The State ex rel. Sunesis Construction Company, Appellant,
Industrial Commission of Ohio et al., Appellees.
Submitted October 17, 2017
from the Court of Appeals for Franklin County, Nos. 13AP-449,
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
& Fox Co., L.P.A., Bernard C. Fox, and Karen P. Mitchell,
for appellee Timothy R. Roark, deceased.
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
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
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
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)