State Ex Rel. Scott v. Industrial Commission

2013 Ohio 2445, 990 N.E.2d 598, 136 Ohio St. 3d 92
CourtOhio Supreme Court
DecidedJune 18, 2013
Docket2011-1922
StatusPublished
Cited by12 cases

This text of 2013 Ohio 2445 (State Ex Rel. Scott 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. Scott v. Industrial Commission, 2013 Ohio 2445, 990 N.E.2d 598, 136 Ohio St. 3d 92 (Ohio 2013).

Opinions

O’Connor, C.J.

{¶ 1} Appellant, Troy A. Scott, appeals from the judgment of the Tenth District Court of Appeals denying his request for a writ of mandamus that would require appellee Industrial Commission to vacate its order denying his application for an award for violation of specific safety requirements (“VSSRs”) at his workplace and to find that he is entitled to such an award.

{¶ 2} The court of appeals determined that Scott had failed to prove that the Industrial Commission abused its discretion when it denied his application based on its conclusion that Scott’s employer, appellee Country Saw & Knife, Inc. (“Country Saw”), had not violated the specific safety requirements in Ohio Adm.Code 4123:l-5-17(F) and 4123:1-5-18(0, (D), and (E).

{¶ 3} Because we agree with the court of appeals that Scott did not present sufficient evidence to establish that he was entitled to an award for a VSSR, we hold that the commission did not abuse its discretion in denying Scott’s application. We therefore affirm the judgment of the court of appeals.

Relevant Background

{¶ 4} Scott was employed as a laborer by Country Saw, a business that sharpens and puts carbide teeth on saw blades. His duties included soldering carbide saw tips, sharpening carbide saw blades, and operating a brazing machine that brazed tungsten tips onto saw blades.

{¶ 5} After working at Country Saw for approximately one and a half years, Scott developed respiratory problems from his exposure to metal dust — specifically, dust from cobalt and tungsten. He sought workers’ compensation, and his claim was allowed for hard-metal pneumoconiosis, open-wound nasal septum, and related disorders, with a diagnosis date of October 23, 2007.

{¶ 6} Over a year later, on November 25, 2008, Scott applied for an additional award, alleging that Country Saw violated the specific safety requirements in Ohio Adm.Code 4123:l-5-17(F) and 4123:1-5-18(0, (D), and (E) when it failed to provide adequate protection to minimize his exposure to metal particles.

{¶ 7} After a hearing, a staff hearing officer denied Scott’s application. In so doing, the staff hearing officer relied on test results from an air sampling [94]*94conducted at Country Saw on April 16, 2008, by the Occupational Safety and Health Administration (“OSHA”). Those test results demonstrated that the presence of toxic substances in the air in Country Saw’s facility was below permissible exposure limits.1 The hearing officer considered the test results relevant and reliable evidence, citing State ex rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243, 2007-Ohio-6096, 877 N.E.2d 979, because Country Saw had made no changes to the ventilation system or any of the processes that existed during the period that Scott was exposed to the materials. The hearing officer specifically noted that Scott had failed to introduce evidence to show that any toxic substance had been present at a level that would trigger the specific safety requirements.

{¶ 8} Scott filed a complaint for a writ of mandamus in the court of appeals. The case was referred to a magistrate, who concluded that Scott had failed to establish that the Country Saw plant contained hazardous concentrations of either cobalt or tungsten dust in an amount necessary to require Country Saw to comply with the specific safety requirements. The magistrate agreed that the OSHA test results constituted some evidence on which the commission could rely to support its decision and that the commission had not misapplied Gilbert. The magistrate recommended that the court of appeals deny the request for a writ.

{¶ 9} Scott filed objections to the magistrate’s conclusions of law. The court of appeals overruled the objections, adopted the magistrate’s decision, and denied the writ. Scott now seeks this court’s review.

Analysis

{¶ 10} There is no dispute that Scott contracted a devastating lung disease while working at Country Saw and that his workers’ compensation claim for that disease was properly approved. The issue in this appeal is whether Scott is entitled to an additional award — one more akin to a penalty' — due to his employer’s violating specific safety requirements. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989) (“a VSSR award is a penalty”).

{¶ 11} It is well settled that in order to establish a VSSR claim, the claimant must prove that (1) an applicable and specific safety requirement was in effect at the time of the injury, (2) the employer failed to comply with the requirement, and (3) the failure to comply was the proximate cause of the injury in question. State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio [95]*95St.3d 191, 193, 489 N.E.2d 288 (1986), fn. 1; State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972).

{¶ 12} Factual questions relevant to proof of a VSSR rest exclusively within the discretion of the commission. State ex rel. Haines v. Indus. Comm., 29 Ohio St.2d 15, 278 N.E.2d 24 (1972). And the interpretation of a specific safety requirement is within the final jurisdiction of the commission. Burton at 172; State ex rel. A-F Industries v. Indus. Comm., 26 Ohio St.3d 136, 497 N.E.2d 90 (1986); State ex rel. Ish v. Indus. Comm., 19 Ohio St.3d 28, 31, 482 N.E.2d 941 (1985).

{¶ 13} We review the commission’s factual decisions on VSSR only for an abuse of discretion. Ish at 32. Because a VSSR award is punitive in nature, however, all reasonable doubts regarding the specific safety requirement’s interpretation and applicability must be resolved in the employer’s favor. Burton, 46 Ohio St.3d at 172, 545 N.E.2d 1216; State ex rel. Toledo Neighborhood Hous. Servs., Inc. v. Indus. Comm., 92 Ohio St.3d 229, 230, 749 N.E.2d 739 (2001).

{¶ 14} With these standards in mind, we turn to the evidence in this case and the legal question that arises from it.

{¶ 15} The court of appeals concluded that the commission did not abuse its discretion when it relied on the OSHA report. The dispositive issue here is whether the OSHA report constituted some evidence upon which the commission could rely to deny Scott’s request for a VSSR award.

{¶ 16} The specific safety requirements at issue in this case require an employer (1) to provide respiratory-protection equipment when employees are exposed to hazardous concentrations of air contaminants and (2) to adopt methods to minimize air contaminants in working environments where employees are exposed to hazardous concentrations of air contaminants.

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Bluebook (online)
2013 Ohio 2445, 990 N.E.2d 598, 136 Ohio St. 3d 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-scott-v-industrial-commission-ohio-2013.