State ex rel. 31, Inc. v. Indus. Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. 31, Inc. v. Indus. Comm., Slip Opinion No. 2017-Ohio-9112.]
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. 2017-OHIO-9112THE STATE EX REL. 31, INC., 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. 31, Inc. v. Indus. Comm., Slip Opinion No.
2017-Ohio-9112.]
Workers’ compensation—Violation of a specific safety requirement (“VSSR”)—
Ohio Adm.Code 4123:1-5-11(D)(10)’s nip-point rule does not apply to a
calender machine that is expressly covered by Ohio Adm.Code 4123:1-13-
03—Writ of mandamus granted ordering Industrial Commission to vacate
VSSR award based on violation of nip-point rule.
(No. 2016-0968—Submitted July 11, 2017—Decided December 21, 2017.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-925,
2016-Ohio-3526.
_______________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} This is an appeal in a mandamus case in which appellant, 31, Inc.
(“31”), challenges the order of appellee Industrial Commission granting an
additional award for the violation of a specific safety requirement (“VSSR”). The
commission determined that 31 had violated the “nip point” rule found in Ohio
Adm.Code 4123:1-5-11(D)(10)(a), thereby causing an industrial injury to appellee
Duane Ashworth.1
{¶ 2} The Tenth District Court of Appeals denied the request for a writ,
concluding that the commission did not abuse its discretion.
{¶ 3} We hold that the nip-point rule did not apply here because an
administrative-code provision applicable to the rubber and plastics industry
expressly covered the machine that Ashworth was operating. Therefore, we reverse
the judgment of the court of appeals and issue a writ of mandamus ordering the
commission to issue a new order that denies Ashworth’s application for a VSSR
award.
Facts and Procedural History
{¶ 4} 31 processes rubber to make products that are used to repair tires.
Ashworth was employed by 31 as a calender operator. A calender is defined as “a
machine equipped with two or more metal rolls revolving in opposite directions
and used for continuously sheeting or plying up rubber or plastic compounds and
for frictioning or coating fabric with rubber or plastic compounds.” Ohio
Adm.Code 4123:1-13-01(B)(3).
{¶ 5} Ashworth operated a calender with three rolls. A coworker would
insert a ball of rubber between the top and middle rolls on one side of the calender,
and as it came out of the opposite side, Ashworth’s job was to grab the rubber with
1
A nip point is the point at which it is possible to be caught between moving parts of a machine or
between material and the moving part of a machine. Ohio Adm.Code 4123:1-5-01(B)(94).
2
January Term, 2017
both hands and peel it off the bottom roll into a tank containing a chemical solution
to cool it.
{¶ 6} On the day of the accident, as Ashworth grabbed the rubber to pull it
off the roll, it caught the fingers on his right hand and pulled his hand into a three-
inch space between the rolls. When he was unable to remove his hand, he pulled
an emergency cable that immediately stopped the rolls.
{¶ 7} Ashworth filed a workers’ compensation claim that was allowed for
multiple injuries to his hand. He also applied for an additional award for a VSSR,
alleging that 31 had violated Ohio Adm.Code 4123:1-5-11(D)(10)(a), a workshop-
and factory-safety rule.
{¶ 8} Ohio Adm.Code 4123:1-5-11(D)(10) provides:
Nip points.
(a) Means shall be provided to protect employees exposed to
contact with nip points created by power driven in-running rolls,
rollover platen, or other flat surface material being wound over roll
surface.
(b) Exception.
Machinery covered expressly by requirements contained in
other codes of specific requirements of the Ohio bureau of workers’
compensation.
{¶ 9} 31 argued that the exception in Ohio Adm.Code 4123:1-5-
11(D)(10)(b) applied because the calender was expressly covered by Ohio
Adm.Code 4123:1-13-03, a rule that provides specific safety guidelines for
calenders used in the rubber and plastics industry. A hearing officer rejected this
argument, finding that both Ohio Adm.Code 4123:1-13-03 and 4123:1-5-
11(D)(10)(a) applied to the calender, citing State ex rel. Hartco, Inc., Custom
3
SUPREME COURT OF OHIO
Coated Prods. v. Indus. Comm., 38 Ohio St.3d 181, 527 N.E.2d 815 (1988), in
which this court held that Ohio Adm.Code 4123:1-5-11(D)(10)(a) applied to a
reroll machine used in the rubber and plastics industry.
{¶ 10} The staff hearing officer nevertheless denied Ashworth’s VSSR
application, concluding that “the nip point guarding provisions were not practical
on the calender machine” and that the machine was equipped with alternative
means of protection, such as extra safety lines and emergency-stop cords as
required for the rubber industry.
{¶ 11} Ashworth moved for a rehearing. A staff hearing officer granted the
motion.
{¶ 12} On rehearing, a staff hearing officer concluded that Ohio Adm.Code
4123:1-5-11(D)(10)(a) applied and granted the VSSR application. The hearing
officer rejected 31’s argument that the exception in Ohio Adm.Code 4123:1-5-
11(D)(10)(b) applied, finding that the administrative rules for the rubber industry
supplement—but do not supplant—the workshop and factory rules, citing Hartco.
{¶ 13} 31 filed a complaint for a writ of mandamus, alleging that both the
decision to grant a rehearing and the decision to order a VSSR award were contrary
to law and not supported by some evidence, see State ex rel. McKee v. Union Metal
Corp., 150 Ohio St.3d 223, 2017-Ohio-5541, 80 N.E.3d 491, ¶ 11 (the commission
abuses its discretion if it enters an order that is not supported by “some evidence”).
{¶ 14} The court of appeals concluded that the commission did not abuse
its discretion when granting the rehearing motion or the VSSR award. The court
determined that Hartco, which interpreted the same Administrative Code
provisions at issue here, held that the rules for the rubber and plastic industries
supplement but do not supplant the rules for workshops and factories. The court of
appeals denied the writ. 2016-Ohio-3526, ¶ 7-8.
{¶ 15} The direct appeal filed by 31 is now before the court.
4
January Term, 2017
Legal Analysis
{¶ 16} At the outset, we deny 31’s request for oral argument. Granting oral
argument in a direct appeal is subject to the court’s discretion. S.Ct.Prac.R.
17.02(A). The case does not present an issue that necessitates oral argument, and
the parties’ briefs are sufficient to resolve the issues raised. See State ex rel. Woods
v. Oak Hill Community Med. Ctr., 91 Ohio St.3d 459, 460, 746 N.E.2d 1108 (2001).
{¶ 17} 31’s argument that the commission’s decision to grant a rehearing
was an abuse of its discretion is resolved by our analysis of the merits of the VSSR
claim. Regarding the VSSR, 31 argues that the rule in Ohio Adm.Code 4123:1-5-
11(D)(10(a) relating to “nip points” does not apply to calenders because of the
exception in Ohio Adm.Code 4123:1-5-11(D)(10)(b) for “machinery covered
expressly by requirements contained in other codes of specific requirements of the
Ohio bureau of workers’ compensation.”
{¶ 18} 31 maintains that there are express safety requirements for calender
machines in Ohio Adm.Code 4123:1-13-03, which is within the chapter that applies
to the rubber industry. That rule requires employers to protect employees either by
providing safety trip cords that immediately stop the calender’s rolls when the cord
is pushed or pulled, Ohio Adm.Code 4123:1-13-03(A), or by locating the calender
where employees cannot come into contact with the roll bites, Ohio Adm.Code
4123:1-13-03(B). 31 argues that because this rule expressly covers calenders, the
exception in Ohio Adm.Code 4123:1-5-11(D)(10)(b) applies.
{¶ 19} We agree. Ohio Adm.Code 4123:1-13-03 expressly establishes
safety controls for calenders. For the commission to require 31 to comply with the
nip-point rule, it must ignore the rule that expressly covers the safety controls for
calender machines. While we defer to the commission’s reasonable interpretation
of its own rules, State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d 157, 2014-
Ohio-1604, 10 N.E.3d 683, ¶ 28, we find that the commission’s failure to apply the
5
SUPREME COURT OF OHIO
rule that expressly covers calender machines was not reasonable, and thus an abuse
of its discretion.
{¶ 20} Furthermore, the court of appeals’ reliance on Hartco is misplaced
because that case is factually distinguishable. Hartco involved a reroll machine
used in the rubber industry. The injured worker alleged that the employer failed to
guard the nip point on the reroll machine in violation of former Ohio Adm.Code
4121:1-5-11(D)(10)(a).2 The Hartco court concluded that because no specific rules
within the chapter of the Administrative Code dealing with the rubber industry
applied to the reroll machine, the general rules for that industry applied but merely
supplemented—and did not supplant—the workshop and factory rules, including
the nip-point rule, that applied to all workers. 38 Ohio St.3d at 817, 527 N.E.2d
815. Here, unlike in Hartco, the calender was expressly covered in Ohio Adm.Code
4123:1-13-03.
{¶ 21} Because a VSSR award is a penalty, a specific safety requirement
must be strictly construed and all reasonable doubts concerning the interpretation
must be resolved in favor of the employer. State ex rel. Burton v. Indus. Comm.,
46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). A plain reading of the rules
indicates that Ohio Adm.Code 4123:1-5-11(D)(10)(a) does not apply to calenders,
because of the exception in Ohio Adm.Code 4123:1-5-11(D)(10)(b) for
“[m]achinery covered expressly by requirements contained in other codes of
specific requirements of the Ohio bureau of workers’ compensation.” The
commission’s decision that 31 violated Ohio Adm.Code 4123:1-5-11(D)(10)(a) is
contrary to law, because the rule did not apply.
{¶ 22} 31 has met its burden of showing a clear legal right to the relief
requested and is entitled to a writ of mandamus. See State ex rel. M.T.D. Prods.,
Inc. v. Stebbins, 43 Ohio St.2d 114, 119, 330 N.E.2d 904 (1975). Therefore, we
2
Effective November 1, 2003, former Ohio Adm.Code 4121:1-5-11 was renumbered Ohio
Adm.Code 4123:1-5-11. See 2003-2004 Ohio Monthly Record 940.
6
January Term, 2017
reverse the judgment of the court of appeals and issue a writ of mandamus that
orders the commission to vacate its order allowing a VSSR award and to issue a
new order that denies Ashworth’s VSSR-award application.
Judgment reversed
and writ granted.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
O’NEILL, J., dissents, with an opinion.
_________________
O’NEILL, J., dissenting.
{¶ 23} Respectfully, I dissent.
{¶ 24} I have dissented before when this court has overstepped its
constitutional boundaries in order to overturn an Industrial Commission order
granting an award for the violation of a specific safety requirement (“VSSR”).
State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-
Ohio-4798, 47 N.E.3d 109 (O’Neill, J., dissenting). I regret that once again,
restraint and logic have lost out in favor of personal preferences, and I must dissent
from this court’s overzealous meddling in administrative matters.
{¶ 25} Ultimately, this case presents a fair disagreement between an
employer—appellant, 31, Inc.—and the Industrial Commission about a safety
regulation. Ohio Adm.Code 4123:1-5-11(D)(10)(a) requires employers to provide
means “to protect employees exposed to contact with nip points.” A “nip point” is,
broadly, “the point or points at which it is possible to be caught between the moving
parts of a machine, or between the material and the moving part or parts of a
machine.” Ohio Adm.Code 4123:1-5-01(B)(94). The parties disagree about
whether Ohio Adm.Code 4123:1-5-11(D)(10)(a) applies to employers that are also
regulated by the rubber-and-plastic-industries safety regulations found in Ohio
Adm.Code Chapter 4123:1-13. On the one hand, 31, Inc., argues that the calender
7
SUPREME COURT OF OHIO
it operates at its factory falls within the “exception” in Ohio Adm.Code 4123:1-5-
11(D)(10)(b) for “[m]achinery covered expressly by requirements contained in
other codes of specific requirements of the Ohio bureau of workers’ compensation.”
On the other hand, the commission rightly argues that according to Ohio Adm.Code
4123:1-13-01, the regulations that apply to the rubber and plastic industries were
explicitly intended to “supplement” the regulations found in Ohio Admin.Code
4123:1-5. This disagreement was settled at the Industrial Commission. Its decision
should have been final.
{¶ 26} The majority barely describes the standard that we are bound to
follow when reviewing a lower court’s decision denying an employer’s petition for
a writ of mandamus that would compel the Industrial Commission to vacate an
order granting a VSSR award. Under the law, “[t]he interpretation of a specific
safety requirement lies exclusively with the commission.” State ex rel. Internatl.
Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428, 2009-Ohio-3502, 912
N.E.2d 85, ¶ 10. We must therefore “defer to the commission’s expertise in its
construction of the safety code unless that construction is shown to be an abuse of
discretion” just as we always “defer to an agency’s interpretation of its own rule,
as long as it is reasonable.” State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d
157, 2014-Ohio-1604, 10 N.E.3d 683, ¶ 25, 28.
{¶ 27} Applying that stringent, deferential standard, we have required a
claimant challenging the commission’s denial of a VSSR award to “establish that
his or her injury resulted from the employer’s failure to comply with a specific
safety requirement” while construing “all reasonable doubts concerning the
interpretation of the safety standard * * * against its applicability to the employer.”
State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 171-172, 545 N.E.2d 1216(1989). When the commission has determined that a specific safety requirement
does apply to an employer, we have required the employer to show that the
commission abused its discretion before we will issue a writ of mandamus to correct
8
January Term, 2017
the commission’s decision. See State ex rel. Fiber-Lite Corp. v. Indus. Comm., 36
Ohio St.3d 202, 204, 522 N.E.2d 548 (1988). Review for an abuse of discretion is
severely limited—we interfere only when we come across something more than an
error of law or judgment, and we must avoid substituting our judgment for the
judgment of a court or agency that has already considered an issue. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); accord State ex rel.
Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193,
489 N.E.2d 288 (1986).
{¶ 28} Whether the commission has granted or denied a VSSR award, we
must deny a writ of mandamus that would substitute our judgment for the
commission’s judgment if there is a “bona fide difference of opinion as to the
interpretation of the safety requirement in question.” State ex rel. Wilms v. Blake,
144 Ohio St. 619, 627, 60 N.E.2d 308 (1945).
{¶ 29} The Ohio Constitution demands no less deference, and it probably
demands more. I have argued before that “it is not the Supreme Court’s role to
interpret rules for the commission in VSSR cases” or to “advance alternate theories
that support one outcome or another.” Precision Steel Servs., 145 Ohio St.3d 76,
2015-Ohio-4798, 47 N.E.3d 109, at ¶ 27 (O’Neill, J., dissenting). I find support for
this conclusion in the plain language of Article II, Section 35 of the Ohio
Constitution, which provides the courts with no role in interpreting specific safety
requirements:
Such board shall have full power and authority to hear and determine
whether or not an injury, disease or death resulted because of the
failure of the employer to comply with any specific requirement for
the protection of the lives, health or safety of employees, enacted by
the General Assembly or in the form of an order adopted by such
board, and its decision shall be final * * *.
9
SUPREME COURT OF OHIO
(Emphasis added.) Reading that passage early on in the history of workers’
compensation, and with an eye toward giving it meaning, this court adopted a rule
that the commission’s decision “whether or not an injury, disease or death resulted
because of the failure of the employer to comply with any specific requirement”
was exclusive and final. Slatmeyer v. Indus. Comm., 115 Ohio St. 654, 155 N.E.
484 (1926), syllabus. At the same time, we reserved “legal, fundamental, or
jurisdictional questions” to the courts. Id. at 657.
{¶ 30} In the following decades, we treated the applicability of a specific
safety requirement to an employer as a question left exclusively to the judgment of
the commission. E.g., State v. Ohio Stove Co., 154 Ohio St. 27, 38, 93 N.E.2d 291(1950) (“Either there was a violation and a consequent injury as a result thereof, or
there was no such violation, or, if there was, no such injury resulted therefrom. The
determination by the commission of these facts, whether favorable or unfavorable
to the employee, under the provisions of Section 35, Article II of the state
Constitution, is final”); see also State ex rel. Moore v. Indus. Comm., 129 Ohio St.
195, 196-197, 194 N.E. 370 (1935). Our own decisions in the early days of VSSR
litigation focused almost uniformly on the constitutional question whether or not a
safety requirement was “specific” within the meaning of Article II, Section 35.
E.g., State ex rel. Howard Eng. & Mfg. Co. v. Indus. Comm., 148 Ohio St. 165,
168-170, 74 N.E.2d 201 (1947).
{¶ 31} In the 1970s, the rule in Slatmeyer began to evolve into the “some
evidence” rule we commonly apply today. See State ex rel. Mees v. Indus. Comm.,
29 Ohio St.2d 128, 131, 279 N.E.2d 861 (1972). In Mees, we cherry-picked the
conclusion from State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm. that “there
was evidence upon which the [commission’s] finding might properly rest, and in
this circumstance the determination of respondent became final,” 166 Ohio St. 47,
50, 139 N.E.2d 41 (1956), and took it out of context, conflating the existence of
10
January Term, 2017
evidence supporting a commission finding with the absence of an abuse of
discretion. Mees at 131. Mees represents a perfunctory application of Allied Wheel
Prods., a case in which we cited Slatmeyer, Moore, Howard Eng. & Mfg. Co., and
Ohio Stove Co. in support of the finality of an Industrial Commission decision
regarding the application of a specific safety requirement. Allied Wheel Prods. at
50. Indeed, our statement in Allied Wheel Prods. that “there was evidence upon
which the [commission’s] finding might properly rest” was made to dismiss the
employer’s baseless claim that there was no such evidence. Id.{¶ 32} Throughout the 1970s, we deferred to the Industrial Commission on
the interpretation and application of specific safety requirements less and less. In
1977, we disagreed with the commission that safety regulations requiring guard
rails applied to a roof when we declared that “the space around the edge of a roof
is not an opening pursuant to [former Industrial Commission Rule] IC-3-03.09 and
the roof is not a platform pursuant to [former Industrial Commission Rule] IC-3-
07.06.” State ex rel. City Iron Works, Inc. v. Indus. Comm., 52 Ohio St.2d 1, 6, 368
N.E.2d 291 (1977). We conflated our own disagreement regarding the applicability
of these regulations with the absence of evidence of a violation and called the
commission’s decision to the contrary an abuse of discretion. Id. In 1979, we
declared that it was not strictly “necessary” within the meaning of former Industrial
Commission Rule IC-3-05.03(A)(5) for a crane on which a worker was suspended
to come within 12 feet of power lines while he washed an electric sign. State ex
rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 51-55, 386 N.E.2d
1107 (1979). His electrocution and death occurred when the crane came into
accidental contact with high-voltage electrical lines. Id at 51. These events were—
we thought—merely accidental, and “if the crane operator had been careful, the job
could have been successfully completed without the boom coming within 12 feet
of the electrical lines.” Id at 51. We criticized the commission’s “result-oriented
approach in its determination that [former] Rule IC-3-05.03(A)(5) was violated by
11
SUPREME COURT OF OHIO
appellant.” Id at 53. In both cases, we substituted our own judgment for the
commission’s judgment regarding the applicability of regulations the commission
had itself created. And in both cases, we delved deeply into the facts of an injury
in order to disagree with the commission. So much for the Slatmeyer approach,
under which this court heeded the text of the Ohio Constitution.
{¶ 33} Since it was amended in 1923, the text of Article II, Section 35 of
the Ohio Constitution has stayed the same. The trend at this court, however, has
changed to a notably more liberal regime that will dabble freely in judicial re-
regulation. Today’s case is simply another instance of this court substituting its
judgment for the judgment of the commission regarding the applicability of a
specific safety requirement. The majority barely describes the relevant standard of
review because there is no way to write that standard down, faithfully apply it, and
reach the result the majority reaches.
{¶ 34} Most remarkably, the majority bends over backwards to distinguish
an opinion this court issued in almost identical circumstances in 1988. See State ex
rel. Hartco, Inc., Custom Coated Prods. v. Indus. Comm., 38 Ohio St.3d 181, 527
N.E.2d 815 (1988). In Hartco, we considered a VSSR award that the commission
granted because a man’s “right arm and hand were drawn into a reroll machine that
was winding a sheet of rubberized material.” Id. at 181. Just as in the present case,
the commission found a violation of former Ohio Adm.Code 4121:1-5-
11(D)(10)(a),3 the regulation requiring employers to provide “means” to “protect
employees exposed to contact with nip points.” Id. at 181-182. Just as in this case,
the relator in Hartco argued “that because the machine in question is used in the
rubber and plastics industry covered under [former] Ohio Adm.Code Chapter
4121:1-13, the (D)(10)(b) exception applies.” Id. at 182. We disagreed, quoting
the following portion of former Ohio Adm.Code 4121:1-5-01(A):
3
On November 1, 2003, former Ohio Adm.Code Chapter 4121:1-5 was renumbered Ohio
Adm.Code Chapter 4123:1-5. See 2003-2004 Ohio Monthly Record 940.
12
January Term, 2017
“ * * * Specific requirements of other codes [chapters] adopted by
the industrial commission of Ohio shall apply to the particular
industry covered by any such other code, and, to the extent of
conflict between this code and such other, the latter shall govern, but
in all other respects this code shall be deemed to apply and the other
to be a supplement of this.”
(Brackets added in Hartco.) Hartco at 182, quoting former Ohio Adm.Code
4121:1-5-01(A). We held that former “Ohio Adm.Code Chapter 4121:1-13
contains no nip-point protection provision that, if conflicting, would render it
controlling.” (Emphasis added.) Id. “Thus,” we held, former “Ohio Adm.Code
Chapter 4121:1-13 must be read as supplementing, not supplanting, [former] Ohio
Adm.Code 4121:1-5-11(D)(10)(a).” Id. The requirements of all of these
provisions, including and especially Ohio Adm.Code 4123:1-5-01(A), are still in
effect.
{¶ 35} In a weak attempt to distinguish Hartco, the majority claims that this
court came to its decision in that case “because no specific rules within the chapter
of the Administrative Code dealing with the rubber industry applied to the reroll
machine” in Hartco. (Emphasis sic.) Majority opinion at ¶ 20. That statement is
untrue in two ways. First, as emphasized above, we held more narrowly in Hartco
that former “Ohio Adm.Code Chapter 4121:1-13 contains no nip-point protection
provision that, if conflicting, would render it controlling.” Hartco at 182. That is
still true: Ohio Adm.Code Chapter 4123:1-13 does not contain nip-point rules
conflicting with the rule in Ohio Adm.Code 4123:1-5-11(D)(10)(a). The Industrial
Commission has reviewed the rubber and plastic industries’ regulations probably a
half dozen times since our decision in Hartco in 1988 and in all that time has not
provided a conflicting rule for the industry. Second, machines like the reroll
13
SUPREME COURT OF OHIO
machine in Hartco that “wind-up” material or “around which material travels” have
been regulated continuously within the Administrative Code since at least 1982.
Ohio Adm.Code 4123:1-13-04(C); former Ohio Adm.Code 4121:1-13-04(C). The
code requires “readily accessible safety trips or devices to disengage them from
their immediate source of power” when these machines are “exposed to contact.”
Ohio Adm.Code 4123:1-13-04(C). We were no doubt aware of that when we stated
that the entire chapter regulating the rubber and plastic industries lacked nip-point
rules that conflict with the rules in former Ohio Adm.Code 4121:1-5-11(D)(10)(a).
See Hartco at 182. Hartco settles this case. The majority’s attempt to distinguish
Hartco is disingenuous at best. And we owe even greater deference to the Industrial
Commission’s order in this case given that it followed Hartco.
{¶ 36} Fundamentally, this lawsuit is not a reasonable vehicle for 31, Inc.,
to seek a change in the regulations governing safety at its rubber-processing facility.
Rather, it is an end run around the regulatory structures set up to protect workers.
If 31, Inc., cannot reasonably protect a worker from machinery regulated by the
Administrative Code due to “practical difficulty or unnecessary hardship,” then it
should have sought an exemption from the general rules governing workshops and
factories before it had its workers operate a dangerous machine. See Ohio
Adm.Code 4123:1-5-01(A). The stated purpose of the regulations governing
workshop and factory safety is “to provide reasonable safety for life, limb, and
health of employees.” Id. Providing safety is necessarily a proactive task that must
be undertaken by every industrial employer, and it is wholly inappropriate to litigate
workplace safety on a case-by-case basis after workers have been hurt. Absent
some outlandish interpretation of an administrative rule—markedly absent here—
we should defer to the decision-makers that have already passed on this case.
Wilms, 144 Ohio St. at 627, 60 N.E.2d 308. That is even truer when, as in this case,
the court of appeals followed our past authority regarding both VSSRs and the
specific regulations at issue here and then appropriately deferred to the Industrial
14
January Term, 2017
Commission. 10th Dist. Franklin No. 14AP-925, 2016-Ohio-3526, ¶ 6-7. I would
affirm the court of appeals’ judgment.
{¶ 37} In consideration of the foregoing circumstances, I dissent.
_________________
Black, McCuskey, Souers & Arbaugh, Brian R. Mertes, and Rod A. Moore,
for appellant.
Michael DeWine, Attorney General, and Andrew J. Alatis, Assistant
Attorney General, for appellee Industrial Commission.
Phillips & Mille Co., L.P.A., Nicholas E. Phillips, and Stewart S. Wilson,
for appellee Duane Ashworth.
_________________
15