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

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THE STATE EX REL. MOORE, APPELLANT, V. INDUSTRIAL COMMISSION OF OHIO ET
AL., APPELLEES.
[Cite as State ex rel. Moore v. Indus. Comm. (1997), ___ Ohio St.3d ___.]
Workers' compensation -- Violation of a specific safety requirement --
Ohio Adm.Code 4121:1-5-22(A) -- Industrial Commission does not
abuse its discretion in finding that a hopper bin does not constitute a
"confined space," when.

(No. 95-501 -- Submitted May 20, 1997 -- Decided August 6, 1997.)

APPEAL from the Court of Appeals for Franklin County, No. 94APD01-19.

Appellee Midwest Elastomers, Inc. engages in rubber reprocessing.
Through a cryogenic process, rubber is frozen and then pulverized. One of the
procedures involved was referred to as the "X-process." Raw rubber material was
first dumped into one of six hoppers. The hopper bin in question was six feet
wide, eight feet deep, and, at its lowest point, six feet above the floor. The bin was
six feet across on the top and completely open. The sides of the bin initially
descended straight down and then sloped into a V. A ladder extended fourteen
feet from the floor to the top of the bin.

At the hopper's bottom was an auger with a protective covering. The auger
pulled the rubber pieces into a bucket elevator, which transported the material to a

freezing chamber. There, liquid nitrogen was sprayed on the rubber, which caused
it to become brittle. The brittle rubber then dropped into a hammer mill, which
crushed the material. The rubber then moved through a six-inch pipe to a sifter-
like machine called a "Sweco," which separated recoverable material from rejects.

Integral to the entire process was the liquid nitrogen. In the course of the
freezing process, the nitrogen expanded into a gas. The gas ultimately traveled
through the enclosed system to the Sweco, where it was either recycled into the
freezing chamber or vented harmlessly into the plant.

Each day before the X-process was begun, vent lines were cleaned. The
parties agree that on the morning of October 16, 1990, the vents had been cleaned.
Later that day, for reasons unknown, a Midwest employee, Gregory C. Moore,
climbed into the hopper. Unbeknownst to Moore, or any other Midwest employee,
the two Sweco vents had become blocked with rubber material. This caused the
nitrogen gas to back up into the hopper, overcoming Moore. A fellow employee,
Marshall O. Russell, Jr., noticed Moore's forklift by the hopper, but could not find
Moore. Investigating, Russell found Moore in the hopper and attempted to rescue
him, but was also overcome. Other employees, alerted to the situation, quickly
removed the two men. Russell was successfully revived. Moore was not.

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Widow-claimant Lisa L. Moore, appellant herein, filed a workers'
compensation death claim with appellee Industrial Commission of Ohio.
Following allowance of that claim, she filed an application for additional
compensation, alleging violations of several specific safety requirements
("VSSR"). She later withdrew the claimed violations of Ohio Adm.Code 4121:1-
5-22(D) and 4121:1-5-02(D)(1).

After investigation and transcribed hearing, the commission denied
claimant's application, writing in part:

"It is the finding of the Hearing Officer that the Application for Violation of
a Specific Safety Requirement be denied for the reason that the widow-claimant
has cited no specific safety requirement which was violated resulting in decedent's
death.

"The findings and order are based on the V.S.S.R. Investigation Report,
affidavits, photographs, evidence in file and evidence adduced at hearing.

"In this case the decedent, a material handler, died on October 16, 1990
because of asphyxiation. The asphyxiation occurred while decedent was inside a
feedstock hopper.

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"* * * [T]he only rules under consideration are [Ohio Adm.Code] 4121:1-5-
22(A)(1) [and] (2) [and] (C); 4121:1-5-17(F)(1); and 4121:1-5-18(C)(2)[,] (3)
[and] (4).

"Before reviewing the merits of the cited rules[,] a brief explanation is
stated herein outlining how the feed hopper and related processes work.

"The employer is involved in a rubber re-processing operation. There are
various feed hoppers used throughout the plant. Raw rubber materials are put into
these hoppers. An auger moves the raw material to a bucket elevator and the
bucket elevator takes the product over to a freezing chamber. The products are
then separated into groups that meet the required specifications and those that do
not meet the specifications are rejected.

"Involved in this process is nitrogen that is piped from the outside through
underground pipes to the factory. The nitrogen is brought into valves that inject
the nitrogen with the rubber product to keep it cold. The liquid nitrogen then
becomes gaseous and vents into the plant. It was estimated that the liquid nitrogen
is injected approximately 15 to 20 feet from where the hopper is located.

"Apparently in this case the pipelines carrying the nitrogen became plugged
and the nitrogen gas was not vented normally and backed up into the hopper

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overcoming the decedent. It should be emphasized that the mixing of the nitrogen
with the rubber is entirely a closed process.

"Rule 4121:1-5-22 states that: `(A) No employee shall be required to enter
into any confined space unless the confined space entry procedure, incorporating
one of the following, is used (see appendix to this rule for recommended entry
procedures): (1) Air sampling shall be performed by qualified, trained personnel
prior to and periodically during occupancy to determine that the atmosphere
within the confined space contains an adequate quantity of oxygen ([nineteen] per
cent), and any known or expected harmful atmospheric contaminants have been
diluted to safe concentrations. (2) [A supplied-air] respirator or a self-contained
breathing apparatus is provided and used. [* * *] (C) Appropriate control
measures, which may consist of forced or natural ventilation, use of personal
protective equipment, a combination of these[,] or other effective control
techniques, shall be instituted if tests under [p]aragraph (A)(1) or (B) of this rule
indicate that the atmosphere in the space to be entered contains: (1) [A]ny
concentration of flammable vapor or gas [ten per cent] or greater of the lower
explosive limit; and/or (2) [A] hazardous concentration of any known or expected
toxic contaminants; and/or (3) [L]ess than nineteen per cent oxygen.'

5

"Before reviewing the merits of this rule it is necessary to determine if the
hopper in question would qualify as a confined space under the rules. 4121:1-5-
01(B)(28) defines confined space as: `an enclosure not intended for continuous
employee occupancy, having limited means of ingress and egress and poor natural
ventilation and which may contain hazardous contaminants or be oxygen
deficient.' The hopper in question is concluded not to fall within this definition of
a confined space. Specifically, there is no record prior to this incident of the
hopper ever containing nitrogen gas, which is a hazardous contaminant. George
Everage, a company foreman for the employer, stated that for a period of at least
eight years prior to this incident [no one] in the plant [was] aware that nitrogen gas
could get into the feed hopper.

"Therefore, because the rule implicitly requires that the employer be aware
that this area may contain a hazardous contaminant, and here the employer had no
way of knowing that the hopper could contain the hazardous contaminant nitrogen
gas[,] the hopper does not meet the definition of a confined space.

"Also, the hopper would not have poor ventilation as the rule required
because the hopper was open at the top approximately six feet and therefore there
was natural ventilation.

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"Therefore, because the hopper does not meet the definitional requirements
of a confined space as explained previously, none of the subsections under Rule
4121:1-5-22 apply and no violation of that rule is found. * * *"

The commission also found no violation of the rest of the cited specific
safety requirements.

Claimant sought reconsideration as to the finding of no violation of Ohio
Adm.Code 4121:1-5-22(A) only. Reconsideration was denied as follows:

"Second, widow/claimant contends [that] the finding of the Deputy that the
feedstock hopper in which decedent died was not a `confined space' for purposes
of OAC 4121:1-5-01(B)(28) is an obvious mistake of fact. The basis for the
finding contained in the order, that the hopper was open at the top, is not contested
by widow/claimant. Rather, widow/claimant contends that the fact of decedent's
death demonstrates the inadequacy of the ventilation created by the opening of the
hopper at the top, at least insofar as it applies to the presence of nitrogen. The
term used in the applicable rule is `poor natural ventilation.' Without a quantified
standard, the application of the fact of an open-top hopper to the term `poor
natural ventilation' is a mixed question of law and fact. OAC 4121-3-20(G) does

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not provide for rehearing unless the argued mistake is both one of fact (and not of
law) and obvious.

"Third, widow/claimant contends [that] the conclusion contained in the
Deputy's order that, to qualify as a `confined space' the employer must be aware
[that] the area may contain a hazardous contaminant is an obvious mistake of fact.
This is solely a question of applicable law and as such no rehearing is provided for
under OAC 4121-3-20(G)."

Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in finding no
violation of Ohio Adm.Code 4121:1-5-22(A). The court held that the commission
did not abuse its discretion in finding that the hopper bin did not constitute a
"confined space." It accordingly upheld the determination of this rule's
inapplicability and denied the writ.

This cause is now before this court upon an appeal as of right.
___________________

Siferd & Reed, L.P.A., Richard E. Siferd and Victoria U. Maisch, for
appellant.

8

Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant
Attorney General, for appellee Industrial Commission of Ohio.

Vorys, Sater, Seymour & Pease and Robert E. Tait, for appellee Midwest
Elastomers, Inc.
___________________

Per Curiam. Ohio Adm.Code 4121:1-5-22(A) reads:
"Confined
spaces

"(A) No employee shall be required to enter into any confined space unless
a confined space entry procedure, incorporating one of the following, is used (see
appendix to this rule for recommended entry procedures):

"(1) Air sampling shall be performed by qualified, trained personnel prior to
and periodically during occupancy to determine that the atmosphere within the
confined space contains an adequate quantity of oxygen (nineteen per cent), and
any known or expected harmful atmospheric contaminants have been diluted to
safe concentrations.

"(2) A supplied-air respirator or self-contained breathing apparatus is
provided and used."

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Neither of these procedures was followed. At issue is whether they needed
to be. The commission and court of appeals answered this question in the
negative. Both found that the hopper bin was not a "confined space," rendering
Ohio Adm.Code 4121:1-5-22(A) inapplicable. We agree.

The interpretation of a specific safety requirement rests with the
commission. State ex rel. Jeep Corp. v. Indus. Comm. (1989), 42 Ohio St.3d 83,
537 N.E.2d 215. Because it is a penalty against the employer, "it must be strictly
construed, and all reasonable doubts concerning the interpretation of the safety
standard are to be construed against its applicability to the employer." State ex rel.
Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170, 172, 545 N.E.2d 1216, 1219.
Ohio Adm.Code 4121:1-5-01(B)(28) defines a "confined space" as "an enclosure
not intended for continuous employee occupancy, having limited means of ingress
and egress and poor natural ventilation and which may contain hazardous
contaminants or be oxygen deficient."

In this case, there is "some evidence" -- indeed all the evidence establishes
-- that the hopper was completely open on the top. This large opening, in the
commission's view, provided sufficient natural ventilation to remove the machine
from the ambit of Ohio Adm.Code 4121:1-5-01(B)(28). This finding was within
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the commission's discretion and is, alone, sufficient to render Ohio Adm.Code
4121:1-5-22(A) inapplicable.

The judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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