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Inc. v. Industrial Commission of Ohio

Supreme Court of Ohio

December 21, 2017

The State ex rel. 31, Inc., Appellant,
v.
Industrial Commission of Ohio et al., Appellees.

          Submitted July 11, 2017

         Appeal from the Court of Appeals for Franklin County, No. 14AP-925, 2016-Ohio-3526.

          Black, McCuskey, Souers & Arbaugh, Brian R. Mertes, and Rod A. Moore, for appellant.

          Michael DeWine, Attorney General, and Andrew J. Alatis, Assistant Attorney General, for appellee Industrial Commission.

          Phillips & Mille Co., L.P.A., Nicholas E. Phillips, and Stewart S. Wilson, for appellee Duane Ashworth.

          PER CURIAM.

         {¶ 1} This is an appeal in a mandamus case in which appellant, 31, Inc. ("31"), challenges the order of appellee Industrial Commission granting an additional award for the violation of a specific safety requirement ("VSSR"). The commission determined that 31 had violated the "nip point" rule found in Ohio Adm.Code 4123:1-5-11(D)(10)(a), thereby causing an industrial injury to appellee Duane Ashworth.[1]

         {¶ 2} The Tenth District Court of Appeals denied the request for a writ, concluding that the commission did not abuse its discretion.

         {¶ 3} We hold that the nip-point rule did not apply here because an administrative-code provision applicable to the rubber and plastics industry expressly covered the machine that Ashworth was operating. Therefore, we reverse the judgment of the court of appeals and issue a writ of mandamus ordering the commission to issue a new order that denies Ashworth's application for a VSSR award.

         Facts and Procedural History

         {¶ 4} 31 processes rubber to make products that are used to repair tires. Ashworth was employed by 31 as a calender operator. A calender is defined as "a machine equipped with two or more metal rolls revolving in opposite directions and used for continuously sheeting or plying up rubber or plastic compounds and for frictioning or coating fabric with rubber or plastic compounds." Ohio Adm.Code 4123:1-13-01(B)(3).

         {¶ 5} Ashworth operated a calender with three rolls. A coworker would insert a ball of rubber between the top and middle rolls on one side of the calender, and as it came out of the opposite side, Ashworth's job was to grab the rubber with both hands and peel it off the bottom roll into a tank containing a chemical solution to cool it.

         {¶ 6} On the day of the accident, as Ashworth grabbed the rubber to pull it off the roll, it caught the fingers on his right hand and pulled his hand into a three-inch space between the rolls. When he was unable to remove his hand, he pulled an emergency cable that immediately stopped the rolls.

         {¶ 7} Ashworth filed a workers' compensation claim that was allowed for multiple injuries to his hand. He also applied for an additional award for a VSSR, alleging that 31 had violated Ohio Adm.Code 4123:1-5-11(D)(10)(a), a workshop-and factory-safety rule.

         {¶ 8} Ohio Adm.Code 4123:1-5-11(D)(10) provides:

Nip points.
(a) Means shall be provided to protect employees exposed to contact with nip points created by power driven in-running rolls, rollover platen, or other flat surface ...

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