Opinion
No. 88-1119
Submitted September 12, 1989 —
Decided December 6, 1989.
Workers' compensation — Spawner machine placed into service by employer in 1972 — Specific safety requirement violations alleged in 1982 accident — Commission erred when finding Ohio Adm. Code 4121:1-5-05(D)(1), effective August 1, 1977, applicable — Ohio Adm. Code applicability controlled by date the machine is placed into service, not by date of injury.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-396.
Appellee-claimant ("claimant"), Fernando Alvarez, was injured by a Longwood spawner machine on January 2, 1982 while in the course of and arising from his employment with appellant, Ohio Mushroom Company. The spawner, placed into service by appellant in 1972, is used to prepare mushroom beds. The machine is approximately five feet long with rotating tines similar to those of a Roto-tiller. It weighs approximately one hundred twenty-five pounds and has two types of shut-off — an electrical plug and an on-off switch.
On the date of injury, the spawner was resting on the edge of a mushroom bed approximately eight feet above the ground. While claimant was on the floor below, a co-worker plugged the cord in. Because the spawner's power switch had apparently been left in the "on" position, the machine ran off the bed and fell onto the claimant. Claimant was then pinned beneath the moving tines and was unable to reach the shut-off.
Following allowance of his workers' compensation claim, claimant applied to appellee Industrial Commission ("commission") for an additional award, alleging a violation of specific safety requirements ("VSSR"), specifically, Ohio Adm. Code 4121:1-5-05(D)(1), IC-5-03.07(A) and Industrial Commission Bulletin 203, Chapter II, Section 13(a). A commission staff hearing officer applied Ohio Adm. Code 4121:1-5-05(D)(1) rather than the earlier standards, based on claimant's 1982 date of injury. That section provides in part that "[m]eans shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. * * *" The hearing officer granted the additional award, finding that the claimant was a machine "operator" and that appellant had not provided a means of power disengagement within claimant's "easy reach."
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in finding a VSSR. The appellate court disagreed and denied the writ.
This cause is now before this court upon an appeal as of right.
Vorys, Sater, Seymour Pease, Thomas M. Taggart and Joseph A. Brunetto, for appellant.
Gallon, Kalniz, Iorio Co., L.P.A., and William R. Menacher, for appellee Alvarez.
Anthony J. Celebrezze, Jr., attorney general, and James A. Barnes, for appellee Industrial Commission.
Under Section 35, Article II of the Ohio Constitution, the commission has "full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes * * *." This determination rests exclusively with the commission and may be corrected by mandamus only where an abuse of discretion occurs. State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 1 O.O. 2d 190, 139 N.E.2d 41; State, ex rel. Cleveland Wrecking Co., v. Indus. Comm. (1988), 35 Ohio St.3d 248, 520 N.E.2d 228. Upon review, we find that the commission abused its discretion in applying Ohio Adm. Code 4121:1-5-05(D)(1).
Claimant's VSSR application alleged violations under Ohio Adm. Code 4121:1-5, IC-5-03.07(A) and Bulletin 203. Bulletin 203, an early codification of specific safety requirements, was later replaced by IC-5, which was in turn replaced by Ohio Adm. Code 4121:1-5 in 1977. In the case before us, the commission ruled that, based on claimant's 1982 date of injury, Ohio Adm. Code 4121:1-5 applied. Code applicability, however, is controlled by the date the machine in question was placed into service, not by the date of injury. See State, ex rel. Cunningham, v. Indus. Comm. (1987), 30 Ohio St.3d 73, 78, 30 OBR 176, 181, 506 N.E.2d 1179, 1183; State, ex rel. Sanchez, v. Indus. Comm. (1985), 18 Ohio St.3d 46, 18 OBR 81, 479 N.E.2d 864. Ohio Adm. Code 4121:1-5 became effective on August 1, 1977 — five years after the Longwood spawner was placed into service. The commission thus erred in finding Ohio Adm. Code 4121:1-5-05(D)(1) applicable.
Ironically, neither appellee seriously disputes this conclusion, arguing instead that appellant waived the issue by failing to raise it below. Examination of the record, however, reveals that appellant did raise the question before the appellate court. Moreover, despite representations to the contrary, we also find that the issue was raised before the commission by the claimant himself. Claimant's VSSR application cited all three codifications. In so doing, he implicitly asked the commission to make an applicability determination, which the commission did by selecting Ohio Adm. Code 4121:1-5.
The claimant also contends that, notwithstanding the applicability of Ohio Adm. Code 4121:1-5-05(D)(1), a violation of that section automatically entails a violation of its "predecessor," IC-5-03.07(A), since the two contain identical language. This assertion, however, ignores the fact that despite similar language, the scope of the two provisions differs significantly. Ohio Adm. Code 4121:1-5-05 applies to "Auxiliary Equipment" while IC-5-03 is restricted to "Power Transmission Machinery." This distinction, as we discussed in Cunningham, supra, invalidates any suggestion that the two provisions are equivalent. As stated therein:
"* * * In this new codification [Ohio Adm. Code 4121:1-5-05(D)(1)], the requirements of a disengaging switch and a lock-out device are not grouped under the rule governing `Mechanical Power Transmission Apparatus' * * * but rather are contained in a new rule * * * governing `Auxiliary Equipment.' This rule governs all auxiliary equipment, regardless of whether it transmits power to operating equipment. * * *
"* * * [T]he shifting of the language of the machinery control section of IC-5-03.07(A) and (B) to a rule covering `Auxiliary Equipment' indicates a desire, on the part of the Industrial Commission, to expand the coverage of those safety requirements on and after August 1, 1977. * * *" Id. at 78, 30 OBR at 181, 506 N.E.2d at 1183.
We acknowledge that Ohio Adm. Code 4121:1-5-05(D)(1) and IC-5-03.07(A) have been used interchangeably in the past. See State, ex rel. A-F Industries, v. Indus. Comm. (1986), 26 Ohio St.3d 136, 137, 25 OBR 117, 497 N.E.2d 90, 92, fn. 1; State, ex rel. Owens-Corning Fiberglas Corp., v. Indus. Comm. (1980), 62 Ohio St.2d 145, 16 O.O. 3d 165, 404 N.E.2d 140. Those decisions, however, preceded Cunningham, which we herein affirm as our definitive pronouncement on this question.
Based on the foregoing, we find that the commission abused its discretion in finding a violation of Ohio Adm. Code 4121:1-5-05(D)(1). Accordingly, the judgment of the appellate court is reversed.
Judgment reversed.
MOYER, C.J., HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.