State ex rel. Gilbert v. Industrial Commission

116 Ohio St. 3d 243
CourtOhio Supreme Court
DecidedNovember 21, 2007
DocketNo. 2006-1949
StatusPublished
Cited by4 cases

This text of 116 Ohio St. 3d 243 (State ex rel. Gilbert v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Gilbert v. Industrial Commission, 116 Ohio St. 3d 243 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} We must determine whether appellee Industrial Commission of Ohio abused its discretion in finding that appellee American Hood Cleaning II, Inc. (“AHC”) did not violate former Ohio Adm.Code 4121:l-5-17(F)(l), a specific safety requirement. Because we find that the commission did not abuse its discretion, we affirm the judgment of the court of appeals.

2} AHC specializes in cleaning commercial kitchen exhaust systems. Part of the process involves the use of a chemical stripper to remove accumulated grease and dust. According to AHC President Dan Branigan, the chemical [244]*244stripper was mixed with water and transferred into a container that had a hose and a spray nozzle. The employee was to spray the chemical stripper into the exhaust hood by reaching inside a plastic curtain draped around the hood. A pressure washer rinsed off the substance after chemical cleaning was complete. The employee finished by removing the protective plastic curtain and wiping down and polishing the unit.

{¶ 3} Appellant Harvey Gilbert worked as an exhaust-system cleaner for AHC for four years and, before that, had performed the same job for a competitor. In 1999, Gilbert began having episodes of itching and hives. In July 2001, these symptoms were accompanied by anaphylaxis. Dr. D. Ann Middaugh examined Gilbert, assessed his history and his reported work environment, and diagnosed a restrictive lung disease “likely due to the long term, low level exposures to the stripper.”

{¶ 4} Gilbert filed a workers’ compensation claim, which was allowed for “fumes/vapor, chronic respiratory condition and acute bronchiolitis.” He also applied for additional compensation, alleging that AHC had committed numerous violations of specific safety requirements (“VSSRs”), including former Ohio Adm.Code 4121:l-5-17(F)(l), now 4123:1 — 5—17(F)(1), which required the employer to provide respiratory protection “where there are air contaminants as defined in rule 4121:1-5-01 of the Administrative Code.”

{¶ 5} At a hearing before a commission staff hearing officer, the parties agreed that no respirator was provided to Gilbert until after he complained to AHC of respiratory problems. AHC maintained that a respirator had not been provided previously because the level of chemical exposure was below the hazard threshold. In support, AHC relied on an air-quality test performed by the Occupational Safety and Health Administration (“OSHA”) during an AHC cleaning job just days after Gilbert’s diagnosis. That test measured the amounts of sodium hydroxide and perchloroethylene in the work environment and determined that they were far below the permissible exposure limits as defined by the agency.

{¶ 6} Gilbert disagreed with Branigan’s description of the cleaning process and the amount of chemical to which he had been exposed. He also argued that the OSHA test performed after his diagnosis was not evidence of the amount of chemicals that he had been exposed to earlier. He cited the chemical stripper’s Material Safety Data Sheet, which indicated that in sufficient concentrations, both sodium hydroxide and perchloroethylene can be harmful — a point that no one disputes. Gilbert also relied heavily on Dr. Middaugh’s report, which confirmed that Gilbert had an occupational disease caused by chemical exposure.

{¶ 7} On November 29, 2004, the staff hearing officer denied a VSSR award:

{¶ 8} “The Staff Hearing Officer finds that regulations of O.A.C. 4121:1-5-17(F)(1)(2) do not apply. The Staff Hearing Officer finds that air sampling [245]*245performed by OSHA on September 24, 2001 confirms that there were not hazardous concentrations of dust, fumes, mist, vapors or gases within the definition of ‘air contaminants’ contained in O.A.C. 4121:1 — 5—01(B)(4)—OSHA Air Sampling Results — Kennings Circle K Restaurant. The Staff Hearing Officer finds ‘air contaminants’ as defined under O.A.C. 4121:1-5-01 were not found to be present.

{¶ 9} “The Staff Hearing Officer finds that the employer complied with the specific safety requirement, O.A.C. 4121:l-5-17(F)(l)(2). The Staff Hearing Officer finds that evidence presented does not establish that the proximate cause of injured worker’s injuries was employer’s non-compliance with O.A.C. 4121:1 — 5— 17(F)(1)(2) as alleged by injured worker. The Staff Hearing Officer finds employer was not in violation of O.A.C. 4121:1N>-17(F)(1)(2).” (Emphasis sic.)

{¶ 10} Rehearing was denied:

{¶ 11} “The Staff Hearing Officer does not find an obvious mistake of fact or a clear mistake of law. This Staff Hearing Officer finds that the 09/24/2001 OSHA report is evidence related to hazardous concentrations of dust, fumes, etc. The Staff Hearing Officer finds no obvious mistake of fact related to that OSHA report.

{¶ 12} “The Staff Hearing Officer also finds no clear mistake of law. The VSSR Staff Hearing Officer relied on the OSHA report to find the requirements of O.A.C. 4121:l-5-01(B)(4) are not met. The VSSR Staff Hearing Officer further found no violation of O.A.C. 4121:l-5-17(F)(l)(2) because the requirements of O.A.C. 4121:l-5-01(B)(4) are not met. This Staff Hearing Officer finds no clear mistake of law based on the VSSR Staff Hearing Officer analysis.”

{¶ 13} Gilbert filed a complaint in mandamus in the Court of Appeals for Franklin County, objecting primarily to the commission’s reliance on OSHA data obtained after the relevant exposure period. The magistrate’s analysis focused on the definition in former Ohio Adm.Code 4121:l-5-01(B)(74), now 4123:1-5-01(B)(74), of “hazardous concentrations” as those concentrations “which are known to be in excess of those which would not normally result in injury to an employee’s health.” The magistrate found that the commission’s analysis was incomplete because it did not address what AHC knew about “the concentrations to which relator would be exposed in the performance of his job.” 2006-Ohio-4484, 2006 WL 2506970, ¶ 76. The court of appeals did not adopt this conclusion, finding that the employer’s knowledge was irrelevant, since the commission expressly found that there were not hazardous concentrations of air contaminants. Id. at ¶ 13. The court of appeals accordingly denied the writ, prompting Gilbert’s appeal as of right to this court.

{¶ 14} The interpretation of a specific safety requirement lies with the commission. State ex rel. Arce v. Indus. Comm., 105 Ohio St.3d 90, 822 N.E.2d 795, ¶ 19. [246]*246A YSSR award, however, is a penalty against the employer, so all reasonable doubts concerning the interpretation of the safety regulation must be “construed against its applicability to the employer.” State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170, 172, 545 N.E.2d 1216.

{¶ 15} The controversy centers on Ohio Adm.Code 4123:l-5-17(F)(l):

{¶ 16} “(F) Respiratory protection.

{¶ 17} “(1) Where there are air contaminants as defined in rule 412[3]:l-5-01 of the Administrative Code, the employer shall provide respiratory equipment approved for the hazard. It shall be the responsibility of the employee to use the respirator or respiratory equipment.”

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State Ex Rel. Scott v. Industrial Commission
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116 Ohio St. 3d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-gilbert-v-industrial-commission-ohio-2007.