Opinion
No. 92-2259
Submitted May 18, 1993 —
Decided August 11, 1993.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-253.
Decedent, Larry T. Ford, was a powerhouse repairman for appellee, Harrison Radiator Division, General Motors Corporation ("GMC"). The powerhouse supplied steam via coal-fired boilers to on-site operations. Coal was carried to the boilers by a network of enclosed drag bucket conveyors.
At the drive end of each conveyor was a motor and main electrical disconnect. The regular operating controls were generally located elsewhere. In the case of conveyor number 11, the main operating controls were next to the door in the room housing the conveyor. Conveyor number 11, like the others, however, could be started from several other locations.
Employees were trained not only to disconnect the power if repairs were to be made inside of the conveyor, but to "lock out" the power as well. To do so, an employee would throw the power lever to "disconnect" and literally lock the lever into place with padlocks provided by GMC to each repairman. This prevented others from starting the conveyor from another spot.
On September 14, 1984, decedent and a co-worker, Gary Lutz, were assigned to inspect and repair conveyor number 11. In order to see which buckets were damaged, decedent removed a hinged cover on top of the conveyor enclosure and watched the passing buckets as Lutz operated the conveyor.
Eventually a broken bucket came into view and decedent told Lutz to stop the conveyor. Lutz stopped the machine and went to lock it out. While heading to the lockout station, however, Lutz saw that decedent had already climbed inside the conveyor to begin work. Lutz immediately told decedent that the machine had not yet been locked out and instructed him to exit. Decedent ignored Lutz and continued working. Lutz repeated his instructions, prompting decedent to respond that the conveyor could not be started from any location other than the nearby control panel. No sooner had Lutz replied that the system could be activated from other locations than the conveyor started, killing decedent.
After decedent's death claim was allowed, his widow, appellant Susan E. Ford, filed for additional compensation, alleging that GMC had violated dozens of specific safety requirements. A staff hearing officer for appellee Industrial Commission found most of the specific safety requirements inapplicable because they were not in effect when the machine was installed and/or pertained strictly to the construction industry. The remaining allegations were denied on their merits. Appellant's motion for reconsideration was denied.
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, claiming that the commission abused its discretion in finding no violation of Ohio Adm. Code 4121:1-5-05(C)(2) and (4) and 4121:1-5-05(D)(1) and (2). The court disagreed, finding that the first three sections did not apply, since the machine was "shut down," and not in the "course of operation" when the accident occurred. It ruled that Ohio Adm. Code 4121:1-5-05(D)(2) did apply, but that GMC did not violate that section.
This cause is now before this court on appeal as of right.
Casper Casper and Douglas W. Casper, for appellant.
Crew, Buchanan Lowe, Joseph P. Buchanan and James G. Neary, for appellee Harrison Radiator Division, General Motors Corporation.
Lee I. Fisher, Attorney General, and Alan Eakins, Assistant Attorney General, for appellee Industrial Commission.
From over fifty violations originally alleged, appellant now pursues just one — Ohio Adm. Code 4121:1-5-05(C)(2). It provides:
"All conveyors, where exposed to contact, shall be equipped with means to disengage them from their power supply at such points of contact."
The commission found no violation, having deemed Ohio Adm. Code 4121:1-5-05(C)(2) inapplicable. We agree, but for reasons distinct from those given by the appellate court.
Ohio Adm. Code 4121:1-5-05(C)(2) mandates a disengagement device at points "exposed to contact." An object is "exposed to contact" when its location, "during the course of operation, is accessible to an employee in performance of his regular or assigned duty." Ohio Adm. Code 4121:1-5-01(B)(11). 4121:1-5-05(C)(2), therefore, will not apply if the accident occurred in a spot that was not accessible during the course of operation.
Because neither "accessible" nor "course of operation" is defined in the Revised or Administrative Code, the interpretation of these terms is within the commission's final jurisdiction. State ex rel. Berry v. Indus. Comm. (1983), 4 Ohio St.3d 193, 4 OBR 513, 448 N.E.2d 134. In this case, decedent was killed inside an enclosed conveyor. If the conveyor and its attached drag buckets had been moving at the time, decedent could not have entered the enclosure. Only if the conveyor was first stopped could decedent have gained access to the area in which he died. Given the commission's duty to strictly construe specific safety requirements in the employer's favor ( State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216, 1219), the commission did not abuse its discretion in finding that a location which is accessible only during cessation of operation was not "accessible" in the "course of operation," and was not made so merely because the conveyor subsequently started running. The commission did not err in refusing to construe the disputed safety requirement in its most literal, and liberal sense — i.e., the conveyor was "accessible" because decedent was there and in the "course of operation" because it was on.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.