Ohio. Adm;Code 412^;:1-5-14. That is, claimant contends that Lhe commii:ssran acted
reasonably in impliedly finding that other types of crane equipment beyond those
expressly listed ixs subsections (C) through (F) of the nile fall within the scope of
subsectioii (G). Claimant argues that the magistrate may not substitute his definition of
an ulidefined term in a commission^: rule for that of the commission. We agree.
(¶ 26) Stibsection (G) of the crane rule applies by its own terms to "all paragraphs"
of Ohio Adm,Code 4723:1-5-44--not just those parts of the rule falling under subse.ctions
captioned "f;quipment." The commission, in adopting the SHO's decisioxz, found that the
rule did apply to the facts of this case. It is clear that the SHO considered the wire rope as
well as the bottom hook that attached the magnet to the wire rope to be components of
the cran:e. For example, the SHO found that "the weight of the evidence supports that
there was no safety latch on the crane at the time of jclaimant's1 injury." (Ernplzasis
added.) (Corrected Order, 3.)
{11 271 The SIIO, thus, interpreted Ohio Adm.Code 4123:1-5-14(G) as iniposing an
cibtigation on employers to xe7nove defective safety devices or load-carrying equipment
from use if that defective safety device or load-carrying equipment is a com:ponesit of any
power-driven crane or hoist described in the rule. T'h:at interpretation is not patently
illogical.
{I ^ 28) The commission has authority to interpret its rules in the fi.rst instance, and
we are required to defer to the commission's interpretation of its own rules. To our
knowledge, the commi^sion has not interpreted Ohio Adm.Code 4123:1-5-14(G) as
imposing an obligation to repair or replace defective load-carrying equipment only if that
equipment is specifically listed as "equipznent" in subsections (C) through (F) of that nile.
To the contrary, in a case involving allegedly defective load-carrying equipment for
Precision's Merit Brief -- Appx. 0012
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No. 1iAY_io83 9
purposes of Ohio Adm.Code 4123:1-5-14(G), an employer had previously repaired a
different defective component part of an overhead hoist system, i.e., a sticking roller, but
in doing so created a second, independent defect in a nut/bolt assembly. The Supreme
Court of O.hio affirlxzed a VSSR award based on violation of the same VSSR at issue in this
case, Ohio Adm.Code 42:23:1-5-14(G), in that -lhe employer iiad failed to repair or replace
defective load-carrying equipment. State ex rel. IntQrnatl. .Tmck & 1'rigine Corp. v.
Indus. Comm.; 122 Ohio St.3d 428, 2oo9-0hio-3502; id. at ¶13. Neither nut/bolt systems
nor rollers are specifically identified as equipment in the rule; however, the court
-acknowledged that the award._of-_V88R. colnpensatioii was "ithin th-e scope of the
colrl.mISsIQIlrs dlscretlon.
{f, 29) The magistrate's interpretation of Ohio Adm:Code 4123:1-5-14(G) is not
consistent tivith Interraafl. Truck & Engine Corp. Moreover, prrrsuant to the niagistrate's
interpretation, and because crane hooks are rlot specifically identified as equipirient in
snbsectioris (C), (D), (E), or (F) of the rule, an en3ployer wouJd not be required to repair or
replace, for example, a -visibly cracked crane hook. In such a case, application of t.he
magistrate's zraterpreta-tion would produce the illogical result that the employer had no
obligation to repair or replace an obviously defective crane hook that clearly posed a risk
of serious harm or death to employees working beneath the crane hook siinply b ecause
crane hook" is ilot listed in subsections (C) through (P).
I¶ 30) We therefore reject the magistrate's conclusion of law that the term "safety
devices or load-carryilig equipment" in subsection (G)(i) included only equipment
specifically identified in paragraphs (C) tbrough (F). Rather, in interpreting its own rule,
the commission found that the bottom hook was a component of a type oI' crane dest-Tibed
in Ohio Adm.Code 4123:1-5-14 and, as such, fell within the scope of the rule. We have
"consistently recognized and generally deferred to the commission's expertise in areas
fallitig under its jurisdiction." State ex rel. Pennant Moldings, Inc. v. Indus. Coinnz. loth
Dist. No.1iAP-942; 2013-Ohio-3259, ^ i5, and it is appropriate that we do so in this case.
T`he commission did not abuse its discretion in dete2'mining that Ol1io Adm.Code 4123:1-
5-14(G)(1), "pertaining to power driven cranes and hoists [was] applicable to this case."
(Corrected Order, 2.)
(113I} We therefore szistain the claimant's first objection and reject the
magistrate's conclusion of law that the colnmissio7l abiised its discretion in findilig that
Precision's Merit Brief -- Appx. 0013
- --------------- ---
No. 1 i1P-7 o$3 10
Ohio Adm. Code 4123:1-5-14(G)(1) pez`ta.ining to power-driven cranes and hoists, applies
to this case.
ComrnFssion's Objection.i
The commissloil's first objection states:
The conimission's finding that the eniployer was on noticethat the c.rane's hook safety latch was a "safety device" underthe Ohio Adm. Code 4123:1-5-14(G)(i) was supported bysome evidence, including the manufacturer's specificationsrequiring the crane's hook to have a safety latch, and the
° employer's safety supervisor's testixnony that he knew thisa......-. ..^.... . . . . . _.. -requl
,reiiieiit priar to the warker["s] i n J
.ury; __ .-.... .__
•--
J¶ 321 Oiir finding that the colx ►mission did not abuse its discretion in finding that
C3hio Adm.Code 4123:]-5, -14(G)(z) applies to this case does not, however, resolve theN
questioli as to whether the commission abused its discretion in finding that Precision
0 violated the rule. The SIIt} concluded that Frecision violated Ohio Adm.Code 41)3:1-5-m
t4(G)(a) because there was no safety latch on the bottom Iaook to prevent the inagatet from
becoming disengaged from the crane, everi thoiigh the manufacturer's specifications
0 required llse of a safety latch. The SHO determined that the lack of a safety latch on the
0 botto.m. hook of the crane apparatus -wvarranted the conclusion that the crane was
equipped with a defective safety device at the time of the incident.A {^j 33} Having reviewed the commission's argtiments in support of this objection,
we construe it as positing that it was within the conimission's discretion to determine that
Ohio Adm.Code 4123:1-5-14(G)(1,) applied to this case because the bottom hook of the
U crane was equipment for purposes of that rule. The commission's arguments resemble the
clainiant's, and we sustain the com.rnission's first objection to that extent for t:he. samea
reasons. But, as discussed below, we overrule the commission's first objection to the
0 extent that the conintission defends the SHO's conclusion that the bottom hook was itself
a "defective safety device."
34) The cornznission argues that the absence of a safety device on the bottom
hook is ecluivalent to the use of a "defective crane safety device," in violation of Ohio
.Adm.Code 4123:1-5-14(G)(j). Precision argues, in response, thatthe absence of a safety
Iatch on the bo-ttom liook cannot transform the bottom hook into a"safet3= device,"
whetber defective or not. We agree. It is nnreasonable to describe thebottorn Iaook of the
crane apparatus as a defective safety device. The botton2 hook was an attachment
Precision's Merit Brief -- Appx. 0014
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No. j7A.P-IO83 1.1
component of the crane-not a safety device. Moreover, faalure to use La safety device does
not inean that the unused safety device itself is defective.
35} In addition, the SHO in its resolution of the issue whether Precision vialated
the second rule at issue in this case, Ohio Adm.Code 4123:1-5-35(B), specifically found
that "there was no safety device" in place on the cra7ae. (Emphasis added.) (Corrected
Order, 4.) It was unreasonable for the coxnrnisszon to accept an order that, at one point
describes the bottom hook as a defective safety device and at another point describes the
same component as tackiny a safety device.
{l( 36} Accor ingly, the S1-iO's jusriffication for finding that Precision violated Ohio
Adm_Code 4123:z-5-x-I(G)(a) was unreasonable, and the commission abused its discretion
in accepting the Sf-IO finding that the absence of a safety latch oza the bottom hook
warranted the conclusion that the bottom hook was a defective safety device.
{11 37) Our conclusion that the bottom hcaok was not a defective safety device does
not, however, inai2 date a finding that Precision complied Aith Ohio Adm.Code 4123:1--5-
14(G)(r). Rather, we sustain the comrnissi.on's objection to the extent that it posits that
Precision could nevertheless have violated the rule. Subsection (G)(i) requires repair or
replacement of "defective load-caz:ryin.g equipnient," as well as repair or replacemen-t of
defective safety devices. The terna "load-cariying eciuipnzent°" is not specifically defined in
either Ohio Adm.Code 4x23:1-5-14(G)(i) or 4128:1-5-01, wl-^ich is the general definitional
rule for purposes of Chapter 4123 of the regulations. "Where a relevant term is left
undefined by the safety code, its interpretation rests solely ivith the coznzraission. While
the commission may rely on an outside ciefijzition, it is not required to do so." S'tcxte ex rel.
1"imkeri CQ. v. Hccrmner, 95 Ohio St.3d z2i, 2tt02-Ohio--r754a 113h, citing State ex rel. Go-
Jo lncfustrzes zi. Ittdus. Comrn., 83 Ohio St.3d 52g (rg98).
{^ 381 Arguably, f'recisiozi. violated Ohio Adm.Code 4123:1-5-.14(G)(1) even if the
bottom hook was not a safety device, if: (i) the crane when configured with the bottom
hook was load-carrying equipment for purposes of the rule; (2) the bottom hook was
defective for lack of a safety device; and (3) Precision, virith prior knowledge of its
defective nature, allowed its continued use without repairiDg or replacizig it. The
cornmission has not determined these issues. If the commission answers these inquines
in the affirmative, theii Precision violated Ohio Adm.Code 4123:1-5-x4 in failing to repair
or replace the bottom hook by ensuring that it was protected by a safety latch.
Precision's Merit Brief -- Appx. 0015
No. ixAf'-1o83
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f^ 391 We therefoi-e order the con7ntission to determine whether use of the crane
vvithout a safety latch on the bottom hook of the crane violated OhioAdnl.Code 4123:1-5-
14(G)(r) in that Precision, by allowing the crane to be used without a safety device to
preclude the magnet from becoming disengaged from the crane, thereby failed to "repair
or replace defective load-carrying eqtiipmer3t" of a type of crane described in the rule. The
commission's first objection is sustained in part and overruled in part.
Objections Relatiuc to Ohio Actm,Code 4x23:l-5-15
{^ 401 All three parties have raised objections to the magistrate's decision relative
to Ohio Adm.Code'4123:1-5-15, ivhich provides riulesfor hoistirig and haulage equipznent.
That rule provides, in reievant part:
(A) Ecluipnient such as slings, hoisting or haulage lines, wirerope, natural or synthetic fiber rope, chain, metal mesh andsynthetic web, and attachments used to handle material orequiprnerxt shall be used in accordazice with the manu-facturer's recommendations,
(B) Equipment shall he removed from service when there isevidence of a defect, damage, or distortion which mayweaken such equipment.
(T 411 We begin by addressing tlie second objections of both the claimant and the
commission, both of which ehallenge the magistrate's coilclusions concerning
interpretation of the word'"equipment" in Ohio Adrn. Code 4123:i-5-15(B).
^t( 42) Claimant's second objection states:
The magistrate erred in findisig that the conlmission failed todetermine that a hook vvhich is missing its safety latch is"equip3xzent" as used in (Ohio Adrn.Code) 4123:1-5-15.
"I'he comrrlission`s second objectiofa is silnilar. It states:
Where Ulzio Ac1rn.Code 4123:1-5-13 required: "equipmentshall be removed from service: when there is evidence of adefect" and there was sorne evidence to support the SHO'sintei-prcetation that the crane with hook was the: "equipment"referred to in the regulation, the magistrate erred inrequiring the commission to reconsider whether the hooksafety latch alone was the "equipment" described in theregulation.
f^ 43} In finding that Precision violated Ohio Adm.Code 4123;1-5-15(B), the SHO
necessarily d.etexnIined that the bottom hook was equipment -within the scope of
Precision's Merit I3rief -- Appx. 0016
------ ----------- - --------- -------------
No. vi.AP-IO33 13
subsection (B) of the rule requiring rernoval from service of defective, damaged or
distorted "eclLiipjnent." In their second objections, the claimant and the comrriission
challe7ige the magistrate's determinations that (i) "equipnzent" for purposes of subsection
(B) of C)hio Adzrz.Code 4123:1-5-15, is necessarily equivalent to "equipment" as identified
in subsection (A) (Magistrate's llecisioii, ^ 124), and (2) the commission rnt-ist therefore
reconsider claimant's assertion that Precision violated subsection (B) of Ohio Ac3.m.Code
4123:1-5-15. We sustain their objections and reject the :rnagistrate's recommendation that
we order the commission to reconsider whether the bottom hook was "equipment" as
contemplated in subsection (A) of Ohio Adm.Code 4123:1-5-15. .....
{^j 44) In this case, the SHO conclucied, albeit without express discussion, that the
bottom hook was equipnient within the scope of subsection (B). I'lzis conclusion is
revealed by the SHO's statements "the lack of a safety lateh amounted to a defect which
weakened the equiprrfeiat," and "the crane should have been removed from service and not
in use, as requit-ed by Ohio Adm.Code 4123:1-5-i5(B) pertainilig to Hoisting and Hat3lage
Equipment." (I;mphasis added.) (Corrected Order, 3.) The commission thus interpreted
its rule to include the bottom hook of the crane as hoisting aaxd hauling equipment tiuith.in
the scope of subsection (B). As discrissed above relative to Ohio Adm.Code 4123:1-5-
14(G)(z), the conimission has the discretion to interpret its own rules. We find its
interpretation to be reasonable and, therefore; do not disturb it.
{^ 45) We find that the commission was not required to interpret the word
"equipnient" in subsection (B) of the rule as necessarily being equivaletrt to the word
Pquipmertt" in subsection (A) of the rule. The commission found that the rule applied if
the component at issue may reasonably be deeined to be hoisting and haulage equipment.
"Equipment" is a comm. on word, the meaning of which may easily be determined. Ihe
rule does not provide that the subseetion (A) "definition" applies to all otherparagraphs
of Ohio Adm.Code 4123:1-5-75, and we will not read such a provision into the rule.
46l We thexefQre sustaizl the second objections of both the claimant and the
co7rl.rnisslon.
Precisron'sfir,st objection
{f, 471 Precision's first objection states that the magistrate erred in his findings
concerning OhioAdm.Code 4123;-1-5-15. More specifically, Precision contends that:
A. Ohio [Adm.]Code 4123;1-5-15 does :iiot specifically requirea safety latch.
Precision's Merit Brief -- Appx. 0017
---- ------ - ---- -----------
No. iiAP-iv83
B. "Equipment" under Ohio [Adm.]Code 4123:x-5-15(A) doesziot define "Equipment" under (B).
C. Even if Ollia [Adm.]Code 4123:1-5-15(B) is read inc.onjunctioii with section (A), neither section specificallyrequires a safety latch, nor specifically defines a safety latchto be "equipment" as used in the rules.
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{¶ 48} We acknowledge that Ohio Adm.Code 4123:1-5-15 does not include a
specific reference to safety late>hes, nor does it specitical:Iy require a safety latch on crane
hooks, nor does it specifically define a safety latch as equipment. Precision's statements
:n parts (A) and (C ) of its first objection are therefore true. Additionally, in resolving the
clairnant's and c:ommiss7on's second objections, we have determined that the word
11 ectuipznent" in Ohio Adm.Code 4123:1-5-15(B) is not limited to equiprnent as defirled in
Ohio Adm.Code 4123:3-5-15(A). Accordingly, we accept as true Precision's statement in
part (B) of its first objection. Our ack-nowledgment of the validity of Precision's statements
in parts (A), (B), and (C) does not, however, necessarily compel the conclusion that
Pr.ecision did not violate Ohio Adm.Code 4123:1-5-15, as Precision suggests,
^J 49} In its argument relative to part (C) of its first objection, Precision contends
that Ohio Adm.Code 4123:1--5-15(B) is a general safety rule as opposed to a specific safety
requirement. In fact, Precision has c.onsistently argued from the earliest stages of these
proceedings that neither Ohi,o Adm.Code 4123:1-5-14({:F)(i) naz- 4.123:7-5-15(B) plainly
apprised it of any specific obligation it had to its employees and that the two rules
therefore do nat constitute spec,iji'c safety requirements. It colztends that, to be a specific
safety reqairerrrent, the rules rnust have specifically required the use of a safety latch with
every crane nook.
{^l 50} It has long been: recognized in Ohio that "[t]he term, ,specific requirement,'
as used in Section 35, Al-ticle lI of the Constitution of Oh:io, does not coznprehend a
general course of condlrct or general duties or obligations flowing froni the relatioxi of
employer and employee, but embraces sucli lawful, specific and definite requirem.ents or
standards of conduct as are prescribed by statute or by orders of the Industrial
Conimissiorz, and which are of a eharacter plainly to apprise an employer of his legal
Precision's Merit Brief -- Appx. 0018
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No. x iAl'-xoS3 15
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obligativns toward his employees." .State ex rel. Ho7dosh u: Indus. Comrrr., 149 Obio St.
179 (1948), syllabus. Accorc3iiigly, a specific safety xequit°ement rnust plainly apprise
einployexs of their legal obligations.
{^( 511 Courts have on numerous occasions considered the question of whether a
rule adopted by the conanzission irnposes a specific safety requirement or, alterriatively, a
general requirement that imposes a°general course of conduct" or "genera] duties or
obligations flowing froTn the relationship of employer and employee." In 1964, fdr
example, the Supreme Court of Oliio considered a rule that provided as follo-vvs:
Whenever practicable, the platforzn of siving scaffold shall be solashed or secured while in use that they cannot sway from theStrt}cttlre.
Stcrte Ex ret. Fast & Co. v_ Indus. Comrn., 276 Ohio St. x9ct, ?oo (1964).
{^ 521 'C`he Supreme Court held that the rule was specific because the employer
was left with no discretion in terms of what it should do in regard to the use of a particizlar
piece of equipzzlent, i.e., it required a"specific tliing to be done in relation to the use of [a]
scaffold." Id. at zoi. Even though the rule included the phrase °when practicable," the
cotirt observed that the word "practicable" has a definite meaning, and that the rule
imposed a definite obligation on the part of the enip{oyer. It noted that "the fact that the
method of secttrance is not delineated by the rule [does not] render the rule general," in
that both the requirement and the result to be accomplished are specific, and recognized
that "[d]ue to the varying situations encotintered in this type of work it would not be
feasible to delineate specific znethods." id.
{^ 531 Similarly, in this case, an employer wlio causes em.ployees to use hoisting
and haulage equi.pment is specifically norEified by Ohio Adm.Code 4123:1-5-15(B) that it
must repair or replace hoisting and haulage equipment if the equipinent is defective.
Both the situatzon and the obligation are specifically identified. 'I"he fact that the
particular component that becomes defective is not specifically identified does not change
the rule into a general one. As in Fast & Co., it would not be feasible for the commission
to delineate each and every component of hoistirag aiid haulage equipment that is covered
by the "repair or replace" requirement. Nor does the fact that ainore specific rule could
have, in hindsight, been drafted mean that the existing rule is not specific.
{¶ 54) By adopting the SHO's order granting the VSSR award, the cotnmission
i7np]iedly deternained that Ohio Adm.Code 4123:-1-5-15(I3) is a specific safety .requirement.
Precision's Merit Brief -- Appx. 0019
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Giveri the precedent we have outlined above, we cannot say the commission erred in so
doing.
St fftciency of t Iie Evidence
{t 5,5} In section (D) of Precision's first objection, Precision challenges the SHO's
conclusion as to the existence of a'°defect, damage, or distortion whieh may wenken" the
hoisting eqliipment here at issue. (Emphasis added.) We reject Precision's argunienttl-lat
a violation of Ohio Adm.Code 4123:x-5°i5(B) could be proven in this case only if the
bottom hook itself had become physi.caIlyweakened by, for example, being bent, broken
or frayed: Webster's Ei^cyclnlie^ic .I7natiridged Dictioiiary of tlte English Langtzage
(Portland Hoiise i996), includes as synonyms for the word "weaken" the words
"diminish" and "impair." It was within the corazmission's discretion to find that the lack
of a safety latch impaired the safe functioning and reliability of the, crane hook, thereby
diminishing its effectiveness, i.e., "weakening" it. We further observe that "[b]ecause the
rule of strict coD:st:'uction concerns only the applicability of the specific safety requirement
to the employer, it does not permit a reviewing cour-t 'to coztstriie the evidence of a VSS1'.
strictly in tthe employer's favor.' "(Ernphasis sic.) State ex rel. I'etrnant Moldings, Inc. V.
Int7izs. Comm., xoth Dist. No. z1.E1P-942, 2013-Ohio-3259, 'Q 16, quoting State ex rel.
Supreme 13irmpers,.I nc.. o. Indus. C.'ornrn., 98 C}tiio St.3d 134 (2002), ^ 70.
{O,,f 56) We therefore overrule Precision's first objection.
Precision's Due 11'rocess ftection.
{f, 571 Preeision's second objection asserts as follows:
The Magistrate Erred iri Not Ruling Upon Precision'sArgtzrrierit that the Commission Violated f'recision's dueprocess of law under the 14th Ameridment to the U.S.Constitution and A-tt. 1, §z6 of the Ohio Constit-Lition.
{¶ 58) The commission imposed a5o--percent award for violation of the two rules
at issue, noring that "[t]he additional award of compensation is granted to the Injured
Worker in the annount of percent of maximum weekly rate under the rule of State ex. rel.
Engle v. Indus.. Cornni. (1944), 142 Ohio St. 425." (Corrected Order, 4.) t'recision
acknowledges tI-iat the Supreme Court oi Ohio has found that the Ohio Constitution does
not require the commission to explain or justify its determ^:inatioia of the amount of a
VSSR if the award is within the 14-50 percen't range. But, Precision contends that the
commissioii deprived it of due process because it lacked an opportunity to prepare a
Precision's Merit Brief -- Appx. 0020
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No. iiA:P-io83 17
defense to the issile of the percentage size of a VSSR penalty. It additionally argues that
the absence of a more detailed explanation of how the cointnission arrived at the 50-
percent penalty precludes riieaningful analysis of vvhether the comniission abused its
discretion in setting the amount of the VSSR award.
(T 59) We note that the Supreme Court of Ohio in 1997 specifically considered, and
rejected, a similar arguzneiIt that the commission inust consider and explain the impact of
factors such as the severity of the injury, the egregiousness of the violation, and the
inherent dangerousness of involved machinery;just as the commission must consider and
explain noninedical factors in permanent-disability cases. State exrel, St.111arys Faunriry
C►. u. .Indus. Comm., 78 Ohio St.3d 521 (1997). Rather, the court held that "the
comtnission nt;ed not explain how it calculated the amouzrt of the VSSR award." Id. at
523, citing Stute ex re1-leep Corp. v. Indus. Comni., 42 Ohio S-t.3d 83, 85-86 (1989), and
State ex rel. Smith u. Hzlgue.let, 57 Ohio St.3d 1, 2(1991). In addition, the commission has
"considerahle discretion" in setting the amount of a VSSR award and abuses that
discretion ozily by assessitlg an award outside the constitutional 15- to 50-percent rarzge.
State ex rel. Kenton Structural &Orriamentalla-aa1 Works, Inc. v. Inrl.us. C,'omm., 9-1 Ohio
St.3d 411, 417 (2ooa), quoting St. MarysFvundry Co. at 524.
fll^l 601 In any event, we have concluded that the comixaissiori's order must be
vacated na:sed on its faulty reasoning relative to the first rule at issue, Ohio Adm.Code
41233-5-74(G)(?). We refuse to predict whether the comznzssion will ultimately again
find a violation of that rule. Furthermore, the commassion has the authority t:o change
the aniount of claimant's award in its new order. Nor ivil] we predict the degxee to which
the commission will provide in its new order a written explanation supporting the amount
of its award. It would, therefore, be preixaature for us to rule on Precision's due process
arguments at this point in time.
{¶ 61 }`vVe thherefore overrule Precision's second objectioil.
IV. Coxac;itision
{¶ 621 For the reasons discussed above, the corntnission's objections are sustained
in part and overruled in part, the claimant's objections are sustained, and Precision's
objections are overruled. We therefore grant a limited writ of mandamus orderii-ig the
commission to vacate its August 9, 2011 corrected order (with the exception of that
Precision's Merit Brief -- Appx. 0021
- -------------
No. iYAP-1o83 18
portion of the order that vacates the SHO's order niailed August 3, 2oii), and to enter a
iiew order coilsistent with this decision that adjudicates claimant's VSSR application.
Comrnission's objections sustained iri part and overruled in part;cta:rnant's objections sustained,•.Precision's objections overruled;
limited wiit of mandarnus granted.
KI ATT, i'.J., and CONNOR, J., c.ozicur.
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N«. 1:LAP-3.o8 ,
APPENDIX
I:N THE COURT OF AFPF.AI.S OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Precision Steel:Services, Inc.,
M00C]
O Relator,O{L .:._....., . . ... .... . . ... . . . . . . . . . .r _.. ...::. .. .. .__.. . _ . .. . : . . _ . :.
V.
^The Industrial Coirirnission of Ohio
° and Melvin E. Meyers,
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Respondents.
No. IzAP--io83
(REGULAR CALENDAR)
MAGISTRATE'S DECISION
Reridered on November 27,2012
WidI(icy, I.o;t'r-esti & Marcovy, Sahrv.tore J, .LoPresti,7irr7othy,ll.. Marcovy, a.zad Michael S. Lewis, for relator.
Michael DeWine, Attorney General, and John R. Srttcrrt, forI'espoI1dellt IT.Idi:tslrla) Ct}I7lmissI0I1 of Ohio.
Vanderhorst & I3i.iryy .L:LC, lklichczet A. Vanderhorst, andKristin I. Burgy, for responelent Melvin E., Meyers.
IN MAI^TDAMUS
{1j 63} In this original action, relator, Precision Steel Services, Inc. ("relator" or
"Precision Steel"), requests a writ of mandamus ordering respondent Indnstrial
Commission of Ohio ("commission") to vacate its order granting the application of
resposacleiit Melvin E. Meyers ("claimant") for an additional award for violation of a
specific safety requirement ("VSSR") and to enter an ordel- denying the application.
19
Precision's Merit Brief -- Appx. 0023
No. .i1AP-i083 20
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{T. 64) 1. On March j:, 2oo8, c7.aimant sustained a crush injury to his left hand
while employed as a"burner-fabrichtor" at a factory operated by relator. On the date of
injury, claimant was iising an overhead crane with an attached magnet to move a metal
part that he was welding. There was evidence slro^.ving that as he was maneuvering the
part into position on tht, welding table, the lifting eye of the magnet slipped off the hook
on the bottom of the wire rope causing the magnet and metal part to fail on his left hand.
There were two hooks involved in the rigging of the magnet to the overhead crane: Tllere
was evidence that the lower hook oii the bottom of the wire rope did not have a safety
latch at the time of the injury.
(1^1 65) 2. The industrial claim (No. o8-,3zS303) is allowed for:
A.rnputation of left Jiand, below elbow; crushing injury of lefthand; open wound of J:eft hand, with complications; openwound of left second, third, fourth and fifth fingers, withcomplications; multiple open fractures of left hand; briefdepressive reaction; generalized anxiety disor(ier; panicattacks; depressive disorder evith eleinents of post trattrnaticstress disorder.
66) 3. On February i2, 2010, claimant filed an application for a VSSR award.
67) 4. The VSSR application prompted an investigation by the Safety Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workez's' Uornpensation ("bureau").
(^, 681 5. On June 14, 2oxo, the SVIU investigator visited the site of the accident at
the facility operated by Precision Steel. The investigator met with Plant Operations
Manage.r; <lordan Uexnchy^na. Iie also photcigraphed the overhead crane, welding table,
electric magnet aftd other items related to the accideiit.
{'¶ 69) 6. On Attgust 10, 2010, the SV:fU investigator met with claimant and
olitained his affidavit. Clairnazit's affidavit executed August zo, .?oio avers:
[Two] I began my empioyn-ient with Precision Steel Services,Incr.] in JUIy 26, 2oo:t[.] I was hired to perform the job ofburnerJfabricator and I held -this position at the time of myinjury[,J My Job duties involved operat]ng the burn 'table andfabricating parts[.] I tivas in the process of welding a part atthe time of my injury-
[Three) I arrived for overtime da}T-shift worlc on March x;2oo8 and reported to my regular work area[.] I reviewed rziywork orders and began fabricating a part on the welding
Precision's Merit Brief -- Appx. 0024
No. xzAP-io83
table[,] I was iising an overhead io-ton crane with a:ttachedelectric magziet to lift the pieces in place[.] I had beenworking on fabricating the part between three to five hoursat the time of iny in.jury[.]
21
Wour] I was in the process of turning over the part so I couldperform additional welding activities when the incidentoccurred[.] I had the pendent coiitrol for the crane in myright hand and my left hand was resting on the weld table asI was using the electric Inagnet to t,arn the part[.] As I wasmaneuvering the part into position the lifting eye of themagnet slipped off the hook oxr the bottom of the wire ropecausing the metal part anrl magnet to fall -on top of myhand[.] My hand was crz7shed arid remained trapped underthe metal part[.] It took approxiniately five coworkers to liftthe metal part off of my hand[.] t1n ambulance was calledand I was transported to St[-] Vincent's Hospital for medicaltreatment[.]
[Five] My injury occurred because the hoo7z on the bottom ofthe wire rope did not have a safety latch to keep the magnetfrom coming off of it[.]
[Six] I viewed the photographs that Investigator Freemanhas in his possessiQn[.] The crane, magnet, and welding tableaccurately depict my woi-k area and the tools I was ttsin.g atthe tixne of my injtiry[.] The cable the magnet is attached tohas been changed[.] The bottonz hook on the cable wasremoved and replaced with a clevis attachment[, j
{¶ 70} 7. 'I`he SVIU investigator obtained company documents relating to the
accident. C)ne of the doctarnents is a two-page form captioned "Occupational
Injury/Ilfness Investigative Report." This form was completed by hand by Tony Sumner
on the date of injury.
{^ 71} In response to the pre-printed query "Describe accident in detail," Surnner
rvrote;
He was usii7g a 10 ton lriagnet to put part on its back. Theznagnet slipped off tlte hook [and] the part fell 2-3 [feet] ontohis hazid pirzching it, between the part [and] weld table[.]
i4172} Under the caption "Cause a1id Prevention Action," the forrri asks if "[r]e:pair
or modification [is] needed." In response, Sunzner wrote: "Safety latth needed." Sumner
also indicated that the repair had.heen completed.
Precision's Merit Brief -- Appx. 0025
-- - ------------ - - - -
No. x1A1'-io83 22
(r; 73} 8. The SVIU investigator also obtained a company document captioned
"Accident/Injury Report." This document containing pre-printed queries was cornpleted
on the date of injury by claimant's supervisor, Albert Morales. The coznpany forrn
instnicts "[e]xplain how accident/injury occurred in detail.°' In response, Morales wrote
in his own hand:
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....74) 9> The SVIt7 investigator also obtained the laandv^rritten stateanent of Larry
Eckenrode, stating:
[W]e all picked the plate off of Mel['s] hand[..] He wasf7ipping the plate before that when the magnet came off thehook and that's how .his hand got smash[ed][.J
{¶ 751 io. On September 8, zo -jo, the SVIU investigator issued his report of
investigation. Under "Discussioii," the report states:
[..Cliree] Investigator Freeman obsei-ved and phatographedthe Burn Bay of Precision Steel Services, Inc[.] where theincident of record oc;curredCJ Investigator Freeznan alsoobserved and photographed the involved Kone XLD :to-tondouble box girder top running crane, welding table, and8,ooo lb. electric magnet[.1 The employer stated InjuredWorker Melvin F[.] M[e,jyers was in the process offabricating a metal part, approximately twenty iiiches byforty-five inches, on the welding table at the time of theincident[.j The employer coz-itinued Mr[:j NI[e]yers wasusing the electric magnet attached to the overhead crane toturn the part over when the magnet slipped off :the hook andthe zziagnet and part -fell onto his hand[.] The employerfurther stated Mr[J M[e]yers should have used a liftingclamp or nylon sling to turn the part over instead of usingthe elect3ric rnagnet[.j The employer indicated the partweigheci approximately 1,200 lbs[.1 The employer furtherstated the 1 1/4" ribs oti the metal part struck 1VIr[.J M[e]yers'hand[.]
[Four] The employers stated the safety latch attaching themagnet to the metal hook was missing at the time of theincident of recorel[J The eniployer fiirtlier stated a safetylatch was installed on the metal hook after the incid.e.nt[.]
X_ * *
Precision's Merit Brief -- Appx. 0026
No. ijAY-jo83
[Nine] Injured Worker Melvin E[.] M[e]yers had anopportunity to view the photographs obtained byInvestigator Freemasi at ttig time of the on-siteinvesti.gation[.j Mr. M[e]yers stated the crane, magnet, andwelding table accurately depict liis worR area and the toolshe was using at the time of his injury[,j T-Ie further stated thecable the magnet is attached to has been changed[.] Ivle]vinE[.] M[e]yers itidicated the bottom liook on the cable wasremoved and replaced with a clevis attachment[.]
23
76} tz. The SVIU investigator also obtained Occupational Safety and I--Iealth
Adnainistration ("OSHA") form 302 completed by Precision Steel on March 3, 2008. In
response to the pre-printed query "[w]hat happened," Precision Steel wrote:
iV.iagnet slipped off hook [and] part fell 2 to 3 [feet] onto hishand, pinching his harrd between the part [and] the weldtable.
111771 12. In JuDe 2013, relator vbtaizled affidavits from six of its employees.
Affidavits were obtained from Jordan Demchyna, Larry Eckenrode, Antllony ,Toha7son,
Leonard Garrible, Dana Burehell, and Arrthony Sniith.
{^ 781 13. The.af#idavit of Demchyna executed June 9, 2tixi avers:
[Two] In March of 2008, xny positian was that of Operation'stVl an,ager.
[Three] I chd not work on March 8, 2oo8, but was advised ofthe accident shortly after it occurred. I did not know theextent of iLleyers' injuries.
[Four] I conducted an investigation the following morning. Ispoke with Torzy Suinzrer who haci completed an incidentreport.
[Five] Upon entering the Burn Bay, I checked out crane #4,the io-ton crane used by Melvin Meyers at the time of theaccident. :I noted the safety clasp on the crane's hook wasmissing.
[Six] A search was conducted, htit the safety clasp was neverfound. At no tinie prior to this accident did anyone reportthat the safety clasp on the #4 crane was missing or defectivein arsy manner.
(^79) a4. The affidavit of Eckenrode executed June 9, ^.UZi avers:
I'recision's Merit Brief -- Appx. 0027
No. i3_raP-io83
[Qrie_l I have been employed at Precision Steel. since peb. 15,2008. In March of 2008, my positioii was that oflaborer/crane operator.
[Two] The day Melvin Meyers was injurecl; I was operatingthe ?o-ton crane in the f3urn Bay.
['1'lhree] I heard a large "booa-n" and looked over at iVlelvinMeyers. .I-Iis hand was -ti-apped under a piece of steel that hadfallen froaii the crane. Jimmy Vai1ce, Mike Van Dusen and Ilifted the steel off of Meyers` harad. We then called 9ii.
24
[Four] r!ifter MelviTZ left, I inspected the work- area. I recallthe electro-magnet was on it's [sic] side and the rope cablewas still at-tached to the electro-magnet.
[Five] I specifically recall that the rope cable was notattached to the crane wllezi we were moving the steel fromAleyers' hand, Had the rope cable been attached to the crazae,it would have interfe-red with our lifting the fallen piece ofsteel.
[Six] The description contained in SVIU Exhibit i, (attacbedhereto) is incorrect. The "little hook" was not missing thesafctv clip. The hook with safety clip was intact and. attacheclto the electro-m agnet.
[Seven] In my capacity as laborerJcrane operator, I used the44 so-ton crane on a daily hasis. I used it before and after theMeyers accident. At no tirne prior to the accident of March 8,2008, did I ever notice any defect in the crane or the hookattachecl to the crane. The safety clasp was always present.
(Emphasis sic,)
{^ 80} 15. The affidavit of Johnson executed June 9, 2oil. avers:
My particiiIar job required me to use the #4 io-tara crane. Iused it practically every day. In particular I would tise the io-tou crane to " 2xt -parts_an a skzd cir pull parts from barninZtable and thenput on skids."
Wben usin.g any crane in the burn bay, I never noticed anydefective parts and specifically, I do not recall any defectivehooks. Any crane fiook Iixsed harl a safety clasp on the hook.If I had noticed a hook -^Athoirt a safety clasp, I w.otILd have"told rn ainten an ce."
(EiTrphasis sic.)
Precision's Merit Brief -- Appx. 0028
- - ----------- -
No. 7aAP-so83
{^ 8.1} jb. I'he affidavit of Leonard Gamble executed June 9, <ozz avers:
My particular job required me to use the #4 xo=ton crane. Iused it practically every day. In particular I would iise the lo-ton crane to "loan 1-sicl matez•ial on the tables; to unload thematerial from the burn tables and to lace thc^fiazishedmaterial on the_ llet_"
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(Emphasis sic.)
When tlsing any craaie in thn burn bay, I never noticed anydefec:tive parts and specifically, I do not recall any defectivehooks, Any crane hook I used had a safety clasp on the hook.If I had noticed a hook without a safety clasp, I woold haveshut the power off put a lock-out tagon it and then notihed
Trly stlperVisor."
(Emphasis sic.)
82} 17. The affidavit of Burchell executed June 9, 2011 avers:
My particular job required me to 2ise the #4 to-ton crane. Iused it practically eve3y day. In particular I would use the io-ton crane to "pull_parts from the burn table to be cleaiied andI would also use it to carrt7 scrap to a scrap .ile."
W"hen usiz3g any crane in the burn bay, I never noticed anydefective parts and specifically, I do not recall any defectivel.iooks. Any crane hook I used had a safety clasp on the hook.If I had noticed a hook without a safety clasp, I would have"notified rnaintenance."
(Emphasis sic.)
{1j 83} 18. The affidavit of Sniith executed June io, zoxt avers,
My partici;ilar job required me to use the #4 1o-ton crane. Iused it practically every day. In partictalar :l would use the io-ton crane to "ptzll parts out of the plate and put the parts onthe skid. Sonietimes I use it to move sc.rap froxn the .roundto the honper."
25
Precision's Merit Brief -- Appx. 0029
---- -----------
No. zjAP-zo83 26
f^j 84} 19. On June 15, 20-11, the VSSR application was heard by Staff fiearing
Officer ("SHO") Mara Lanzinger Spidel. The heariiig was rec,ordec3 and transcribed for
the record.
{¶ 85) 2o. At the hearing, Demchyna testified. On cross--exainination by claimant's
counsel, the foilo-vkying exchange occurred:
MR. VA.A.^;DERI-IC3RST: You wotild agree, wouldn't you, that asafety hook, latcfz, is recommended for any time you're liftinga load with a hook?
.. ..... MK. U.it'LCHYN.A: Yes, sir. _ .....: . _
1V1R. VANDERHORST: Okay. And in particular, hooking upto arz electro magnet you want a safety hook latch?
MR. I7EMCiiYNA: flookirzg -tip anything, yes.
MR. VANDEttHORS'I': And a, purpose of that safety latch isjust to keep a load froni coming off the hook, if the hookshould twist a certain, far .enough direction?
MR. DEMCHYNA: Yes, sir.
MR. 17ANDEREORST: Okay. In fact, the mann.facturer'srecornmendatioils inciieatE that you should always use a hookwith a safety Iatch when you're connecting it to the magnet,correct?
MR. DEivICIfYNA: Yes, sir.
MR. VANDI?RHURST: Okay. And yoii were aware of thatbaek at the tiaiie of Melvin's injury=, there shotild be safetyIatclaes?
The Cottrt Reporter: Yes?
MR. DEMCM'NA: Yes, sir, sorry.
MR. MARGELEFSKY: Okay. In your capacity as operationsmanager how often did you inspect the cranes or theequipzraeJit, such as the cables and the hooks?
aVIR. DEMCI-.iYiNA: Personally, I do raofi.
MR. MARUELEFSKY: Okay.
Precision's Merit Brief -- Appx. 0030
No. i.iAP-ao83
MR. DEMCHYNA: That's anraual OSI-IA inspections done byan outside source.
MR. MARGELEFSKY: Okay. If someone has a problem -w-iththe crane, the hook, the cables, who c3o they talk to as far asrepairs?
MR. DEMCHYNA: Maintenance.
27
MR. MARGELEFSKY: Okay. Are you aware of anybodycalling to your attention or to maintenance, I assuremaintenance reports to you?
MR. DIEMCHYi`IA: Yes, sir.
MR. MARGELEFSKY: Okay. Any pzoblenis with the hookson the crane or on the rope cables dexnonstrated in thevideo?
MR. DEMCH.YNA: No, sir.
MR. VANDERHORST: A.nd you indicated an axsnttalinspection of the craiies?
MR. DEMCHYNA: Yes.
MR. VA.iNDERIdORST: What about between those annualinspections?
MR. DEMCHYNA: Daily visual inspectzons, nothirigdocumented, no record inspectiozi..
MR. V'A.NDEt2HORST: Nothiiig documented?
NIR. I7EMCHYiNA: No.
MR. VANDEIZI1ORS'1`: No pieces of paper that woulddocumei-it it?
MR. DEMCHYYNA: No.
HEARING OFFICER. SPIDEL: I'm gonna interrupt you, Mr.Vanderhorst, I just warit to make sure, because earlier whenyou wez-e testifying I thought yotx said you did not inspect thecranes; is that corrcct?
Preczsion°s Merit Brief -- Appx. 0031
iNo. iiAP-,*o83
:1IR. DEMCtMIA: Correct.
HEARING OFFICER SPIDEL: Okay. Just 1nakirig sure Ibeard correctly, thank you.
MR. DEMC.HYNA: Y es, zna'am.
28
MR. MARGELEFSKY: I don't believe he's say.ing heirispected it. You said there's daily inspections but that wouldbfs by whom?
¢ MR. DEMCHYNA: Operatora.
MR. MARGELEFSKY: Operators.
(Tr. 49-50, 56, 63-64.)
{jI 86} 21. At the hearing, Mr. Eckenrode testified oii direct examination by
0 relator's cozinsel:
° MR. MARGELEFSKY: Would you tell Ms. Spidel what youremeinber from that day?
MR. ECKENRODE: I was standing at the other side of thebuilding and obviously heard a loud boom so when I heardthat I looked down; looked like he was trapped so ran downthere. :I'wo burners also seen at the same time and we liftedthe ^veld^nent off of his hand and pulled it out axld then he
^ went and sat dovv^n and then that's when we called giz.
M.R. MARGELEFSKY: So you and two other people?
° MR..I;CKENRODE: Yes.
0 MR. MARCEI.EFSKY: Okay. Do you reniember whet.ber theinagnet was still attached to the weldment?
MR. ECKENRODE: Yes.
c2 MR. MAIZGELEFSKY: Do you remember whether or not theU. cable was still attanhed to the magnet?
s'ti1R. ECKENRODE: Yes.
MR. MA.RGELE;FSKY: Do you recall whether the cable wasattached to the crane?
MR. ECKENRODE: No.
Precision's Merit Brief -- Appx. 0032
--------- - ------
No. 7iAI'-iO83
MR. MARGELEFSKY: No, you don't relnerriber, or no, it wasnot?
MR. ECKENRODE: Oh, it was ziot.
MR. MARGELEFSKY: Okay.
MR. ECKENRODE: Attaclaed to the -
29
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MR. Mt-^RGELEFSKY: Atxd ther. }aow do you reinerxiber that?v-Q Why do you rerne.rnber ihat?aa ..: . _ _...._ __
MR. ECKENRODE: Because when we were liftizig thetiti=eldment off of him we noticed it because the cable was astiff cable and it wotitlci }aave stopped us froalt proceedinglifting the -weJdznent, and that's how I icnosv it was dangling
M on the side.0
® MR. MARGELEFSKY: Okay. Again, in your capacity at thetimo working in the burn bay you irzdicated that you usedcrane number 4?^
t:0 MR. ECKENRODE: Yes.
0
MR. MARGEI.ETSKY: How often would you use craneiiumber 4?
MR. ECKENRODE: All the time.Q
MR. IvIARGELEFSKY: All right. 'I`he rope cable that wasattached to crane, crane number 4 on the day of the accident,was tlza-t the sarne rope cable that was on that crarxe
o regularly?
02^ MR. ECKENRODE: Yes.c::I0 iMR. MARGELEFSKY: Okay. The hook that was at the
bottom of that cable, was that hook ozi there regularly?
,^ MR. ECKENRODE: Yes.
MR:. MARGELEFSKY: Ol:ay. And so when you tlseti it youwould know whether or tlot there was a safety latch oFi thathook, correct?
MR. ECKENRODE: Yes.
Precision's Merit Brief -- Appx. 0033
No, iIAF-1o83
M.R. l1ARGrL.EFSKY: O1-ay. Do yoti recall a tiane when thatlower hook did not have a safetylatci-a?
MR. ECKENRODE: Not trorn what I recall.
MR. MARGELEFSKY: Do you recall ever having to callmaixitenance and tell them that there was a problem withthat hook?
MR. ECKENROI3E: No.
30
MR. MARGELEFSKY: Okay. So we've established two things,nun3ber one, whezi yoi7 lifted the weldrnent off of Mr.M[e]yers the electro magnet was connected to the cable uuiththe hook that attached the cable to the rope?
MR. ECKENRODE: Yes.
MR. MA.RGELt:FSKY: Okay. So in - to the best of yourrecollection there's no way the xnagnet slipped off that lotiverhaok?
MR. ECKENROt)E: iNo.
MR. MARGELEFStCY: Okay.. Cable was still attachecl?
MR. ECKENRODE: Yes.
MR. M-ARGEI.F,FSKY: Okay. And the, fhe cable was notattacheci to the crane?
MR. ECKENRODE: No.
('I'r. 79-83.)
{Ti 87} 22. t'ollowing the Juiie 15, 2011 hearing, an order was mailed on August 3,
2011- That order indicates that it was electronically signed by SHO Spidet.
{*188} 23. On August 9, 2011, a corrected order was mailed. The corrected order
indicate-.s that it was electronically signed by Spidel.
{¶ 89) 24. The corrected order states:
I'ursuanfi to the con[.inuing jurisclictioti prov-isiorz of R.C.4.123.52, the Staff Hearing Officer's order, mailed August 3,2oti, is VAC'A.TED and the following order is put in its place:
Precision's Merit Brief -- Appx. 0034
No. iiAP-7o$3 31
It is the order of the Staff Hearing Officer tlaat the lnjuredWorker was employed on the date of injury, 03/0f/2oo8, bythe Employer as a Burner/.Ijabricator and sustained an injEnyin the course of and arising out of employment when lle wasutilizing.an overbead crane, with an attached electric magnetto move a piece of steel, wl-ien the magnet slipped off thebook and the magnet and piece of steel fell onto bis hand.
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it is further the finding of the Staff I-learing Officer that theInjured Worker's injury was due to the Employer's failure tocomply with R.C. Sections 4123:1-5-14 (G) (d) aud 4123:1-5-r5(f3),
The Injured Worker dismissed the request to consider R.C.Section 4123:1-5-13(D). Tlierefore, no finding is made onthat Code Section.
The Injured Worker was injured on 08/01/2008 when hewas using a crane while in the process of welding a part. Hewas fabricating a part on the welding table, using anoverhead xo-ton crane ary:ith attached electric magnet to liftthe pieces into place. He had been working on fabricating thepart bettiveen 3 to 5 hours at the tiiire of his injury. He was inthe process of turning over the part so he could performadditional welding activities when the inc"ident occurred. Heused the pendant control for the crane in his right hand andhis left hand was resting on the weld table as he was usingthe electric magnet to turn the part. As he was maneuveringthe part into posititiri, the lifting eye of the m:agnet slippedoff the hook 4n the bottoni of the wire rope, causing themetal part and magnet to fall on top of his hand. His handwas crushed and remained trapped under the metal part. Ittook approximately five co-workers to lift the metal part offof his hand. An ambulance as called and he was. transportedto St. Vincenfi's Hospital for medical treatment.
The Injured Worker has cited the following Code Sectionspertaining to the power driven crane he was operating, CodeSection R.C. 4123:1-5-34 and 42232-5-15.
'I'he Hearing Officer finds that [R.C.] 4t23I:11-5-14 (G) (i),pertaining to power driven cranes and hoists, is applicable tothis case.
Injured Worker was operating a power driven crane,identified in the 1"nvestigatioat Report of 09/08/20.1.0, as aKone XLD io-ton double box girder top running crane with
Precision's Merit Brief -- Appx. 0035
No. ixAP-ze83 32
8,ooo pound electric magnet at the time he was injured.(Investigative Report paragraph 3; SVIU Exh. 9).
'I'he Code Section states:
Section (G) Specific reqi.tirements applicable toall paragraphs of this rule, (i) Defective safetydevices or load carrying equipnrent.
Defective crane safety devices or load carryi-ngequipznent shall be repaired or replaced.
The I-teaz-ing Officer finds the preponderance of the evidei}ceshows that the crane causizig Injuretl Worker's injury had adefective safety device. 71'he defect was that the safety latchwas not present on the craile hook. The facts supporting thiscoxzilusgon are as follows:
(a) The Zinployer told the safety investigator that the safetylatch attaching the niagnet to the metal 1-iqok was rnissing atthe time of the incictent of record. (SVIU Report, paragt-aph4).
(2) The InjuredWorker told the iravestigator that the hook onthe bottonj of the wire rope did not have a safety latch tokeep the magnet from coming off of it. (SVIU Report,paragraph 8).
(3) The Employer's Oectzpationa] Injury/Ill.ness InvestigativeReport completed on the date of injury by Tony Stirnneranswers the question: "repair or modification needed" with:"safetyla'tch aieeded." (MU Exh, 5)•
(q) Mr. Eckertrode, another crane operator at the timeInjured Worker was injured, also completed a statement inc,oztju.netioli with the Employer's investigation of the injury,and indicated, "the magnet came off the hook." (SVIUExh- 5).
(5) I'he Accidentf Injury Report completed by Supervisor,Alhei-t Morales, on 03/01/2008, the date of injury, indicated,„magnet slipped off the hook, no safety pin." (SVIU Ea.h. 5).
(6) The OSHA ;301 form zioted "magnet slipped off the hookand part fell." (SVIU Exh. 15).
Precision's Merit Brief -- Appx. 0036
No. t.lAP-1o83
(7) The testirnoTiy was offered at hearing that a search wasconducted for the clasp but zlone was ever foun.dj.](Transcript, Page 95).
The I-learing Officer finds that the magnet would not haveslipped off if a safety hook had been presetit.
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Further, the testirnony of the Employer's witnesses do notsupport that a safety lateh was present at any time before orat the time of the industi'ial injury. '1`he Employer's witnessestestified that they were not aware whether a safety lateh waspresent or not.
33
Mr. Dernchyna, Operations Manager, who was responsiblefor overseeing safety for the Eniployer, agreed that a safetylatch was recoiyirrtencled for lifting a load with a hook(Transcript Page 49, Lines 7-22). When tttiestioned, "Inparticular, hooking up to an electromagnet you want a safetyhook latch?" He answered, "Hooking up anything,l'e.s" (Page49, Lines 12-16)[.] I-He also agreed that the manufacturer'srecommenclations indicate that you should always use a hookwith a safetylatch when yoti are connecting it to the magnet(Page 49, Lines 23-25 through Page 50, Lines 1-3)1.1 Hefurther testified that he knew at the time of the InjuredWorker's injury that there should be a safety latehi. (Page 50,Lines 4-10)1.1 Mr. Ilemchyna indicated he never personallyinspected the crane or the equipmeaxt such as cables orhoolcs. (Page 56, J_,ir.aes 1-7)1.] 'fZather, he indicatedinspections were made of the hcioks by OSI-I.A inspectors,(Page 56, Lines 9-11) and that inspections were done byoperators, but that no record was kept of any 3nspections:(Page 63, Lines 18-26 through Page 64, Lines 1-23)[J Hetestified that if there was a problezn, soirteone would talk tornairitenance and 3naintenance would report to him. (Page56, Li.Taes 12-25)[.]
The Hearing Officer finds Mr. Denichyna's testimony wasnot persuasive that a safety latch was present, only that hedid tiot personally inspect to see whether one was there orrsot.
Mr. Eckenrode testified on behalf of the Employer, and wasnot found to be a credible witness by this Hearing Officer. Onthe date of injury, he niade a statement that the magnetcame off the hook catising Injured Worker's i_njury. In histestiniorzy at hearirig, he indicated that the cable was stillattached to the magnet. (Page 8o, Lines 8-i6)[.J Whenquestioned, he responded that "he did not recall" whether
Precision's Merit Brief -- Appx. 0037
No. aLAt'-1083
there was a time when there was no safety latch on the hook.(Page 82, Lines 12-x6)[.]
The "itness statements on behalf of the Employer from Mr.Joh.nson, Mr. Gamble, and Mrs. Sniith are sirnilarlyunpersuasive in confirming whether a safety lateh was, orwas not, ever on the crane. They only indicated that theynever noticed the hook. ivithout a safety clasp. The HearingOfficer finds the self sendng affidavits of these witnessesunperst3asive.
34
Therefore, the Heaiing Officer finds the weight of the_...._ ._.,. ._.__.._eviderice supports that there was no safety latch on the c.rane
at the time of Injured 'lt.Torker's injury. The Hearing Officerfinds that the violation of [R.C.] 4123:1-5-14 and 4123:1-5-15was the cailse of Injured Worker's injury.
Specifically, the I-learing Officer finds that the safety latchwas missing at the time of Injured Worker's injuty andtherefore the equipm ent should have beezl repaired orreplaced according to [K.C.] 4123:1-5-14 (G) (i).
Secondly, the crane sliould have been removed from seniceantt rtot in use, as required by R.C. 4123:1-5-15 (B) pertainingto Hoisting an.rl Haulage Equipment which states:
Equipmerrt. shall be removed from servicewhen there is evidence of a defect, damage, orc3istortion which mayweaken such equipment.
The Hearing Officer firnds the lack of a safety latch amountedto a defect whieh weakened the equipzneiit (the magiiet cameoff because a safety latch was missing). If a safety latch werepresent, the magnet would not have come off and crushedInjured Worker's hand.
Additionally, the testimony of the Employer's witnessessupports that a safety latch was a necessary safety feature foruse of the crane and hook.
The Hearing Officer fizids that the Enipluyer can.not abdicateresponsibility and argue that lnjured Worker is negtigent forfailure to report a lack of a safety latch. The reAew ofevidence si.ibrnitted by the :F,;ztzployer 5howecl a coniplzte lackof safety protocol. There was no clear reporting protocol forwhen a safe-ty violation was perceivecl. iV1.r: Demchynaspecifically indicated any reports of problems withmachinery would be given strictly to znaintenaiice. The
Precision's Merit Brief -- Appx. 0038
No. zL^U-1o83
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testimony of IVTr. Eckenrode, now a supervisor, indicated thatif there were a problem the problem would be reported tosupervisors or maintenance. The f;n}ployer specificallystated that there was no written doc:uznentation or record ofmachinery being checked on a regular basis. Therefore, thet-learing Officer is unable to concliide that there was anyclear responsibility on anyone's part to identify if a safetylatclt was missing and there was no clear evidence as to whowas to report same. 1'he Code Section requires repair,replacement or renioval from service of defective safetydevices or load carrying equipment. The Hearing Officerfinds this responsibility is strictly the burden of theErnployer and the Employer - has not shown by apreponderance of the e-vridence that they riset this burden.
The Employer's argument that they had no notice of a"defect" as required by State ex. rel. M.T.D. Prodticts vs.Stebbins (1975), 43 Ohio St.2d 144, is q npc>rsuasive. M.T.D.Products and it's progeny apply to cases where there is anequipment malfunction or when soniething is not workingthe way it is supposed to. The Hearing Officer finds theholding of i'VI.T.D. 1'rodtjcts is not applicable when a safetyfeature is aiot present ata1l.
The Court in State of Ohio ex rel. Monsanto C<'orxzpa)MRelator v.Inhstrial Commission of Ohio and Gr^o_ ry J.Stebbzns (1975) WL 181678 {Ohio App. Yo I)ist) clearlyexplained 'that one malfiinction of a pro . erl. installed arzdproperly }yorkir ►g safety device does FIot violate a specificsafety requireinent.
In this case, the Hear#.ng Officer finds the weight of theevidence shows there was no safety device i place, no safetylatch in place on the crane. MTD P iirodncts in [sic]inapplicable because there was not a compliant safety device(i.e, safety latch) present that malfunctioned. The HearingOfficer finds there was noize present at all.
Therefore, the Einployer's request to find no violation of aspecific safety requirement as there was a "one timeviolation" of a specific safety requirement that they did nothave knowledge of, is fotlnd not well takeri.
Therefore, tlte Hearing Officer finds that the Employer wasin violation of the aforeznentioned Code Sections aiid thatthe violation of t-he Code Sections was the proxiznate cause ofthe 7njtired Worker's itijury. If a. safety latch were in place,the magnet would not have fallen on Injured Worker's hand.
35
Precision's Merit Brief -- Appx. 0039
No. ixAI'-1o83
It is therefore ordered that a5o% award is granted forviolation of Code Sections [R.C:] 4x23:1-5-14 and 4J23:1-5-15.
The additional awarti of compensation is granted to theInjurerI Worker in the antount of percent of maximumweekly rate under the rate urzder the rule of State ex, rel.EnVle v. Indns Coxnm, (1944), 142 Ohio St. 425.
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36
{*^` 90} 25. On Septembe'r 2, 2011, relator moved for rehearing pursuant to Ohio
^drr^ C^yde ^}12a-3-2o(C). The nlotion was accompanied by a memoraardum-iia support.
{t( 91 ) 26. Relator's memorandum argued that the issuance of the two orders
created "confiision and an apparent lack of clarity" that compels a rehearing.
{^j 921 27. Claimant, through couitse3, filed a written response or "answer" to
relator's motion for rehearing. Claiznant attached as an exbibit to his "answer" a copy of
an e-mail sent by SHO Spidel to relator's counsel on Augttst 17, 2011. The ;Spide-'l e-mail
states:
I wrote the vssr order and whe-n I received the first draft backfrc,rn the typist it needecj numerous corrections. I submittedthe corrections to our local typist to be completed.t7nfort-tmately, when I was out ill, another heaxing officer3nistakenly signed my uncorrected version of the order.When I returned, I had the typist finish the corrections I hadoriginally made. We had to do it as a"cora-:ected order" onlybecause the order had gone out already.
{^, 931 28. On October 25, 2011, another SHO inailed aai order denying a
reliearing. The SI-IO's order explains:
It is hereby ordered that the Motion for Rehearing filede9/02/2oa-i. be denied. 'The Employer has not submitted anynew and relevant evidenee nor shown that the order mailedo8/o9/2wz was based on an obvious niistake of fact or on aclear mistake of law.
Further, the 08/z7/2011 e-mails #rom the Staff 1-learingOfficer to Michael Margelefsky, an Eniployer representative,e-mails not attached to the Lznployer[']s recluest for arehearing but provided by the Iri,jured Worker's Counsel;show that the corrected order mailed 08/09/2071 was donetinder the li-idtistrial Commission[']s coittinuing jurisdictionpurst3ant to C)RCq123.52 to correct a clerical error.
Precision's Merit Brief -- Appx. 0040
-------------------------
No. iiA1'-io83 37
{^ 94} 29. On lleceznber 8, 2011, relator, I?recision Steel Services, Inc., filed this
mandamus action.
Coneltisions of Law:
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{Tl 951 It is the niagistrate's decision that this court issue a writ of rnandamus, as
more fully explained below.
{^[ 96) At the outset} the magistrate finds that the coinmission had continuing
juriseliction to issue the SHC.)'s corrected order mailed August 9, 2011. The corrected
order properly vacated -the S1IO's order mai:led August 3, 2011 that was mis[akenly issuerl.
{+T, 97) A rnistake -of ffict--=which---includes clerical error-justifies invoc:ation of
continuing jurisdiction. State ex rel. Schirtzinyer v. ?Vlihm, 8i Ohio St.3d 459 (1998).
Under the circumstances disclosed throtsgh the SHO's order mailed October 25, 2011 that
denied relator's motion for rehearing, the commission clearly had continuing jurisdiction
to issue the SHQ's corrected order. The Adigust 17, 2oji e-rnails clearly show the
cireumstances airel propriety of the isstiance of the corrected order. See State e--c rel.
Ranc^^olVorth.A:rri. v. Inclus. Corrtm., i oth Dist. No. 05AP-29o, 2oo6-Oh:o-1474-
{T 98) The comzn.ission c-letermined that relator had violated two specific safely
requirements and, on that basis, imposed a VSSR penalty.
f¶ 99} First, the commission determined that relator had violateci Ohio Adrzl.Code
4123:1-5-t4(G)(1) which is a rule applicable to power-driven cranes and hoists. That rule
requires that defective safety devices or loatl-carrying equipment shall be repaired or
replaced.
100.} Second, the coinfnission determined that relator had ^riolated Ohio
Adm.Code 4123;1-5-1,5(f3), which is a rule applicable to hoisting arid hatxlage equipment.
That rtzle requires that equipment shall be removed from service when there is evidence of
a defect, damage, or distortion which may weaken such equipmezit.
101) It is well-seEtled that a VSSR award is deemed a penalty to the employer
subject t.o the rule of strict construction with all reasoriable doubts concerning the
interpretation of the safet^.= standard to be construecl against the applicability of the
standard to the ernployer. State ex ret. YVatson v. Incius. Cornrn., 29 tJhio App.3d 354
(z986); State e.x rel: I3icrtort v. Indiis: C,'oanm., 46 C)hio St.3d 170 (1989).
(^i 102) It is also firmly established that the determination of di,sp-uted factual
situations as well as the interpretation of a specific safety xequireme3it is vrithin the final
Precision's Merit F3rief -- Appx. 0041
No. 3 zAI'-.tot33 38
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jurisdiction of the commission, and subject to correction in iraartdaznus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Iridus. Comm., 1 o Ohio St.3d i(1944); State ex rel. Allied IV12eel Products, Irzc. u. Indtis. Comrn., 166 Ohio St. 47 (i9,-)6);Stcxte ex rel. Volker v. Indus_ Comm., 75 Ohio St.3d 466 (1996).
{^ 1031 Of course, the commission's authority to interpret its own safety rules is
not unlirnited. Strict construction does require that the cororrussion's irzterpretation be
reasonable. State ex reI. Martin Painting &: Coating Co. u. Indus. Comm., 78 Ohio St.3d
333, 342 (1997). The commission may not effectively rewrite its own safety rules when it
-interprets them. State ex-rel. Lamp v. J.A. Crosori Co.,_75 Oh-io St:3d 77, 81 0996):,
{^ 104) Paragrapb one of the syllabus of State ex rel. Trydle 7r. Indus. Cvrnm., 32Ohio St.2d 257 (7972) states:
The term, "specific requirement," as used in SPetion 35,Article II of the C;onstitution of Ohio, does not comprehend agerieral course of conduct or general duties or obligationsflowing froin the relatxon of ernp3oyer and employee, buteinbraces such lawful, specific and definite recltjirements orstandards of conduct as are prescribed by statute or byorders of the Industrial Commission, and which are of acharacter plainly to apprise an e37afrloyer of his legalobligation toward his employees.
Icl.
{1,r(1051 According to relator, neither of the hvo safety rules it was found to have
violatecl specificallv recluire a latch on a crane llook. Citing the above atithorities; relator
argues that, regardless of the desirability of placing a latch on a crane hook, it did not
violate either of the two safety rtiles and thus, the commission abused its discretion by
entering a VSSR award.
{lf 106) Relator's cozitention requires a thorozzgh analysis of tEze context in which
the two rules are fotind in the code.
{?j 107) Analysis begins with the observation that Ohio Ad:n.Code 4123:1-5 sets
forth specific safety rules for workshop ancl factory safety.
{4] 108} Thereuri der, Ohio Adirt>Code 412 3:1-3-14 is captioned "Power-driven cranes
and hoists."
4T109} Tlicreurider, we find lxaragraph (C) captioned "Overhead electric traveling
cranes," paragraph (D) captioned "Electric jib cranes," paragraph (E) captioned "Electric
Precision's Merit Brief -- Appx. 0042
NO. z1A.P-1o83 39
single rail cranes and hoists," paragraph (F) captioned "Electric gantry craiies," and
paragraph (G) captioned "Specific requirenients applicable to all paragraphs of this rule."
{^ ]_10} Under paragraph (G) we find the first of the two specific safety rules at issue
here. That is, Ohio Adm.Code 4123:1-5-14 provides:
(G) Specific requirements applicable to all paragraphs of thisrule.
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(i) Defective safety devices or load-carrying equipxrient.
Defective crane safet}, devices or load-carrying equipmentshall he.repaired-or replaced: --._ ....., ..._ _ . . ._. _ . .._.
ft 111} The second specific safe:ty rule at issue here is found at Ohio Adm.Code
4123:1-5-15 captioned "Hoisting and haulage equip.ment." Thereuztder, Ohio Adm.Code
4123:i-5-15(B) provides:
(B) Equipment shall be i-emoved from service when there isevidence of a defect, damage, or distortion which mayweaken such equipment.
{^ 1121 Because Ohio Adm.Code 4123:1--5-15(A) addresses and defines the word
°equiprnent," it is essential that. the secoiid rule at issue here be read in Iight of Ohio
Adm.Code 4123:1-5-75(A), which provides:
Equipznent such as slings, hoisting or haulage lines, wirerope, natural or synthetic fiber rope, chain, metal mesh andsynthetic web, and attlchments usec3 to handle m.aterial orequipnnierxt shall be used in accordarice wiih themanufacturer's recommendations.
Ohio AdIl].(;oCIc 4123:1-5"14(G)(i)
{S 113} 'I`he coinzx7ission, through the corrected order of its SIIO fourrd a violation of
Ohio Adm.Code 4123:1-5-14(G)(i). The commission determfned. that the crane "had a
defective safety device" and that "[t]he defect was that the safety latclt was not present on
the crai3e hooi:." The corrected order further fourid that "the safety ]atch was znissi3tg" at
the time of injury and'^therefore the equipmezit should have been repaired or replaced."
{^ 114} Here, relator points out that Ohio Adm.Code 4123:1- 3-14 fails to specifically
ideaitify a hook safety latch as a"safety device" or as '°Ioad-carrying equipment'° in any of
the paragraphs that preceed paragraph (G). (Emphasis added.)
Precision's Merit Brief -- Appx. 0043
IVo. xza1l'-1083 40
{$ 115) For exaiTiple, Ohio Adm.Code 4125:-1-5--14(C)(1) is captioned "Equipment"
and then provides safety niles for brakes, footwalks; rail stops and bumpers. Clearly, a
hook safety latch is not ainong the equipment addz-essed under Qhio Adm.Code 4123:1-5-
14(C)(1)•
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(T 116) Interestingly, Ohio Adm.Code 4123:1-5°z4(C)(3) is captioned "Limiting
devvic:es" and then provides that "[a] hoist lirniting device shall be provided for each hoist
to linlit the upward travel."
{rt 1171 Under Ohio Adrn.Code 4123;1-5-14(D) captioned "Electric jib cranes,"
certitin.'[e]quipnzent" is identified such as a.."[h]oldingbrake;".."[r]ail stops"and a"[h]oist -
lizniting device."
{T 1l $} Ohio Adm.Code 4123:7-5-14(I;') captioned °Electric single rail cranes and
hoists" also specifies "[e]quiprsient" arid a"[h]oist limiting device."
{K( 119) Ohio Adm.Code 4123:.1-5-14(.F) captioned "Electric gantxy craries" specifies
"[e]clt7iprnent" an.d an "[a]nchor or rail blocking device' and a"[h]oist limiting device."
{T ]20{ It is clear that Ohio Ac3m.Code 4123:1-5-14(CI)`s reference to "[d]efective
safety devices or load-carrying equipment" is a reference to the specifically identified
devices and ecluipment found thrvugh.otit paragraphs (C) through. (F) at Ohio Adm.Code
4123:1-5-14. It is also clear that a hoesk safety latch is not amorag the devices and
equipnient specified throug.hout (C) through (F).
{T 121) AccordingIy, the magistrate co.rzcliides that Ohio Adm.Code 4.123:1-5-
14(C)(i), olie of the two specific safety rules at issue here, does not provide notice to an
employer that a llook sa.fety latch is an?.ong the safety devices or Ioad-carxyiiig equipment
that mu:st be repaired or replaced.
{l( I.221 'Ihe specific safety rule at issue here, Ohio Adm.Code 4123:1-5-14(G)(1)
cannot be read out of its context. '.I'hat is, Ohio Adm.Code 4:t23:1-5-14(G)(1) must be read
in the context of paragraphs (C) through (F) of Ohio Adm.Code 4t23:1-5-14.
Ohio Adm.Cocle 4x23;7-5--15(B)
{¶ I:23{ As earlier noted, the second specific safefiy rule at issue here, Ohio
Adnl.Code 4123 :1--5-15(I3) must be read zn the coiltext of Ohio Adm.Code 4223:1-5-15(A)
wbich defines the word "[elciuipment."
€Ii 124} In her corrected order, the SI-IU fails to address the significance of Ohio
Adm.Code 4123:1-5-15(A)'s definitiori of "[e]quipment" on the safety rule at issue, i.e.,
Precision's Merit Brief -- Appx. 0044
No. ai-AP-ao8341
Ohio Adm.Code 4,123:1-5-i5(I3). That is, the SHO failed to determ.iiie whether the hook or
hoolt safety lateh at issue c:aii be viewed as "[eJquipment" withiaa the meaning of Ohio
Adin.Code 4123:1-5-15(A). 'I'his failure was a-p abuse of discretion because relator cannot
have violated the safety rule if the hook or hook safety latch is not the "[e]c7uipment"
defined by Oliio Adm.Code 4123-1-5-15(A).
(^, 1.25{ Accordingly, based upon the above analysis, it is the niagi:stxate's decision
C") that this court issue a writ of mandamus ordering the commission to vacate the corrected
order of its SHO mailed August 9, 2011 (with the exception of that portion of the order
that vacates the SHO's order mailed August 3, 2011) and to eiter a- new order that, zn a
a n^anner consistent with this magistrate's decision, determines that relator did not violate
W) Ohio Adm.Code 4123:1-5-14(C)(z), and fiul-ther determines whethei• or not relatorviolatecl
Ohio Adm.Code 4123:1-5-13(.3). If the commission d.etermines that relator violated Ohio
Q Adm.Code ^.x23;1-,-1S(B); it sha11 enter a new dttersnin.atiorz of the percentage petialty.
Z S .i^IAGISTRA.TF0 KENNETH W. MACKE ^c^0x
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assignas error on appeal the court's adoptioii of any factual firzding
< or legal conclusion, whether or not specifically designated as° a finding of fact or concltision of law under Civ.R.
53(D)(3)(a)(ia), unless the party tiniely and specificallyc) objects to that factual -finding or legal conclusion as required.2 by Civ.R. 53(U)(3)(b)•0^^0tyc
c
^
Precision's Merit Brief -- Appx. 0045
20818 - T52
Ohio industrial Cornnaission
RECORD OF PROCEEDINGS
Claa.m Number: 08-315503
LT-ACC-OSZ['-COV
PCN• 2100481 Melvan E. Myers
MELVLN E. MYERS
105 PEMBERVSLLE RD
WOODVILLE OH 43469-1020
Date of tn7ury• 3/01/2008
Claims Heard: 08-315503
Risk Number. 704310-0
This claam has bean allowed for: AMPLSTATYDN OF LEFT RAND, BELOW ELBOW;CRUSRING IN.TURY OF LEFT HAP,Tf); OPEN WOUND OF LEFT HAND, 9iYT$ COMPLICATIONS;OPEN wOUNn OF LSFT SECOND, THZRD, FOURTH AND FIFTH FINGERS, QVIT$
COMPLYCATIONS; MULTIPLE OPEN FRACTURES OF LEFT HAt1D; BRIEF DEPRESSIVE
REACTION; GENERALIZED ANXIETY DI$ORDSR; PANyC ATTACKS; DEPRESSIVE DISORDER692TH ELEMENTS OF POST TRAUMATIC STRESS DISORDER.
ThYs matter was heard on 06/15/2011 before Btaff Hearing Officer MaraLanzinger Spidel, as provided for in R.C. 4121.35(B)(3) on:
3C-8 App For Additional Award For VSSR - Non Fatal filed by Injured workeron 02/12/2010.
issue. 1) VSSR-Merats Of Application-Record Hearing
C_QgRECTED ORDER
Pursuant to the continuing jurisdictl.on provision of R.C. 4123.52, theStaff Hearing Officer's order, mailed August 3, 2011, is yA=ED and thefollowing order .is put in its place:
Notices were mailed to the Injured worker, the Employer, their respective
representatives and the Administrator of the Bureau of workers'
CompensaLcon not tces than fourteen (14) days prxor to this date, and the
fol7owSng were pcc5ent at the hearin.3
A[PNARANCE t!Ok 't'liL; LNJURL:D WORKER- in)ured Worker; Mrs. Myers;
MrVanderhnrst
APPEARANCE FOR THE EMPLOYER: Mr. Margelefsky; Mr. Demchyna
APPEARANCE FOR THE ADMINISTRATOR: No Appearance
it is the order of the Staff Hearing Officer that the injure.d Worker wasemployed on the date of injury, 03/01/2008, by the Employer as a
Burner/Fabricator and sustained an injury in the course of and arising outof employment when he was utilizing an overhead crane, with an attachedelectric magnet to move a piece of steel, when the magnet slipped off thehook and the magnet and piece of steel fell onto his hand
it is further the finding of the StaEE Hearing officer th8t the Injured
worker°s injury was due to the Employer,s failure to comply with R.C.
Sections 4123:1-5-14 (G)(i,) and 4123:1-5-15(E).
The ln>ured worker dismissed the request to consider R.C. Section4123a1-5-15(D). Therefore, no finding is made on that Code Section:
The In)ured worker was in3ured on 03/01/2008 when he was using a crane
while in ttie process of welding a part. He was fabricating a part on the
welding table, using an overhead 10-ton crane with attached electric magnetto liEt the paeces into place. He had been work7-ng on fabricating the partbetween 3 to 5 hours at the time of his in3ury. He was in the process of
VSSR.1 Page 1 ym/mll
Precision's Merit Brief -- Appx. 0046
20818 - T53
Ohio Industrial Commission
RECORD OF PROCEEDINGSClaim Number: 08-315503
turning over the part so he could perform additional welding activities
when the incident occurred He used the pendant control for the crane in
his rxght hand and his left hand was rest3ng on the weld table as he was
using the electr.rc magnet to turn the part As he was maneuvering the part
into position, the lifting eye of the magnet slipped off the hook on the
bottom oE the wire rope, causing the metal part and magnet to fall on top
of his hand. His hand was crushed and remained trapped under the metalpart. it took approximately five co-workers to lift the metal part off of
his hand. An ambulance was called and he was transported to St. Vincent's
t3ospital for medical treatment.
The Injured Worker has cited the following Code Sections pertaining to thepower drzven crane he was operating, Code Section R.C. 4123:1-5-14 and4123:1-5-15
The Hearing Officer finds that 4123-1-5-14 (G)(1), pertaining to powerdriven cranes and hoists, is applicable to this case.
Injured Worker was operating a power driven crane, identified in theInvestigataon Report of 09/08/2010, as a Kone XLD 1D^ton double box girdertop running crane with 8,000 pound electric magnet at the time he wasinjured (investigat)ve tcnpGrt paragraph 3; SViU Gxlt 9).
The Code Section states
Section (G} Specific requirements applicable to all paragraphs of thisrule, (1) Defective saCety devices or load carrying equ.tipment.
Defective crane saCety devices or load carrying equipment bhail berepaired or repLaced
'rhe Hearing Officer finds the preponderance of the evidence shows that the
crane causing In3ured worker's a.n?ury had a deEective safety device. The
de[ect was that the safety latch was not present on the crane hook. The
facts supporting this conclusion are as follows:
(1) The Employer told the safety investigator that the safety latch
attaching the magnet to the metal hook was missing at the time of the
inc2dent of record. ( SVIU Report, paragraph 4).
(2) Thc in7ured worker told the snvest.igator that the hook on the bottom of
the w:re rope did r.ot have a safety 9.yi_ch to keep the ma•anet fcomcoming off oC At. ( SV.[U (zeport; paragraph @),
(3) 2he Employer's Occupat3ona] Injury/Illness Investigative Report
completed on the date of injury by Tony Sumner answers the
question: ^+repair or modifzcatxon needed° with: ^safety latch needed."
(BVIU Exh. 5).
(4) Mr. Eckenrode, another crane operator at the time Injured worker was
jnjured, also completed a statement in conjuatction with the
Employer's investigation oE the injury, and indicated, ^the magnet
came off the hook (SV1U Exh 5).
( 5) The p.ccident/in7ury Report completed by supervisor, Albert Morales, on03/01/2008, the date of injury, indicated, "magnet slipped off thehook, no safety pin." ( SVIU Exh. 5).
(6) The OSHA 301 form noted "magnet slipped off the hook and part fell
(SVZU Exh. 15).
(7) 2'he testimony was rifEered at hearing that a search was conducted forthe clasp but none was ever found ( Transcript, Page 95).
The Hearing Officer finds that the magnet would not have slipped off if asaEety hook had been present.
VSSRI Page 2 ym/mll
Precision's Merit Brief -- Appx. 0047
20818 - T54
Ohio tndustrisel Commission
RECORD OF PROCEEDINGSClaim Number: 08-315503
Further, the testimony of the Employer•s witnesses do not aupport that a
safety latch was present at any time before or at the time of the
industrial in7ury 't'he Employer,s witneases testified that they were not
aware whether a safety latch was present or not.
Mr. Demchyna, Operations Manager, who was responsible for overseeing safety
for the Employer, agreed that a safety latch was recommended for lifting a
load with a hook (Transcript Page 49, Lines 7-22), when questioned, "In
particular, hooking up to an electromagnet you want a safety hook latch?"
He answered, "Hookxng up anyth.ing, xes° (Page 49, Lines 12-16) He also
agreed that the manufacturer's recommendations indicate that you should
always use a hook with a safety latch when you are connecting it to the
magnet (Page 49, Lines 23-25 through Page 50, Lines 1-3) He further
testified that he knew at the time of the In)ured workeras injury that
there should be a safety latch. (Page 50, Lines 4-10) Mr. Demchyna
indicated he never personally inspected the crane or the equipment such as
cables or hooks. (Page56, Lines 1-7) Rather, he indicated inspections weremade of the hooks by OSHA inspectors, (Page 56, Lines 9-11) and that
.inspecttons were done by operators, but that no record was kept of any
lnspectrons (E°age 53, f.anes 18-25 through Page 64, Lines 1-23) He
tevtcfied that if there was a problem, someone would talk to maintenance
and maintenance would report to hzrn. (page 56, Lines 12-25)
The Hearing Officer finds Mr. oemchyna•s teetimony was not persuasive thata safety latch was present, only that he did not personally inspect to seewhether one was there or not.
Mr. Eckenrode testcCied on behalf of the Gmployer, and was not rouud to be
a credxble wjti,ess by this Fiearing Off cer. On the date of in7ury, hE made
a statement that the magnet came off Lhe hook causing In7ured Worker's
tn3ury tn his tesLrmouy at hearing, he tndtcated that the cable was still
attached to the magnet (Page 80, Lines 8-16) when questioned, he responded
that "he did not recat]• whether there was a ta.me when there was no safety
latch on the hook. (Page 82, Lines 32-16)
The witness statements on behalf of the Employer from Mr. Johnson, Mr.Gamble, and Mr, Smith are similarly unpersuasive in confirming whether asafety latch was, or was not, ever on the crane. They only indicated thatthey apv r no j d the hook without a satety clasp. The Hearing Officerf}nds the self serving affadavxte of these witnesses unpersuasive,
Therefore, the Hearing Officer finds the weight oE the evidence supportsthat there was no safety latch on the crane at the time of In3ured Worker's.in)ury. The Hearing Officer finds that the violation of 9123:1-5-14 and4123:1-5-15 was the cause of injured Worker's injury.
specifically, the Hearing Officer finds that the safety latch was missingat the time of in)ured Worker's in7ury and tberefore the equipment shouldhave been repaired or replaced according to 9123:1-5-14(G)(1).
Secondly, the crane shoul.d have been removed from service and not in use,
as required by R C 4123:1-5-15(13) pertaining to Iioastzng and Haulage
Equipment which states:
Equipment shall be removed from service when there is evidence oE adefect, damage, or distortion which may weaken such equipment.
The Hearing Officer finds the lack of a safety latch amounted to a defectwhzch weakened the equipment ( the magnet cameoff because a safety latch
was mzssing). If a safety latch were present, the magnet would not have
come off and crushed Injured Worker's hand.
Additionally, the testimony of the Employer's witnesses supports that asafety latch was a necessary aafety feature for use of the crane and hook,
VSSR1 Page 3 ym/mll
Precision's Merit Brief -- Appx. 0048
20818 - T55
Ohio 1n41uslriat Commisslon
RECORD OF PROCEEDINGSClaam Number: 08•315503
(See Demchyna testimony)
The Hearing Officer finds that the Employer cannot abdicate responsibility
and argue that Injured worker is negligent for failure to report a lack of
a safety J.atch. The review of evidence submitted by the Employer showed a
complete2ack of saCety protocol. There was no clear reporting protoco],
for when a safety violation was perceived. Mr. Demchyna specifacally
indicated any reports of problems with machinery would be given strictly to
ma>.ntenance. The testimony o.C Mr. Eckenrode, now a supervisor, indicated
that if there were a problem the problem would be reported to supervisors
or +ua,tntenance 't•he E:mployer specaficalJy stated that there was no written
documentation or record of machinery being checked on a regular basis.
ThereCore, Lhe flearxng Officer Is unabJe to conclude that there was any
clear responsibility on anyone's part to identify if a safety latch was
massing and there was no ctear evidence as to who was to report same. The
Code Sect3on requires repair, replacement or removal from service of
defective safety devices or load carrying equipment. The Hearing Officer
finds this responsibility is strictly the burden of the Bmployer and the
Employer has not shown by a preponderance of the evidence that they met
this burden.
The Gmployer's argutnent t.hat they had no notice of a"deFect" as required
by staLe rel M T-D. Prodrntg va -j,tPhhinQ (1975), 43 Ohio St 2d 144,
as unpersuasive. M.T.D pro ycta and it's progeny apply to cases where
there is an equipment malfunction or when something is not working the way
it is supposed to. The irearing Offi.cer finds the holding of ns.T.n.
Products is not applicable when a safety feature is not orfgP^t at a>>
The Court in StRte of ohio ex rej (4RYyA8p o-on>Dany Relator v Zndelgitial
CQMU,1& s1aJD - or-^?h'jo ..aDSl^e_C^' T• cit h na (1975) WL 181678 (Ohio App. 10
Dist) clearly e,eplaincd that ggg malfunction of a properly installed and
Gtszjzed:.ly_?LsaCkiyy- safcr_y devica does not vioLate a specific safetyraqti : reinnn r-.
tn tlus case, the Hearing O[ftcer Lind& the weight of the evidence shows
there was = safoty device in p7ace, ng. safety latch in place on the crane.
M't(Z psg+d ..s in inapplicable because there was not a compliant safety
device (i.e. safety latch) present that malfunctioned. The Hearing Officer
finds there wag none present at aU.
,9'herefore, the fimp'oyer'a reRUest to Eind no violaf_ton of a spectCic safetyrequiremen4 as there was 9"ona ttmi: VAolalSOn" oE a specrfic safetyrequiremet;t that [;hey did not have knowledge of, is found not well taken
ThereCore, Lhe uearing OCLicer f..nds that the Employer was in violation ofthe aforementioned Code Sections and that the violation of the CodeSections was the proximate cause of the Tn>ured Worker's injury. if asafety latch were in place, the magnet would not have fallen on InjuredWorker's hand. It is therefore ordered that a 50% award is granted forviolation of Code Sections 4123:1-5-14 and 4123:1-5-15.
The additSonaJ award of compensation is granted to the In3ured worker inthe amount of percent of maxlmum weekly rate under the rate under the ruleof ^^atP. Qe^ r£? Eng.le vs. xn us Cory^m (1944), 142 Ohio St. 425.
A Motion for Rehearing may be filed within thirty (30) days of the receipt
of this order in accordance with the provisaons of Ohio Adm.Code 4121-3-20(C) .
Typed By: m11
Date Typed: 08/03/2011 Mara Lanzinger Spidel
Staff Hearing Officer
vSSRl page 4 ym/mJ1
I'recisian's Merit Brief -- Appx. 0049
20818 - T56
Ohio fnciustrial Commission
RECORD OF PROCEEDINGSC1aim Number- 08-315503
Findings Matled: 08/09/2031
Eleetronlcally szgned byM,u,r Laazingei Splcfe!
The parties and representatives listed below have been sent this record of
proceedings. If you are not an authorized representative of one of the
parties, please noti.Ey the Industrial Commasaion,
08-315503
Melvin E. Myers
105 Pemberville Rd
Woodville OH 43469-1020
Risk No: 704310-0Precision Steel 9ervices Tnc
31 E Sylvania Ave
Toledo OH 43612-3474
ID Noc 218431-91vanderhorst & Burgy, LLC3150 N Republic Blvd Ste 4Toledo OH 43615-1514
ID No: 1825-80
Benefits I Group
25001 Emery Rd Ste 340
Cleveland OH 44128-5627
ZU No 74347-90
Michael Margelefsky
709 rladlson Ave Ste 301
Toledo OH 43604-6651
ID No: 21102-91
xroncke,t3'Arcangelo,Sutter
2255 W Laskey Rd
'Po3e3o OH 43613-3573
BWC, LAW DIREC')'OR
NOTE: TNJURED WORKERS, EMPLOYERS, AND THEIR AUTHORIZED REPRESENTATIVES MAY
REVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGHTHEINDUSTRIAL COMMISSION WEB
SITE AT www.ohioic.com. ONCE ON THE liOME PACE OF THE WEB S29'E, PLEASE CLICK
I.C.O.N. AND FOLLOW TtlE INSTRUCTIONS FOR OBTAINING A PASSWORD. ONCE YOU HAVE
OBTAINED A PASSWORD, YOU StIOULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S).
VSSR1 Page 5 ym/mll
(,u.l{yu..l VylA^ecu,i,..^ k.ayl^Y^r
°l.° '°a°1L° Ylt^1'<< Precision's Merit Brief -- Appx. 0050
nzrp:itwww.1awriter.neilNLLXMlJgetcode.asp?statecd=US&codese..
CONSTITUTION OF UNITED STATES
AMENDMENTS
Current through 2010
'3
Amendment XI1l, Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process,and Equal Protection
SECTION. 1. All persons born or naturalized in the United States and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No State shall make orenforce any law which shall abridge the privileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty, or property, without due process of law; nor deny toany person within its jurisdiction the equal protection of the laws.
SECTION. 2. Representatives shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in each State, excluding Indians not taxed.But when the right to vote at any election for the choice of electors for President and Vice President ofthe United States, Representatives in Congress, the Executive and Judicial officers of a State, or themembers of the Legislature thereof, is denied to any of the male inhabitants of such State, beingtwenty-one years of age, and citizens of the United States, or in any way abridged, except forparticipation in rebellion, or other crime, the basis of representation therein shall be reduced in theproportion which the number of such male citizens shall bear to the whole number of male citizenstwenty-one years of age in such State.
SECTION. 3. No person shall be a Senator or Representative in Congress, or elector ofPresident and Vice President; or hold any office, civil or military, under the United States, or under anyState, who, having previously taken an oath, as a member of Congress, or as an officer of the UnitedStates, or as a member of any State legislature, or as an executive or judicial officer of any State, tosupport the Constitution of the United States, shall have engaged in insurrection or rebellion againstthe same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds ofeach House, remove such disability.
SECTION. 4. The validity of the public debt of the United States, authorized by law, includingdebts incurred for payment of pensions and bounties for services in suppressing insurrection orrebellion, shall not be questioned. But neither the United States nor any State shall assume or pay anydebt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim forthe loss or emancipation of any slave; biit all such debts, obligations and claims shall be held illegaland void.
SECTlON. 5. The Congress shall have power to enforce, by appropriate legislation, theprovisions of this article.
Precision's Merit Brief -- Appx. 0051
'1/,</'ln,^e -I.c , r+hn
Ohio Constitution
Article I. Bill of Rights
Current through 2010
§ 16. Redress in courts
ntrp:i/www.l aw rrtet-.net/ IVLI..XML3getcode.asp?statecd=OH&codesec...
AII courts shall be open, and every person, for an injury done him in his land, goods, person, orrepukation, shall have remedy by due course of law, and shall have justice administered without denialor delay.
law. Suits may be brought against the state, in such courts and in such manner, as may be provided by
Precision's Merit Brief -- Appx. 0052f2
rnip:i/www. j awri ter.nevN LL,XM ►,Igeteode. asp?statecd-OH&codesec..,
Ohio Constitution
Article tl. Legislative
Current through 2010
§ 35. Workmen`s compensation
For the purpose of providing compensation to workmen and their dependents, for death, injuriesor occupational disease, occasioned in the course of such workmen's employment, laws may bepassed establishing a state fund to be created by compulsory contribution thereto by emloyers, andadministered by the state, determining the terms and conditions upon which payment shall be madetherefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, forsuch death, injuries, or occupational disease, and any employer who pays the premium orcompensation provided by law, passed in accordance herewith, shall not be liable to respond indamages at common law or by statute for such death, injuries or occupational disease. Laws may bepassed establishing a board which may be empowered to classify all occupations, according to theirdegree of hazard, to fix rates of contribution to such fund according to such classification, and tocollect, administer and distribute such fund, and to determine all right of claimants thereto. Such boardshall set aside as a separate fund such proportion of the contributions paid by employers as in itsjudgment may be necessary, not to exceed one per centum thereof in any year, and so as to equalize,insofar as possible, the burden thereof, to be expended by such board in such manner as may beprovided by law for the investigation and prevention of industrial accidents and diseases. Such boardshall have full power and authority to hear and determine whether or not an injury, disease or deathresulted because of the failure of the employer to comply with any specific requirement for theprotection of the lives, health or safety of employes, enacted by the General Assembly or in the formof an order adopted by such board, and its decision shall be final; and for the purpose of suchinvestigations and inquiries it may appoint referees. When it is found, upon hearing, that an injury,disease or death resulted because of such failure by the employer, such amount as shall be found tobe just, not greater than fifty nor less than fifteen per centum of the maximum award established by{aw, shall be added by the board, to the amount of the compensation that may be awarded on accountof such injury, disease, or death, and paid in like manner as other awards; and, if such compensation ispaid from the state fund, the premium of such employer shall be increased in such amount, coveringsuch period of time as may be fixed, as will recoup the state fund in the amount of such additionalaward, notwithstanding any and all other provisions in this constitution.
Precision's Merit Brief -- Appx. 0053el
Ohio Administrative Gode
4123:1.. Division of Safety and Hygiene
Chapter 4123:1-3. Construction
Updared for a!1 rirles final fiJed and adopted tttrnugh January 30, 2012
4123:1,3-07, Cranes, hoists, and derricks
(A) Reserved.
(B) Definitions.
ftttP: r< w w w, t awrt t er.nev NLLxNtUgetcode,asp?statecd=OH&codesec..,
(1) "Demck" means an apparatus consisting of a mast or equivalent members held at the top by guys or braces, Wth or without a boom, for use v3ith a hoisting mechardsmand operating mpes.
(2) "Dertick, A-frame"means a derrick in which the boom is hinged from a crossmember between the bottom ends of two upright members spread apart at the lower endsand united at the top, the upper ends of the boom being secured to the upperjunctiori of the side members and the side rnembers braced or guyed from the junction point.
(3) "Derrick, basket" means a derrick without a boom, similar to a gin pole, with its base supported by ropes attached to corner posts or other parts of the structure.'Thebase is at a iower elevation than its supports. The location of tne base of a basket demck can be changed by varying the length of the
rope supports. The top of the po(e issecured with muitireeved guys to position the top of the pole to the desired location. By varying the length of the upper guy lines, the load is raised and lowered by ropesthrough the sheave or block secured to the top of the pole.
(4) "Derrick, breast" means a denick without a boom, the mast consisting of two side members spread farther apart at the base than at the top, tied together at the top andbottom by rigid members, the top held from tipping by guys and the load raised and lowered by ropes through a sheave or block secured to the top crosspieces:
(5) "Dertick, Chicago boom" means an ordinary derrick boom so installed as to utilize a building column or tower hoist as the mast, and to depend upon the structural steelbeam connections or bracing to take the place of the stiff legs. The lower end of the boom is attached te therbuilding columns by means of a combination hinge pin and swivelpin to a heavy steel p)ate clamp attached to the column. The derrick is completed Wth load fall line and boom fall line.
(6) "Derrick, gin pole" means a derrick consisting ordy of a mast with guys so arranged as to permit leaning the mast in anydirection, the load being raised or lowered byropes leading through sheaves or blocks at the top of the mast.
(7) "Derrick, guy" means a fixed dernck consisting of a mast capable of being rotaied, supported in a vertical position by three or more guys and a boom whose bottomend is hinged or pivoted to move irr a vertical plane, with lines between the head of the mast arui the head of the boom for raising and lowering the boom lines from the head ofthe boom for raising and lowering the load.
(8) "Derrick, stiff leg" means a derrick similar to a guy derrick except that the mast is supported or held in place by two or more stiff members capable of resisting eithertensile or compressive forces. fi'tlls are generally provided to connect the lower erids of the two stiff iegs to the foot of the mast.
(9) "Derrick, tripod" means a derrick consisting of three upright legs or members sectirely fastened together at the top, supporting a hoisting mechanism and operatingropes. The legs can be spread to various angles,
(10) "Hoist, niast" means a hoist having no tess then two uprigM parallel members forming the mast, on which the cage is suspended outside of the parallel members. Theentire unit is portable, but not self-propeiled.
(11) "Hoist, materiat" means a hoist for raising and lowering material only, with the hoisting of persons being prohibited.
(12) "Hoist, personnel" means a mechanism for use in connection with ccnstruction, alteration, maintenance, or demcfition of buildings, structures, or other work It is usedfor hoisGng and lowertng employees or material or both, is equipped with a car that moves on guide members during its vertical movement, and includes a hoistway.
(13) "Hoist tower" means a tower constructed of sections forming a shaftway in which a cage or platform traveis.
(14) "Prime mover' means equipment used as the primary source of power, such as engines and motors.
(C) Cranes.
(1) Load rating chart.
A substantial and durabfe manufacturer's load rating chart with Gearfy legible !etters ahd figures shall be maintained in each crane and securely fixed to the crane cab in alocation easily visible to the operator white seated at the operator's control station. The data and information to be provided on such charts shall include, but not necessarily befimited to, the following data:
(a) A ftdl arr.t complete range of manufacturer's approved crane load ratings at atl stated operating radii and boom angles, and for all permissible boom lengths, )ib lengths,and angles, also aiternate ratings for use and non-use of ootional equipment on the crane such as outriggers and extra courrienveights wttich affect ratings.
(b) An operating manual shall be provided, showing recornmended parts of hoist reeving, size and type of rope for various crare loads and the operating manual shall bemaintained Wth the equipmerit.
(2) Boom tro3st.
When using the manufacturers recommended boom hoist reeving with rated loads suspended, the boom hoist shall be capable of raisfng the boom, holding it staGonarywithout attention from the operator, and lowering it onty when coupled to its prime mover.
(a) The boom hoist drum shall have sufficiert rope capacity to operate the boom at all positions from horizontal to the highest angle recommended when using themanufacturer's reeving and rope size,
(i) No less than two full wraps of rope shall remain on the drum with the boom point lowered to the level of the crane supporting surface.
(ii) The drum end of the rope shall be anchored by a cfamp securely attached to the drum or a wedge socket arrangemenf approved bythe crane manufacturer.
(b) The drum diameter shall be sufficient to provide a first layer rope pitch diameter of no lessther. fifteen times the nominal diameter of the rope used.
(3) Main hoist rnechanism,
Load hoist drums shall have sufficient rope capacity with recornmended rope size and reeving to perform crane service within the range of boom lengths, operating radiiand vertical lifts stipulated by the manufacturer.
(a) No less than two fuq wraps of rope shall remain an the drum when the hook is in its extreme low position.
(b) The drum end of the rope shall be anchored by a clamp securely attached to the drum or a wedge socket arrangement approved by the crane or rope manufacturer.
Precision°s Merit Brief -- Appx. 0054
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(4) Ropes.
(a) The hoisting rope shall be of a construction recommended for crane service. Non-rotating rope shall not be used for boom hoist reeving or multiple reeving,
(b) Socketing shall be done in the manner specified by the manufacturer of the assembly.
(c) If a load is supported by more than one part of the rope, the tension in the parts shall be equalized.
(d) Wherever exposed to temperatures at which fiber cores would be damaged, rope havin.g an independent wire rope or wire strand care, or other temperature damagcresistant core shaU be used.
(e) Replacement rope shall be the same size, grade and construction as the original rope furnished by the crane manufacturer, unless otherwise recommendedby a ropemanufacturer due to actual worWng condition requirements.
(f) Factorof safety.
The employer shall, when re-reeving boomed equipment, provide ropes which will meet the manufacturer's specifications and the factor of safety shall be no less than threeand one-tiaG.
(g) splicing.
Tfie splicing of alf wire ropes shall conform to the manufacturer s specifications and in no case, whether of ordinary or preformed wire rope, sha4 the overaU length of splicebe less than th!rty-two times the rope diameter in feet and the length of the tucked ends shall be no less than twenty-four times the rope diameter in inches.
(h) Fastening.
Wire rope shall not be secured by krrots. Thimbies shall be used where Wre rope is looped. Wire rope clips shall conform to the manufacturer'.=, specifications. The loopends ot 'Mre rope clips shaU be on the dead end of the wire rope and the grooved plate of the wire rope clip shall take the load of the pulling part for which it is designed. ir.looping or in short bends. wire rope clips and turnback of rope shall conform to the foilowing table and spacing of clips shali be uniform between the loop and the dead ond.
Precision's Merit Brief -- Appx. 0055
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Preeision's Merit Brief -- Appx. 0056f9
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Frecision's Merit Brief -- Appx. 0057'9
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(5) Reeving accessories.
Eye splices shall be made iri accordance with the requiremerts of paragraph (C)(4)(g) of this rule and thimbles shafl be used in all eye splices.(6) Sheaves.
( a) Sheave grooves shail be smooth and freeSrom surface defects.
(b) Sheaves carrying wire ropes shall be provided with close-fitting guards or other suitable devices to guide the rope back into the groove when the load is appfied again.(7) Cabs.
(a) Construction.
(i) Power drivencranes shall be provided with a cab to protect the operator in case the cable should break or materiat fall from the dipper or bucket.
(ii) A!f windows shall be of safety glass or equivalent.
(iii) A clear passageway shafl be provided front the epe.ratoYs station to an exifdoor on the operator's side:
(b) Platform to csb.
(i) Principaf walfang surfaces shall be of an anti-skid type.
(ii) Outside platforms shall be provided with standard guardrails,
(8) Roof.
Wnere necessary for rigging or service7equirements, a ladder or steps shall be provided to give access to the cab roof.
(9) Booms.
(a) Boom siops shafl be provided ori alf rnobile cranes.
(b) A boom angle indicator shall be provided.
(c) Aq repairs on booms, boom sections and jijbs shall meet the manufacturer's specifications.
(10) Exhaust pipes.
All exhaust ppes shall be guarded or insulated in areas where employees are exposed to contact in the performance of rrormal duties, (See rule 4121:1-3-18 of theAdministrative Code for ventilating exhaust gases.)
(11) Miscellaneous equipment.
(a) Portable fuel containers shall be equipped with a self-closing fitler cap. Where gaso!ine is the fuel, a flame arrestor shall be provided.
(b) An effective ^marrung and operating signal device shall be provided.
(c) Means shaN be provided fnrthe operator to visually determine the levelness of the crane.
(d) Barricades shall be provided to prevent an empioyee from being struck or crushed by the rotating superstructure of the crane.
(B) Hoisls:
(1) General requirernents.
(a) Rated load capacity - posting.
Rated load capacitfes, recommended operating speeds, and special ha2ard warnirngs or instructions stiait be posted on cars and platforms.
(b) Hoisting ropes shall be installed in accordance with the wire rope manufacturer's recommendations.
(c) The instaliation of live booms on hoists is prohibited.
(d) The use of endless beit type mardifts on construction sites is prof> bited.
(e) Hoist piaftorms.
Blocking and cleats shall be provided on hoist platforms whenwheelbarrows or other rofling equipment is transported.
(f) Landing platforms.
(i) Landing platforms shall be of eufficierd strength to support the maximirm working loads imposed upon them, and no less than seventy-five pounds per square foot,wftttotIl exceeding the allowable working stresses specitied in the appendix to this rule.
(ii) Standard guard raifing,toeboards and side screens shall be provided on both sides of landtng platforms.
(iii) Clearance between adjacent edges of the hoist platform and the landing platform shall not exceed two inches.
(2) M ateriat hoists.
(a) Operating rules shall be established and posted at the operatofs station of the hoist. Such rules shall iric}ude signai system and allowable line speed for various loads.Rules and notices shak beposted on the car frame or crosshead in a conspicuous location, including the statemerrt, "No Riders Allowed".
(b) No employee shall be required to rtde on materiel hoists except for the purposes ofinspectiort and maintenance.
(c) A8 entrances of the hoistway shall be guarded by substantial gates or bars wfiich shall guard the full width of the landing eMrance. All hoistway entrance bars and gatesshall be pairAed with diagonal contrasting colors, such as black and yelfow stripes.
(i) Bars shall be no less than two-inch by four-fnch wooden bars or the eqiavateht, located two feet from the hoistway line. Bars shaU be located no less than twenty-sixinches or more than forty-two inches above the floor.
(ii) Gates or bars protecting the entrances to hoistways shali be equipped with a fatching devfce.
(d) Overhead protective covering of two-ihch planking, three-tourths-inch plywood, or other sotid materal of equivalent strengtt?, shall be provided on the top of every
F9 Precision's Merit Brief -- Appx. 0058
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material hoist cage or platform.
(e) The operator's staf,•on of a hoisting machine shatl be provided with overhead protection equivalent to tight pianking tw less than two inches thick. Ttie support for theoverhead protection shall be of equivalent strength.
Qf) Hoist towers may be used with or without an enclosure on all sides, However, whichever alternative is chosen, the following applicable conditions shall be rnetc
(i) Wtten a hoist tavver is enclosed, it shall be enclosed on all sides for its entire height with a screen encbsure of one-half-inch mesh, "No. 18 U:S. Gauge" wire orequivalent, except for landing access.
(ii) When a hoist tower is not enclosed, the hoist platform or car shaii be totally enclosed (caged) on all sides for the fuli heiaht between the floor and the overheadprotective covering with one-half-inch mesh of "No. 14 U. S. Gauge" wue or equivalent. The hoist platform enclosure shall indude the required gates for loading and unbading.A six-foot high enclosure shailbe provided on the unused sides of the hoist tower af ground;evel.
(g) Car arresting devices shall be instafled to function i; case of rope fallure.
(h) Materiat hoists sha0 be securely fastened to the siructure at no less than twerrty-five-foot iritervals.
(3) Aersonnel hoists.
(a) Hoist towers outside the structure shali be enclosed for the fuli heigM on the side or sides used for entrance and exit to the structure. At theJowest landing, the enclosureon the sides not used for exit or entrance to the structure stiaA be enciosed la a heigM of no less than ten feet. Other sides of the tower adjacent to floors or scaffold platformsshalf be enclosed to a height of ten feei above the level of such floors or scaffolds.
(b) Towers inside of structures shall be enclosed on a11 four sides throughout the full height.
(c) Towers shall be anchored to the structure at intervals not exceeding twenty-five feet. In addiGon to tie-ins, a series ofguys shall be installed. Where tie-ins are notpractical the tower shaU be anchored by means of guys made of wire rope no less than one-half inch in diameter, securely fastened to anchorage to ensure stability.
(d) A minimum of two and one,half square feet sha11 be provided for each person nding on hoist car.
(e) Whenever a hoist tower extends twenty-five feet or more above the roof iine or last possible tie-ins to the structure, it shall be guyed.
(f) Hoistway doors or gates siialf be no less thart six feet six inches hioh and shall be provided with mechanical locks which cannot be operated from the landing side, andshall be accessible only to employees on the car.
(g) Cars shall be permanently enclosed on all sides and the top, except sides used for entrance and eict which have car gates or doors.
(h) A door or gate shall be provided at each entrance to the car which shall guard the futl width and height ofthe entrance opening.
(i) Overhead protective cove(ng of two-inch planking, three-fourths-inch plywood or other solid material of equivalent strength shall be provided on the top of everypersonnel hoist.
0) Doors or gates stiail be provided v,Ath electric contacts which do not allowmovement of the hoist when door or gate is open.
(k) Cages of all fwists upon which employees are permitted to ride shatl be equipped with a down speed governor to operate the car safety.
(1) Safeties shall be capable of stopping and holding the car and rated load when traveling at governor tnpping speed.
(m) Cars shall be provided with a capacity and data plate secured in a conspicuous place an the car or crosshead.
(n) Intemal combustion engines for direct drive are prohibited.
(o) Normal and final terminal stopping devices sha!l be provided.
(p) An emergency stop sv0tch shall be provided in the car and marked "STOP".
(q) Ropes.
(i) The minimum number of hoisting ropes used shall be three for traction hoists and two for drum-type hoists.
(ii) The minirnum diameter of hoisting and counterweight wlre ropes shall be one-half inch.
(iii) Factor of safety.
MfNIMUM FACTORS OF SAFETY FOR SUSPENSION WIRE ROPES
Rope speed infeet per minute: Minirnum factor of safety:
50_ 7.60
15 7.75
100 7.95
125_ 8.10
150 8.25
175 8.40
200 8.80
z2s_-- 8.75
250 8:90
300 9,20
350 9,50
400 9.75
450 10.00
500 10.25
Precision's Merit Brief -- Appx. 0059r.9
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550 10.45
600 10_70
(r) Foltowfng assernbly and erection of hoists, and before they are put in service, an inspection and test of all functions and safety devices shall be made at full ratedcapacity under the supervision ofthe manufacturer or the manufadurer's authorized representative. A similar inspection and test is requred fo!low!ng major aReration of anexasting installation. All hoists shall be inspected and tested no !ess ofien than at three-montfi intervals. Records sha!t be maintained and kept on file for the duration ofthe job,
(s) Personnel hoists used in bridge tower constructionshaft be approved by a registered professional engineer and erecfeci under the supervision of a qualified engineercompetent in this fie!d,
(i) When a hoist tower is not enclosed, the huist platform or car shall be totalfy enclosed (caged) on a!l sides for the full height between the floor and the overheadprotective covering with three-fourths-inch mesh of "No: 14 U.S. Gauge" wire or equivafent. The hopst pfatform enciosure shall indude the required gates for;oading andunloading,
(ii) These hoists shall be inspected and maintained on a weekly basis. VVhenever the hoisting equipmerd is exposed to winds exceedingtibrty-five miles per hour it sha!t beinspected and put in operable condition before re-use.
(iii) V45re rope shall be taken out of service when any of the foltowing conditions exist:
(a) In runriing ropes, six raridomly distribufed broken wires in one lay or three broken wires in one strand in one iay;
(b) Wear of ene-tm:ird the original diameter of outside individual wires. Kinking, crushing, bird caging, or any other damage resu!ting in distortion of the rope structure;
(c) Evidence of any heat damage from any cause;
(d) Reductions from nominal diameter of more than three•s;kty-fourths-irx:h for diameters to and includingYtvee-fourths-inch, one-sixteenths-inch to one and one-eighihitiches indusive, three-thirty-seconds-inch for diameters one ahd one-fourth inches to one and one-half inches inclusive;
(e) In standing ropes, more than two broken wires in one lay in sections beyond end connections or more than one brokenwire at an end connectfon.
(4) Overhead hoists.
(a) The safe working foad of the overhead hoist, as determined by the mani-f,acturer, shat be indicated on the hoist, and this safe working load sha!I not be ezceeded.
(b) The sippoding structure to wtuch the hoist is atfached shall have a safe working bad equal to that of the hoist.
(c) The support sha!l be arranged so as to provide for free movement of the hoist and shall not restrict the hoist from Eining itself up with the load.
(d) ?he hoist sha!l be installed only in locations that wi!l permit the operator to stand clear of the load at all times.
(e) AIl overhead hoists in use shall meet the applicable requirements for construction, design, installation, testing, maintenance, and operation as prescribed by themanufacturer.
(E) Proximity to overhead electric conductors.
Wheii it is necessary to move or operate cranes, derricks, or any other type ofhoisting apparatus or constructien eqrripmerri within ten feet of an electrical eonductorcarrying one hundred ten volts or more, the employer shall:
(1) Arrange voth the owner of the conductor, or the ownees authorized representative, to deenergize the conductor, or
(2) Arrange vAth the owner of the conductor, or the owrier's authotized representative, to move the conductor, or
(3) Arrange with the owner of the conductor, or the owner's authorized representative, to guard the conductor from ac.ciderrtal contact and the employer sha!l designate anemployee lo act as signalman to directYhe operator in the movement of derricks, cranes, or any other type of hoisting apparatus or construction equipment, or
(4) Insta!l an insulated type guard about the boom or arm of ihe equipment and a dielectric insulator link between the ioad and the block and the errmp!oyer shall designate anemployee to act as a signalman to direct ihe operator in the movement of derricks, cranes, or any other type of hoisting apparatus or construction equipment.
(F) No employee stta!1 be permitted to pass or be uriderloads handled by power shovels, derricks, or hoists. Employees who are not engaged in vehide loading shall berequired to stand back from any such vehicle during the loading.
(G) Derricks.
The following types of derrcks are covered by the raquirements in this section wherever such requiremer>is apply to the specific type of derrick: gin po!es, tripod derricks,A-frame derrtcks, Chicago boom derricks, stiff leg derricks, breast derricks and guyed masts. (See appendix to this rule for diagrams ofderricks.)
(1) Design.
(a) Denicks and all appurtenances thereof, inc!udinganchorage; shall be designed to carry the maximum working loads to be imposed upon them and shafi provide a factorof safety of no less than four, including wind loads calcuiated on the basis of the foilovdng tabte:
P.Precision's Merit Brief -- Appx. 0060
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1. For cylindrical sections in excess of two inch diarneter, muitiply by factor of 0.80.
2. For cylindrical sections two inches or less in diameter, muNipiy by factor of 9.00.
3. For flat sections, multiply by factor of 1.30.
4. UVhen height under consideration is fifty feet or more, interpolate wind load fcr such height from table.
5. Design shall be checked for wind loading in all directions. No allowance shall be made for sheftedng from adjacent structures.
(b) All equipment shall be designed and erected in a substantial manner and securely fastened in place.
(2) Foundations and anchoring.
(a) Foundations.
Derrfcks shafl be set upon substantial foundations.
(b) Anchoring and securing.
(i) Independent of buiiding or structure.
(a) Derricks independent of a building or structure shall be substantiatly arichored at the top of each corner post and at intermediate intervals of no more than forty feet withno less than three-eights-inch steel wire rope or material of equal or greater strength. Anchorage for the guys of derricks shall be designed to resist the loads imposed.
(b) Under no circumstartces shall less than four guys be used on a derrick stipporied sofely by guys.
(c) The anchoring of derricks shall be such as to ensure that with the boom in any position, the righting moment wiJi exceed the overturning moment, imposed under serviceconditions with rated load or under storm conditions.
(ii) Secured to buildidg or struckure.
EDerricks shall be securely fastened to the building or structure, at intervals of no more than forty feet.
(3) Hoist hooks.
Hoist hooks used with bucket, cage or sl6p shall be equipped with a safety latch designed to prevent the load from being accidentally detached.
(4) 9raking systems.
Derricks shafl be provided with a brake which wi!( operate in case of potver failure. The braking system shall be capable of lmkling the maximum rated load at any point ofthe lift.
(5) Protection from falling material or objects.
A substantiai overhead guard shall be provided which wili protect the operator of the derrick from falling materiat and objects.
(6) Running lines.
Precision's Merit Brief -- Appx. 0061
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Runrong 6nes and pinch poirrls where a wire rope runs ordo sheaves. blocks or pulleys of derricks, located six feet or less :rom the ground or working levet shail be guarded,except whan loads are moved horizontally.
Click to view Appendix
History. Effective: 01/01/2011R.C. 119.032 review dates: 07l1812009 and 01115f2014Promulgated Urder: 119.03Statuiory Authority: 4121.12, 4121.121, 4121.13Rule Ampllfies: 4121,13Prior ENective Dates: 411168: 1111l79
Precision's Merit Brief -- Appx. 0062;9
Ohio Administrative Code
4123:1. Division of Safety and Hygiene
Chapter 4123:1-5. Workshops and Factories
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Updated for all rtlles final filed and adopted through Jantranl 30, 2092
4123:1-5-14. Power-driven cranes and hoists
(A) Reserved.
(B) Reserved
(C) Overhead electric traveling cranes.
The term "overhead electric traveling crane" shall mean a crane consisting of a bridge mountedon trucks which runs on rails and the hoisting mechanism mounted on a trolley which movestransversely across the bridge, and may be controlled from a cab or from remote or pendant controls.
(1) Equipment.
(a) Brakes.
Holding brakes for hoist motors shall have not less than the following percentage of the full loadhoisting torque at the point where the brake is applied.
One hundred twenty-five percent when used with a control braking means other than mechanical.
One hundred percent when used in conjunction with a mechanical control braking means.
One hundred percent each if two holding brakes are provided.
(b) Footwalk.
A footwalk with standard guard railing and toeboards shall be placed along the cab access side ofthe bridge.
(c) Rail stops.
Rail stops shall be provided at both ends of crane runway and at ends of trolley travel.
(d) Bumpers.
A crane shall be provided with bumpers or other automatic means providing equivalent effect,unless the crane travels at a slow rate of speed and has a faster deceleration rate due to the use ofsleeve bearings, or is not operated near the ends of bridge and trolley travel, or is restricted to alimited distance by the nature of the crane operation and there is no hazard of striking any object in thislimited distance, or is used in similar operating conditions.
The bumpers shall be capable of stopping the crane (not including the lifted load) at an averagerate of deceleration not to exceed three ft/s/s when traveling in either direction at twenty percent of therated load speed.
A trolley shall be provided with bumpers or other automatic means of equivalent effect, unless the
Precision's Merit Brief -- Appx. 0063fs
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troEiey travels at a slow rate of speed, or is not operated near the ends of bridge and trolley travel, or isrestricted to a limited distance of the runway and there is no hazard of striking any object in this limiteddistance, or is used in similar operating conditions.
The bumpers shall be capable of stopping the trolley (not including the lifted load) at an averagerate of deceleration not to exceed 4.7 ft/s/s when traveling in either direction at 1/3 of the rated loadspeed.
(e) Warning device.
On cab-operated cranes, a warning device or signal shall be provided for use in warningpersonnel of crane travel.
(2) Cabs.
(a) Enclosed cabs.
Enclosed crane cabs shall be provided with windows in front and on both sides.
(b) Open cabs.
Open cabs shall be provided with standard guard railing, and toeboard, and gate. If the openingheight is inadequate for a standard guard railing, a chain or angle iron shall be used to guard theopening.
(c) Means of escape.
Means of escape shall be provided for operators of overhead cranes.
(d) Cabs subjected to excessive heat.
Cabs of cranes subjected to excessive heat from below shall have floors insulated with anoncornbustible rnateriaJ.
(e) Guarding of current-carrying parts.
All current-carrying parts in crane cabs shall be guarded.
(3) Limiting devices.
A hoist limiting device shall be provided for each hoist to limit the upward travel.
(D) Electric jib cranes.
(1) The term "electric jib crane" shall mean a crane designed for lifting or lowering a load within thescope of a horizontal circle spanned by a rotating arm orjib equipped with a stationary or travelinghoist block.
(2) Equipment.
(a) Holding brake.
Holding brakes for hoist motors shall have not less than the following percentage of the full loadhoisting torque at the point where the brake is applied.
(i) One hundred twenty five percent when used with a control braking means other than
Precision's Merit Brief -- Appx. 00645
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(ii) One hundred percent when used in conjunction with a mechanical control braking means.
(iii) One hundred percent each if two holding brakes are provided.
Holding brakes on hoists shall be applied automatically when power is removed.
(b) Rail stops.
Rail stops shall be provided at the outer end of jib boom.
(c) Hoist limiting device.
A hoist limiting device shall be provided for each hoist.
(E) Electric single rail cranes and hoists.
(1) The term "electric single rail crane and hoist" shall mean a hoist with or without an operator`scab, suspended from a single overhead track or rail.
(2) Equipment.
(a) Trolley stop.
A stop shall be provided at all switches and turntables which will prevent the trolley from runningoff should the rail switch be turned to "open" or left in an open position.
(b) Rail stops.
Rail stops shall be provided at the ends of crane runway.
(c) Hoist limiting device.
A hoist limiting device shall be provided for each hoist.
(d) Braking system - all power-driven hoists.
Holding brakes for hoist motors shall have not less than the following percentage of the full loadhoisting torque at the point where the brake is applied.
(i) One hundred twenty five percent when used with a control braking means other thanmechanical.
(ii) One hundred twenty five percent when used with a control braking means other thanmechanical.
(iii) One hundred percent when used in conjunction with a mechanical control braking means.
(iv) One hundred percent each if two holding brakes are provided.
Holding brakes on hoists shall be applied automatically when power is removed.
(F) Electric gantry cranes.
(1) The term "electric gantry crane" shall mean a crane with the bridge mounted on structural legswhich may be mobile on rails or stationary. One leg may be at ground level, the other may be elevated
Precision`s Merit Brief -- Appx. 0065f5
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or both legs may be at ground level.
(2) Equipment.
(a) Bridge track wheels,
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All bridge track wheels shall be equipped with sweeps.
(b) Bumpers, stops, and rail stops.
(i)
A crane shall be provided with bumpers or other automatic means providing equivalent effect,unless the crane travels at a slow rate of speed and has a faster deceleration rate due to the use ofsleeve bearings, or is not operated near the ends of bridge and trolley travel, or is restricted to alimited distance by the nature of the crane operation and there is no hazard of striking any object in thislimited distance, or is used in similar operating conditions
The bumpers shall be capable of stopping the crane (not including the lifted load) at an averagerate of deceleration not to exceed three ft/s/s when traveling in either direction at twenty percent of therated load speed.
A trolley shall be provided with bumpers or other automatic means of equivalent effect, unless thetrolley travels at a slow rate of speed, or is not operated near the ends of bridge and trolley travel, or isrestricted to a limited distance of the runway and there is no hazard of striking any object in this limiteddistance, or is used in similar operating conditions.
The bumpers shall be capable of stopping the trolley (not including the lifted load) at an averagerate of deceleration not to exceed 4.7 ft/s/s when traveling in either direction at 1/3 of the rated loadspeed.
(ii) Rail stops shall be installed on both ends of trolley travel.
(c) Anchor or rail blocking device.
An anchor or rail blocking device shall be installed on all gantry cranes which are exposed toexternal weather.
(d) Hoist limiting device.
A hoist limiting device shall be installed on each hoist.
(G) Specific requirements applicable 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.
(2) Access ladders, stairways, and/or walkways.
Crane access ladders, stairways, and/or walkways shall be provided on all cranes.
(3) Maximum capacity.
The maximum capacity recommended by the manufacturer shall be posted on each crane.
Precision's Merit Brief -- Appx. 0066f5
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(4) `JVarning signs.
Warning signs, "out-of-order" signs, or warning devices shalf be placed on each crane underrepair.
History. Effective: 04/ 10/2011R.C. 119.032 review dates: 03/03/2010 and 03/01/2016Promulgated Under: 119.03Statutory Authority: 4121.12, 4121.121, 4121.13Rule Amplifies: 4121.47Prior Effective Dates: 411/64; 8/1/77; 4/1/99
Precision's Merit Brief -- Appx. 0067eS
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Ohio Administrative Code
4123:1. Division of Safety and Hygiene
Chapter 4123:1 -5. Workshops and Factories
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Updated for all rtrles final filed and adopted throcrgh January 30, 2012
4123:1-5-15. Hoisting and haulage equipment
(A) Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope,chain, metal mesh and synthetic web, and attachments used to handle material or equipment shall beused in accordance with the manufacturer's recommendations.
(B) Equipment shall be removed from service when there is evidence of a defect, damage, ordistortion which may weaken such equipment.
(C) All such equipment shall have a safety factor of no less than five.
(D) Employees shall not be required to work or pass under suspended loads, nor shall the craneoperator be required to carry a suspended load over employees.
(E) Manila rope and other fiber rope shall not be used when handling acid- or caustic-contaminated material or objects.
(F) Eyes in wire rope slings shall not be formed by using knots. Eyes in wire rope slings forgeneral repetitive use shall not be formed by using wire rope clips. For special purpose unusual lifts,wire rope clips may be used to fabricate wire rope slings, provided the wire rope clips' manufacturer'srecommendations are followed. When a newly installed rope has been in operation for an hour, all nutson the clip bolts shall be re-tightened.
(G) The use of chain as a sling or choker in erection of steel is prohibited.
(H) The sheave diameter shall be no less than that recommended in the manufacturer'sspecifications for the size of rope used. Sheaves or pulleys with eccentric bores, or with cracked hubs,spokes, or flanges shall be repaired or removed from service.
History. R.C, 119.032 review dates: 03/03/2010 and 03/01/2015Promulgated Under: 119.03Statutory Authority: 4121.12, 4121.121, 4121.13Rule Amplifies: 4121.47Prior Effective Dates: 8/1/77; 1/1/86
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