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State ex rel. Precision Steel Services, Inc. v. The Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

October 3, 2013

State of Ohio ex rel. Precision Steel Services, Inc., Relator,
v.
The Industrial Commission of Ohio and Melvin E. Meyers, Respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

Willacy, LoPresti & Marcovy, Salvatore J. LoPresti, Timothy A. Marcovy, and Michael S. Lewis, for relator.

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

Vanderhorst & Burgy LLC, Michael A. Vanderhorst, and Kristin L. Burgy, for respondent Melvin E. Meyers.

DECISION

DORRIAN, J.

(¶ 1} Relator, Precision Steel Services, Inc. ("Precision"), commenced this original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate an award of additional workers' compensation benefits to respondent Melvin E. Meyers ("claimant"). The commission found that claimant was entitled to additional benefits based on Precision's violation of a specific safety requirement ("VSSR"). We assigned the matter to a magistrate of this court pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision, attached hereto as an appendix, which includes findings of fact and conclusions of law, as well as a recommendation that this court grant a writ of mandamus requiring the commission to vacate its order and issue a new order.

(¶ 2} We adopt the magistrate's findings of fact as set forth in ¶ 64 through ¶ 94 of the appendix to this decision, but we do not accept in full the magistrate's conclusions of law. Rather, for different reasons, as discussed below, we grant a writ of mandamus ordering the commission to vacate its prior order and issue a new order adjudicating claimant's VSSR application.

I. Summary of Facts and Commission Proceedings

(¶ 3} Stated succinctly, the facts are that, on March 1, 2008, claimant suffered injuries while welding a 1, 200-pound metal part. Claimant attempted to use an overhead crane to move the part so that he could weld its reverse side when both the part and a large electromagnet ("magnet") holding the part fell, crushing claimant's left hand necessitating its amputation.

(¶ 4} The stipulated evidence does not include photos of the crane as configured at the time of the incident, and the record is not entirely clear as to the exact configuration of the devices used to attach the magnet to the crane's upper hook at that time.[1] The parties are in agreement, however, that the magnet was connected to an upper hook of the overhead crane by a wire rope or cable that had loops, or "eyes, " at both ends. The upper hook of the crane fit into the loop at the top of the wire rope. A smaller hook at the bottom of the wire rope (the "bottom hook") connected the magnet to the wire rope. The claimant prepared drawings of these attachments showing the bottom hook as a component that itself consisted of two loops, one of which fit into the bottom eye of the wire rope and the second of which fit into the top of the magnet.

(¶ 5} The Ohio Bureau of Workers' Compensation Safety Violations Investigation Unit ("SVIU") investigated the incident. SVIU investigator Fred M. Freeman reported that the employer had initially described the cause of the accident as the fact that "the safety latch attaching the magnet to the metal hook was missing at the time of the incident." Freeman's observation is consistent with the premise that a safety latch should have been in place on the bottom hook at the time of the accident.

(¶ 6} Investigator Freeman also included in his report an affidavit executed by claimant stating that the "lifting eye of the magnet slipped off the hook on the bottom of the wire rope causing metal part and magnet to fall on top of my hand." (Meyers affidavit, 2.) The claimant also suggested that the bottom hook should have been equipped with a safety latch, which would have prevented the eye of the magnet from slipping off the hook. The claimant testified that his injury occurred "because the hook on the bottom of the wire rope did not have a safety latch to keep the magnet from coming off of it." (Meyers affidavit, 2.) Indeed, Precision's operation manager acknowledged at the hearing that "the manufacturer" had recommended that a safety latch should always be used when the magnet was attached to a hook and being used to lift a load. He did not, however, identify whether "the manufacturer" was the manufacturer of the overhead crane, the bottom hook, or the the magnet.

(¶ 7} The commission awarded claimant workers' compensation benefits for his injuries. On February 12, 2010, claimant filed an application for an additional VSSR award for violation of a specific safety requirement under the provisions of the Ohio Constitution, Article II, Section 35. A staff hearing officer ("SHO"), heard the matter and issued an order on August 9, 2011, the text of which is reproduced in the Magistrate's Decision at ¶ 89. The SHO found that "the Injured Worker's injury was due to the Employer's failure to comply with [Ohio Adm.Code] 4123:1-5-14(G)(1) and 4123:1-5-15(B)." (Aug. 9, 2011 Corrected Order, 1.)

(¶ 8} As to the first of the two rules, i.e., Ohio Adm.Code 4123:1-5-14(G)(1), the SHO found that "the crane causing [claimant's] injury had a defective safety device [and] that [t]he defect was that the safety latch was not present on the crane hook." (Corrected Order, 2.) This finding reflected the SHO's determination that the bottom hook was a part of the overhead crane. The SHO further found that "the magnet would not have slipped off if a safety hook had been present" and that "the safety latch was missing at the time of Injured Worker's injury and therefore the equipment should have been repaired or replaced according to [Ohio Adm.Code] 4123:1-5-14(G)(1)." (Corrected Order, 2-3.) The SHO further noted that "the testimony of the Employer's witnesses do not support that a safety latch was present at any time before or at the time of the industrial injury." (Corrected Order, 3.)

(¶ 9} As to the second of the two rules, i.e., Ohio Adm.Code 4123:1-5-15(B), the SHO found that "the crane should have been removed from service and not in use, as required by [Ohio Adm.Code] 4123:1-5-15(B), pertaining to Hoisting and Haulage Equipment * * * [because] the lack of a safety latch amounted to a defect which weakened the equipment (the magnet came off because a safety latch was missing)." (Corrected Order, 3.) On October 25, 2011, the commission denied Precision's request for reconsideration and rehearing of the SHO's order.

(¶ 10} Precision thereafter filed this original action, claiming that the commission abused its discretion in granting claimant an additional award of VSSR benefits. It sought a writ ordering the commission to vacate its order and to enter an order denying claimant's application for additional VSSR benefits, claiming that Precision had not violated either of the two rules. It further challenged the commission's implicit finding that the two rules constituted specific, as opposed to general, safety requirements, noting that neither rule specifically required the use of a safety latch when attaching a magnet to a crane hook.

II. The Magistrate's Decision

(¶ 11} In reviewing the parties' arguments, the magistrate noted the well-settled principle that a "VSSR award is deemed a penalty to the employer subject to the rule of strict construction with all reasonable doubts concerning the interpretation of the safety standard to be construed against the applicability of the standard to the employer." (Magistrate's Decision, ¶ 101.) The magistrate further found it to be "firmly established that the determination of disputed factual situations as well as the interpretation of a specific safety requirement is within the final jurisdiction of the commission, and subject to correction in mandamus only upon a showing of an abuse of discretion." (Magistrate's Decision, ¶ 102.) Moreover, the commission must interpret its rules reasonably and "may not effectively rewrite its own safety rules in the guise of interpreting them." (Magistrate's Decision, ¶ 103.).

(¶ 12} The first rule at issue in this case is Ohio Adm.Code 4123:1-5-14, which establishes requirements for power-driven cranes and hoists. The magistrate disagreed with the SHO's finding that Ohio Adm.Code 4123:1-5-14(G)(1) applied to the case. The magistrate instead concluded that subsection (G) of the rule, which mandates repair or replacement of "defective safety devices or load-carrying equipment, " did not apply in this case because the word "equipment" in subsection (G) included only "the specifically identified devices and equipment found throughout paragraphs (C) through (F) at Ohio Adm.Code 4123:1-5-14." (Emphasis added.) (Magistrate Decision, ¶ 120). The magistrate concluded that Ohio Adm.Code 4123:1-5-14(G)(1) did not apply because "a hook safety latch is not among the devices and equipment specified throughout (C) through (F)." (Magistrate's Decision, ¶ 120.)

(¶ 13} The second rule at issue in this case is Ohio Adm.Code. 4123:1-5-15, titled "hoisting and haulage equipment, " which provides:

(A) Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope, chain metal mesh and synthetic web, and attachments used to handle material or equipment shall be used in accordance with the manufacturer's recommendations.
(B) Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.

(¶ 14} The magistrate concluded that the SHO was required to consider the definition of equipment provided in subsection (A) of the hoisting and haulage equipment rule-even though the VSSR application referenced only subsection (B) of the rule-because Precision "cannot have violated the safety rule [in subsection (B) of Ohio Adm.Code. 4123:1-5-15] if the hook or hook safety latch is not the '[e]quipment' defined by Ohio Adm.Code 4123:1-5-15(A)." (Emphasis added.) (Magistrate's Decision, ¶ 124.) The magistrate further concluded that the SHO "failed to determine whether the hook or hook safety latch at issue can be viewed as '[e]quipment' within the meaning of Ohio Adm.Code 4123:1-5-15(A) of the rule." (Magistrate Decision, ¶ 124.)

(¶ 15} In summary, the magistrate issued a three-part decision, recommending that we order the commission to (1) vacate its prior order; (2) enter a new order finding that Precision did not violate Ohio Adm.Code 4123:1-5-14(G)(1) (the power-driven crane and hoist rule); and (3) reconsider whether the lack of a hook or hook safety latch between the magnet and the crane hook involved "equipment, " as defined in Ohio Adm.Code 4123:1-5-15(A) (the hoisting and haulage equipment rule).

III. Parties' Objections and Analysis

(¶ 16} Claimant, Precision, and the commission have all filed timely objections to the magistrate's decision. In considering these objections, we are mindful, as was the magistrate, that the Supreme Court of Ohio has characterized a VSSR award as a penalty. State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125, ¶ 12, citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989). The commission, however, has discretion to interpret its own rules. State ex rel. Devore Roofing & Painting v. Indus. Comm., 101 Ohio St.3d 66, 2004-Ohio-23, ¶ 22, citing State ex rel. Harris v. Indus. Comm., 12 Ohio St.3d 152, 153 (1984). If, however, the application of those rules to a unique factual situation gives rise to a patently illogical result, common sense should prevail. Id. This court may not issue a writ of mandamus in the absence of a finding that the commission abused its discretion. State ex rel. V & A Risk Servs. v. Ohio Bur. of Workers' Comp., 10th Dist. No. 11AP-742, 2012-Ohio-3583, ¶ 18 ("Mandamus will not lie to substitute a court's discretion for that of an administrative official unless the administrative official's refusal to perform the act constitutes an abuse of discretion.").

(¶ 17} In order to establish a VSSR, an employee 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 cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972).

(¶ 18} The determinative question in this case is, thus, whether the commission's interpretation and application of the two safety regulations at issue gives rise to a patently illogical result. Stated differently, the issue in this mandamus action is whether the commission abused its discretion in finding that the lack of a safety latch on the hook to which the magnet was attached constituted a violation of either, or both, commission rules upon which the claimant based his VSSR claim, i.e., Ohio Adm.Code 4123:1-5-14(G) or 4123:1-5-15(B).

Objections relative to Ohio Adm. Code 4123:1-5-14

(¶ 19} Both the claimant and the commission raise in their first objections issues concerning the interpretation and applicability of subsection (G) of Ohio Adm.Code 4123:1-5-14, the power-driven cranes and hoists rule.

Claimant's Objection 1

(¶ 20} Claimant's first objection, which we sustain, states:

Where a relevant term is not defined by the code, its interpretation is exclusively within the authority of the commission. The magistrate erred in finding OAC 4123:1-5-14(G)'s reference to "defective crane safety devices or load-carrying equipment" is limited to those safety devices or equipment listed in OAC 4123:1-5-14(C)-(F). The terms "equipment" and "load-carrying equipment" are not synonymous and the magistrate cannot substitute his definition in place of the commission's.

(¶ 21} Ohio Adm.Code 4123:1-5-14 is a specific regulation governing power-driven cranes and hoists, including overhead electric traveling cranes (subsection (C)), electric jib cranes (subsection (D)), electric single-rail cranes and hoists (subsection (E)), and electric gantry cranes (subsection (F)). Subsections (C), (D), (E) and (F) each begin by defining each of those types of cranes. Each subsection, under a subheading labeled "Equipment, " imposes specific enumerated safety requirements for certain crane components, e.g. brakes, rail stops, cabs, etc.

(¶ 22} In addition, Subsection (G) of Ohio Adm.Code 4123:1-5-14 provides:

(G) Specific requirements applicable to all paragraphs of this rule:
(1) Defective safety devices or load-carrying equipment.
Defective crane safety devices or load-carrying equipment shall be repaired or replaced.

(Emphasis added.)

(¶ 23} The SHO noted that the claimant "was operating a power driven crane" at the time of his injury and found that "[Ohio Adm.Code] 4123[:]1-5-14(G)(1), pertaining to power driven cranes and hoists, is applicable to this case." (Aug. 9, 2011 Corrected Order, 2.) The magistrate concluded, to the contrary, that "[i]t is clear that [subsection G's] reference to '[d]efective safety devices or load-carrying equipment' is a reference to the specifically identified devices and equipment found throughout paragraphs (C) through (F)' of the rule" (Magistrate Decision, at ¶ 120).

(¶ 24} Accordingly, as interpreted by the magistrate, subsection (G) requires repair or replacement of defective safety devices or load-carrying equipment only if the defective equipment is specifically identified in paragraphs (C) through (F) of Ohio Adm.Code 4123:1-5-14. A necessary corollary to the magistrate's conclusion is that any crane components not specifically identified in those subsections are not subject to the mandate of subsection (G) that "defective safety devices or load-carrying equipment" be repaired or replaced. The magistrate concluded that Ohio Adm.Code 4123:1-5-14(G) did not apply to this case because no specific reference to crane hook safety latches appears in paragraphs (C) through (F) of the rule. The SHO had, however, found that the rule was applicable to this case because claimant was using a power-driven crane at the time of the accident, and the crane had a defective safety device, which caused claimant's injury.

(¶ 25} In his first objection, claimant challenges the magistrate's determination that the word "equipment" in subsection (G)(1) of Ohio Adm.Code 4123:1-5-14 applies only to safety devices or equipment expressly identified in subsections (C) through (F) of Ohio Adm.Code 4123:1-5-14. That is, claimant contends that the commission acted reasonably in impliedly finding that other types of crane equipment beyond those expressly listed in subsections (C) through (F) of the rule fall within the scope of subsection (G). Claimant argues that the magistrate may not substitute his definition of an undefined term in a commission rule for that of the commission. We agree.

(¶ 26} Subsection (G) of the crane rule applies by its own terms to "all paragraphs" of Ohio Adm.Code 4123:1-5-14-not just those parts of the rule falling under subsections captioned "Equipment." The commission, in adopting the SHO's decision, found that the rule did apply to the facts of this case. It is clear that the SHO considered the wire rope as well as the bottom hook that attached the magnet to the wire rope to be components of the crane. For example, the SHO found that "the weight of the evidence supports that there was no safety latch on the crane at the time of [claimant's] injury." (Emphasis added.) (Corrected Order, 3.)

(¶ 27} The SHO, thus, interpreted Ohio Adm.Code 4123:1-5-14(G) as imposing an obligation on employers to remove defective safety devices or load-carrying equipment from use if that defective safety device or load-carrying equipment is a component of any power-driven crane or hoist described in the rule. That interpretation is not patently illogical.

(¶ 28} The commission has authority to interpret its rules in the first instance, and we are required to defer to the commission's interpretation of its own rules. To our knowledge, the commission has not interpreted Ohio Adm.Code 4123:1-5-14(G) as imposing an obligation to repair or replace defective load-carrying equipment only if that equipment is specifically listed as "equipment" in subsections (C) through (F) of that rule. To the contrary, in a case involving allegedly defective load-carrying equipment for purposes of Ohio Adm.Code 4123:1-5-14(G), an employer had previously repaired a different defective component part of an overhead hoist system, i.e., a sticking roller, but in doing so created a second, independent defect in a nut/bolt assembly. The Supreme Court of Ohio affirmed a VSSR award based on violation of the same VSSR at issue in this case, Ohio Adm.Code 4123:1-5-14(G), in that the employer had failed to repair or replace defective load-carrying equipment. State ex rel. Internatl Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428, 2009-Ohio-3502; id. at ¶ 13. Neither nut/bolt systems nor rollers are specifically identified as equipment in the rule; however, the court acknowledged that the award of VSSR compensation was within the scope of the commission's discretion.

(¶ 29} The magistrate's interpretation of Ohio Adm.Code 4123:1-5-14(G) is not consistent with Internatl. Truck & Engine Corp. Moreover, pursuant to the magistrate's interpretation, and because crane hooks are not specifically identified as equipment in subsections (C), (D), (E), or (F) of the rule, an employer would not be required to repair or replace, for example, a visibly cracked crane hook. In such a case, application of the magistrate's interpretation would produce the illogical result that the employer had no obligation to repair or replace an obviously defective crane hook that clearly posed a risk of serious harm or death to employees working beneath the crane hook simply because "crane hook" is not listed in subsections (C) through (F).

(¶ 30} We therefore reject the magistrate's conclusion of law that the term "safety devices or load-carrying equipment" in subsection (G)(1) included only equipment specifically identified in paragraphs (C) through (F). Rather, in interpreting its own rule, the commission found that the bottom hook was a component of a type of crane described in Ohio Adm.Code 4123:1-5-14 and, as such, fell within the scope of the rule. We have "consistently recognized and generally deferred to the commission's expertise in areas falling under its jurisdiction." State ex rel. Pennant Moldings, Inc. v. Indus. Comm. 10th Dist. No. 11AP-942, 2013-Ohio-3259, ¶ 15, and it is appropriate that we do so in this case. The commission did not abuse its discretion in determining that Ohio Adm.Code 4123:1-5-14(G)(1), "pertaining to power driven cranes and hoists [was] applicable to this case." (Corrected Order, 2.)

(¶ 31} We therefore sustain the claimant's first objection and reject the magistrate's conclusion of law that the commission abused its discretion in finding that Ohio Adm. Code 4123:1-5-14(G)(1) pertaining to power-driven cranes and hoists, applies to this case.

Commission's Objection 1

The commission's first objection states:

The commission's finding that the employer was on notice that the crane's hook safety latch was a "safety device" under the Ohio Adm. Code 4123:1-5-14(G)(1) was supported by some evidence, including the manufacturer's specifications requiring the crane's hook to have a safety latch, and the employer's safety supervisor's testimony that he knew this requirement prior to the worker['s] injury.

(¶ 32} Our finding that the commission did not abuse its discretion in finding that Ohio Adm.Code 4123:1-5-14(G)(1) applies to this case does not, however, resolve the question as to whether the commission abused its discretion in finding that Precision violated the rule. The SHO concluded that Precision violated Ohio Adm.Code 4123:1-5-14(G)(1) because there was no safety latch on the bottom hook to prevent the magnet from becoming disengaged from the crane, even though the manufacturer's specifications required use of a safety latch. The SHO determined that the lack of a safety latch on the bottom hook of the crane apparatus warranted the conclusion that the crane was equipped with a defective safety device at the time of the incident.

(¶ 33} Having reviewed the commission's arguments in support of this objection, we construe it as positing that it was within the commission's discretion to determine that Ohio Adm.Code 4123:1-5-14(G)(1) applied to this case because the bottom hook of the crane was equipment for purposes of that rule. The commission's arguments resemble the claimant's, and we sustain the commission's first objection to that extent for the same reasons. But, as discussed below, we overrule the commission's first objection to the extent that the commission defends the SHO's conclusion that the bottom hook was itself a "defective safety device."

(¶ 34} The commission argues that the absence of a safety device on the bottom hook is equivalent to the use of a "defective crane safety device, " in violation of Ohio Adm.Code 4123:1-5-14(G)(1). Precision argues, in response, that the absence of a safety latch on the bottom hook cannot transform the bottom hook into a "safety device, " whether defective or not. We agree. It is unreasonable to describe the bottom hook of the crane apparatus as a defective safety device. The bottom hook was an attachment component of the crane-not a safety device. Moreover, failure to use a safety device does not mean that the unused safety device itself is defective.

(¶ 35} In addition, the SHO in its resolution of the issue whether Precision violated the second rule at issue in this case, Ohio Adm.Code 4123:1-5-15(B), specifically found that "there was no safety device" in place on the crane. (Emphasis added.) (Corrected Order, 4.) It was unreasonable for the commission to accept an order that, at one point describes the bottom hook as a defective safety device and at another point describes the same component as lacking a safety device.

(¶ 36} Accordingly, the SHO's justification for finding that Precision violated Ohio Adm.Code 4123:1-5-14(G)(1) was unreasonable, and the commission abused its discretion in accepting the SHO finding that the absence of a safety latch on the bottom hook warranted the conclusion that the bottom hook was a defective safety device.

(¶ 37} Our conclusion that the bottom hook was not a defective safety device does not, however, mandate a finding that Precision complied with Ohio Adm.Code 4123:1-5-14(G)(1). Rather, we sustain the commission's objection to the extent that it posits that Precision could nevertheless have violated the rule. Subsection (G)(1) requires repair or replacement of "defective load-carrying equipment, " as well as repair or replacement of defective safety devices. The term "load-carrying equipment" is not specifically defined in either Ohio Adm.Code 4123:1-5-14(G)(1) or 4123:1-5-01, which is the general definitional rule for purposes of Chapter 4123 of the regulations. "Where a relevant term is left undefined by the safety code, its interpretation rests solely with the commission. While the commission may rely on an outside definition, it is not required to do so." State ex rel. Timken Co. v. Hammer, 95 Ohio St.3d 121, 2002-Ohio-1754, ¶ 36, citing State ex rel. Go-Jo Industries v. Indus. Comm., 83 Ohio St.3d 529 (1998).

(¶ 38} Arguably, Precision violated Ohio Adm.Code 4123:1-5-14(G)(1) even if the bottom hook was not a safety device, if: (1) the crane when configured with the bottom hook was load-carrying equipment for purposes of the rule; (2) the bottom hook was defective for lack of a safety device; and (3) Precision, with prior knowledge of its defective nature, allowed its continued use without repairing or replacing it. The commission has not determined these issues. If the commission answers these inquiries in the affirmative, then Precision violated Ohio Adm.Code 4123:1-5-14 in failing to repair or replace the bottom hook by ensuring that it was protected by a safety latch.

(¶ 39} We therefore order the commission to determine whether use of the crane without a safety latch on the bottom hook of the crane violated Ohio Adm.Code 4123:1-5-14(G)(1) in that Precision, by allowing the crane to be used without a safety device to preclude the magnet from becoming disengaged from the crane, thereby failed to "repair or replace defective load-carrying equipment" of a type of crane described in the rule. The commission's first objection is sustained in part and overruled in part.

Objections Relative to Ohio Adm.Code 4123:1-5-15

(¶ 40} All three parties have raised objections to the magistrate's decision relative to Ohio Adm.Code 4123:1-5-15, which provides rules for hoisting and haulage equipment. That rule provides, in relevant part:

(A) Equipment such as slings, hoisting or haulage lines, wire rope, natural or synthetic fiber rope, chain, metal mesh and synthetic web, and attachments used to handle material or equipment shall be used in accordance with the manufacturer's recommendations.
(B) Equipment shall be removed from service when there is evidence of a defect, damage, or distortion which may weaken such equipment.

(¶ 41} We begin by addressing the second objections of both the claimant and the commission, both of which challenge the magistrate's conclusions concerning interpretation of the word "equipment" in Ohio Adm. Code 4123:1-5-15(B).

(¶ 42} Claimant's second objection states:

The magistrate erred in finding that the commission failed to determine that a hook which is missing its safety latch is "equipment" as used in [Ohio Adm.Code] 4123:1-5-15.

The commission's second objection is similar. It states:

Where Ohio Adm.Code 4123:1-5-15 required: "equipment shall be removed from service when there is evidence of a defect" and there was some evidence to support the SHO's interpretation that the crane with hook was the: "equipment" referred to in the regulation, the magistrate erred in requiring the commission to reconsider whether the hook safety latch alone was the "equipment" described in the regulation.

(¶ 43} In finding that Precision violated Ohio Adm.Code 4123:1-5-15(B), the SHO necessarily determined that the bottom hook was equipment within the scope of subsection (B) of the rule requiring removal from service of defective, damaged or distorted "equipment." In their second objections, the claimant and the commission challenge the magistrate's determinations that (1) "equipment" for purposes of subsection (B) of Ohio Adm.Code 4123:1-5-15, is necessarily equivalent to "equipment" as identified in subsection (A) (Magistrate's Decision, ¶ 124), and (2) the commission must therefore reconsider claimant's assertion that Precision violated subsection (B) of Ohio Adm.Code 4123:1-5-15. We sustain their objections and reject the magistrate's recommendation that we order the commission to reconsider whether the bottom hook was "equipment" as contemplated in subsection (A) of Ohio Adm.Code 4123:1-5-15.

(¶ 44} In this case, the SHO concluded, albeit without express discussion, that the bottom hook was equipment within the scope of subsection (B). This conclusion is revealed by the SHO's statements "the lack of a safety latch amounted to a defect which weakened the equipment, " and "the crane should have been removed from service and not in use, as required by Ohio Adm.Code 4123:1-5-15(B) pertaining to Hoisting and Haulage Equipment." (Emphasis added.) (Corrected Order, 3.) The commission thus interpreted its rule to include the bottom hook of the crane as hoisting and hauling equipment within the scope of subsection (B). As discussed above relative to Ohio Adm.Code 4123:1-5-14(G)(1), the commission has the discretion to interpret its own rules. We find its interpretation to be reasonable and, therefore, do not disturb it.

(¶ 45} We find that the commission was not required to interpret the word "equipment" in subsection (B) of the rule as necessarily being equivalent to the word "equipment" in subsection (A) of the rule. The commission found that the rule applied if the component at issue may reasonably be deemed to be hoisting and haulage equipment. "Equipment" is a common word, the meaning of which may easily be determined. The rule does not provide that the subsection (A) "definition" applies to all other paragraphs of Ohio Adm.Code 4123:1-5-15, and we will not read such a provision into the rule.

(¶ 46} We therefore sustain the second objections of both the claimant and the commission.

Precision's first objection

(¶ 47} Precision's first objection states that the magistrate erred in his findings concerning Ohio Adm.Code 4123:1-5-15. More specifically, Precision contends that:

A. Ohio [Adm.]Code 4123:1-5-15 does not specifically require a safety latch.
B. "Equipment" under Ohio [Adm.]Code 4123:1-5-15(A) does not define "Equipment" under (B).
C. Even if Ohio [Adm.]Code 4123:1-5-15(B) is read in conjunction with section (A), neither section specifically requires a safety latch, nor specifically defines a safety latch to be "equipment" as used in the rules.
D. Even if Ohio [Adm.]Code 4123:1-5-15(A)'s definition of "equipment" applies to (B), there is no "evidence of a defect, damage, or distortion which may weaken such equipment."

(¶ 48} We acknowledge that Ohio Adm.Code 4123:1-5-15 does not include a specific reference to safety latches, nor does it specifically require a safety latch on crane hooks, nor does it specifically define a safety latch as equipment. Precision's statements in parts (A) and (C) of its first objection are therefore true. Additionally, in resolving the claimant's and commission's second objections, we have determined that the word "equipment" in Ohio Adm.Code 4123:1-5-15(B) is not limited to equipment as defined in Ohio Adm.Code 4123:1-5-15(A). Accordingly, we accept as true Precision's statement in part (B) of its first objection. Our acknowledgment of the validity of Precision's statements in parts (A), (B), and (C) does not, however, necessarily compel the conclusion that Precision did not violate Ohio Adm.Code 4123:1-5-15, as Precision suggests.

(¶ 49} In its argument relative to part (C) of its first objection, Precision contends that Ohio Adm.Code 4123:1-5-15(B) is a general safety rule as opposed to a specific safety requirement. In fact, Precision has consistently argued from the earliest stages of these proceedings that neither Ohio Adm.Code 4123:1-5-14(G)(1) nor 4123:1-5-15(B) plainly apprised it of any specific obligation it had to its employees and that the two rules therefore do not constitute specific safety requirements. It contends that, to be a specific safety requirement, the rules must have specifically required the use of a safety latch with every crane hook.

(¶ 50} It has long been recognized in Ohio that "[t]he term, 'specific requirement, ' as used in Section 35, Article II of the Constitution of Ohio, does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are of a character plainly to apprise an employer of his legal obligations toward his employees." State ex rel. Holdosh v. Indus. Comm., 149 Ohio St. 179 (1948), syllabus. Accordingly, a specific safety requirement must plainly apprise employers of their legal obligations.

(¶ 51} Courts have on numerous occasions considered the question of whether a rule adopted by the commission imposes a specific safety requirement or, alternatively, a general requirement that imposes a "general course of conduct" or "general duties or obligations flowing from the relationship of employer and employee." In 1964, for example, the Supreme Court of Ohio considered a rule that provided as follows:

Whenever practicable, the platform of swing scaffold shall be so lashed or secured while in use that they cannot sway from the structure.

State ex rel. Fast & Co. v. Indus. Comm., 176 Ohio St. 199, 200 (1964).

(¶ 52} The Supreme Court held that the rule was specific because the employer was left with no discretion in terms of what it should do in regard to the use of a particular piece of equipment, i.e., it required a "specific thing to be done in relation to the use of [a] scaffold." Id. at 201. Even though the rule included the phrase "when practicable, " the court observed that the word "practicable" has a definite meaning, and that the rule imposed a definite obligation on the part of the employer. It noted that "the fact that the method of securance is not delineated by the rule [does not] render the rule general, " in that both the requirement and the result to be accomplished are specific, and recognized that "[d]ue to the varying situations encountered in this type of work it would not be feasible to delineate specific methods." Id.

(¶ 53} Similarly, in this case, an employer who causes employees to use hoisting and haulage equipment is specifically notified by Ohio Adm.Code 4123:1-5-15(B) that it must repair or replace hoisting and haulage equipment if the equipment is defective. Both the situation and the obligation are specifically identified. The fact that the particular component that becomes defective is not specifically identified does not change the rule into a general one. As in Fast & Co., it would not be feasible for the commission to delineate each and every component of hoisting and haulage equipment that is covered by the "repair or replace" requirement. Nor does the fact that a more specific rule could have, in hindsight, been drafted mean that the existing rule is not specific.

(¶ 54} By adopting the SHO's order granting the VSSR award, the commission impliedly determined that Ohio Adm.Code 4123:1-5-15(B) is a specific safety requirement. Given the precedent we have outlined above, we cannot say the commission erred in so doing.

Sufficiency of the Evidence

(¶ 55} In section (D) of Precision's first objection, Precision challenges the SHO's conclusion as to the existence of a "defect, damage, or distortion which may weaken" the hoisting equipment here at issue. (Emphasis added.) We reject Precision's argument that a violation of Ohio Adm.Code 4123:1-5-15(B) could be proven in this case only if the bottom hook itself had become physically weakened by, for example, being bent, broken or frayed. Webster's Encyclopedic Unabridged Dictionary of the English Language (Portland House 1996), includes as synonyms for the word "weaken" the words "diminish" and "impair." It was within the commission's discretion to find that the lack of a safety latch impaired the safe functioning and reliability of the crane hook, thereby diminishing its effectiveness, i.e., "weakening" it. We further observe that "[b]ecause 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. Pennant Moldings, Inc. v. Indus. Comm., 10th Dist. No. 11AP-942, 2013-Ohio-3259, ¶ 16, quoting State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134 (2002), ¶ 70.

(¶ 56} We therefore overrule Precision's first objection. Precision's Due Process Objection

(¶ 57} Precision's second objection asserts as follows:

The Magistrate Erred in Not Ruling Upon Precision's Argument that the Commission Violated Precision's due process of law under the 14th Amendment to the U.S. Constitution and Art. I, §16 of the Ohio Constitution.

(¶ 58} The commission imposed a 50-percent award for violation of the two rules at issue, noting that "[t]he additional award of compensation is granted to the Injured Worker in the amount of percent of maximum weekly rate under the rule of State ex. rel. Engle v. Indus. Comm. (1944), 142 Ohio St. 425." (Corrected Order, 4.) Precision acknowledges that the Supreme Court of Ohio has found that the Ohio Constitution does not require the commission to explain or justify its determination of the amount of a VSSR if the award is within the 14-50 percent range. But, Precision contends that the commission deprived it of due process because it lacked an opportunity to prepare a defense to the issue of the percentage size of a VSSR penalty. It additionally argues that the absence of a more detailed explanation of how the commission arrived at the 50-percent penalty precludes meaningful analysis of whether the commission abused its discretion in setting the amount of the VSSR award.

(¶ 59} We note that the Supreme Court of Ohio in 1997 specifically considered, and rejected, a similar argument that the commission must consider and explain the impact of factors such as the severity of the injury, the egregiousness of the violation, and the inherent dangerousness of involved machinery, just as the commission must consider and explain nonmedical factors in permanent disability cases. State ex rel. St. Marys Foundry Co. v. Indus. Comm., 78 Ohio St.3d 521 (1997). Rather, the court held that "the commission need not explain how it calculated the amount of the VSSR award." Id. at 523, citing State ex rel. Jeep Corp. v. Indus. Comm., 42 Ohio St.3d 83, 85-86 (1989), and State ex rel. Smith v. Huguelet, 57 Ohio St.3d 1, 2 (1991). In addition, the commission has "considerable discretion" in setting the amount of a VSSR award and abuses that discretion only by assessing an award outside the constitutional 15- to 50-percent range. State ex rel. Kenton Structural & Ornamental Iron Works, Inc. v. Indus. Comm., 91 Ohio St.3d 411, 417 (2001), quoting St. Marys Foundry Co. at 524.

(¶ 60} In any event, we have concluded that the commission's order must be vacated based on its faulty reasoning relative to the first rule at issue, Ohio Adm.Code 4123:1-5-14(G)(1). We refuse to predict whether the commission will ultimately again find a violation of that rule. Furthermore, the commission has the authority to change the amount of claimant's award in its new order. Nor will we predict the degree to which the commission will provide in its new order a written explanation supporting the amount of its award. It would, therefore, be premature for us to rule on Precision's due process arguments at this point in time.

(¶ 61} We therefore overrule Precision's second objection.

IV. Conclusion

(¶ 62} For the reasons discussed above, the commission's objections are sustained in part and overruled in part, the claimant's objections are sustained, and Precision's objections are overruled. We therefore grant a limited writ of mandamus ordering the commission to vacate its August 9, 2011 corrected order (with the exception of that portion of the order that vacates the SHO's order mailed August 3, 2011), and to enter a new order consistent with this decision that adjudicates claimant's VSSR application.

Commission's objections sustained in part and overruled in part; claimant's objections sustained; Precision's objections ...


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