State ex rel. Target Auto Repair Minutemen Select, Inc., Relator,
v.
Josue S. Morales et al., Respondents.
IN
MANDAMUS
Lewis
Brisbois Bisgaard & Smith, LLP, Joseph Fiorello, and John
R. Christie, for relator.
Dave
Yost, Attorney General, and Eric J. Tarbox, for respondent
Industrial Commission of Ohio.
DECISION
SADLER, P.J.
{¶
1} Relator, Target Auto Repair Minutemen Select,
Inc. ("Target"), has filed this original action
requesting this court issue a writ of mandamus ordering
respondent Industrial Commission of Ohio
("commission") to vacate its order which granted an
award of compensation for the violation of a specific safety
requirement ("VSSR") to Josue S. Morales and
ordering the commission to deny the award.
{¶
2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the
Tenth District Court of Appeals, this matter was referred to
a magistrate who considered the action on its merits and
issued a decision, including findings of fact and conclusions
of law, which is appended hereto. The magistrate concluded
Target did not demonstrate that the commission abused its
discretion when it determined Morales had met his burden of
proving the VSSR as asserted. Accordingly, the magistrate
recommended this court deny Target's request for a writ
of mandamus.
{¶
3} On May 29, 2019, Target timely filed the
following objections to the magistrate's
decision:[1]
[1.] Any alleged violation concerning the grinder could not
have proximately caused Morales' injury; therefore, the
Magistrate erred by not dismissing Ohio Admin. Code Sections
4123:1-5-07 and 4123:1-5-12 as potential support for
Morales' VSSR claim.
[2.] The Magistrate erred in failing to recognize the second
Staff Hearing Officer placed the burden of proof on Target as
opposed to Morales.
[3.] The Magistrate failed to recognize the Commission
conflated the Ohio Administrative Code Sections at issue in
reaching its improper VSSR determination.
[4.] The Magistrate erred in not determining that the VSSR
must be denied as Morales' failure to use the proper
protective equipment, which the evidence demonstrates was
available, precludes the granting of a VSSR.
{¶
4} In Target's first objection, Target contends
the violation of Ohio Adm.Code 4123:1-5-07, concerning safety
guards on hand-held equipment, and Ohio Adm.Code 4123:1-5-12,
regarding the employer's responsibility for instructing
employees in the safe use of abrasive grinding equipment,
could not have been the proximate cause of Morales'
injury given the undisputed evidence that the Morales would
not have suffered the injury had he chosen to wear the
appropriate grinding/cutting mask. We disagree.
{¶
5} The definition of and principles governing the
determination of proximate cause in the field of torts are
applicable to considerations of proximate cause in the
context of the Workers' Compensation Fund. Murphy v.
Carrollton Mfg. Co., 61 Ohio St.3d 585, 587 (1991),
citing Oswald v. Connor, 16 Ohio St.3d 38, 42
(1985), citing Aiken v. Indus. Comm., 143 Ohio St.
113 (1944), syllabus. It is generally understood that"
'where an original act is wrongful or negligent and in a
natural and continuous sequence produces a result which would
not have taken place without the act, proximate cause is
established, and the fact that some other act unites with the
original act to cause injury does not relieve the initial
offender from liability.'" Strother v.
Hutchinson, 67 Ohio St.2d 282, 287 (1981), quoting
Clinger v. Duncan, 166 Ohio St. 217, 222 (1957).
Additionally, "when two factors combine to produce
damage or illness, each is a proximate cause."
Norris v. Babcock & Wilcox Co., 48 Ohio App.3d
66, 67 (9th Dist.1988). See also Murphy at 588.
Proximate cause is an issue for the trier of fact.
Strother at 288.
{¶
6} On this record, there is evidence to support the
conclusion that had Target not violated Ohio Adm.Code
4123:1-5-07 and 4123:1-5-12 by removing the guard from the
grinder, Morales would not have sustained his injury. In
other words, the evidence shows that Target's violation
of the specific safety requirements pertaining to guards on
hand-held power tools, in a natural and continuous sequence,
produced a result which would not have occurred if the guard
had not been removed from the grinder.
{¶
7} To the extent that Target claims that
Morales' own negligence broke the chain of causation, the
magistrate reached the following conclusion:
Ohio's workers' compensation system is a no fault
system and, more specifically, in VSSR proceedings, the
injured worker's negligence is only a defense where the
employer has first complied with relevant safety
requirements. State ex rel. Internatl. Truck & Engine
Corp. v. Indus. Comm., 10th Dist. No. 07AP-547,
2008-Ohio-2953. To that extent, there is evidence in the
record on which the second SHO relied that the power grinder
was originally equipped with a guard. At some point in time,
that guard was removed and Target knew that it was removed.
As such, Target was not in compliance with the specific
safety requirements at the time that Target alleges Morales
improperly used the grinder at issue.
(Mag.'s Decision at ¶ 39.)
{¶
8} We agree with the magistrate's conclusion
that Morales' alleged misuse of the grinder did not
impact the causation analysis in this case. An employee's
negligence in failing to protect himself from injury due to
an employer's VSSR will never bar recovery because
specific safety requirements are"' "intended to
protect employees against their own negligence and folly as
well as to provide them a safe place to work."
'" State ex rel. Byington Builders, Ltd. v.
Indus. Comm., 156 Ohio St.3d 35, 2018-Ohio-5086, ¶
40, quoting State ex rel. Cotterman v. St. Mary's
Foundry, 46 Ohio St.3d 42, 47 (1989), quoting State
ex rel. U.S. Steel Corp v. Cook, 10 Ohio App.3d 183, 186
(10th Dist. 1983). It is only the unilateral negligence of
the injured employee that impacts the causation analysis.
Byington at ¶ 40, citing State ex rel
Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d
190, 193 (2000). Thus, Morales' alleged negligence in
failing to wear the appropriate mask did not relieve Target
from liability for the violation of Ohio Adm.Code 4123:1-5-07
and 4123:1-5-12. Moreover, as will be discussed in connection
with Target's second and fourth objections, there is
evidence in the record to support the commission's
determination that Target did not provide Morales with the
proper safety equipment on the date of the injury.
{¶
9} For the foregoing reasons, Target's first
objection is overruled.
{¶
10} In Target's second and fourth objections,
Target argues that the commission failed to credit
Target's evidence that appropriate grinding/cutting masks
were provided by Target and available to Morales on the date
of the industrial accident. Accordingly, Target argues the
magistrate erred in failing to find an abuse of discretion by
the commission in ruling that Target violated Ohio Adm.Code
4123:1-5-17. Contrary to Target's contention, the
commission did not shift the burden to Target to disprove a
violation. Rather, the commission simply chose to believe
Morales' statement that the appropriate grinding/cutting
masks were not available on the date he sustained his injury
and disbelieve Target's evidence that appropriate masks
were available to Morales on that date. The commission is the
"exclusive evaluator of weight and credibility."
State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio
St.3d 284, 287 (2000); State ex rel. Athey v. Indus.
Comm., 89 Ohio St.3d 473, 475 (2000). For an appellate
court "[t]o * * * assess the credibility of the evidence
would place the court 'in the role of a "super
commission," a role never envisioned by either the Ohio
Constitution or the General Assembly.'" State ex
rel. Consolidation Coal Co. v. Indus. Comm, 78 Ohio
St.3d 176, 177 (1997), quoting State ex rel. Burley v.
Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987).
{¶
11} For the foregoing reasons, Target's second
and fourth objections are overruled.
{¶
12} In Target's third objection, Target argues
that the commission erroneously determined that a violation
of Ohio Adm.Code 4123:1-5-17 may be predicated on the
employer's failure to correct an employee when the
employee is found to be improperly using protective
equipment. More particularly, Target finds fault with the
following alternative finding by the commission's staff
hearing officer ("SHO"):
The Hearing Officer does not find the testimony presented by
the Employer persuasive that they never saw the Injured
Worker improperly using the protective equipment, and if they
did, they corrected him and provided him with the proper
protection equipment.
(Feb. 9, 2018 SHO Order at 6.)
{¶
13} Target argues that, unlike Ohio Adm.Code
4123:1-5-12(C)(1), which places the burden on the employer to
"verbally and through demonstration instruct the
employee in the safe operation and maintenance of abrasive
grinding and cutting and polishing equipment," Ohio
Adm.Code 4123:1-5-17(D)(1) states: "It shall be the
responsibility of the employee to use the eye protection
provided by the employer." Target claims that the
commission's order placed a burden on Target that is not
justified in the language of Ohio Adm.Code 4123:1-5-17(D)(1).
{¶
14} Our review of Target's merit brief and reply
brief in this case reveals Target did not make this
particular argument in proceedings before the magistrate.
Consequently, the argument has been waived. State ex rel.
Maglis v. Indus. Comm., 10th Dist. No. 15AP-648,
2016-Ohio-4644, ¶ 10, citing State ex rel. German v.
Provider Servs. Holdings, LLC, 10th Dist. No. 13AP-149,
2014-Ohio-3336, ¶ 18. Moreover, even if we were to agree
with Target on this issue, it is of no consequence to the
outcome of the case given our conclusion that the evidence
supports the commission's determination that the proper
safety masks were not made available to Morales on the date
of the industrial accident. Accordingly, Target's third
objection is overruled.
{¶
15} After an examination of the magistrate's
decision, an independent review of the record pursuant to
Civ.R. 53, and due consideration of Target's objections,
we overrule the objections, and find that the magistrate made
no error of fact or law. We adopt the magistrate's
decision as our own, including the findings of fact and
conclusions of law therein, as supplemented by our own
conclusions of law discussed in this decision. In accordance
with the magistrate's decision, we deny the writ of
mandamus.
Objections
overruled; writ of mandamus denied.
BRUNNER and BEATTY BLUNT, JJ., concur.
APPENDIX
Rendered
on May 14, 2019
IN
MANDAMUS
MAGISTRATE'S
DECISION
STEPHANIE BISCA MAGISTRATE JUDGE.
{¶
16} Relator, Target Auto Repair Minutemen Select,
Inc. ("Target"), has filed this original action
requesting this court issue a writ of mandamus ordering
respondent Industrial Commission of Ohio
("commission") to vacate its order which granted an
award of compensation for the violation of a specific safety
requirement ("VSSR") to Josue S. Morales, and
ordering the commission to deny the award. Findings of
Fact:
{¶
17} 1. Morales sustained a work-related injury on
February 27, 2014, and his workers' compensation claim
was allowed for the following conditions:
Left eye contusion; left eyelid laceration; facial
laceration; macular hole left eye; forehead laceration; total
loss of vision left eye.
{¶
18} 2. Morales' injury occurred when a grinding
disk shattered, broke the face shield he was wearing, ...