State ex rel. Target Auto Repair Minutemen Select Inc. v. Morales

          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, ...