Summary
The Ohio Court of Appeals, Tenth Appellate District, denied 31, Inc.'s request for a writ of mandamus challenging the Industrial Commission's award of additional compensation for a violation of a specific safety requirement. The court held that the Commission did not abuse its discretion in granting rehearing or in finding that the employer violated Ohio Adm.Code 4123:1-5-11(D)(10)(a) by failing to protect employees from nip points. It further held that an exception based on practical difficulty or unnecessary hardship required prior approval by the Bureau of Workers' Compensation.
Topics
Practice areas
Questions Presented
- Whether the Industrial Commission abused its discretion by granting rehearing of the initial VSSR decision based on a clear mistake of law.
- Whether Ohio Adm.Code 4123:1-13's calender-specific requirements supplanted the general nip-point protection requirement in Ohio Adm.Code 4123:1-5-11(D)(10)(a).
- Whether the Industrial Commission abused its discretion by finding that 31, Inc. violated the general nip-point protection requirement and that the violation supported a VSSR award.
Holdings
- The Industrial Commission did not abuse its discretion in granting rehearing because the initial staff hearing officer's order contained a clear mistake of law by treating the practical-difficulty exception as applicable without a prior Bureau of Workers' Compensation determination granting the exception.
- Ohio Adm.Code 4123:1-13 supplements rather than supplants Ohio Adm.Code 4123:1-5-11(D)(10)(a); compliance with the calender-specific safety-control provisions does not eliminate the obligation to provide protection against contact with nip points.
- The Industrial Commission did not abuse its discretion in finding that 31, Inc. violated Ohio Adm.Code 4123:1-5-11(D)(10)(a) and that the violation supported the VSSR award.
Key quotations
“We agree with the magistrate that an exception cannot apply until the BWC has granted it.” (¶ 5)
“Hartco held that former "Ohio Adm.Code Chapter 4121:1-13 [now 4123:1-13] must be read as supplementing, not supplanting, former Ohio Adm.Code 4121:1-5-11(D)(10)(a) [now 4123:1-5-11(D)(10)(a)]."” (¶ 7)
“The Hartco court held that 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).” (¶ 50)
Factual background
On December 20, 2011, Duane Ashworth's right hand and arm were pulled into the nip point between the bottom and middle power-driven rolls of a calender machine while he attempted to remove rubber. The machine had emergency stop cords but lacked guarding in the area where the injury occurred. 31, Inc. complied with the calender-specific safety requirements in Ohio Adm.Code 4123:1-13-03 but had not obtained a prior Bureau of Workers' Compensation exception from the general nip-point guarding requirement.
Procedural history
Ashworth was injured while operating a calender machine and filed a VSSR application. A staff hearing officer initially denied the application, but the Industrial Commission granted rehearing and later granted a 35-percent VSSR award after finding that 31, Inc. violated Ohio Adm.Code 4123:1-5-11(D)(10)(a). 31, Inc. filed an original mandamus action in the Tenth District. The magistrate recommended denial of the writ, and the appellate court adopted the magistrate's decision after overruling 31, Inc.'s objections.