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State ex rel. Sunesis Construction Co. v. Industrial Commission of Ohio

Supreme Court of Ohio

January 2, 2018

The State ex rel. Sunesis Construction Company, Appellant,
v.
Industrial Commission of Ohio et al., Appellees.

          Submitted October 17, 2017

         Appeal from the Court of Appeals for Franklin County, Nos. 13AP-449, 2015-Ohio-3973.

          Dunlevy, Mahan & Furry, Douglas S. Jenks, William H. Barney, and Gary W. Auman, for appellant.

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

          Fox & Fox Co., L.P.A., Bernard C. Fox, and Karen P. Mitchell, for appellee Timothy R. Roark, deceased.

          PER CURIAM.

         {¶ 1} Appellant, Sunesis Construction Company, filed a petition for a writ of mandamus in the Tenth District Court of Appeals alleging that appellee Industrial Commission abused its discretion when it issued an award of additional compensation for violation of a specific safety requirement ("VSSR") based on Ohio Adm.Code 4123:1-3-13(D)(1), (D)(2), (E)(1), (E)(2), and (E)(4), which regulate trenches and excavations in the construction industry.

         {¶ 2} The court of appeals concluded that there was some evidence supporting the commission's decision and denied the writ of mandamus. For the reasons that follow, we affirm.

         Facts and Administrative Proceedings

         {¶ 3} Timothy R. Roark was employed by Sunesis as a laborer on a sewer excavation and construction project. On July 31, 2005, Roark was working alone at the bottom of a trench. The trench collapsed or caved in on top of him, resulting in his death. There were no witnesses to the accident. Other workers discovered Roark buried up to his neck in dirt, rock, and debris. He died from a skull fracture and traumatic asphyxia.

         {¶ 4} The Bureau of Workers' Compensation allowed a death claim and awarded benefits to Roark's dependent children. The dependents filed a separate application for an additional award based on numerous violations of specific safety requirements ("SSRs") that apply to sloping, shoring, and bracing to stabilize the sides of trenches and excavations.

         {¶ 5} The commission issued three orders addressing the merits of the VSSR application. In 2008, a staff hearing officer concluded that Roark's death was the result of Sunesis's failure to properly support the trench excavation in which he was working. The hearing officer ordered Sunesis to pay an additional award of compensation based on some, but not all, of the alleged violations of Ohio Adm.Code 4123:1-3-13.

         {¶ 6} Sunesis filed for mandamus relief in the Tenth District Court of Appeals. On September 21, 2010, the court issued a writ of mandamus ordering the commission to enter a new order that complied with State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 567 N.E.2d 245 (1991) (in any order granting or denying benefits, the commission must specifically state what evidence has been relied upon and briefly explain its reasoning).

         {¶ 7} In 2011, a staff hearing officer issued a second order, again granting the VSSR application in part and denying it in part. The hearing officer made the following factual findings based on photographs taken at the scene and the testimony of Chuck Renken, the employer's director of human resources and safety at the time of the accident, and Jeffrey Darrah, Sunesis's vice president and engineer. Roark was working alone at the bottom of a 20-foot-deep trench. Three sides of the trench were adequately shored. One was composed of solid concrete and shale rock, one was secured by steel road plates, and a third was secured by a ten-foot-tall trench box. The fourth wall consisted of soil that Sunesis attempted to shore up by sloping the wall and inserting a steel plate at the top of the wall above the sloped area. It was this sloped wall that caved in on Roark.

         {¶ 8} The hearing officer concluded that the slope was not sufficient to protect employees working in the trench, did not meet accepted engineering requirements, and did not comply with standards of the Occupational Safety and Health Administration ("OSHA") or Sunesis's own safety standards. Thus, the hearing officer concluded, based on Renken's testimony and the depositions of Gary Bradford, field superintendent, and Anthony Roark, site supervisor and decedent's brother, that Roark was working in soft, wet material and was exposed to moving ground or the possibility of a cave-in in violation of Ohio Adm.Code 4123:1-3-13(D)(1) ...


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