State Ex Rel. Supreme Bumpers, Inc. v. Industrial Commission

2002 Ohio 7089, 781 N.E.2d 170, 98 Ohio St. 3d 134
CourtOhio Supreme Court
DecidedDecember 24, 2002
Docket2001-1095
StatusPublished
Cited by37 cases

This text of 2002 Ohio 7089 (State Ex Rel. Supreme Bumpers, Inc. 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. Supreme Bumpers, Inc. v. Industrial Commission, 2002 Ohio 7089, 781 N.E.2d 170, 98 Ohio St. 3d 134 (Ohio 2002).

Opinions

Alice Robie Resnick, J.

{¶ 1} Franklin Robinson worked as a polisher for appellant Supreme Bumpers, Inc., intermittently from 1964 to 1980 and consistently from 1981 through 1996. As a polisher, Robinson was required to use a large polishing wheel to strip off the outer layer of chrome from old car bumpers and then buff and polish the underlying nickel base before the bumpers were replated.

2} Robinson was forced to quit his job in late 1996, after being diagnosed with squamous cell carcinoma of the left maxillary sinus. He underwent radical maxillectomy followed by radiation and chemotherapy, but the cancer eventually metastasized, and Robinson died in January 1998.

{¶ 3} The decedent’s wife, claimant-appellee Carrie Richardson, filed a workers’ compensation claim for death benefits, alleging that the death of her husband resulted from workplace exposure to nickel and chrome dust. The claim was allowed.

{¶ 4} Richardson also filed an application for an additional award based on Supreme Bumpers’ alleged violation of a specific safety requirement (“VSSR”). She claimed that her husband’s death was due to Supreme Bumpers’ failure to comply with Industrial Commission specific safety rules IC-5-10 and IC-5-11, which require employers to furnish adequate respiratory equipment or to utilize other equally effective methods to control an employee’s exposure to harmful air contaminants.

{¶ 5} On February 5, 2000, a staff hearing officer (“SHO”) for appellee Industrial Commission of Ohio determined that “the decedent’s death was the result of a failure to supply an appropriate respiratory device or otherwise control air contaminants as required by IC-5-10.05(A) and IC-5-11.03.” The SHO made the following findings: (1) that Robinson “was exposed to ‘air contaminants,’ as that term is defined in IC-5-11.02(A),” (2) that Robinson “was exposed to injurious concentrations of chrome and nickel dust,” (3) that the application of IC-5-11 is not limited “to the few substances listed in the Appendix,” i.e., Appendix I, Threshold Limit Values Table, (4) that although “[t]he employer did make available paper dust masks, * * * this ‘respiratory equipment’ was not sufficient or appropriate for the chrome and nickel dust the [decedent] was for years exposed to,” and (5) that the various other methods allegedly utilized by the employer, such as a general ventilation system, local exhaust hoods on the polishing machines, and the application of a liquid glue to the buffing wheel, were ineffective in controlling exposure to the nickel and [136]*136chrome dust that was generated in its polishing department. Accordingly, the SHO ordered that “an additional award of compensation be granted to the spouse-claimant in an amount equal to 15 percent of the maximum weekly rate.”

{¶ 6} After the Industrial Commission denied reconsideration, Supreme Bumpers filed an original action with the Franklin County Court of Appeals requesting a writ of mandamus. The matter was referred to a magistrate, who recommended that the appellate court issue a writ ordering the commission to vacate its VSSR award. According to the magistrate, “there is no evidence in the record to establish that relator either knew that chrome and nickel [were] ‘toxic,’ or that relator knew that there was an injurious concentration of nickel and chrome dust present in the workplace in excess of the limits which would not normally result in injury to an employee. * * * Furthermore, there is absolutely no evidence in the record establishing what the air quality was in the factory prior to the 1990’s. As such, there is no evidence to support a finding that relator knew it was exposing its employees to injurious concentrations of nickel and chrome dust.”

{¶ 7} In concluding that the commission abused its discretion in ordering an additional award, the magistrate found it necessary to keep “in mind that a VSSR is in the nature of a penalty to the employer subject to the rule of strict construction with all reasonable doubts concerning the interpretation of the safety standard to be construed against the applicability of the standard to the employer.”

{¶ 8} On objection to the magistrate’s decision, the court of appeals found it necessary to lay out substantial portions of the evidence upon which the commission relied “[i]n addition to the magistrate’s findings of fact.” In doing so, the court of appeals concluded that there is sufficient evidence in the record to support the commission’s order finding a VSSR, particularly with regard to the employer’s knowledge. Accordingly, the court sustained Richardson’s objection to the magistrate’s decision and denied Supreme Bumpers’ request for a writ of mandamus.

{¶ 9} The cause is now before this court upon an appeal as of right.

{¶ 10} There is no dispute that Robinson contracted an occupational disease and died as a result of being exposed to nickel and chrome dust in the course of and arising from his employment with Supreme Bumpers. The sole question for our review is whether the commission abused its discretion in finding that Supreme Bumpers failed to control that exposure as required by IC-5.

{¶ 11} As relevant here, IC-5, as effective January 1,1967, provided:

{¶ 12} “IC-5-10

{¶ 13} “PERSONAL PROTECTIVE EQUIPMENT

[137]*137{¶ 14} “IC-5-10.01 SCOPE

{¶ 15} “The requirements of this part of the code relate to the personal protective equipment listed immediately below as required for employees on operations described in IC-5-10, in which there is a known hazard, recognized as injurious to the health or safety of the employee.

{¶ 16} “(A) Eye protection

{¶ 17} “(B) Face shields

{¶ 18} “(C) Respirators and masks

{¶ 19} “(D) Helmets and hoods

{¶ 20} “(E) Gloves, Aprons and sleeves:

{¶ 21} “(1) Rubber or plastic, designed to afford protection from harmful chemicals,

{¶ 22} “(2) Electrician’s rubber gloves.

{¶ 23} “* * *

{¶ 24} “IC-5-10.05 RESPIRATORY EQUIPMENT

{¶ 25} “(A) RESPONSIBILITY

{¶ 26} “The employer shall furnish respiratory equipment which has been approved by the U.S. Bureau of Mines [footnote omitted], where there are air contaminants, as defined in IC-5-11 of this code. It shall be the responsibility of the employee to use the respirator or respiratory equipment provided by the employer. See Sections 4101.12 R.C. and 4101.13 R.C.

{¶ 27} “This requirement does not apply where an effective exhaust system or other means of equal or greater protection has been provided.

{¶ 28} “Where there is a dust or mist not considered harmful, respirators should be available for employees who request them.

{¶ 29} “* * *

{¶ 30} “IC-5-11

{¶ 31} “VENTILATION AND EXHAUST EQUIPMENT

{¶ 32} “IC-5-11.01 SCOPE

{¶ 33} “IC-5-11 of this code relates to methods of controlling air contaminants (toxic gases, toxic dusts, toxic mists, toxic fumes and toxic vapors) named in this code and which have been established as injurious.

{¶ 34} “Appendix I, Threshold Limit Value Table and Appendix II, Examples of Local Exhaust Ventilation, are for information and guide purposes only and are not specific requirements of this code.

{¶ 35} “IC-5-11.02 definition

[138]

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Bluebook (online)
2002 Ohio 7089, 781 N.E.2d 170, 98 Ohio St. 3d 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-supreme-bumpers-inc-v-industrial-commission-ohio-2002.