From the bench


By Justice Paul Pfeifer - For The Register-Herald



In the realm of the workers’ compensation system, certain industries – such as those involving heavy machinery – are regulated by “specific safety requirements.” A violation of a specific safety requirement (“VSSR”) can result in an award to the injured worker that is “a new, separate, and distinct award” over and above standard workers’ compensation benefits. It is not covered by an employer’s workers’ compensation premium.

Here at the Ohio Supreme Court we reviewed a VSSR case involving a man named Melvin E. Myers, who worked for Precision Steel Services, Inc. (“Precision”). In the course of his job, Melvin was using some definite heavy machinery – a ten-ton double-box-grinder top-running crane with an 8,OOO-pound electric magnet to tum over a 1,200-pound piece of metal that he was welding.

The hook holding the magnet and the piece of metal did not have a latch closing it, although the manufacturer clearly indicated that the safety latch was a critical part of the equipment that must be used to safely operate the crane and magnet.

As Melvin was working, both the magnet and piece of metal slipped off the hook and came crashing down onto his hand. He sustained numerous injuries, and his left hand had to be amputated.

Melvin received workers’ compensation for his medical expenses and lost wages. Later, he applied for an additional VSSR award. He alleged that Precision had violated Ohio’s Administrative Code and that those violations had caused his injury. Precision contested his claim. The section of the Code in question says, “Defective crane safety devices or load-carrying equipment shall be repaired or replaced.”

A hearing officer with the Industrial Commission of Ohio – which handles such matters – determined that the Code applied because Myers was operating a power-driven.crane. .The hearing stated that “the evidence shows that the crane causing Myers’s injury had a defective safety device. The defect was that the safety latch was not present on the crane hook” and that “the equipment should have been repaired or replaced.”

The hearing officer further determined that “the lack of a safety latch amounted to a defect which weakened the equipment,” and that Precision should have removed the crane from service.

The Commission concluded that Precision failed to comply with the regulations and that the failure caused Melvin’s injury. His VSSR award was granted.

Next, Precision filed an action with the court of appeals, alleging that the Commission’s order was an abuse of discretion. The court of appeals ultimately concluded that it was unreasonable to describe the latch as a safety device if it was a component of the crane. But the court stated that it was within the Commission’s discretion to determine that the bottom hook was a component of a type of crane covere3 by the Code and thus, the rule applied to the facts.

After that, the case came before us. Precision asserted that it could not have violated the Code because no rule specifically requires a latch to be attached to a crane hook. Therefore, Precision maintained, the Commission abused its discretion when it determined that Precision violated the rules for failure to provide a latch on a crane hook. By a four-to-two vote, our court agreed.

The majority noted that Precision allegedly violated a rule that states, “Defective crane safety devices or load-carrying equipment shall be repaired or replaced.” According to the majority, the terms “safety devices” and “load-carrying” are not defined, and because there’s no language in the rule that plainly apprised Precision that a latch on a crane hook constituted either a “safety device” or “load-carrying equipment,” there could be no VSSR for failure to provide the latch.

Justice William M. O’Neill and I cast the dissenting votes. In his dissenting opinion, Justice O’Neill wrote, “Incredibly, the majority concludes that the Industrial Commission abused its discretion when it defined the terms ‘device’ and ‘equipment’ in two Ohio Administrative Code sections to include the safety latch on the crane hook.

“The majority mistakes this court’s role here. The starting point in any VSSR case is the Ohio Constitution,” which states that the decisions of the Commission in VSSR cases are fmal. It’s not our role to interpret rules for the Commission in VSSR cases. Rather, our role is to determine whether the Commission’s decision is supported by the evidence in the record.

In VSSR cases – when the record contains some evidence to support the Commission’s findings – those findings will not be disturbed. And that is supposed to be the end of the inquiry.

Only if the record is devoid of some evidence to support the Commission’s interpretation of its own rules is our court authorized to correct the Commission’s determination. And that wasn’t the case here.

The Commission determined that Precision violated two separate safety regulations. But the majority called this an abuse of discretion because there is no specific reference in the rule to a hook latch as part of the hoisting equipment.

But the record included testimony from Precision’s operations manager that a safety latch was a necessary feature for use of the crane hook and that the latch should always be used when the magnet is connected. As Justice O’Neill noted, “It is an exercise in semantics to assert that a safety latch that is required by the manufacturer’s instructions is not equipment.”

“The majority’s analysis in this case does not answer the critical questions before us: If a safety latch that would have averted this horrible incident is not equipment, what would be considered equipment? And more important for future cases, Who gets _to decide what is considered equipment?”

Justice O’Neill and I would have affirmed the court of appeals’ decision. The Commission’s interpretation of its rules must be upheld when it’s supported by some evidence.

“The majority decision in this case,” Justice O’Neill wrote, “ignores the Ohio Constitution and this court’s own case law. This court’s choosing the winner in this case unlawfully usurps the authority of the Commission. The cost of that usurpation is workplace safety.”

By Justice Paul Pfeifer

For The Register-Herald

EDITOR’S NOTE: The case referred to is: State ex rel: Precision Steel Servs., Inc. v. Indus. Comm; 145 Ohio St.Jd 76. 2015-0hio-1798. Case No. 2013-1628. Decided November 24, 2015. Opinion Per Curiam.

EDITOR’S NOTE: The case referred to is: State ex rel: Precision Steel Servs., Inc. v. Indus. Comm; 145 Ohio St.Jd 76. 2015-0hio-1798. Case No. 2013-1628. Decided November 24, 2015. Opinion Per Curiam.

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