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State ex rel. Pennant Moldings Inc. v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

July 25, 2013

State ex rel. Pennant Moldings, Inc., Relator,
v.
Industrial Commission of Ohio and Travis A. Tranner, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Porter, Wright, Morris & Arthur, LLP, and Christopher C. Russell, for relator.

Michael DeWine, Attorney General, and John Smart, for respondent Industrial Commission of Ohio.

Agee, Clymer, Mitchell & Laret, Robert M. Robinson, Eric B. Cameron, Katherine E. Ivan, and C. Russell Canestraro, for respondent Travis A. Tranner.

DECISION

CONNOR, J.

{¶ 1} Relator, Pennant Moldings, Inc. ("relator"), brings this original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting the application of respondent Travis A. Tranner ("claimant") for an additional award for violation of a specific safety requirement ("VSSR") and to enter an order denying the application.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate, who has now rendered a decision and recommendation that includes findings of fact and conclusions of law, which is appended to this decision. The magistrate concluded that the commission abused its discretion by failing to address an issue before it and recommended that this court issue the requested writ of mandamus. Relator, claimant, and the commission have all filed objections to the magistrate's decision and the matter is now before us for our independent review.

{¶ 3} As reflected in the facts given in the magistrate's decision, the claimant was involved in a serious work-related accident on November 7, 2006 while operating a Rouselle mechanical power press, identified as press #329, in relator's stainless department. Claimant sustained a crushing injury to his left hand when press #329 spontaneously cycled. Claimant's industrial claim was allowed for left hand crushing injury; left hand amputation; and prolonged post-traumatic stress. Claimant subsequently filed an application for a VSSR award.

{¶ 4} Press #329 was equipped with a two-hand control device. The two-hand control device allowed the press to cycle only when the operator depressed both palm buttons on the two-hand control device at the same time. If the operator did not depress both buttons simultaneously, the press would not cycle. If the operator released their hand from one of the buttons before the press completed its downward stroke, the press would stop immediately. (Ison Affidavit, ¶ 2; Stip. Evid., 155.)

{¶ 5} Press #329 was a two-station die. After the press completed a cycle and returned to its resting position at the top of the machine, the operator would remove the part from the second die, move the part from the first die into the second die, and place a blank part into the first die. The operator then would begin a new cycle by depressing the two palm buttons on the two-hand control device. On November 7, 2006, claimant began operating press #329. Claimant activated the press by simultaneously depressing the two-hand control buttons, the press cycled, the upper die returned to the resting position, and claimant removed his hands from the two-hand control device. Claimant then attempted to align the part he had placed on the first die when, "without warning the press cycled, causing [claimant's] left hand to get caught between the upper and lower dies, thus resulting in [his] injury." (Tranner Affidavit, ¶ 9; Stip. Evid., 154.)

{¶ 6} After claimant filed his application for a VSSR award, the Safety Violations Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation conducted an investigation into the accident. The SVIU investigator obtained deposition transcripts from claimant's co-workers and an affidavit from Danny Ison, a maintenance employee for relator. Ison averred that the two-hand control device, the brake monitor, the anti-repeat mechanism, and the air clutch system on press #329 were all operating as they should both before and after the accident. Ison stated that he was unable to find anything wrong with press #329, explaining that he "cycled the press hundreds of times, * * * tried over and over to foul it up, to try to make it malfunction, and it never did." (Ison Affidavit, ¶ 7; Stip. Evid., 156.) Relying on the depositions of Lois Leisure, David Rhoads, Emma Dennis, and Michael Whitley, the SVIU investigator noted that "prior to November 7, 2006 (DOI) press # 329 (press in question) did malfunction in that press # 329 inadvertently double tripped or cycled during normal production and/or operation." (Stip. Evid., 150.)

{¶ 7} Following a hearing, a Staff Hearing Officer ("SHO") issued an order granting claimant's VSSR application. The SHO concluded that relator violated Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv), which provides for two-hand control devices as a means to protect a mechanical power press operator from reaching into the point of operation. The SHO held that a safety device "must be effective, " and an "ineffective safety device does not meet the code because it does not provide the protection sought and required by the code." (SHO Decision, 2; Stip. Evid., 1172.) Relying on State ex rel. M.T.D. Prods., Inc. v. Stebbins, 43 Ohio St.2d 114 (1975), the SHO noted that a one time malfunction of a safety device cannot be the basis for a violation. The SHO found, relying on the deposition testimony of Emma Dennis and Lois Leisure, that press #329 had spontaneously cycled before claimant's November 7, 2006 injury and that relator had notice of the malfunction. The SHO concluded that:

Based on the evidence noted above it is found the press cycled without the two hand control buttons having been pushed simultaneously, which it is not supposed to do according to Mr. Ison. Because it does not appear to have been activated due to accidental depression of the two hand control buttons as noted above, it is found it cycled due to a malfunction. Because a malfunction allowed the press to spontaneously cycle without the two hand palm control buttons having been pressed simultaneously, it is found this safety device was not effective. Because the Employer had been put on notice of a spontaneous cycling problem as noted above and failed to rectify the problem as evidenced by the malfunction on 11/07/2006 that caused the injuries of record, a violation of 4123:1-5-10 (D) (3) (a) (iv) is found. The Staff Hearing Officer also relies on State ex rel. Precision Thermo-Components, Inc. V. I.C, 10th Ct.App., 2011-Ohio-1333, No. 09AP-965, which appears to be on point factually and is found to support this decision.

(SHO Decision, 2; Stip. Evid., 1172.)

{¶ 8} The SHO ordered that an additional amount of compensation be awarded to claimant in the amount of 40 percent of the maximum weekly rate. The SHO also denied relator's request for rehearing.

{¶ 9} Under its findings of fact, the magistrate noted the affidavit of George Postmus. Postmus inspected press #329 shortly after claimant's injury and found several problems with the press, which created safety hazards. One such hazard was that the "liquid tight flex routed to the palm buttons was damaged and bent quite severely." (Postmus Affidavit, ¶ 5(a); Stip. Evid., 1114.) Postmus explained that the "damaged and bent liquid tight flex presented a safety hazard because it could send a false signal to the press and cause it to double cycle." (Postmus Affidavit, ¶ 6; Stip. Evid., 1114.) Gary Self, a maintenance employee for relator, similarly explained that if the liquid tight flex was severely bent, that could cause the press to cycle when it was not supposed to.

{¶ 10} In the magistrate's conclusions of law, the magistrate noted relator's assertion that the record did not contain evidence indicating that the two-hand control device had malfunctioned. The magistrate observed that, although the evidence regarding the liquid tight flex indicated that the two-hand control device had malfunctioned, the SHO's order failed to address this evidence. As such, the magistrate concluded that the commission abused its discretion by failing to address whether the alleged damage to the liquid tight flex caused the press to spontaneously cycle. The magistrate recommended that this court issue a writ of mandamus ordering the commission to vacate its order granting claimant's VSSR application, and to enter a new order adjudicating the VSSR application consistent with the magistrate's decision.

{¶ 11} Each party objects to the magistrate's decision. Relator asserts the following objection to the magistrate's decision:

WHILE THE MAGISTRATE WAS CORRECT IN RECOMMENDING THE ISSUANCE OF A WRIT OF MANDAMUS ORDERING THE INDUSTRIAL COMMISSION TO VACATE ITS ORDER GRANTING A VSSR AWARD, THE MAGISTRATE ERRED BY FAILING TO HAVE THE RECOMMENDED WRIT INSTRUCT THE INDUSTRIAL COMMISSION TO VACATE THE VSSR AWARD WITHOUT THE NECESSISTY OF ANY FURTHER PROCEEDINGS.

{¶ 12} The commission asserts the following objection:

Where a Specific Safety Requirement mandates that a point of operation device on a mechanical power press shall protect the operator by stopping the press before the operator can place his hand in the press, there is no requirement that the commission identify what caused the press to begin its spontaneous motion, only that the safety device failed to stop the press before the operator can place his hand in the press.

{¶ 13} Claimant has also filed an objection, asserting that "the Magistrate erred in requiring the Industrial Commission to determine exactly how the safety device failed." (Claimant's objection, 2.) For purposes of this decision, we consider claimant's objection and the commission's objection to the magistrate's decision to be the same.

{¶ 14} Pursuant to Civ.R. 53(D)(4)(d), we undertake an independent review of the objected matters "to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." A relator seeking a writ of mandamus must establish: " '(1) a clear legal right to the relief prayed for, (2) a clear legal duty upon respondent to perform the act requested, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.' " Kinsey v. Bd. of Trustees of the Police and Firemen's Disability and Pension Fund of Ohio, 49 Ohio St.3d 224, 225 (1990), quoting State ex rel. Consolidated Rail Corp. v. Gorman, 70 Ohio St.2d 274, 275 (1982). "A clear legal right exists where the [commission] abuses its discretion by entering an order which is not supported by 'some evidence.' " Id.

{¶ 15} To prevail in a VSSR claim, a claimant must establish that the employer failed to comply with a specific safety requirement and that such failure resulted in injury. State ex rel. Jeep Corp. v. Indus. Comm., 42 Ohio St.3d 83, 85 (1989). "The interpretation of a specific safety requirement is within the final jurisdiction of the commission." State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989). We have consistently recognized and generally deferred to the commission's expertise in areas falling under its jurisdiction. State ex rel. Hina v. Indus. Comm, 121 Ohio St.3d 4, 2009-Ohio-250, ¶ 19.

{¶ 16} A specific safety requirement must "adequately apprise[] the employer of its duty towards employees." Jeep Corp. at 84. Because a VSSR award is a penalty to the employer, "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." Burton at 172. Because the rule of strict construction concerns only the applicability of the specific safety requirement to the employer, it does not permit a reviewing court "to construe the evidence of a VSSR strictly in the employer's favor." (Emphasis sic.) State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 70. Moreover, the application of the strict-construction rule cannot justify an illogical result or one that is contrary to the clear intention of the code. State ex rel. Maghie & Savage, Inc. v. Nobel, 81 Ohio St.3d 328, 331 (1998).

{¶ 17} The Ohio Administrative Code provides that it is the "responsibility of the employer to provide and require the usage of 'point of operation guards' or properly applied and adjusted "point of operation devices" on every operation performed on a mechanical press." Ohio Adm.Code 4123:1-5-10(D)(1). Here, relator elected to use the two-hand control device on press #329 as a point of operation device. Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) required that the two-hand control device "protect the operator" by "[r]equiring application of both of the operator's hands to machine operating controls and locating such controls at such a safety distance from the point of operation that the slide completes the downward travel or stops before the operator can reach into the point of operation with his hands."

{¶ 18} The SHO initially determined that, because relator equipped the Rouselle press #329 with a two-hand control device, Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) applied to relator. (SHO Decision, 1; Stip. Evid., 1171.) The SHO then interpreted Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) to require that a press equipped with a two-hand control device not be able to cycle without both hand controls being depressed simultaneously. (SHO Decision, 2; Stip. Evid., 1172) (stating that "the press cycled without the two hand control buttons having been pushed simultaneously, which it is not supposed to do, " thus demonstrating that the "safety device was not effective").

{¶ 19} The SHO relied on M.T.D. Prods. and State ex rel. Precision Thermo-Components, Inc. v. Indus. Comm., 10th Dist. No. 09AP-965, 2011-Ohio-1333, to support its order granting the VSSR application. In M.T.D. Prods., the Supreme Court of Ohio held that "[t]he fact that a safety device that otherwise complies with the safety regulations failed on a single occasion is not alone sufficient to find that the safety regulation was violated." Id. at 118. The safety rules do not "purport to impose absolute liability" on an employer, as the regulations do not require "that, in addition to providing a safety device, the safety device must also be completely failsafe." Id. Known as the "single failure exception to the specific safety requirement, " M.T.D. Prods. holding immunizes employers from liability when an employee is injured by the first-time failure of a safety device. State ex rel. Moore v. Indus. Comm., 29 Ohio App.3d 239, 243 (10th Dist.1985). See also State ex rel. Taylor v. Indus. Comm., 70 Ohio St.3d 445, 447 (1994); State ex rel. Pressware Internatl, Inc. v. Indus. Comm., 85 Ohio St.3d 284, 290 (1999) (referring to the employer's "immunity under M.TD.").

{¶ 20} Where an employer has prior knowledge of the malfunctioning safety device, however, the single failure exception is inapplicable. Precision Thermo-Components at ¶ 4, 6. In Precision Thermo-Components, the molding machine at issue was equipped with a sliding door and "[t]he [machine] was not supposed to activate with the door open." Id. at ¶ 16. Yet, while the sliding door was open, the machine cycled, causing the employee's injury. Id. The magistrate concluded that, although the employer provided the sliding door as the code required, "that safety device malfunctioned and caused the industrial injury." Id. at ¶ 29. Accordingly, the magistrate held that "[u]nder the M.T.D. Products single failure exception, the question before the commission was whether relator had ever been forewarned of the malfunction on the date of injury by a prior malfunction of the safety device." Id. at ¶ 29. Because the evidence demonstrated that the employer had prior knowledge of the malfunctioning safety device, there was some evidence to support the commission's order granting the VSSR application. Id. at ¶ 6.

{¶ 21} In State ex rel. Carlton v. Indus. Comm., 6 Ohio St.3d 433 (1983), an employee was injured by a press equipped with "[s]weep guards, " which prevent an operator's hands from entering the danger zone during the operating cycle by sweeping the operator's hands away from the danger zone when the ram on the press descends. The claimant's co-worker in Carlton reported to the foreman "that, on two occasions, the ram [on the press in question] had descended suddenly without being activated and that the sweep guards responded so slowly that he almost caught his hands in the die area." Id. The claimant then began to operate the press and, when the ram descended "without being activated, * * * and the sweep guards did not respond in time to sweep [the claimant's] hands from the danger zone, " the claimant was injured. Id. at 434. The court held that under M.T.D. Prods. the "controlling fact bec[ame] whether [the employer] had notice of any of the sweep guard's previous failures." Id. at 435. Because the co-worker had notified the foreman regarding the malfunction, there was evidence that the employer had notice of the safety devices previous failures. Id.

{¶ 22} In both Precision Thermo-Components and Carlton, the courts found that the respective safety devices had malfunctioned, but did not require further identification of the specific mechanical event which caused the safety device to fail. In both cases, the determinative facts demonstrated that a safety device did not function as the code required, the claimant was injured by the safety device's failure, and the employer had notice of the malfunctioning safety device. Here, the SHO found that relator had notice before claimant's November 7, 2006 injury that press #329 had spontaneously cycled without activation of the two-hand control device. Accordingly, the issue in the instant case resolves to whether a press which cycles spontaneously without the operator depressing the two-hand control buttons amounts to a malfunction of the safety device provided for in Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv).

{¶ 23} Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) requires application of both of the operator's hands to the two-hand control buttons, which must be located at the appropriate safety distance from the point of operation, such that the ram on the press completes its downward travel or stops before the operator can reach their hand into the point of operation. Here, claimant was able to reach into the point of operation before the press completed its downward cycle or stopped. Relator argues that Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) "has no applicability once the slide of the press completes its downward travel and starts up again or comes to rest at the top." (Relator's memorandum contra commission's objection to the magistrate's decision, 4 ("Relator's memorandum contra").) Thus, relator argues that Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) is "only applicable once the operator initiates the cycle by pushing the two-hand control buttons." (Relator's memorandum contra, 4.)

{¶ 24} Relator's interpretation of Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) is contrary to the clear intention of the code. The title of section (D)(3) is "[s]afeguarding the point of operation." "The primary purpose of the requirement that [a] press be guarded is to avoid injury to the hands of the operator by making sure that they will not be in the danger zone when the ram descends." State ex rel. Aspinwall v. Lancaster, 10th Dist. No. 86AP-261 (Aug. 6, 1987). "The prevention of injury to the operator's hands may be accomplished by * * * a device which requires both of the operator's hands to be out of the danger zone for the press to be activated (such as a two-hand control device)." Id. When the ram on a machine with a two-hand control device is able to descend without the operator depressing the palm buttons on the two-hand control device, the two-hand control device is wholly ineffective. To find that Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) only applies when the operator's hands are on the two-hand control buttons, but not when the ram spontaneously descends without activation from the two-hand control buttons, would vitiate the safety purpose of section (D)(3)(a)(iv), which is to protect the operator by ensuring that their hands are not in the point of operation when the ram descends.

{¶ 25} Relator further asserts that it did not violate Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) because there was no evidence in the record demonstrating that "the spontaneous cycle by the mechanical power press had anything to do with a defect with the hand-control device." (Relator's memorandum contra, 3.) This argument, however, ignores the fact that the two-hand control device controls when the press is able to cycle. Ison explained in his affidavit that "[t]he two hand control will only allow the press to cycle if the two buttons are depressed at the same time. If one or both of the buttons are not depressed, the press will not cycle." (Ison Affidavit, ¶ 2; Stip. Evid., 155.) Thomas R. Huston, a professional engineer, similarly explained that "when a mechanical power press features a two-hand control device, it should not cycle unless an operator simultaneously depresses both hand buttons for a prescribed period of time." (Huston Affidavit, ¶ 16; Stip. Evid., 1092.) Claimant's injury was directly the result of a malfunction of the subject safety device, because the ram on press #329 was able to descend without the operator depressing the two-hand control buttons simultaneously.

{¶ 26} The SHO interpreted Ohio Adm.Code 4123:1-5-10(D)(3)(a)(iv) to mean that a press equipped with a two-hand control device should not be able to cycle unless the two-hand controls are pressed simultaneously. We defer to the commission's interpretation, which is reasonable and supported by the record evidence. Regardless of the precise mechanical reason for the malfunction, when press #329 was able to cycle without the two-hand control buttons being simultaneously depressed, the two-hand control device failed to function as the code required. Pursuant to M.T.D. Prods., Precision Thermo-Components and Carlton, a VSSR award is appropriate when the evidence demonstrates that an employee was injured by the failure of the safety device, and the employer had prior notice that the safety device was not functioning as the code required. Here, the failure of the two-hand control device to function as required caused claimant's injury. Accordingly, the remaining question is whether relator had notice of the two-hand control devices' previous failures.

{¶ 27} As noted in the SHO's order, Emma Dennis saw press #329 spontaneously cycle in the summer of 2006, informed the maintenance department and her supervisors of the spontaneous cycle, and was told that "there was nothing wrong with [press #329], to go ahead and run it." (Dennis Depo., 51; Stip. Evid., 204.) Lois Leisure similarly testified that she saw press #329 "double cycle one time" during the summer of 2006, explaining that maintenance worked on the press and told Leisure the press had been fixed. (Leisure Depo., 9, 22-23; Stip. Evid., 220-21.) The evidence further demonstrates that, although the maintenance department was supposed to conduct monthly inspections on press #329, no monthly inspection had occurred from May through November 2006. (Stip. Evid., 487-523.) (Self Depo., 10; Stip. Evid., 963.) Following claimant's injury, relator received several violations from the Occupational Safety and Health Administration for, among other reasons, allowing operators "to continue to operate the #329 press after it came down on an operator on or about July 2006, prior to November 7, 2006 accident" (Stip. Evid., 445.) and because proper "[m]aintenance and repair was not performed on the part revolution mechanical power press #329 Rouselle." (Stip. Evid., 444.) Accordingly, the evidence demonstrated that before claimant's injury relator was aware that press #329 had spontaneously cycled without the two-hand control buttons being depressed, and permitted employees to continue to operate press #329 without identifying and fixing the problem which was causing the spontaneous cycle. Based on the foregoing, there was some evidence to support the SHO's order.

{¶ 28} The magistrate's conclusions of law find that the commission abused its discretion by failing to address the evidence regarding the alleged damage to the liquid tight flex. However, M.T.D. Prods., Precision Thermo-Components, and Carlton demonstrate that a VSSR award is appropriate where a safety device's failure causes an employee's injury and the employer had notice before the injury of the malfunctioning safety device. Because the SHO cited evidence demonstrating that relator had notice prior to claimant's injury that press #329 had previously cycled without activation of the two-hand control device, the SHO was not further required to address the evidence regarding the liquid tight flex.

{¶ 29} Following independent review, pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts, and we adopt them as our own. For the reasons set forth in this decision, however, we reject the magistrate's conclusions of law. Instead, we conclude the commission did not abuse its discretion in granting claimant's VSSR application because relator had prior notice of the malfunctioning safety device. As such, we sustain the commission's and claimant's objections to the magistrate's decision, overrule relator's objection to the magistrate's decision, and deny relator's request for a writ of mandamus.

Commission's and claimant's objections sustained; relator's objection overruled; writ denied.

SADLER and DORRIAN, JJ., concur.

APPENDIX

Rendered on October 31, 2012

IN MANDAMUS

MAGISTRATE ' S DECISION

KENNETH W. MACKE MAGISTRATE

{¶ 30} In this original action, relator, Pennant Moldings, Inc. ("relator" or "Pennant") requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting the application of respondent Travis A. Tranner ("claimant") for an additional award for violation of a specific safety requirement ("VSSR") and to enter an order denying the application.

Findings of Fact:

{¶ 31} 1. On November 7, 2006, claimant sustained a crush injury to his left hand while operating a mechanical power press for relator.

{¶ 32} 2. The industrial claim (No. 06-874889) is allowed for:

Left hand crushing injury; left hand amputation; proglonged post-traumatic stress.

{¶ 33} 3. The mechanical power press had a two-station die. After the press completes a cycle and returns to its resting position, the operator removes the part from the second die and places it on a nearby table. He then removes the part from the first die and places it into the second die. He then puts a blank part into the first die before starting a new cycle by depressing the two palm buttons.

{¶ 34} 4. At the time of his injury, claimant was loading a part into the first die when the press unexpectedly cycled, ...


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