State ex rel. Jenkins v. Ohio Valley Stave, Inc.

[Cite as State ex rel. Jenkins v. Ohio Valley Stave, Inc., 2021-Ohio-3684.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Arthur Jenkins, :
Relator, :
No. 20AP-20
v. :
(REGULAR CALENDAR)
Ohio Valley Stave, Inc. et al., :
Respondents. :
D E C I S I O N
Rendered on October 14, 2021
On brief: The Ivan Law Firm, and Katherine E. Ivan, for
relator.
On brief: Cole, Kirby & Associates, LLC, and Charles A.
Kirby, for respondent Ohio Valley Stave, Inc.
On brief: Dave Yost, Attorney General, and Cindy Albrecht,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relator, Arthur Jenkins, commenced this original action in mandamus
seeking an order compelling respondent Industrial Commission of Ohio ("commission") to
vacate its order denying relator's application for an additional award for violation of a
specific safety requirement ("VSSR"), and to enter an order granting the application.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate recommends this court deny
No. 20AP-20 2
relator's request for a writ of mandamus. Relator filed the following two objections to the
magistrate's decision:
Objection 1: The Magistrate's Decision Should Not Be Relied
Upon Because The "Phelps Chipper/Blower 25 Horsepower" Is
A Combination Machine Even If It Does Not Combine Tools
From Other Machines.
Objection 2: The Magistrate's Decision Should Not Be Relied
Upon Because The Magistrate Held That Universal Should Be
Defined As Universal To Everything, Not Solely Universal To
Woodworking.
{¶ 3} On December 21, 2015, relator sustained a work-related injury while working
at the facility of respondent Ohio Valley Stave, Inc. ("Ohio Valley"). At the time of his injury,
relator was operating a series of machines which converted larger pieces of wood into
smaller wood chips and deposited the wood chips into a trailer. In the process, larger pieces
of wood were initially converted to wood chips in an industrial chipper. The chipper
deposited the wood chips into a shaker, which then deposited the wood chips onto a
conveyor belt. The conveyor belt carried the wood chips to a chute leading to a trailer. A
blower located underneath the end of the conveyor belt blew air onto the wood chips to
direct them into the chute. Relator was clearing wood chips from around the sides of the
blower when a belt on the blower's motor broke, resulting in the partial amputation of his
thumb.
{¶ 4} Relator filed an application for an additional VSSR award, alleging that the
lack of guarding on the blower and location of the blower's stopping device violated Ohio
Adm.Code 4123:1-5-09(L)(1)(a) and (b). Following a hearing, a staff hearing officer
("SHO") denied relator's request for an additional VSSR award. The SHO concluded the
blower was not subject to the requirements of Ohio Adm.Code 4123:1-5-09(L)(1), because
the blower was not a combination or universal woodworking machine.
{¶ 5} Ohio Adm.Code 4123:1-5-09 contains safety regulations applicable to
woodworking machinery. Ohio Adm.Code 4123:1-5-09(L), titled "Miscellaneous
woodworking machines," provides in relevant part as follows:
(1) Combination or universal woodworking
machines. –
No. 20AP-20 3
(a) Guarding. – Each point of operation shall be guarded as
required for such a tool in a separate machine.
(b) Stopping and starting devices. – Such machines shall
be provided with a separate stopping and starting device for
each separate operation.
{¶ 6} 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. State ex rel. Precision Steel Servs., Inc. v.
Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, ¶ 15, citing State ex rel. Supreme
Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 46. "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." Id. at ¶ 21, citing State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d
1, 4 (1984). This court may not reweigh the evidence considered by the commission but
must uphold the commission's decision so long as it is supported by some evidence. State
ex rel. Bob Marshall Enters. v. Indus. Comm., 10th Dist. No. 11AP-816, 2013-Ohio-943,
¶ 10. Because a VSSR award is a penalty imposed on an employer, specific safety
requirements must be strictly construed in the employer's favor. State ex rel. Lamp v. J.A.
Croson Co., 75 Ohio St.3d 77, 78 (1996), citing State ex rel. Burton v. Indus. Comm., 46
Ohio St.3d 170 (1989).
{¶ 7} Relator's first objection asserts the magistrate erred by failing to find the
blower was a combination woodworking machine. The SHO determined that a combination
woodworking machine was a machine which combines the functions of two or more
separate machines into a single unit, such as "a machine that combines a table saw with a
sander." (SHO Decision at 2.) The SHO observed that the blower was not attached to the
chipper, and the "sole[]" function of the blower was "to help move the wood chips from the
conveyor belt into the chute." (SHO Decision at 3.) As such, the SHO concluded that the
blower was not a combination woodworking machine. The magistrate found no abuse of
discretion in the SHO's conclusion.
{¶ 8} Relator fails to demonstrate the commission abused its discretion by
interpreting a combination woodworking machine to mean a machine which combines the
functions of two or more separate woodworking machines. See Webster's Collegiate
No. 20AP-20 4
Dictionary 246 (11th Ed.2014) (defining "combination" as including "an instrument
designed to perform two or more tasks"). The language in Ohio Adm.Code 4123:1-5-
09(L)(1)(a), providing that a combination or universal woodworking machine must contain
guarding at each point of operation "as required for such a tool in a separate machine,"
demonstrates that a combination or universal woodworking machine contains more than
one tool. The language in Ohio Adm.Code 4123:1-5-09(L)(1)(b), requiring separate starting
and stopping devices "for each separate operation" in a combination or universal
woodworking machine, demonstrates that such machines have several operations. The
evidence in the record demonstrated that the blower was a single tool machine with a single
function: to blow air onto the wood chips to direct them into the chute. There was no
evidence indicating that the blower synthesized multiple tools or that it had multiple
operations.
{¶ 9} Relator contends the blower was a combination woodworking machine
because it was "a part of a group of machines that c[a]me together as a system to achieve
[a] task." (Relator's Objs. at 6.) Relator fails to support his contention that a machine with
a single function and operation, which merely operates alongside other machines, could be
considered a combination woodworking machine. The plain language of the code supports
the commission's conclusion that a combination woodworking machine was a machine
which combined several tools or operations into one. See State ex rel. Devore Roofing &
Painting v. Indus. Comm., 101 Ohio St.3d 66, 2004-Ohio-23, ¶ 22 (stating that "we must
defer to the commission's interpretation [of its own rules] when it relies upon its own
common sense to avoid an illogical result").
{¶ 10} As the blower had a single function and did not combine tools or operations,
the commission did not abuse its discretion by finding the blower was not a combination
woodworking machine. Relator's first objection is overruled.
{¶ 11} Relator's second objection asserts the magistrate erred by finding that a
universal woodworking machine under Ohio Adm.Code 4123:1-5-09(L)(1) should be
universal to all types of work, and not solely universal to woodworking. However, there is
nothing in the magistrate's decision stating that a universal woodworking machine was a
machine universal to all types of work. The magistrate noted with approval the SHO's
definition of a universal machine as a machine which is adaptable or adjustable to meet
No. 20AP-20 5
various requirements. The magistrate concluded that, as the blower had only one use, the
blower was not a universal woodworking machine.
{¶ 12} Relator fails to demonstrate that the commission abused its discretion by
interpreting a universal woodworking machine to mean a machine which is adaptable or
adjustable to meet varied woodworking requirements. See Webster's at 1369 (defining
"universal" as "adapted or adjustable to meet varied requirements (as of use, shape, or
size)"). As there was no evidence indicating the blower was adaptable or adjustable to a
variety of woodworking uses, the record supported the conclusion that the blower was not
a universal woodworking machine.
{¶ 13} Relator also asserts the commission abused its discretion by finding that the
blower was not a woodworking machine at all. The SHO observed that, by the time the
blower directed the wood chips into the chute, the wood chips were not being created but
were simply being transported from one point to another. The magistrate agreed with the
SHO's determination that the blower did not perform a woodworking function.
{¶ 14} Relator asserts that the blower was a woodworking machine because the
purpose of the blower was to "separate[] sawdust from wood." (Relator's Objs. at 7.)
However, the record demonstrates that the shaker, not the blower, removed sawdust from
the wood chips. Relator stated at the hearing before the SHO that the blower "blows the
chips up in the chip van." (Apr. 11, 2018 Hearing Tr. at 5.) A representative of the employer
stated that the "shaker, what it does is it separates the sawdust, which is a fine particulate,
and the chips." (Apr. 11, 2018 Hearing Tr. at 35.) The SHO found that "[i]n the shaker, the
wood chips are separated from sawdust," while the blower simply "aid[ed] the chips to
travel into the chute." (SHO Decision at 1.)
{¶ 15} Notably, the machines addressed in Ohio Adm.Code 4123:1-5-09 all perform
functions which alter wood in some respect. For example, the code section addresses
sanding machines, wood shapers, lathes, and veneer machinery. None of the machines
identified in Ohio Adm.Code 4123:1-5-09 are used solely to transport wood. As the blower's
sole function was to transport the wood chips, and the blower did not alter the wood chips
in any respect, relator fails to demonstrate that the blower performed a woodworking
function.
No. 20AP-20 6
{¶ 16} Accordingly, relator fails to establish that the commission abused its
discretion by finding that the blower was not a universal woodworking machine. Relator's
second objection is overruled.
{¶ 17} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate has properly determined the facts and applied the appropriate law.
Therefore, we adopt the magistrate's decision as our own, including the findings of fact and
conclusions of law contained therein. In accordance with the magistrate's decision, we deny
relator's request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.
KLATT and LUPER SCHUSTER, JJ., concur.
________________
No. 20AP-20 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Arthur Jenkins, :
Relator, :
v. : No. 20AP-20
Ohio Valley Stave, Inc. et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 3, 2020
The Ivan Law Firm, and Katherine E. Ivan, for relator.
Cole, Kirby & Associates, LLC, and Charles A. Kirby, for
respondent Ohio Valley Stave, Inc.
Dave Yost, Attorney General, and Kevin J. Reis, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 18} Relator, Arthur Jenkins ("claimant"), has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order that found respondent Ohio Valley Stave, Inc.
("employer"), did not violate a specific safety requirement ("VSSR").
Findings of Fact:
{¶ 19} 1. Claimant sustained a work-related injury on December 21, 2015 and his
workers' compensation claim was allowed for the following conditions: complete traumatic
transphalangeal amputation of right thumb; displaced open fracture of proximal phalanx
No. 20AP-20 8
of the right index finger; laceration without foreign body of right index finger without
damage to nail; laceration flexor muscle, fascia, and tendon of right index finger at wrist
and hand level; injury extensor tendon right index finger; complex regional pain syndrome
right upper arm; and unspecified depressive disorder.
{¶ 20} 2. On the date of injury, claimant was engaged in using a series of machines
that converted large pieces of wood into smaller wood chips while also separating sawdust
from the wood chips and depositing them into a container to be transported from the site.
In this process, the large pieces of wood are first placed into a chipper. From the chipper,
the wood chips are dumped into a shaker to separate the sawdust. After the wood chips are
shaken, the shaker dumps the chips onto a conveyor belt. The conveyor belt carries the
chips toward a chute. Underneath the end of the conveyor belt is a blower that blows air on
the chips to direct the chips into the chute leading to a trailer.
{¶ 21} 3. Claimant was operating the blower when he was injured. The blower is
driven by a motor with a three-pully belt drive. While clearing wood chips and sawdust
from around the sides of the blower, a belt broke on the motor, resulting in the amputation
of part of claimant's right thumb. A shutoff button for the blower was 41 feet away from
where the injury occurred.
{¶ 22} 4. On November 21, 2016, claimant filed an application for additional award
for VSSR—Non Fatal, and later amended his application to include additional code
sections. Ultimately, claimant alleged that the employer had violated Ohio Adm.Code
4123:1-5-09(L)(1)(a) and (b), because the belts inside the blower were not guarded and the
shutoff button was located too far away.
{¶ 23} 5. Ohio Adm.Code 4123:1-5-09 provides:
(L) Miscellaneous woodworking machines. —
(1) Combination or universal woodworking machines. —
(a) Guarding. — Each point of operation shall be guarded as
required for such a tool in a separate machine.
(b) Stopping and starting devices. — Such machines shall be
provided with a separate stopping and starting device for each
separate operation.
{¶ 24} 6. On April 11, 2018, the matter was heard before a staff hearing officer
("SHO") for the commission.
No. 20AP-20 9
{¶ 25} 7. On May 10, 2018, the SHO denied the application. The SHO found that the
blower was not part of a combination or universal woodworking machine as used in Ohio
Adm.Code 4123:1-5-09(L)(1), based on the following findings: (1) a "combination machine"
is a woodworking machine that combines the functions of two or more separate machines
into a single unit, such as a Shopsmith machine; (2) "universal" means adapted or
adjustable to meet varied requirements (as of use, shape, or size), such as a universal
remote control; (3) the blower is not attached to the chipper; (4) each part of the chipping
process involves a separate machine in a separate area; (5) Ohio Adm.Code 4123:1-5-
09(L)(1)(a) applies only to multiple different tools synthesized into one machine; and
(6) the blower functions solely to help move wood chips from the conveyor belt into the
chute, and there is no woodworking function occurring at this point in the operation. The
SHO concluded that, because the blower is not a universal or combination woodworking
machine, the requirements for the guarding and stopping/starting devices are not
applicable to the blower.
{¶ 26} 8. On May 15, 2018, claimant filed a request for rehearing.
{¶ 27} 9. On June 20, 2018, the SHO denied the request for rehearing.
{¶ 28} 10. On January 8, 2020, claimant filed a complaint for writ of mandamus.
{¶ 29} 11. On January 23, 2020, claimant filed an amended complaint for writ of
mandamus.
Conclusions of Law and Discussion:
{¶ 30} For the reasons that follow, it is this magistrate's decision that this court
should deny claimant's request for a writ of mandamus.
{¶ 31} In order for this court to issue a writ of mandamus, a relator must establish
the following three requirements: (1) that relator has a clear legal right to the relief sought;
(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has no
adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm.,
11 Ohio St.2d 141 (1967).
{¶ 32} To establish a VSSR, a claimant must prove that: (1) there exists an applicable
and specific safety requirement in effect at the time of the injury; (2) the employer failed to
comply with the requirements; and (3) the failure to comply was the proximate cause of the
injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972).
No. 20AP-20 10
{¶ 33} The interpretation of a specific safety requirement is within the final
jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193(1983). However, because a VSSR is a penalty, it must be strictly construed, and all
reasonable doubts concerning the interpretation of the safety standard are to be construed
against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 46 Ohio
St.3d 170 (1989). The question of whether an injury was caused by an employer's failure to
satisfy a specific safety requirement is a question of fact to be decided by the commission
subject only to the abuse of discretion test. Trydle; State ex rel. A-F Indus., ACME-FAB
Div. v. Indus. Comm., 26 Ohio St.3d 136 (1986). Furthermore, a safety requirement must
be specific enough to plainly apprise an employer of its legal obligations to its employees.
State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988).
{¶ 34} In the present matter, claimant argues the commission erred when it found
the blower that caused the injury is not solely for woodworking activity. Claimant points
out that the name of the blower is "Phelps Chipper/Blower 25 Horsepower," which
demonstrates that its purpose is solely for woodworking activity because it separates
sawdust from wood, not other materials. Claimant also argues the commission's analogy to
a "universal" remote control is not sound because a universal remote control controls
different types of equipment at once, while the blower does not serve this purpose. Claimant
also contends that the blower is not inapplicable to the pertinent section solely because it is
a separate machine.
{¶ 35} After reviewing the language in Ohio Adm.Code 4123:1-5-09(L)(1), it is the
magistrate's determination that the commission did not abuse its discretion when it found
the blower is neither a combination nor universal woodworking machine. The blower is not
a combination machine. The blower is a single machine that executes a single function and
does not work in any combined effort to provide any other functions. It does not combine
tools from separate machines into one machine. The sole function the blower serves is to
force air on the chips to direct them into a chute. The blower is also not a universal machine.
As the SHO found, universal means something that can be adapted or adjusted to meet
various requirements. There was no evidence before the commission that the blower is
adaptable or adjustable to meet any other requirement or use. The blower has only one use:
to blow air on chips to direct them into a chute.
No. 20AP-20 11
{¶ 36} Furthermore, claimant's argument that a machine is not inapplicable to Ohio
Adm.Code 4123:1-5-09(L)(1) solely because it is a "separate" machine is unpersuasive.
"Separate," as used in Ohio Adm.Code 4123:1-5-09(L)(1)(a), not only suggests a physically
separate machine but also a single-function or single-tool machine. This is apparent by the
requirement that guards used in combination and universal woodworking machines must
be the same guards used for the "tool in a separate machine." The use of the singular "tool"
suggests that the separate machine referred to contains a single tool. Therefore, as applied
to the present case, because the blower in question is a separate machine that contains a
single tool with a single function, i.e., a blower, it cannot be within the purview of Ohio
Adm.Code 4123:1-5-09(L)(1).
{¶ 37} The reliance on the term "separate" in this case also supports the SHO's
finding that the blower does not perform any woodworking function, thereby eliminating it
from the scope of Ohio Adm.Code 4123:1-5-09(L)(1). That the blower is a physically
separate machine performing a separate function than the wood chipper prevents it from
being considered part of the woodworking function of the chipper. By the time the chips
reach the blower, the woodworking functions are complete, and the blower is engaged in
only the separate function of transporting the chips. Therefore, the blower was also not a
woodworking machine within the meaning of Ohio Adm.Code 4123:1-5-09(L)(1).
{¶ 38} Accordingly, it is the magistrate's recommendation that this court should
deny claimant's request for a writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).