State ex rel. Cleveland Steel Erectors Corp. v. Stewart - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Cleveland Steel Erectors Corp. v. Stewart, 86 Ohio St.3d 578, 1999-Ohio-
127.]

THE STATE EX REL. CLEVELAND STEEL ERECTORS CORPORATION, APPELLANT, v.
STEWART ET AL., APPELLEES.
[Cite as State ex rel. Cleveland Steel Erectors Corp. v. Stewart (1999), 86 Ohio
St.3d 578.]
Workers' compensation -- Employee's death resulting from fall from ten-foot-
seven-inch-high beam to concrete floor below -- Industrial Commission's
additional award for violation of specific safety requirement not an abuse of
discretion when company's safety manual explicitly forbids employees to
wear safety belts available for their use while "connecting major members"
in the construction of a catwalk -- Ohio Adm.Code 4121:1-3-03(J)(1).
(No. 97-2680 -- Submitted August 25, 1999 -- Decided September 22, 1999.)
APPEAL from the Court of Appeals for Franklin County, No. 96APD09-1136.

Appellant, Cleveland Steel Erectors Corporation ("Cleveland Steel"), seeks
a writ of mandamus ordering appellee Industrial Commission of Ohio to vacate its
award to appellee Sandra C. Stewart ("claimant") for Cleveland Steel's violation of
a specific safety requirement ("VSSR"). The Court of Appeals for Franklin
County denied the writ, finding, in effect, that the commission did not abuse its
discretion in granting Stewart's VSSR application. Cleveland Steel appeals as of
right.

In December 1991, claimant's husband, David, was fatally injured while
working for Cleveland Steel. David was connecting steel beams for a catwalk,
manually guiding suspended beams into position, when he fell from a ten-foot-
seven-inch-high beam to the concrete floor below. He was not wearing a safety
belt, lifeline, or lanyard as required by Ohio Adm.Code 4121:1-3-03(J)(1) for
employees working on "poles or steel frame construction." The autopsy report
identified the cause of his death as "pulmonary edema secondary to head injury,"

suggesting that David fell after having a heart attack.

Claimant's application for workers' compensation death benefits was
allowed, establishing that her husband was killed as the result of industrial injury.
She also applied for an additional VSSR award, alleging that Cleveland Steel had
violated Ohio Adm.Code 4121:1-3-03(J)(1), among other regulations. The
commission found Cleveland Steel in violation of Ohio Adm.Code 4121:1-3-
03(J)(1) because Cleveland Steel's safety manual explicitly forbade employees to
wear the safety belts available for their use while they were "connecting major
members."
__________________

Christopher J. Shaw, for appellant.
Guy
Nurren, for appellee Stewart.

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

Per Curiam. Cleveland Steel argues that the commission's VSSR award
was an abuse of discretion because (1) Ohio Adm.Code 4121:1-3-03(J)(1) does not
sufficiently advise employers of the safety measures applicable to employees
working on poles or steel frame construction; and (2) claimant's husband died
because of a heart attack, not from his industrial injury. Cleveland Steel also
contends that the court of appeals erred by failing to consider its objections to the
magistrate's report. We reject all these arguments and affirm the court of appeals'
judgment denying the requested writ of mandamus.

Ohio Adm.Code 4121:1-3-03(J)(1) provides:

"Lifelines, safety belts and lanyards shall be provided by the employer and it
shall be the responsibility of the employee to wear such equipment when engaged
in securing or shifting thrustouts, inspecting or working on overhead machines that
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support scaffolds, or on other high rigging, on steeply pitched roofs, by employees
at work on poles or steel frame construction, by employees working on all
swinging scaffolds, by all employees exposed to hazards or falling when the
operation being performed is more than fifteen feet above ground or above a floor
or platform, and by employees required to work on stored material in silos,
hoppers, tanks and similar storage areas. Lifelines and safety belts shall be
securely fastened to the structure and shall sustain a static load of no less than five
thousand four hundred pounds." (Emphasis added.)

Cleveland Steel argues that this rule does not clearly require safety belts,
lanyards, or lifelines when employees are working on poles or steel frame
construction at heights under fifteen feet. We disagree. The fifteen-foot height
standard applies only to operations that are not specified in the rule and that expose
employees to "hazards of falling." State ex rel. Taylor v. Indus. Comm. (1994), 70
Ohio St.3d 445, 448, 639 N.E.2d 101, 104. Thus, the commission properly applied
Ohio Adm.Code 4121:1-3-03(J)(1) to the injury sustained by claimant's spouse
after he fell only ten feet, seven inches.

Nor are we persuaded by Cleveland Steel's argument that claimant's spouse
died of a heart attack rather than his fall. The autopsy report represents some
evidence that although David had experienced "pulmonary edema," he was killed
by the head injury he sustained from his fall. This evidence supports the
commission's having already allowed Stewart's death claim and precludes this
court and the court of appeals from disturbing the commission's order through
mandamus. State ex rel. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31
OBR 70, 508 N.E.2d 936.

Finally, Cleveland Steel claims that the court of appeals did not consider its
objections to the magistrate's report, even though the court granted its request for
leave to clarify the objections. We find no reversible error.
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In its initial effort to object to the magistrate's report, Cleveland Steel noted
only its general disagreement with the report, although it incorporated its hearing
brief by reference. Claimant asserted that these objections were not stated with
particularity as required by Civ.R. 53(E)(3)(b). In response, Cleveland Steel
moved for leave to clarify the objections, and, in the same motion, it specified
objections that summarized its arguments to the magistrate, again citing its hearing
brief as support.

The court of appeals granted the motion for leave to clarify, but Cleveland
Steel filed nothing further to separately document the additions to its objections.
Since Cleveland Steel had apparently elected to stand on its motion, the court of
appeals proceeded to judgment based on the record before it. The court adopted
the magistrate's report, but not without observing that Cleveland Steel's original
objections remained too general.

To some, this ruling may seem unnecessarily strict. But the fact remains that
Cleveland Steel asserted the same arguments for relief before the magistrate as it
did in its objections, and the court of appeals indisputably rejected these arguments
in adopting the magistrate's report. We see no reason to elevate form over
substance by now returning this to the court of appeals to again reject these
arguments. Accordingly, we do not reverse on this basis.

For these reasons, we affirm the court of appeals' judgment denying a writ
of mandamus to vacate Stewart's VSSR award.
Judgment affirmed
and writ denied.

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