The State ex rel. 31, Inc., Appellant,
Industrial Commission of Ohio et al., Appellees.
Submitted July 11, 2017
from the Court of Appeals for Franklin County, No. 14AP-925,
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
Phillips & Mille Co., L.P.A., Nicholas E. Phillips, and
Stewart S. Wilson, for appellee Duane Ashworth.
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.
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.
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
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:
(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 ...