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State Ex Rel. Troy A. Scott v. Industrial Commission of Ohio

October 25, 2011

STATE EX REL. TROY A. SCOTT, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO
AND COUNTRY SAW & KNIFE, INC., RESPONDENTS.



The opinion of the court was delivered by: Bryant, P.J.

Cite as State ex rel. Scott v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

{¶1} Relator, Troy A. Scott, commenced this original action requesting a writ of mandamus that orders respondent Industrial Commission of Ohio to vacate its order denying his request for an additional award for the alleged violation of a specific safety requirement at his workplace and to find he is entitled to such an award.

I. Facts and Procedural History

{¶2} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued the appended decision, including findings of fact and conclusions of law. In her decision, the magistrate determined the commission did not abuse its discretion in denying relator's request for an additional award because (1) relator did not meet his burden of proving that hazardous concentrations of either cobalt or tungsten were present in the air at the plant of his employer, respondent Country Saw & Knife, Inc.; (2) questions of credibility and weight the commission gave to the OSHA report of OSHA's test of the workplace were within the discretion of the commission as fact finder; and (3) the commission did not misapply the Ohio Supreme Court's decision in State ex rel Gilbert, 116 Ohio St.3d 243, 2007-Ohio- 6096, and the court's decision in State ex rel. Shelly Co. v. Steigerwald, 121 Ohio St.3d 158, 2009-Ohio-585, would not have supported a different result. Accordingly, the magistrate determined the requested writ should be denied.

II. Objections

{¶3} Relator filed two objections to the magistrate's conclusions of law:

1. The Magistrate's decision as to the conclusiveness of the OSHA report is an abuse of discretion and;

2. The Magistrate's decision as to the interpretation of OAC 4123:1-5-01(B)(4) air contaminants and (B) (74) hazardous concentrations is an abuse of discretion, in that it nullifies the application of O.A.C. 4123:1-5-17 (F), and O.A.C. 4123:1-5- 18 (C), (D), (E).

A. First Objection - OSHA Report

{¶4} Relator's first objection is directed to the commission's reliance on the OSHA report in determining whether Country Saw violated the specific safety requirements at issue. Relator initially suggests the chart under finding of fact No. 6 of the magistrate's decision reflects the magistrate's mindset in dealing with the OSHA report. Noting the chart contains an actual exposure level for tungsten, he further points out that the box containing the permitted exposure level indicates none applies. To the contrary, relator asserts, the record reflects a permissible exposure level for tungsten. Relator, however, does not suggest the actual exposure level exceeds the permissible exposure level; rather, he suggests the magistrate's chart reflects "her zeal to support the [staff hearing officer's] decision." (Objections, 2.)

{¶5} Relator's argument is unpersuasive for two reasons. Initially, the magistrate's decision purports to report, and in fact reports, the results of the OSHA report precisely as they are set out in the OSHA report, including the "N/A" contained in the box designated for permissible emission levels of tungsten. Secondly, although, as relator contends, the record elsewhere contains evidence about permissible levels of tungsten, the level is 5mg. per cubic meter of air, while the OSHA report reflected 0.33mg. of tungsten per cubic meter of air.

{¶6} Moreover, the remainder of the magistrate's decision concerning the OSHA report reflects that the magistrate adequately addressed the OSHA report. The magistrate noted the OSHA testing demonstrated the amount of cobalt in the air was below the permissible emission limits. As to the tungsten levels, the report indicates a level below the permissible emission level relator notes in his first objection. In the face of such evidence, relator failed to submit evidence that the workplace had hazardous concentrations of cobalt or tungsten. Although relator presented the testimony of forensic engineer Steven J. Stock in an effort to demonstrate OSHA's testing methods were below standards, relator did not test the air himself, presented no evidence contrary to the OSHA report, and thus left the commission to evaluate the credibility and weight it would give to the OSHA report. In the absence of other evidence to the contrary, the commission did not abuse its discretion in relying on the OSHA results and concluding relator failed to demonstrate concentrations of either cobalt or tungsten at Country Saw's facility reached the level of "air contaminants" and triggered Country Saw's requirements under the administrative code provisions at issue.

{¶7} Relator's first objection is overruled.

B. Second Objection - Interpretation of Administrative Code Provisions

{¶8} Relator's second objection asserts the interpretation the commission ascribed to the various administrative code provisions gives an employer "a free pass" from complying with them. Contrary to relator's contentions, the commission's decision not to grant relator an additional award did not arise because the provisions at issue are deficient but because relator was unable to prove Country Saw failed to comply with the applicable requirements. In the face of OSHA's report, relator conducted no tests of his own and presented no evidence of tests indicating impermissible levels of cobalt or tungsten at the plant. Nothing in the magistrate's decision suggests an employer need not comply with the applicable administrative code provisions, and relator's inability to prove a violation in this case does not provide a free pass for future instances of injury. Relator's contentions being unpersuasive, the second objection is overruled.

III. Disposition

{¶9} Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, we deny the requested writ of mandamus.

Objections overruled;

writ denied.

KLATT and TYACK, JJ., concur.

No. 10AP-713 6

APPENDIX

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

No 10AP-713

State of Ohio ex rel. Troy A. Scott, Relator, v. Industrial Commission of Ohio and Country Saw & Knife, Inc., Respondents.

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on May 17, 2011

Boyd, Rummell, Carach & Curry Co., LPA, and Walter Kaufmann, for relator.

Michael DeWine, Attorney General, and Derrick L. Knapp, for respondent Industrial Commission of Ohio.

Fitch, Kendall, Cecil, Robinson & Barry Co., L.P.A., and Timothy A. Barry, for respondent Country Saw & Knife, Inc.

IN MANDAMUS

{¶10} Relator, Troy A. Scott, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied his request for an additional award for the alleged violation of a specific safety requirement ("VSSR") by respondent Country Saw & Knife, Inc. ("Country Saw"), and ordering the commission to find that he was entitled to a VSSR.

Findings of Fact:

{¶11} 1. Relator began working for Country Saw in 2004.

{¶12} 2. Relator worked primarily as a brazer, a position involving soldering carbide teeth on saw blades through the use of a "semi automatic brazing machine." (Tr. 195, 212.)

{¶13} 3. Approximately one and one-half years after he began his employment with Country Saw, relator developed respiratory problems which were initially diagnosed as bronchitis but were subsequently diagnosed as hard metal lung disease.

{¶14} 4. Relator's claim has been allowed for "hard metal pneumoconiosis; open wound nasal septum; depressive disorder; generalized anxiety disorder," with a date of diagnosis of October 23, 2007.

{¶15} 5. During his testimony, relator indicated that he had been told that his lung problem was caused by an exposure to "a combination of the tungsten and cobalt," (Tr. 43) and that:

* * * "The development of hard metal lung disease is a rare event and is almost unrelated to the duration and extent of exposure, an observation that has been attributed to the ...


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