State Ex Rel. Richmond v. Industrial Commission , 139 Ohio St. 3d 157 ( 2014 )

[Cite as State ex rel. Richmond v. Indus. Comm., 139 Ohio St. 3d 157, 2014-Ohio-1604.]
THE STATE EX REL. RICHMOND, APPELLANT, v. INDUSTRIAL
COMMISSION ET AL., APPELLEES.
[Cite as State ex rel. Richmond v. Indus. Comm., 139 Ohio St. 3d 157,
2014-Ohio-1604.]
Workers’ compensation—Violation of specific safety requirement—Ohio
Adm.Code 4123:1-3-03(J)(1)—Hook ladders—Industrial Commission did
not abuse discretion in considering evidence of industry standards in
determining whether employer complied with safety requirement—Hook
ladder, when properly secured, can be part of billboard structure—
Commission may consider claimant’s negligence in deciding to deny
award.
(No. 2012-1786—Submitted February 4, 2014—Decided April 17, 2014.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-771,
2012-Ohio-4412.
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Per Curiam.
{¶ 1} We affirm the court of appeals in this challenge to the denial of an
additional award for violation of a specific safety requirement (“VSSR”). The
appellant, Darrin C. Richmond, alleged that his employer, appellee Lamar
Advertising of Youngstown, Inc. (“Lamar”), violated Ohio Adm.Code 4123:1-3-
03(J)(1), resulting in his injury. The Industrial Commission, also an appellee,
denied the award, and Richmond filed an action in mandamus in the Tenth
District Court of Appeals. The magistrate of that court and the three-judge panel
found that Richmond had not established by a preponderance of the evidence that
the commission had abused its discretion in denying the award.
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{¶ 2} We hold that the commission did not abuse its discretion in (1)
considering evidence of industry standards in determining whether Lamar
complied with the safety requirement, (2) concluding that a hook ladder, when
properly secured, can be part of a billboard structure, and (3) considering
Richmond’s negligence in deciding to deny a VSSR award.
{¶ 3} We affirm.
Facts and procedural posture
{¶ 4} Richmond was injured when he fell from a ladder as he was
working on a billboard in the course and scope of his employment with Lamar.
His claim was allowed for various physical and psychological conditions. In
addition to his workers’ compensation benefits, Richmond sought an additional
VSSR award. Before the Industrial Commission, Richmond alleged that Lamar
had violated several safety rules associated with workshops and factories and the
construction industry.
{¶ 5} The commission staff hearing officer (“SHO”) considered a report
from the Safety Violations Investigation Unit of the Bureau of Workers’
Compensation and testimony from Richmond and his supervisor, Brian Conley.
Conley testified that the ladder issued to Richmond was standard for the industry
and for Lamar. It was a 14-foot straight ladder with a double hook at the top. The
ladder issued to Richmond had been purchased in 2006 and upon examination
after the accident, was found to be in good condition.
{¶ 6} Lamar issued fall-protection equipment to its employees,
consisting of a safety harness and double lanyard. The safety harness wraps
around the worker’s body, and the lanyard attaches the safety harness to a
structure or safety cable.
{¶ 7} To prevent falls, employees use a double lanyard and are required
to be “tied off” on one of the lanyards at all times. A catwalk that spans the
bottom of the billboard has a fixed cable along its base. Employees are trained to
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attach one lanyard to this cable when working from the catwalk or when moving
the ladder. Before ascending a ladder, they first make sure that the ladder is
securely fixed and then attach one lanyard to a tie-off point on the ladder before
releasing the other from the catwalk.
{¶ 8} Billboards are equipped with ladder stops at each end to prevent
the hook ladder from slipping off the side of the billboard. Employees are
required to inspect the billboard before beginning work to ascertain whether the
ladder stops are in place. Employees are instructed to stop work and call the
office if there are any safety issues.
{¶ 9} Richmond’s affidavit states that on the day of the accident, he
secured the ladder and attached the lanyard to the tie-off point on the ladder, but
the ladder slipped off the billboard and dragged him off with it. However, when
the employer found the ladder after the accident, the lanyard was hooked to a rung
on the ladder, not to the ladder’s tie-off point. Richmond initially asserted that
there were no ladder stops on the billboard that day. However, when the employer
inspected the billboard immediately after the accident, it found the ladder stops in
place and intact. Richmond eventually admitted that he could not be certain that
the stops were not in place, and he now concedes that he mistakenly placed the
ladder between the stop and the billboard’s edge instead of between the stops.
{¶ 10} Richmond’s supervisor testified that the hook ladder was standard
for the outdoor-advertising industry. He explained that when engaged properly,
the ladder is considered part of the billboard structure and that OSHA regulations
expressly adopt that view. He also testified that the ladder stops are there to
prevent the ladder from slipping off the edge of the billboard.
{¶ 11} The SHO denied Richmond’s VSSR claim. First, the SHO found
that two of the regulations cited by Richmond apply only to factories and
workshops, rather than outdoor billboards, and therefore could not support a
VSSR. The SHO found other regulations to be “merely definitional” and
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therefore also did not support a VSSR. Finally, the SHO considered the specific
safety requirement cited by Richmond as supporting the remaining claim, Ohio
Adm.Code 4123:1-3-03(J)(1). That regulation requires that safety harnesses and
lanyards be provided to employees by the employer, that it is the responsibility of
the employee to wear them when working more than six feet off the ground, and
that the lifeline and safety belt or harness be “securely fastened to the structure.”
(Emphasis added.)
{¶ 12} After reviewing the evidence, including evidence of industry
standards, the SHO found that when the Werner hook ladder used in this case is
secured to the billboard structure properly, it becomes part of the structure.
Therefore, attaching the lanyard and harness securely to the ladder rather than to
the billboard satisfies the requirement that they be secured to “the structure.” The
SHO concluded that the employer satisfied all elements of the regulation at issue
and that Richmond had not established by a preponderance of the evidence that
any of the alleged safety requirements had been violated. The SHO noted
Richmond’s testimony that he did not check the ladder stops to make sure they
were in place.
{¶ 13} Richmond filed this mandamus action in the Tenth District Court
of Appeals, requesting that the commission be ordered to grant him the VSSR
award he seeks. Among his arguments was that the SHO improperly relied on
evidence that the manner in which the ladder was used was acceptable as the
industry standard by an OSHA regulation.
{¶ 14} The court’s magistrate found that Lamar had not violated a safety
requirement. Specifically, she found no abuse of discretion in the SHO’s findings
that Lamar provided lifelines and harnesses that when properly engaged, were
securely fastened to the structure, and that when the hooks were properly placed
over the top of the billboard and the ladder was within the stops, the ladder was
part of the structure. The magistrate also found no error in the SHO’s
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consideration whether the use of the ladder satisfied OSHA standards. The
magistrate ultimately decided that Richmond had not demonstrated that the
commission abused its discretion in failing to grant him the VSSR award.
{¶ 15} Richmond filed five objections to the magistrate’s report, and the
Tenth District panel overruled all five. Lamar filed a single objection regarding a
minor mistake in the magistrate’s summary of the SHO’s order, to which
Richmond did not respond. The Tenth District sustained that objection but
otherwise adopted the magistrate’s decision.
{¶ 16} Richmond appealed to this court.
Analysis
{¶ 17} To establish entitlement to a VSSR award, a claimant must show
that a specific safety requirement (“SSR”) is applicable to the employer, that the
employer violated that SSR, and that the violation proximately caused the injury.
State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St. 3d 134, 2002-
Ohio-7089, 781 N.E.2d 170, ¶ 46. The interpretation of SSRs rests with the
commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St. 3d 193, 194, 448
N.E.2d 134 (1983); State ex rel. Burton v. Indus. Comm., 46 Ohio St. 3d 170, 172,
545 N.E.2d 1216 (1989). But because a VSSR award is a penalty, all reasonable
doubts concerning its interpretation must be resolved in favor of the employer.
Id.
{¶ 18} Richmond presents three propositions of law in his appeal. He
proposes that the Industrial Commission abused its discretion in relying on a
federal OSHA rule exemption as the basis for denying the VSSR award. He
proposes that the commission’s finding that a portable hook ladder is part of a
“structure” for purposes of the safety requirement is illogical and negates its
purpose. And he proposes that the commission’s decision denying the VSSR
award based on Richmond’s negligence is contrary to law. For the reasons
explained below, Richmond’s propositions are not well taken, and we affirm.
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The Industrial Commission does not improperly adopt another agency’s
rules merely by considering industry standards or another
administrative agency’s treatment of the same industry or equipment
{¶ 19} To obtain a VSSR award, a claimant must demonstrate that the
employer violated one of the “specific and definite requirements or standards of
conduct as are prescribed by statute or by orders of the Industrial Commission.”
State ex rel. Trydle v. Indus. Comm., 32 Ohio St. 2d 257, 291 N.E.2d 748 (1972),
paragraph one of the syllabus. Violations of other regulations, such as OSHA’s,
will not, by themselves, support a VSSR claim. State ex rel. Roberts v. Indus.
Comm., 10 Ohio St. 3d 1, 2-3, 460 N.E.2d 251 (1984). Conversely, compliance
with OSHA regulations, by itself, does not mandate a denial of a VSSR claim.
State ex rel. Danstar Builders, Inc. v. Indus. Comm., 10th Dist. Franklin No.
04AP-309, 2005-Ohio-365, ¶ 26, aff’d, 108 Ohio St. 3d 315, 2006-Ohio-1060, 843
N.E.2d 761.
{¶ 20} The SHO order in this case did not expressly cite any regulation
other than the Ohio SSRs. But Richmond argues that the SHO’s conclusion is
based solely on a concept borrowed entirely from OSHA, which apparently
permits the billboard industry to use a hook ladder as the attachment point for the
harness and lanyard rather than the billboard structure itself. By referring to the
ladder in this case as being the “industry standard,” Richmond contends, the SHO
was betraying an improper reliance on a federal concept not found in the Ohio
SSR. Richmond further contends that this reliance was expressly confirmed by
the magistrate, who stated that it was not an abuse of discretion for the SHO “to
utilize evidence that the employer’s actions have been deemed to meet the
requirements of other codes such as OSHA,” given the fact that “there are no
administrative code provisions which apply to billboards or the outdoor
advertising industry.” Richmond counters that the Ohio code does in fact apply to
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billboards and outdoor advertising, which he claims further undermines any
reliance on other codes.
{¶ 21} Employers cannot be liable for a VSSR unless the requirement
they are found to have violated was enacted either by the General Assembly or by
an order of the commission. Roberts, 10 Ohio St. 3d at 3, 460 N.E.2d 251.
Sources such as manufacturer’s instructions and industry standards may not form
the basis of an award unless they are expressly incorporated into the SSR. State
ex rel. G & S Metal Prods., Inc. v. Moore, 79 Ohio St. 3d 471, 475-476, 683
N.E.2d 1135 (1997). However, the G & S Metal court also held that manufacturer
specifications may be relevant in evaluating whether an employer violated an
SSR. Id. at 477 (“VSSR liability may lie when failure to comply with
manufacturer instructions frustrates the equipment’s ability to perform its
essential safety function”). For example, in State ex rel. Martin Painting &
Coating Co. v. Indus. Comm., 78 Ohio St. 3d 333, 678 N.E.2d 206 (1997), the
court found that the commission had not abused its discretion in finding that the
employer had violated an SSR by not providing sufficient counterweights to
support the required maximum load on a scaffold. The employer argued that the
SSRs did not mention counterweights, and therefore the SSR could not have been
violated. We held that the SSR did require that the scaffold support four times the
maximum rated load, and according to the manufacturer’s specifications,
counterweights must be used for that purpose. Thus, the SSR could not be
satisfied without counterweights. Id. at 338-339.
{¶ 22} In short, although the commission may not adopt external
standards as the sole basis for a VSSR award, it may look to those standards as
relevant factors to inform its interpretation of an SSR and its determination
whether the employer violated that SSR.
{¶ 23} Here, the SSR at issue, Ohio Adm.Code 4123:1-3-03(J), concerns
fall-protection equipment, such as lifelines, lanyards, and safety harnesses:
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(1) Lifelines, safety belts or harnesses and lanyards shall be
provided by the employer, and it shall be the responsibility of the
employee to wear such equipment when exposed to hazards of
falling where the operation being performed is more than six feet
above ground or above a floor or platform, except as otherwise
specified in this chapter, and when required to work on stored
material in silos, hoppers, tanks, and similar storage areas.
Lifelines and safety belts or harnesses shall be securely fastened to
the structure and shall sustain a static load of no less than three
thousand pounds.
(Emphasis added.) The regulation also states that it “shall be the responsibility of
the employee to properly use the equipment provided.” Ohio Adm.Code 4123:1-
3-03(N).
{¶ 24} The critical phrase in this case is “the structure.” The SSR requires
that the harnesses and lanyards be “securely fastened to the structure.” The
commission’s SHO, when determining whether Lamar had violated the SSR,
relied on the testimony of both Richmond and Conley to find that Richmond was
using a hook ladder supplied by Lamar. Conley testified that the Werner brand
ladder was accepted as the industry standard because, once secured, it could not
fall. He further testified that an OSHA exemption provided that these ladders,
properly secured, are considered part of the structure.
{¶ 25} We cannot say that the SHO unlawfully engrafted an OSHA
regulation onto Ohio Adm.Code 4123:1-3-03(J)(1) to deny the VSSR award. The
SHO did not cite or expressly rely on the OSHA reference from the testimony.
The SHO looked to Conley’s testimony about the “industry standard” as a
relevant factor in interpreting the SSR, as an aid to understanding the term
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“structure” in the context of the case. We find no abuse of discretion in
consulting industry standards to interpret an SSR, as long as those standards are
not the sole basis for determining whether an employer complied with the SSR.
And there is no indication in the SHO’s order that the VSSR award was denied
based on the OSHA exemption, which, as we have said, was not even mentioned.
Rather, the “industry standard” evidence was relied upon to inform the SHO’s
interpretation of the SSR. As always, we defer to the commission’s expertise in
its construction of the safety code unless that construction is shown to be an abuse
of discretion. State ex rel. Taylor v. Indus. Comm., 70 Ohio St. 3d 445, 449, 639
N.E.2d 101 (1994).
{¶ 26} Richmond’s first proposition is without merit.
The commission may find that a hook ladder that is
properly secured to a structure is, at least temporarily, a part of
the structure for purposes of the safety requirements
{¶ 27} The commission did not abuse its discretion when it found that
when a hook ladder is properly secured to a structure, it is part of that structure
and may serve as an anchor point for an employee’s fall-protection equipment.
{¶ 28} The words of an administrative rule are given their plain and
ordinary meaning. State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio
St.2d 51, 54, 386 N.E.2d 1107 (1979). Courts will defer to an agency’s
interpretation of its own rule, as long as it is reasonable. Frisch’s Restaurants,
Inc. v. Ryan, 121 Ohio St. 3d 18, 2009-Ohio-2, 901 N.E.2d 777, ¶ 16.
{¶ 29} Here, the commission, through its SHO, heard testimony that the
Werner hook ladder cannot fall when it is properly secured by the hooks at the top
and with the ladder stops in place. This testimony is “some evidence” that the
ladder, when secured properly on the billboard and inside the stops, becomes
sufficiently fixed to be considered a part of the structure for purposes of
preventing falls. As Richmond was given a Werner hook ladder in good
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condition and was trained in how to secure it on the billboard, the commission
was within its discretion to find that the ladder was, for all practical purposes, a
part of the structure under the SSR.
{¶ 30} Richmond’s second proposition is without merit.
The commission may find that an employee’s unilateral negligence
precludes an award for violation of specific safety requirements
{¶ 31} An employee’s negligence will bar a VSSR award if the employer
complied with the SSR but the compliance was nullified by the employee’s
conduct. State ex rel. Coffman v. Indus. Comm., 109 Ohio St. 3d 298, 2006-Ohio-
2421, 847 N.E.2d 427, ¶ 13, citing State ex rel. Frank Brown & Sons, Inc. v.
Indus. Comm., 37 Ohio St. 3d 162, 164, 524 N.E.2d 482 (1988) (a VSSR award is
precluded by the claimant’s unilateral negligence in removing the top cross brace
from a scaffold’s supporting structure without first installing a corresponding
cross brace beneath, contrary to employer instructions). See also State ex rel.
Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St. 3d 190, 192, 724 N.E.2d
778 (2000), quoting Frank Brown & Sons at 164 (employers can be subject to
VSSR penalties for “ ‘only those acts within the employer’s control’ ”).
{¶ 32} The case cited by Richmond is inapposite. As Richmond correctly
quotes, “unless a claimant deliberately circumvented an otherwise complying
safety device, or refused to use employer-provided safety equipment, an
employee’s conduct is not relevant to a VSSR determination.” State ex rel.
Pressware Internatl., Inc. v. Indus. Comm., 85 Ohio St. 3d 284, 288, 707 N.E.2d
935 (1999).
{¶ 33} However, the facts here are different from those in Pressware. In
that case, the SSR required employers to provide hand tools to clear jammed
materials from certain presses. The claimant, operating the press, noticed a jam
and stopped the machine to clear it. Unaware that the safety switch that protected
her from an accidental cycling of the machine had been improperly adjusted that
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morning, the claimant reached into the cutting area to clear away the stuck
materials. The machine cycled, injuring her. The employer argued that she was
negligent in sticking her hand into the cutting area. This argument was rejected,
because the employer had failed to provide a clearing tool, and therefore the
employee’s negligence was irrelevant.
{¶ 34} Here, Lamar provided the safety equipment required by Ohio
Adm.Code 4123:1-3-03(J). Richmond conceded that he did not look for the
ladder stops and that he knew that the stops prevent the Werner ladder from
slipping off the side of the billboard. He admits in his brief that he “made the
mistake of placing his ladder between the end stop and billboard edge.”
{¶ 35} Thus, Richmond’s negligence in not using the ladder properly
caused the accident. Lamar’s equipment was in compliance, and Richmond had
been trained how to use all the equipment properly. “[T]he critical issue in a
VSSR claim is always whether the employer complied with the specific safety
requirement.” (Emphasis sic.) State ex rel. Quality Tower Serv., 88 Ohio St. 3d at
193, 724 N.E.2d 778. Here, as established above, Lamar complied with the
requirement, and therefore its actions do not constitute a VSSR.
{¶ 36} Richmond’s third proposition is without merit.
Conclusion
{¶ 37} The commission properly considered evidence of the industry
standards in determining whether Lamar’s ladder and harness equipment
complied with the law. The commission correctly concluded that when properly
secured, the Werner hook ladder used here is part of the billboard structure.
Finally, the commission properly considered Richmond’s negligence in deciding
whether to make a VSSR award, because Lamar complied with the SSR at issue
here. In short, Richmond failed to show a clear legal right to the requested relief.
We therefore affirm.
Judgment affirmed.
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O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Boyd, Rummell, Carach, Curry, Kaufmann & Bins-Castronovo Co.,
L.P.A., and Walter Kaufmann, for appellant.
Cohen, Todd, Kite & Stanford, L.L.C., and Jill T. O’Shea, for appellee
Lamar Advertising of Youngstown, Inc.
Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellee Industrial Commission.
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