State ex rel. Double v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Double, Appellant, v. Industrial
Commission of Ohio et al., Appellees.
[Cite as State ex rel. Double v. Indus. Comm. (1992),
Ohio St.3d .]
Workers' compensation -- Employee crushed by a construction
vehicle -- VSSR claim denied when claimant fails to cite a
specific safety requirement that applies to the industry
in which the decedent was working at the time of his death
-- Ohio Adm.Code Chapter 4121:1-5 does not encompass all
employers and places of employment.
(No. 91-1470 -- Submitted July 29, 1992 -- Decided October
14, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-1241.
Decedent, Olen Double, died on December 27, 1985 in the
course of and arising from his employment with appellee A.C.
Leadbetter & Son, Inc. ("Leadbetter"), after being crushed by a
construction vehicle that jump-started into gear. His widow,
appellant Faye Double, successfully pursued a workers'
compensation death claim against decedent's employer.
In September 1986, appellant sought additional
compensation, claiming that Leadbetter had violated specific
safety requirement ("VSSR") Ohio Adm.Code 4121:1-5-13(C)(4).
An Industrial Commission hearing officer denied
appellant's VSSR application, finding:
"* * * [T]he decedent was performing construction work at
the time of his death. It is noted that the newspaper report
of decedent's death referred to him as a 'construction worker.'
On the widow-claimant's C-2 application, the employer listed
its 'nature of business' as 'construction and engineering.'
The vehicle involved in the accident was described by Scott
Kisselmayer at hearing (T. 16) as an 'all-terrain heavy duty
forklift' with tractor-like front wheels. Such a vehicle is
most commonly used in the construction industry. Finally, Mr.
Kesselmayer described the work he and the decedent did (on T.
24) as 'heavy construction work,' specifically, 'building a new
furnace for the RCA Corporation * * * a glass melting furnace.'
"Based upon the foregoing, it is found that the

widow-claimant failed to cite a specific safety requirement
that applies to the industry in which the decedent was working
at the time of his death; therefore, her VSSR application is
denied."
Appellant's motion for rehearing was denied.
Appellant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in denying her VSSR application. The
appellate court disagreed, finding that Leadbetter was not a
"workshop or factory" as required by Ohio Adm.Code Chapter
4121:1-5.
The cause is now before this court upon an appeal as of
right.

Gallon & Takacs Co., L.P.A., and Theodore A. Bowman, for
appellant.
Bugbee & Conkle and Gregory B. Denny, for appellee A.C.
Leadbetter & Son, Inc.
Lee I. Fisher, Attorney General, and Alan D. Eakins,
Assistant Attorney General, for appellee Industrial Commission.

Per Curiam. Former Ohio Adm.Code 4121:1-5-01(A) provided:
"The specific requirements of this code * * * apply to all
workshops and factories subject to the Workers' Compensation
Act (4123.01 to 4123.99 R.C. ). * * *" (Emphasis added.)
Appellant does not contend that Leadbetter is a "factory"
as contemplated by Ohio Adm.Code Chapter 4121:1-5. She does,
however, contest the appellate ruling that Leadbetter is not a
"workshop."
"Workshop" has not been defined administratively,
statutorily or judicially by this court. The term, however,
was interpreted by the appellate court below, citing State ex
rel. Koch v. Indus. Comm. (Nov. 6, 1990), Franklin App. No.
89AP-867, unreported, as a "'room or place wherein power-driven
machinery is employed and manual labor is exercised by way of
trade for gain or otherwise.'" See Black's Law Dictionary (4
Ed.Rev. 1968) 1781. Decrying this definition as too narrow,
appellant claims that "workshop" includes all places of
employment. We disagree.
Appellant relies heavily on R.C. 4121.13(A), which states:
"The industrial commission shall * * * prescribe what * * *
safety devices, safeguards, or other means or methods of
protection are best adapted to render the employees of every
employment and place of employment * * * safe, and to protect
their welfare. * * *" (Emphasis added.)
This mandate is codified in the commission resolution
preceding adoption of Ohio Adm.Code Chapter 4121:1-5 in 1977:
"* * * [S]pecific requirements herein are formulated,
compiled and issued in accordance with Chapters 4101, 4121,
4123 and 119 of the Revised Code of the State of Ohio,
authorizing the Industrial Commission of Ohio to make, adopt
and publish safety orders, rules and regulations and to
prescribe what safety devices, safeguards, or other means that
are best adapted for the reasonable protection of employees in
every place of employment * * *." (Emphasis added.)
Appellant proposes that when the Industrial Commission
safety code is viewed in its entirety, "workshop" and "every

place of employment" are indistinguishable. Appellant points
to the other eight Administrative Code chapters, which are very
specific, governing, for example, steel mills (Ohio Adm.Code
Chapter 4121:1-9), laundering and dry cleaning (Ohio Adm.Code
Chapter 4121:1-11), rubber and plastic industries (Ohio
Adm.Code Chapter 4121:1-13), and window cleaning (Ohio Adm.Code
Chapter 4121:1-17). Because these chapters are so narrow,
appellant reasons that Ohio Adm.Code Chapter 4121:1-5 must
encompass all employers in order to satisfy R.C. 4121.13's
mandate to protect "employees of every employment and place of
employment." This contention fails for two reasons.
First, appellant's reliance on Ohio Adm.Code Chapter
4121:1-5's prefatory resolution is misplaced since identical
language also precedes the adoption of Ohio Adm.Code Chapter
4121:1-3 in 1979. Applied conversely, appellant's theory would
mandate that "construction activity" also encompasses all
places of employment. However, Ohio Adm.Code 4121:1-3-01(A)
elaborately defines those industries falling thereunder and it
clearly does not include every type of employer. Thus,
appellant cannot equate "workshop" with "every place of
employment" on this basis.
Second, appellant's position implies that without specific
safety requirements covering every conceivable place of
employment, the commission neglects its duty to protect
"employees of every place of employment." It also suggests
that absent specific safety requirements, an employer has no
duty to provide a safe work environment. These assertions lack
merit.
R.C. 4101.11 reads:
"Every employer shall furnish employment which is safe for
the employees engaged therein, * * * shall furnish and use
safety devices and safeguards, shall adopt and use methods and
processes, follow and obey orders, and prescribe hours of labor
reasonably adequate to render such employment and places of
employment safe, and shall do every other thing reasonably
necessary to protect the life, health, safety, and welfare of
such employees * * *."
Similarly, R.C. 4101.12 provides:
"No employer shall require, permit, or suffer any employee
to go or be in any employment or place of employment which is
not safe, and no such employer shall fail to furnish, provide,
and use safety devices and safeguards, or fail to obey and
follow orders or to adopt and use methods and processes
reasonably adequate to render such employment and place of
employment safe. No employer shall fail to do every other
thing reasonably necessary to protect the life, health, safety,
and welfare of such employees * * *. No such employer or other
person shall construct, occupy, or maintain any place of
employment that is not safe."
These statutes instruct an employer to provide a safe
workplace irrespective of any specific regulations promulgated
by the commission.
A VSSR is an employer penalty and must be strictly
construed in the employer's favor. State ex rel. Burton v.
Indus. Comm. (1989), 46 Ohio St.3d 170, 172, 545 N.E.2d 1216,
1219. It must also be specific enough to "'plainly * * *
apprise an employer of his legal obligations towards his

employees.'" State ex rel. Frank Brown & Sons, Inc. v. Indus.
Comm. (1988), 37 Ohio St.3d 162, 163, 524 N.E.2d 482, 484. It
thus follows that an employer should not have to speculate as
to whether it falls within the class of employers to whom a
specific safety requirement applies. Ohio Adm.Code Chapter
4121:1-5's reference to "workshops and factories" does not make
it apparent that all employers and places of employment fall
thereunder. Had the commission intended Ohio Adm.Code Chapter
4121:1-5 to encompass all employers and places of employment,
it would presumably have used that very language.
For these reasons, the judgment of the appellate court is
affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.