DocketNumber： 2011-1922
Judges： O'Connor, O'Donnell, Lanzinger, Kennedy, French, O'Neill, Pfeifer
Filed Date： 6/18/2013
Status： Precedential
Modified Date： 11/12/2024
{¶ 1} Appellant, Troy A. Scott, appeals from the judgment of the Tenth District Court of Appeals denying his request for a writ of mandamus that would require appellee Industrial Commission to vacate its order denying his application for an award for violation of specific safety requirements (“VSSRs”) at his workplace and to find that he is entitled to such an award.
{¶ 2} The court of appeals determined that Scott had failed to prove that the Industrial Commission abused its discretion when it denied his application based on its conclusion that Scott’s employer, appellee Country Saw & Knife, Inc. (“Country Saw”), had not violated the specific safety requirements in Ohio Adm.Code 4123:l-5-17(F) and 4123:1-5-18(0, (D), and (E).
{¶ 3} Because we agree with the court of appeals that Scott did not present sufficient evidence to establish that he was entitled to an award for a VSSR, we hold that the commission did not abuse its discretion in denying Scott’s application. We therefore affirm the judgment of the court of appeals.
Relevant Background
{¶ 4} Scott was employed as a laborer by Country Saw, a business that sharpens and puts carbide teeth on saw blades. His duties included soldering carbide saw tips, sharpening carbide saw blades, and operating a brazing machine that brazed tungsten tips onto saw blades.
{¶ 5} After working at Country Saw for approximately one and a half years, Scott developed respiratory problems from his exposure to metal dust — specifically, dust from cobalt and tungsten. He sought workers’ compensation, and his claim was allowed for hard-metal pneumoconiosis, open-wound nasal septum, and related disorders, with a diagnosis date of October 23, 2007.
{¶ 6} Over a year later, on November 25, 2008, Scott applied for an additional award, alleging that Country Saw violated the specific safety requirements in Ohio Adm.Code 4123:l-5-17(F) and 4123:1-5-18(0, (D), and (E) when it failed to provide adequate protection to minimize his exposure to metal particles.
{¶ 7} After a hearing, a staff hearing officer denied Scott’s application. In so doing, the staff hearing officer relied on test results from an air sampling
{¶ 8} Scott filed a complaint for a writ of mandamus in the court of appeals. The case was referred to a magistrate, who concluded that Scott had failed to establish that the Country Saw plant contained hazardous concentrations of either cobalt or tungsten dust in an amount necessary to require Country Saw to comply with the specific safety requirements. The magistrate agreed that the OSHA test results constituted some evidence on which the commission could rely to support its decision and that the commission had not misapplied Gilbert. The magistrate recommended that the court of appeals deny the request for a writ.
{¶ 9} Scott filed objections to the magistrate’s conclusions of law. The court of appeals overruled the objections, adopted the magistrate’s decision, and denied the writ. Scott now seeks this court’s review.
Analysis
{¶ 10} There is no dispute that Scott contracted a devastating lung disease while working at Country Saw and that his workers’ compensation claim for that disease was properly approved. The issue in this appeal is whether Scott is entitled to an additional award — one more akin to a penalty' — due to his employer’s violating specific safety requirements. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989) (“a VSSR award is a penalty”).
{¶ 11} It is well settled that in order to establish a VSSR claim, the claimant must prove that (1) an applicable and specific safety requirement was in effect at the time of the injury, (2) the employer failed to comply with the requirement, and (3) the failure to comply was the proximate cause of the injury in question. State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio
{¶ 12} Factual questions relevant to proof of a VSSR rest exclusively within the discretion of the commission. State ex rel. Haines v. Indus. Comm., 29 Ohio St.2d 15, 278 N.E.2d 24 (1972). And the interpretation of a specific safety requirement is within the final jurisdiction of the commission. Burton at 172; State ex rel. A-F Industries v. Indus. Comm., 26 Ohio St.3d 136, 497 N.E.2d 90 (1986); State ex rel. Ish v. Indus. Comm., 19 Ohio St.3d 28, 31, 482 N.E.2d 941 (1985).
{¶ 13} We review the commission’s factual decisions on VSSR only for an abuse of discretion. Ish at 32. Because a VSSR award is punitive in nature, however, all reasonable doubts regarding the specific safety requirement’s interpretation and applicability must be resolved in the employer’s favor. Burton, 46 Ohio St.3d at 172, 545 N.E.2d 1216; State ex rel. Toledo Neighborhood Hous. Servs., Inc. v. Indus. Comm., 92 Ohio St.3d 229, 230, 749 N.E.2d 739 (2001).
{¶ 14} With these standards in mind, we turn to the evidence in this case and the legal question that arises from it.
{¶ 15} The court of appeals concluded that the commission did not abuse its discretion when it relied on the OSHA report. The dispositive issue here is whether the OSHA report constituted some evidence upon which the commission could rely to deny Scott’s request for a VSSR award.
{¶ 16} The specific safety requirements at issue in this case require an employer (1) to provide respiratory-protection equipment when employees are exposed to hazardous concentrations of air contaminants and (2) to adopt methods to minimize air contaminants in working environments where employees are exposed to hazardous concentrations of air contaminants.
{¶ 17} Ohio Adm.Code 4123:l-5-17(F) provides:
(F) Respiratory protection.
(1) Where there are air contaminants as defined in rule 1123:1-5-01 of the Administrative Code, the employer shall provide respiratory equipment approved for the hazard. It shall be the responsibility of the employee to use the respirator or respiratory equipment provided by the employer, guard it against damage and report any malfunction to the employer.
{¶ 18} Ohio Adm.Code 4123:l-5-18(C), (D), and (E) provide various methods to minimize air contaminants in working environments where employees are exposed to hazardous concentrations of air contaminants.
{¶ 20} In the record before us, the only evidence of the levels of cobalt and tungsten in the air in the Country Saw plant is the evidence that is in the OSHA report, which is based on a test conducted several months after Scott’s exposure period. We have carefully reviewed that evidence.
{¶ 21} OSHA sampled the air on April 16, 2008, for a total of 404 minutes, using a pump filter attached to the employee who was operating the brazing machine that Scott had operated. OSHA measured 0.03 milligrams of cobalt per cubic meter of air. That amount is below the permissible exposure limit set by OSHA: 0.1 milligrams per cubic meter of air. OSHA also measured 0.33 milligrams of tungsten per cubic meter of air. But OSHA had not established a permissible exposure limit for tungsten at the time of testing. Thus, the evidence from OSHA’s testing does not support a finding that Country Saw was required to provide respiratory protection or adopt methods to minimize air contaminants.
{¶ 22} Despite the fact that OSHA’s testing did not establish the existence of hazardous concentrations of air contaminants, Scott did not have additional testing done, and he did not produce any admissible evidence that cobalt or tungsten was present in hazardous concentrations for purposes of the safety requirements at issue in this case. Instead, Scott merely challenged the reliability and relevance of the OSHA testing. In so doing, he failed to establish that OSHA’s testing was not relevant and reliable.
{¶23} Scott presented the testimony of Stephen Stock, a forensic engineer, and his testimony pointed out that it was not clear whether the environment at Country Saw at the time of OSHA’s testing was similar to what it was when Scott worked there. But Stock offered no evidence that the conditions were not similar to those when Scott was working.
{¶ 25} In Gilbert, Harvey Gilbert developed lung disease, most likely as a result of his long-term exposure to chemicals used in his job cleaning commercial-kitchen exhaust systems. Gilbert filed a workers’ compensation claim, which was allowed for a chronic respiratory condition and acute bronchiolitis. He also applied for an additional award for VSSR. More specifically, he alleged a violation of Ohio Adm.Code 4121:1-5-17(F), now Ohio Adm.Code 4123:l-5-17(F). Id. at ¶ 3-4.
{¶ 26} The commission denied his application for a VSSR award, finding that Ohio Adm.Code 4121:l-5-17(F) did not apply to Gilbert’s employer, because there was no evidence of “hazardous concentrations” of “air contaminants” as those phrases were defined in Ohio Adm.Code 4121:1 — 5—01(B)(4) and (74), now Ohio Adm.Code 4123:1-5-01(B)(4) and (74). In so doing, the commission relied on results from an OSHA test that was conducted 19 days after Gilbert’s exposure period ended. Id. at ¶ 26, 28. The commission determined that the employer had not violated the specific safety requirement at issue. Id. at ¶ 7-9.
{¶ 27} Gilbert filed a complaint for a writ of mandamus. He argued that because he had developed lung disease from exposure to chemicals, the level of air contaminants he had been exposed to was hazardous. We rejected that argument because it conflicted with the definition of “hazardous concentrations”:
The definition describes concentrations that would not normally cause injury. As used in that definition, “normally” is a qualifying term. Inherent in the use of this word is the recognition that some persons may have an abnormal sensitivity to a given substance, for which the employer could not be held accountable. The presence of an occupational disease does not necessarily establish that hazardous concentrations of contaminant existed, since a person may have contracted an occupational disease because of abnormal sensitivity to or because of hazardous concentrations of a contaminant.
(Emphasis sic.) Id. at ¶ 19.
{¶ 28} Gilbert also objected to the commission’s reliance on the OSHA test results as evidence that hazardous concentrations of air contaminants were not present during his exposure period. According to Gilbert, because OSHA
{¶ 29} In this case, Scott presented the same arguments to the commission that were addressed in Gilbert. Scott argued that the fact that he had developed lung disease from exposure to cobalt and tungsten dust was itself proof that the levels of those toxic substances were hazardous.
{¶ 30} The staff hearing officer evaluated the evidence in light of Gilbert and denied Scott’s application. The order states:
The Staff Hearing Officer finds that the testing done after the Injured Worker’s exposure is relevant and reliable evidence that there were no harmful exposures before the testing was done. In arriving at this conclusion the Staff Hearing Officer relies on [Gilbert] which upheld the denial of a specific safety violation that was based in part upon an OSHA investigation done after the Injured Worker’s exposure period. The court found that the report remained relevant because there had been no modifications to the work environment prior to the investigation. In this case, just as in Gilbert there have been no changes to the ventilation system or any of the processes that would make the OSHA report unreliable.
Secondly, although the record in this case clearly shows the injured worker suffers from a devastating occupational disease, its presence alone does not automatically establish that hazardous concentrations of a substance existed. Again, the Staff Hearing Officer relies on Gilbert wherein the injured worker had urged allowance of his specific safety violation because he had contracted an occupational disease. In response to Mr. Gilbert’s position the court stated, “This position]}] from the outset, conflicts with the definition of ‘hazardous concentration.’ The definition describes concentrations that would not normally cause injury. As used in that definition, ‘normally’ is a qualifying term. Inherent in the use of this word is the recognition that some persons [may] have an abnormal*100 sensitivity to a given substance, for which the employer could not be held accountable.” [Gilbert at ¶ 19.]
(Bracketed material added to quote within quote to conform the SHO order to Gilbert.)
{¶ 31} We agree with the court of appeals that the commission did not abuse its discretion when it relied on Gilbert to support its conclusion that the OSHA test results constituted some evidence upon which it could rely. And we agree that the commission did not abuse its discretion in denying Scott’s application for a VSSR award. Indeed, given our precedent and the paucity of the evidence in this case, reasonable minds could only conclude that Scott did not discharge his burden of establishing that he is entitled to a VSSR award in addition to his extant workers’ compensation benefits. Accordingly, we affirm the judgment of the court of appeals denying a writ of mandamus.
Judgment affirmed.
. The staff hearing officer stated that OSHA tested only for cobalt, not tungsten. This statement is contradicted by the OSHA test results, which reported the actual exposure amounts of both metals. OSHA concluded that the level of cobalt was below OSHA’s permissible exposure limits, but reported “NA” for tungsten because there was no established permissible exposure limit.
. Ohio Adm.Code 4123:1-5-18 provides:
(C) Where employees are exposed to hazardous concentrations of air contaminants, the air contaminants shall be minimized by at least one of the following methods:
(1) Substitute a non-hazardous, or less hazardous material;
(2) Confine or isolate the contaminants;
(3) Remove at or near source;
(4) Dilution ventilation;
(5) Exhaust ventilation; (for examples of exhaust ventilation, see rule 4123:1-5-99.2 of the Administrative Code).
(6) Using wet methods to allay dusts. Note: Good housekeeping is of definite value in minimizing air contaminants created by dusts.
(D) Exhaust systems: machinery and equipment.
(1) Grinding, polishing and buffing.
(a) Abrasive wheels and belts.
(1) Abrasive wheels and belts shall be hooded and exhausted when there is a hazardous concentration of air contaminants.
(ii) This does not apply to abrasive wheels or belts:
(a) Upon which water, oil, or other liquid substance is used at the point of the grinding contact; or
(b) To small abrasive wheels used occasionally for tool grinding.
(b) Separate exhaust systems.
Abrasive wheel and buffing wheel exhaust systems shall be separate when the dust from the buffing wheel is of flammable material.
(2) Generation of toxic materials.
When toxic materials are generated in hazardous concentrations during them application, drying, or handling, they shall be minimized or eliminated by at least one of the methods described in paragraph (C) of this rule.
(3) Internal combustion engines.
Hazardous concentrations of air contaminants produced by internal combustion engines shall be exhausted.
(E) Exhaust systems — structural requirements.
(1) Exhaust or ventilating fan.
Each exhaust or ventilating fan located less than seven feet above the floor or normal working level shall be guarded.
(2) Ductwork.
Exhaust ductwork shall be sized in accordance with good design practice which shall include consideration of fan capacity, length of duct, number of turns and elbows, variation in size, volume, and character of materials being exhausted.
(3) Discharge.
The outlet from every separator or (collector) shall discharge the air contaminants collected by the exhaust system, in such manner that the discharged materials shall not re-enter the working area in hazardous concentrations.
(4) Location of air supply openings or inlets.
*97 Air supply openings or inlets through which air enters the building or room in which the local exhaust system is in operation shall be isolated from any known source of contamination from outside of the building.
(Emphases added.)