State ex rel. Byington Builders, Ltd. v. Indus. Comm. (Slip Opinion) , 156 Ohio St. 3d 35 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip Opinion No. 2018-Ohio-5086.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-5086
THE STATE EX REL. BYINGTON BUILDERS, LIMITED, APPELLANT, v.
INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip
Opinion No. 2018-Ohio-5086.]
Workers’ compensation—Violation of specific safety requirement—Industrial
Commission did not abuse its discretion in granting additional award—
Record contained evidence supporting commission’s finding that specific
safety requirement applied, that employer violated it, and that violation was
proximate cause of injury—Court of appeals’ judgment denying of writ of
mandamus affirmed.
(No. 2017-0690—Submitted July 31, 2018—Decided December 20, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 15AP-407,
2017-Ohio-2623.
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SUPREME COURT OF OHIO
Per Curiam.
I. INTRODUCTION
{¶ 1} This is a workers’ compensation case in which appellee Industrial
Commission awarded appellee Thomas Trousdale additional compensation for the
violation of a specific safety requirement (“VSSR”) by appellant, Byington
Builders, Ltd. (“Byington Builders”). Byington Builders asks this court to reverse
the Tenth District Court of Appeals’ judgment denying its request for a writ of
mandamus compelling the commission to vacate its VSSR award.
{¶ 2} Byington Builders raises two issues in this appeal: (1) whether the
commission abused its discretion by finding that Byington Builders violated a
specific safety requirement and (2) whether the commission abused its discretion
by failing to find that the proximate cause of Trousdale’s injuries was his own
“unilateral negligence.” We affirm the denial of the writ. Although aspects of the
Tenth District’s analysis were flawed, that court reached the correct result.
II. FACTS AND PROCEDURAL HISTORY
A. Trousdale’s Employment and Injury
{¶ 3} On September 2, 2011, Trousdale fell from the pitched roof of a two-
story apartment building in Sandusky, while working for Byington Builders.
Trousdale was an experienced roofer and a union carpenter who had been assigned
to install caps at the peak of the roof. On his way to get more caps, Trousdale
stepped on some loose shingles midway down the roof, slipped, slid down the
surface, went over the edge, fell 22 feet, and hit the ground, landing on his buttocks.
He was transported to a hospital by ambulance.
{¶ 4} Trousdale filed a claim for workers’ compensation benefits. The
claim was allowed for compression fracture; lumbar compression fracture; buttock,
left-hip, and left-elbow contusion; disc protrusion; stenosis; chronic compression
deformities of thoracic and lumbar vertebrae; substantial aggravation of pre-
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existing disc protrusion and of degenerative disc disease; and severe and chronic
major depressive disorder.
B. Trousdale’s VSSR Claim
1. Application
{¶ 5} On November 8, 2012, Trousdale filed an application for an
additional award for a VSSR. Trousdale claimed that Byington Builders violated
specific safety requirements set forth in former Ohio Adm.Code 4121:1-3-09(E)
(current Ohio Adm.Code 4123:1-3-09, regarding the installation of roofing
brackets), which is not at issue in this appeal, and former Ohio Adm.Code 4121:1-
3-09(F)(1) (current Ohio Adm.Code 4123:1-3-09(F)(1), regarding the installation
of catch platforms or a lifeline for pitched roofs).1
{¶ 6} Ohio Adm.Code 4123:1-3-09(F)(1) provides, “On pitched roofs with
a rise of four inches in twelve [inches] or greater, sixteen feet or more above ground,
and not having a parapet of at least thirty inches in height, catch platforms shall be
installed. * * * Safety belts or harnesses attached to a lifeline which is securely
fastened to the structure may be used in lieu of a catch platform.”
2. Hearing
{¶ 7} A staff hearing officer (“SHO”) for the commission took evidence at
a hearing that was held on November 12, 2014. At the hearing, the owner of
Byington Builders, Aaron Byington (“Byington”), stipulated that the roof from
which Trousdale fell had a pitch of 6 inches in 12, was 22 feet above the ground,
and had no parapet. Trousdale testified that he thought the pitch was 8 inches in 12
but that he could not be certain and that “[s]ix 12, eight 12 is not very much of a
difference by looking.” It is therefore undisputed that the pitch was at least 6 inches
in 12—i.e., that the roof gained 6 inches in height for every 12 inches in length.
1. Because the pertinent language of the rule has not changed, this opinion will reference the current
code number.
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{¶ 8} Trousdale, Byington, and Thomas Mock, Byington Builders’ “lead
man” on the job, all testified that on the day that Trousdale fell, no catch platforms
had been installed and no safety belts, harnesses, or lifelines were being used by
anyone working on the apartment roof. Byington admitted that he did not require
his employees to use safety harnesses and that he was aware that no one was using
safety equipment on this job. He testified, “[A] lot of times when you do have these
harnesses and ropes, you trip and fall over it nonstop. And people weren’t
comfortable—don’t get comfortable with them. I’ve seen more accidents with that.
I’ve had more accidents with them on than I have without them.” Both Mock and
Tyson Pengob, another Byington Builders supervisor, testified that they had never
instructed anyone on the job site that using safety equipment was required. The
day that Trousdale fell, Mock and Pengob were both working on the roof without
any safety equipment.
{¶ 9} Trousdale testified that a few days before he fell, another Byington
Builders employee fell from the same roof and landed on an apartment balcony.
According to Trousdale, Byington Builders made no changes in the use of safety
equipment after this incident. Coworker Rodney Clift, a fellow union carpenter,
also testified that an employee fell from the roof and landed on a balcony. Byington
Builders presented no testimony or other evidence at the hearing disputing the fact
that another employee fell from the same roof a few days before Trousdale did.
{¶ 10} The parties presented conflicting testimony about whether any safety
harnesses and lifelines were available at the job site. Byington, Mock, and Pengob
all testified that they had made Trousdale aware that safety harnesses and lifelines
were kept in an equipment trailer that, according to Byington, was located ten feet
from the building from which Trousdale fell. By contrast, Trousdale testified that
he never saw the trailer or any harnesses, ropes, lanyards, or roofing brackets on
the job site and that neither Byington nor any supervisor ever told him that he was
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required to get safety equipment from a trailer. Clift also testified that he never saw
a trailer or any safety equipment at the job site.
3. Order
{¶ 11} In the commission’s order, mailed on November 20, 2014, the SHO
denied Trousdale’s VSSR application in part and granted it in part. The SHO found
that Ohio Adm.Code 4123:1-3-09(F)(1) applied to the roof from which Trousdale
fell, that Byington Builders had violated it, and that the violation was the proximate
cause of Trousdale’s injuries.
{¶ 12} The SHO resolved the factual dispute regarding the availability of
the safety equipment in Byington Builders’ favor but found that “[e]ven when
construing the evidence in favor of the Employer, [i.e.,] that the safety equipment
was on-site and that the Injured Worker knew of its availability,” Byington Builders
still violated the provision. Mere availability did not suffice, because “[e]ven
assuming safety belts were available, [Ohio Adm.Code] 4123:1-3-09(F)(1) requires
that they be ‘attached to a lifeline which is securely fastened to the structure’ in
order to satisfy the requirement of being used ‘in lieu of a catch platform.’ ”
Accordingly, the SHO found that “the Employer has the option to either install a
catch basin [sic: platform] or to fasten a lifeline to the roof so that those wishing to
use a safety belt would have something to attach the safety belt to on the structure,”
and “[t]he employer in the instant case did not install either of those devices.”
{¶ 13} The SHO awarded additional compensation in the amount of 40
percent of Trousdale’s maximum weekly rate due to this VSSR, finding that the
violation was serious and noting that another worker had fallen off the same roof a
few days before Trousdale fell.
4. Motion for a Rehearing
{¶ 14} Byington Builders moved for a rehearing, arguing that Ohio
Adm.Code 4123:1-3-09(F)(1) must be read in conjunction with Ohio Adm.Code
4123:1-3-03(J)(1) and that under the latter provision, which relates to personal
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protective equipment, it is the responsibility of the employee, not the employer, to
use a safety harness. Byington Builders argued that the proximate cause of
Trousdale’s injuries was his own “unilateral negligence” in failing to use the
lifelines that Byington Builders claimed it had made available. It further argued
that securely fastening a lifeline to the structure would have done nothing to prevent
injury, because workers may have failed to use the available lifeline. A different
SHO denied the motion for a rehearing, finding that Byington Builders had not
submitted any new and relevant evidence nor shown that the original order was
based on an obvious mistake of fact or clear mistake of law.
C. Byington Builders’ Mandamus Action
{¶ 15} In April 2015, Byington Builders filed its mandamus complaint
asking the Tenth District Court of Appeals to issue a writ directing the commission
to vacate its prior decisions and to enter an order denying Trousdale’s request for a
VSSR award. In support of its claim that the commission abused its discretion,
Byington Builders again asserted that it had not violated Ohio Adm.Code 4123:1-
3-09(F)(1), because that rule, when read in conjunction with Ohio Adm.Code
4123:1-3-03(J)(1), required it to do no more than make lifelines and safety
harnesses available for employees and did not require Byington Builders to affix
either catch platforms or lifelines to the building, as the SHO had ruled. Byington
Builders also again asserted that the proximate cause of Trousdale’s injuries was
his own unilateral negligence in failing to use available safety harnesses. Byington
Builders additionally asserted that the commission failed to strictly construe Ohio
Adm.Code 4123:1-3-09(F)(1) and to resolve all reasonable doubts regarding its
interpretation in favor of the employer as required by this court’s caselaw.
{¶ 16} A Tenth District magistrate recommended that the court deny the
writ. 2017-Ohio-2623, at ¶ 51. Taking guidance from State ex rel. Avalotis
Painting Co. v. Indus. Comm., 91 Ohio St. 3d 137, 742 N.E.2d 1124 (2001), in
which this court discussed Ohio Adm.Code 4123:1-3-03(J)(1), the magistrate
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concluded that under Ohio Adm.Code 4123:1-3-09(F)(1), “logic requires the
conclusion that the employer bear the responsibility of rigging the lifeline. It is not
the responsibility of the worker to rig his own lifeline or to request that his employer
rig a lifeline.” 2017-Ohio-2623, at ¶ 47. Because it was undisputed that Byington
Builders failed to install a catch platform or rig a lifeline and had therefore violated
Ohio Adm.Code 4123:1-3-09(F)(1), the magistrate further concluded that “neither
proximate cause nor unilateral negligence are truly issues.” Id. at ¶ 48.
{¶ 17} Byington Builders objected to the magistrate’s recommendation,
reiterating its prior arguments and asserting that the facts in Avalotis are
distinguishable from those in this case. The Tenth District overruled Byington
Builders’ objections and adopted the magistrate’s decision as its own. Byington
Builders filed a timely appeal of the Tenth District’s judgment.
III. ANALYSIS
A. Requirements for a VSSR Award
{¶ 18} “An award for a VSSR is ‘a new, separate, and distinct award’ over
and above standard workers’ compensation benefits. It is not covered by an
employer’s workers’ compensation premium.” State ex rel. Precision Steel Servs.,
Inc. v. Indus. Comm., 145 Ohio St. 3d 76, 2015-Ohio-4798, 47 N.E.3d 109, ¶ 15,
quoting State ex rel. Newman v. Indus. Comm., 77 Ohio St. 3d 271, 272, 673 N.E.2d
1301 (1997). “To be entitled to an additional award for a VSSR, a claimant must
show that (1) a specific safety requirement applied, (2) the employer violated that
requirement, and (3) the employer’s violation caused the injury.” Id.
B. Requirements for a Writ of Mandamus
{¶ 19} To prevail on its claim for mandamus relief, Byington Builders must
“demonstrate that the commission’s decision to issue a VSSR award was an abuse
of discretion. So long as some evidence supports the commission’s order, there
was no abuse of discretion, and the court must uphold the decision.” State ex rel.
Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St. 3d 243, 2015-Ohio-
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4525, 41 N.E.3d 1233, ¶ 13. “The interpretation of a specific safety requirement is
within the final jurisdiction of the commission and may be corrected in mandamus
only upon a showing that the commission abused its discretion.” Precision Steel at
¶ 21. “[B]ecause a VSSR award is a penalty imposed on an employer, specific
safety requirements must be strictly construed and all reasonable doubts concerning
the interpretation of a particular safety regulation must be resolved in favor of the
employer.” Id.
C. The Industrial Commission Did Not Abuse Its Discretion
1. The Specific Safety Requirement Applied
{¶ 20} Chapter 4123:1-3 of the Ohio Administrative Code applies to the
construction and repair of buildings. Ohio Adm.Code 4123:1-3-01(A). And Ohio
Adm.Code 4123:1-3-09(F)(1) applies to work performed on “pitched roofs with a
rise of four inches in twelve or greater, sixteen feet or more above ground, and not
having a parapet of at least thirty inches in height.” It is undisputed that when
Trousdale fell, he was engaged in construction activity: the installation of roof caps.
It is likewise undisputed that the roof from which Trousdale fell had a pitch of at
least 6 inches in 12 (which is greater than 4 inches in 12), was 22 feet above the
ground, and had no parapet. The rule therefore applied to the job site at which
Trousdale was injured. Accord State ex rel. R. Bauer & Sons Roofing & Siding,
Inc. v. Indus. Comm., 84 Ohio St. 3d 62, 69, 701 N.E.2d 995 (1998) (“Ohio
Adm.Code 4121:1-3-09 operates to protect any construction employee who works
with pitched roofs, flat roofs, or any other roofing device mentioned in the rule, and
who is injured due to an employer’s failure to comply with the duties imposed”).
2. Byington Builders Violated the Specific Safety Requirement
a. The Requirements of Ohio Adm.Code 4123:1-3-09(F)(1)
{¶ 21} This case hinges on what Ohio Adm.Code 4123:1-3-09(F)(1)
required of Byington Builders. The commission and the Tenth District concluded
that it required Byington Builders to install either catch platforms or lifelines.
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Byington Builders argues that Ohio Adm.Code 4123:1-3-09(F)(1) must be read in
conjunction with Ohio Adm.Code 4123:1-3-03(J)(1) and that read together, these
sections required Byington Builders to merely make lifelines and safety harnesses
available to employees. The Tenth District relied on Avalotis—a case that turned
on the construction of Ohio Adm.Code 4123:1-3-03(J)(1) and that did not involve
the application or interpretation of Ohio Adm.Code 4123:1-3-09(F)(1)—to hold
that it was the employer’s responsibility to install lifelines, not merely make them
available.
i. The plain text of Ohio Adm.Code 4123:1-3-09(F)(1) resolves the issue
{¶ 22} Ohio Adm.Code 4123:1-3-09(F)(1) states: “On pitched roofs with a
rise of four inches in twelve or greater, sixteen feet or more above ground, and not
having a parapet of at least thirty inches in height, catch platforms shall be installed.
* * * Safety belts or harnesses attached to a lifeline which is securely fastened to
the structure may be used in lieu of a catch platform.” (Emphasis added.) The first
sentence of this rule clearly requires employers whose employees are engaging in
construction activity on qualifying roofs to install catch platforms. See Ohio
Adm.Code 4123:1-3-01(B)(25) (“ ‘Shall’ shall be considered mandatory”); see also
Bauer & Sons, 84 Ohio St. 3d at 69. The last sentence of the rule provides that “in
lieu of” the required catch platform, safety belts or harnesses that are attached to a
lifeline that is securely fastened to the structure may be used. Said another way, if
“[s]afety belts or harnesses attached to a lifeline which is securely fastened to the
structure” are not used, catch platforms shall be installed. See State ex rel. Danstar
Builders, Inc. v. Indus. Comm., 108 Ohio St. 3d 315, 2006-Ohio-1060, 843 N.E.2d
761, ¶ 4 (the rule provides that “pitched roofs require a catch platform unless safety
belts and lifelines are used”). Ohio Adm.Code 4123:1-3-09(F)(1) therefore
required Byington Builders to install catch platforms if safety harnesses attached to
securely fastened lifelines were not used.
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{¶ 23} Because Byington Builders admits that it did not install catch
platforms, the question becomes whether safety harnesses attached to securely
fastened lifelines were used. This depends on what “used” means. “Use” is not a
defined term in the applicable division of the Ohio Administrative Code, so this
court must afford the word its common meaning. State ex rel. Parks v. Indus.
Comm., 85 Ohio St. 3d 22, 25, 706 N.E.2d 774 (1999) (“ ‘The [commission’s] rules
for specific safety requirements have the effect of legislative enactments’ and
therefore are ‘subject to the ordinary rules of statutory construction’ ” [brackets
sic]), quoting State ex rel. Miller Plumbing Co. v. Indus. Comm., 149 Ohio St. 493,
496-497, 79 N.E.2d 553 (1948); R.C. 1.42 (“[w]ords and phrases shall be * * *
construed according to * * * common usage”).
{¶ 24} The dictionary definition of “use” is “to put into action or service
*** EMPLOY.” Webster’s Third New International Dictionary 2523 (2002).
Byington Builders would have “use” mean “make available.” But the safety-and-
hygiene rules already have a word with that definition: “ ‘Provide’ means to make
available,” Ohio Adm.Code 4123:1-3-01(B)(21). If the drafters of the code had
intended Ohio Adm.Code 4123:1-3-09(F)(1) to require employers to install catch
platforms unless safety belts, harnesses, and lifelines were merely made available,
they would have employed the word to which they had given that definition. See,
e.g., Ohio Adm.Code 4123:1-3-04(D)(1), (2), and (3), 4123:1-3-10(R)(6), 4123:1-
3-10(V)(3), and 4123:1-3-10(Y)(7). Indeed, Ohio Adm.Code 4123:1-3-
18(H)(2)(b) says, “When entering a toxic or flammable atmosphere, an employee
shall be provided with and use an adequate, attended, lifeline.” (Emphasis added.)
The code drafters’ employment of both “use” and “provide” in that rule bolsters
our conclusion that “use” does not mean the same thing as “provide.”
{¶ 25} Because the applicable rule employs the word “used” rather than the
word “provided,” Byington Builders was required to install catch platforms if safety
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belts or harnesses attached to lifelines that were securely fastened to the structure
were not used—i.e., put into action or service.
ii. The plain meaning of the rule is consistent with the commission’s
interpretation, which is not “patently illogical”
{¶ 26} This court is “normally obligated to defer to the commission’s
interpretation of its own rules,” State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St. 3d
77, 79-80, 661 N.E.2d 724 (1996), and this straightforward reading of the text of
Ohio Adm.Code 4123:1-3-09(F)(1) is consistent with the SHO’s interpretation of
the rule’s requirements. The SHO stated, “Even assuming safety belts were
available, [Ohio Adm.Code] 4123:1-3-09(F)(1) requires that they be ‘attached to a
lifeline which is securely fastened to the structure’ in order to satisfy the
requirement of being used ‘in lieu of a catch platform.’ ” (Emphasis added.)
{¶ 27} While “[t]he commission has the discretion to interpret its own rules
* * *, where the application of those rules to a unique factual situation gives rise to
a patently illogical result, common sense should prevail.” State ex rel. Harris v.
Indus. Comm., 12 Ohio St. 3d 152, 153, 465 N.E.2d 1286 (1984), abrogated on
other grounds, State ex rel. AK Steel Corp. v. Davis, 123 Ohio St. 3d 458, 2009-
Ohio-5865, 917 N.E.2d 797. Citing this principle, Byington Builders argues that it
is illogical to require an employer to install lifelines that an employee might choose
not to use.
{¶ 28} However, we are not convinced that Byington Builders’ situation is
unique or that the application of Ohio Adm.Code 4123:1-3-09(F)(1) to that
situation would be illogical. While Trousdale’s fall was surely of unique
importance to him, Byington Builders has identified—and the record discloses—
nothing about this particular roofing job or this particular accident that was unique
in a way that should abrogate the application of a specific safety requirement. And,
Byington Builders’ argument that it is illogical to require employers to install
lifelines that might go unused would make sense only if this court agreed with
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Byington Builders’ flawed reading of Ohio Adm.Code 4123:1-3-09(F)(1).
Byington Builders has not explained how it is illogical to apply the straightforward
requirements of this rule regarding roofing devices to this straightforward roofing
job.
iii. Ohio Adm.Code 4123:1-3-03(J)(1) does not alter the requirements of Ohio
Adm.Code 4123:1-3-09(F)(1)
{¶ 29} Byington Builders’ primary argument is that Ohio Adm.Code
4123:1-3-09(F)(1) must be read in conjunction with Ohio Adm.Code 4123:1-3-
03(J)(1), and that the latter rule permitted Byington Builders to comply with the
former rule by making safety harnesses and lifelines available for employees to use.
Byington Builders is incorrect.
{¶ 30} Ohio Adm.Code 4123:1-3-03(J)(1) states:
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.) This is a general rule relating to personal protective equipment.
By contrast, Ohio Adm.Code 4123:1-3-09(F)(1) is a more specific rule relating to
work performed on pitched roofs that are at least 16 feet above the ground.
{¶ 31} R.C. 1.51 states:
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If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is given
to both. If the conflict between the provisions is irreconcilable, the
special or local provision prevails as an exception to the general
provision, unless the general provision is the later adoption and the
manifest intent is that the general provision prevail.
{¶ 32} Here, it is possible to give effect to both Ohio Adm.Code 4123:1-3-
03(J)(1) and 4123:1-3-09(F)(1). The two rules have different (though sometimes
overlapping) scopes and are not in conflict. Ohio Adm.Code 4123:1-3-03(J)(1)
applies to operations being performed more than six feet above the ground or above
a floor or platform—whether on a roof or in any other workspace. In such cases,
the employer is required to “provide”—i.e., make available—lifelines, safety belts
or harnesses, and lanyards, and it is the “responsibility of the employee to wear
such equipment.” Id. The rule expressly applies “except as otherwise specified in
this chapter.” Id.
{¶ 33} Ohio Adm.Code 4123:1-3-09(F)(1) otherwise specifies. It applies a
more stringent requirement to operations being performed on pitched roofs that are
more than 16 feet above the ground. In those cases, the employer is required to
install catch platforms unless “safety belts or harnesses attached to a lifeline which
is securely fastened to the structure” are “used,” id., i.e., put into action or service.
The general requirements in Ohio Adm.Code 4123:1-3-03(J)(1) do not alter
anything in this more specific requirement. And even if the two rules did conflict,
under R.C. 1.51, the more specific provision would prevail.
{¶ 34} For these reasons, the Tenth District’s focus on Avalotis, 91 Ohio
St.3d 137, 742 N.E.2d 1124—and Byington Builders’ attempts to distinguish it—
are misplaced. In Avalotis, a painter stood on a narrow I-beam, without a lifeline,
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in order to paint the beam above. He lost his balance and fell four stories. This
court considered the only rule at issue—the predecessor to Ohio Adm.Code 4123:1-
3-03(J)(1)—and determined that it required the employer, not the employee, to rig
a lifeline when that rule required one to be provided, because the rule made the
employee responsible only for equipment that was worn (i.e., safety harnesses but
not lifelines) and because a lifeline was “useless if it [wa]s not in place for the
employee to tie off.” Avalotis, 91 Ohio St. 3d at 139, 742 N.E.2d 1124. While it is
instructive that even under the less-stringent requirements of Ohio Adm.Code
4123:1-3-03(J)(1), this court faulted the employer for failing to rig a lifeline, that
decision does not control the outcome of this case, which hinges on the application
of a different, more specific rule.
b. Byington Builders Violated Ohio Adm.Code 4123:1-3-09(F)(1)
{¶ 35} It is undisputed that (1) Byington Builders required Trousdale to
work on a roof with a pitch greater than four inches in twelve, that was more than
16 feet from the ground, and that had no parapet, (2) Byington Builders did not
install catch platforms, and (3) safety belts or harnesses attached to a lifeline that
was securely fastened to the structure were not used. Byington Builders therefore
violated Ohio Adm.Code 4123:1-3-09(F)(1). Accord Danstar Builders, 108 Ohio
St.3d 315, 2006-Ohio-1060, 843 N.E.2d 761, at ¶ 4, 9, 16.
3. Byington Builders’ Violation Proximately Caused Trousdale’s Injuries
a. Evidence Supports The Commission’s Finding of Probable Cause
{¶ 36} The commission did not abuse its discretion by finding that Byington
Builders’ compliance with Ohio Adm.Code 4123:1-3-09(F)(1) “would have
prevented the fall from the roof.” Evidence in the record indicates that Trousdale
slipped while walking on the roof, slid down its surface, and went over the edge.
His fall to the ground caused his injuries. Had catch platforms been installed or
had safety harnesses attached to a lifeline securely fastened to the roof been used,
Trousdale’s fall would have been arrested.
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b. The “Unilateral Negligence” Defense Is Inapplicable
{¶ 37} Byington Builders argues that the proximate cause of Trousdale’s
injuries was his own “unilateral negligence in failing to utilize the available safety
equipment” and that under State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm.,
37 Ohio St. 3d 162, 524 N.E.2d 482 (1988), Trousdale’s negligence precludes his
receipt of a VSSR award.
i. Byington Builders’ VSSR bars its assertion of unilateral negligence
{¶ 38} In Frank Brown & Sons, this court held that an injured worker’s
“unilateral negligence in removing the top cross brace” from a scaffold “without
first installing a corresponding cross brace beneath, contrary to instructions”
precluded his receipt of a VSSR award. Id. at 164. In its analysis, this court
recounted the facts of State ex rel. Lewis v. Indus. Comm., Franklin App. No. 83AP-
756, 1984 WL 4703 (Mar. 15, 1984), in which the injured worker had “voluntarily
switched off a punch press safety device despite specific rules to the contrary,”
leading to his injury. Frank Brown & Sons at 164. The court of appeals had “denied
the writ seeking a VSSR award, finding that the employer had fully complied with
the applicable safety regulations and the claimant’s unilateral act violated the safety
requirement.” Id. The court of appeals in Frank Brown & Sons then concluded,
“Here, too, the scaffold was properly assembled and in compliance with the
applicable safety requirement until appellee’s removal of the cross brace.” Id.
{¶ 39} These cases illustrate the rule that dispatches Byington Builders’
unilateral-negligence argument—i.e., that this defense “is available only if the
employer first complies with the applicable safety requirement.” (Emphasis
added.) State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St. 3d 78,
2012-Ohio-2125, 969 N.E.2d 252, ¶ 16 (despite injured worker’s statement that he
did not need any safety equipment to perform the task he was set to complete,
employer could not take advantage of unilateral-negligence defense since it did not
satisfy VSSR requiring it to provide electrical-safety equipment).
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{¶ 40} As this court has explained, “the defense is not actually about an
employee’s negligence. The employer instead avoids VSSR liability when ‘[the]
employee unilaterally violates a safety requirement,’ ” (emphasis sic) State ex rel.
Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St. 3d 190, 193, 724 N.E.2d 778
(2000) (granting writ to vacate VSSR award where employee used his own ultra-
light straps to rig a support structure in contravention of direct instructions from
employer to use employer-provided straps that complied with the safety
requirement), quoting State ex rel. Cotterman v. St. Marys Foundry, 46 Ohio St. 3d
42, 554 N.E.2d 887 (1989). “[A]n employee’s negligence in failing to protect
himself from injury due to an employer’s VSSR will never bar recovery,” id.,
because specific safety requirements are “ ‘intended to protect employees against
their own negligence and folly as well as to provide them a safe place to work,’ ”
Cotterman at 47 (granting writ to vacate commission’s order denying VSSR award,
despite employer’s argument that decedent was supervisor responsible for selecting
chains to suspend the load that fell on him), quoting State ex rel. U.S. Steel Corp.
v. Cook, 10 Ohio App. 3d 183, 186, 461 N.E.2d 916 (10th Dist.1983).
{¶ 41} Because Byington Builders failed to comply with Ohio Adm.Code
4123:1-3-09(F)(1), it cannot employ the defense that Trousdale was unilaterally
negligent.
ii. Trousdale was not unilaterally negligent
{¶ 42} Moreover, even if the applicable rule had required Byington
Builders to do no more than make safety equipment available to Trousdale and
Byington Builders had done so, this case does not fit the mold of those that have
allowed employers to avoid a VSSR award due to the injured worker’s unilateral
negligence. This is not a case in which a rogue employee disregarded direct
instructions to use certain safety equipment, or disabled an employer-provided
safety device. Compare Frank Brown & Sons, 37 Ohio St. 3d 162, 524 N.E.2d 482;
Lewis, Franklin App. No. 83AP-756, 1984 WL 4703; Quality Tower Serv. To the
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contrary, Byington Builders’ owner and supervisors never instructed any
employees to use safety equipment and no employees—including the two
supervisors—were using any safety equipment on this job, with the approval of the
owner.
{¶ 43} Accordingly, Trousdale’s failure to use safety equipment was hardly
unilateral, and Byington Builders’ claim that Trousdale was negligent makes little
sense. Byington Builders casts the decision to leave safety equipment in the
equipment trailer on this particular job as the educated decision of experienced
roofers. In light of this position, Byington Builders’ argument that Trousdale was
negligent implies that its entire crew, including its supervisors and owner, were also
acting negligently.
{¶ 44} Had Byington Builders required its crew to use safety harnesses
attached to lifelines that were securely attached to the structure and had Trousdale
alone, unbeknownst to Byington Builders, failed to heed that instruction, we would
likely view this case differently. As it is, because Byington Builders failed to
comply with the applicable specific safety requirement and because Trousdale’s
actions did not constitute “unilateral negligence,” the defense is inapplicable.
IV. CONCLUSION
{¶ 45} For the reasons above, the commission did not abuse its discretion
in granting Trousdale a VSSR award, and the Tenth District correctly denied
Byington Builders’ request for a writ of mandamus. We affirm the Tenth District’s
judgment.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEGENARO, JJ., concur.
FRENCH and DEWINE, JJ., concur in judgment only.
KENNEDY, J., dissents, with an opinion.
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KENNEDY, J., dissenting.
{¶ 46} Because the plain language of Ohio Adm.Code 4123:1-3-09(F)(1)
does not require an employer to fasten lifelines for its roofers, appellee Industrial
Commission abused its discretion in awarding appellee Thomas Trousdale
additional compensation based on the finding that appellant, Byington Builders,
Ltd. (“Byington Builders”), violated a specific safety requirement (“VSSR”).
Accordingly, I dissent and would reverse the judgment of the Tenth District Court
of Appeals denying a writ of mandamus to compel the commission to vacate its
award.
{¶ 47} While working as a roofer for Byington Builders, Trousdale fell
from a roof and sustained injuries. He was awarded workers’ compensation
benefits and then sought an additional award for a violation of Ohio Adm.Code
4123:1-3-09(F)(1), which provides: “On pitched roofs with a rise of four inches in
twelve [inches] or greater, sixteen feet or more above ground, and not having a
parapet of at least thirty inches in height, catch platforms shall be installed. * * *
Safety belts or harnesses attached to a lifeline which is securely fastened to the
structure may be used in lieu of a catch platform.” After a hearing, the commission
determined that Byington Builders had violated this requirement by failing to install
a catch platform or fasten a lifeline to the roof that its roofers could use with a safety
belt, and it awarded Trousdale additional compensation as a penalty for the
violation.
{¶ 48} Byington Builders filed this mandamus action in the Tenth District
Court of Appeals, seeking to vacate the VSSR award. The Tenth District denied
the writ, and a majority of this court affirms, holding that Ohio Adm.Code 4123:1-
3-09(F)(1) required Byington Builders to “use” safety belts securely fastened to
lifelines if it did not install catch platforms and that making the equipment available
did not satisfy this requirement.
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{¶ 49} The majority’s analysis in affirming the court of appeals disregards
the standard of review, which requires the court to strictly construe specific safety
requirements and to resolve all doubts concerning the meaning and applicability of
a particular requirement in favor of the employer. State ex rel. 31, Inc. v. Indus.
Comm., 152 Ohio St. 3d 350, 2017-Ohio-9112, 96 N.E.3d 246, ¶ 21, citing 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 imposed on an employer, id., and we have explained that
specific safety requirements must establish “ ‘specific and definite requirements or
standards of conduct * * * [that] are of a character plainly to apprise an employer
of his legal obligation toward his employees,’ ” (alterations in Precision Steel)
State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St. 3d 76, 2015-
Ohio-4798, 47 N.E.3d 109, ¶ 17, quoting State ex rel. Trydle v. Indus. Comm., 32
Ohio St. 2d 257, 291 N.E.2d 748 (1972), paragraph one of the syllabus. In other
words, an employer cannot be penalized for failing to comply with a safety
requirement unless “mandatory specific duties are apparent to an employer
interpreting [the] provision.” State ex rel. Oliver v. Southeastern Erectors, Inc., 76
Ohio St. 3d 26, 28, 665 N.E.2d 1108 (1996).
{¶ 50} Ohio Adm.Code 4123:1-3-09(F)(1) does not specify whether it is the
employer or the roofer who must fasten the lifeline—it only states that “a lifeline
which is securely fastened to the structure may be used in lieu of a catch platform.”
Because the rule is phrased in the passive voice, it is not possible to say that it is
apparent to an employer interpreting Ohio Adm.Code 4123:1-3-09(F)(1) that it has
a mandatory specific duty to fasten the lifeline. Construing this provision strictly
and in favor of the employer precludes a holding that Ohio Adm.Code 4123:1-3-
09(F)(1) requires the employer to fasten the lifeline to the structure.
{¶ 51} Nonetheless, the majority’s analysis focuses on the word “use,”
explaining that “[t]he dictionary definition of ‘use’ is ‘to put into action or service
* * * EMPLOY.’ ” (Ellipsis and capitalization sic.) Majority opinion at ¶ 24, quoting
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Webster’s Third New International Dictionary 2523 (2002). It reasons that because
Ohio Adm.Code 4123:1-3-09(F)(1) contains the word “use,” it required Byington
Builders to do more than “provide” or “make available” lifelines and safety
harnesses and belts. But the majority fails to explain why lifelines and safety belts
and harnesses can only be used if the employer first fastens the lifeline to the
structure. Lifelines and safety belts and harnesses are used if the employer supplies
that equipment and the employee is then responsible for fastening the lifeline to the
structure and tying onto it with a safety belt or harness. Ohio Adm.Code 4123:1-
3-09(F)(1) is broad enough to encompass both uses of the equipment, and it is at
best ambiguous and therefore does not impose “mandatory specific duties” that are
“apparent to an employer interpreting [the] provision.” Oliver, 76 Ohio St. 3d at 28,
665 N.E.2d 1108.
{¶ 52} Another rule, Ohio Adm.Code 4123:1-3-03(J)(1), however, resolves
any ambiguity by providing that “[l]ifelines, 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 * * *.” It is true, as the majority points
out, that Ohio Adm.Code 4123:1-3-09(F)(1) makes special provisions for roofs, but
that is because Ohio Adm.Code 4123:1-3-03(J)(1) does not specifically apply to
work performed on a platform such as a pitched roof. Ohio Adm.Code 4123:1-3-
09(F)(1) therefore supplements that rule and specifies that on certain pitched roofs,
either catch platforms or lifelines and safety belts or harnesses must be used. But
nothing in the roof-specific rule conflicts with the more general provision that it is
the employer’s responsibility to supply and the employee’s responsibility to wear
this safety equipment. The majority fails to explain why these administrative rules
would have separate requirements for the same type of fall hazard. But reading
these two provisions in harmony makes sense, because the employer is in the best
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position to provide a lifeline and harness or safety belt for its employees and a
roofer is in the best position to fasten and use the equipment, moving the lifeline as
he or she completes work on the roof. Taking the commission’s reasoning to its
logical conclusion will mean that an employer must remain on the jobsite at all
times in order to fasten and refasten the lifeline as work is completed, because the
employee has no obligation to do it him or herself. And any time the employer fails
to move the lifeline or permits a roofer to do it, the employer could be subject to a
new VSSR penalty if an accident follows. Such a result is palpably unreasonable.
{¶ 53} The majority’s attempt to buttress its analysis as being consistent
with the commission’s interpretation of Ohio Adm.Code 4123:1-3-09(F)(1) bears
little fruit. The commission’s factual determination that a worker’s injury resulted
because of a violation of a specific safety requirement is final pursuant to Article
II, Section 35 of the Ohio Constitution, but its interpretation of an administrative
rule is not, because the commission cannot rewrite administrative rules in the guise
of interpreting them. “Only the Administrator of Workers’ Compensation or the
General Assembly may rewrite safety requirements.” State ex rel. Lamp v. J.A.
Croson Co., 75 Ohio St. 3d 77, 80, 661 N.E.2d 724 (1996), citing R.C. 4121.13 and
4121.47. And more fundamentally, this court should not abdicate its judicial
authority and responsibility to “say what the law is,” Marbury v. Madison, 5 U.S.
137, 177, 1 Cranch 137, 2 L. Ed. 60 (1803), by deferring to the commission’s
resolution of a question of law.
{¶ 54} Ohio Adm.Code 4123:1-3-09(F)(1) does not contain a specific and
definite requirement that plainly apprises employers of a legal obligation to fasten
lifelines to the structure where its employees are working on pitched roofs, and we
ought not defer to an interpretation of that rule adding language to it. And absent
sufficient notice to an employer that a specific safety requirement applies, a VSSR
penalty cannot be imposed.
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{¶ 55} Accordingly, I would reverse the judgment of the court of appeals
and issue a writ of mandamus compelling the commission to vacate the VSSR
award against Byington Builders.
_________________
Christopher S. Clark, for appellant.
Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellee Industrial Commission.
Kademenos, Wisehart, Hines, Dolyk & Zeiher Co., L.P.A., and Janet L.
Phillips, for appellee Thomas Trousdale.
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