State ex rel. Kilburn v. Industrial Commission

438 N.E.2d 422, 1 Ohio St. 3d 103, 1 Ohio B. 137, 1982 Ohio LEXIS 713

• Court: Ohio Supreme Court
• Decided: July 28, 1982
• Docket: No. 81-1562
• Status: Published

Opinions

Per Curiam.

The critical consideration in this case is whether the record contains some evidence which supports the commission’s factual determination that the water department’s principal business is not building and other construction or demolition work, thus rendering IC-3-11.03(A) inapplicable to the facts at bar.

Specifically, the pertinent language of IC-3-01.01 provides:

“Employers not engaged in building and other construction or demolition work as their principal business and having regularly assigned employees performing work covered by the provisions of this code shall not be considered within the scope of this code. Safety devices and safeguards shall be provided for employees of such exempted employers on such excepted operations, and the material used in such safety devices and protective equipment shall provide the factors of safety required by this code. * * *” (Emphasis added.) Thus, if an employer’s principal business is not building and other construction or demolition work, then that employer is not required to comply with IC-3-11.03(A).

The significant factors in evaluating whether an activity constitutes an employer’s “principal business” include inter alia: source of income, expenditures and disbursements and actual functions performed by the employer. See, generally, W.R. Co. v. North Carolina Property Tax Comm. (1980), 48 N.C. App. 245, 260, 269 S.E.2d 636. See, also, Webster’s Third New International Dictionary (“principal” is defined as “most important, consequential, or influential”); Black’s Law Dictionary (5 Ed.) (“principal” is defined as “[c]hief; leading; most important or considerable; primary; original”).

Applying these factors and definitions to the facts sub judice, we find, for the reasons that follow, that the Court of Appeals and the commission correctly concluded that building and construction were not the “principal business” of the water department.

Initially, the report of Hearing Officer Robert E. Ward reflects that: (1) the water department’s operation “is primarily to supply water to the county” and (2) construction, including materials, comprises merely 20 to 30 percent of the water department’s budget.

Futhermore, the report of R. Richard Pfalzgraf, the investigator upon whom the commission specifically relied in making its factual findings, stated:

“The investigation revealed that the claimant was employed as a Maintenance Man by the Warren County Department of Water & Sewer * * *. That he sustained the injury of record while working inside of a trench excavation, in the process of repairing a service leak at a water main. That construction was not the principal business of the employer. That the principal business of the Warren County Department of Water & Sewer was the sale and distribution of water to citizens in Warren County, Ohio. ” (Emphasis added.)

After a careful review of the entire record, we conclude that the record does contain some evidence to support the commission’s factual findings that: the water department’s principal business is to supply water to the citizens of Warren County and not to engage in building or other construction work. See State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St. 2d 396, 397 [23 O.O. 3d 358]; State, ex rel. Dodson, v. Indus. Comm. (1980), 62 Ohio St. 2d 408, 409-410 [16 O.O. 3d 439]. As such, we refuse to reweigh the evidence. State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St. 2d 446 [20 O.O. 3d 379].

Accordingly, for all the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher and Krupansky, JJ., concur. W. Brown, Holmes and C. Brown, JJ., dissent.