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

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[Cite as State ex rel. Highfill v. Indus. Comm., 92 Ohio St.3d 525, 2001-Ohio-1275]

THE STATE EX REL. HIGHFILL, APPELLEE, v. INDUSTRIAL COMMISSION OF
OHIO; LEMASTER STEEL ERECTORS, INC., APPELLANT.
[Cite as State ex rel. Highfill v. Indus. Comm. (2001), 92 Ohio St.3d 525.]
Workers' compensation -- Mandamus sought to vacate Industrial Commission's
order finding steel frame construction company not in violation of
specific safety requirement, Ohio Adm.Code 4121:1-3-03(J)(1) -- Court
of appeals' grant of writ affirmed.
(No. 00-1786 -- Submitted July 17, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-709.
__________________

Per Curiam. Appellant, LeMaster Steel Erectors, Inc., builds steel frame
structures. In August 1996, LeMaster was constructing an addition to a building
occupied by Envelope Converting Company in Mason, Ohio.

At some point, a LeMaster crew began installing roof decking over the
steel frame construction. It was a progressive operation using interlocking roof
panels. Installing a panel involved several steps. Once those steps were
completed, workers would move onto the newly installed panel and repeat the
process with the next, continuing in this manner until the roof was finished.

One of the steps involved the installation of end dams. An end dam is a
piece of metal that directs water toward the gutter. While the record is somewhat
unclear, an end dam is apparently attached to the drop-off edge of the roof or
panel, known as the leading edge.

On August 9, 1996, the roof was partially complete. On the back edge of
the completed decking, a lifeline had been erected. It is undisputed that there was
no lifeline on either the leading edge or the high side of the building.

SUPREME COURT OF OHIO

Jeff T. Highfill was assigned that day to install end dams. What happened
thereafter is unclear. Coworker David Brock testified that he and Highfill were
talking near the leading edge of the roof. As Brock turned away to resume work,
he "heard what sounded to [him] like metal being kicked or something being
dropped on metal." When Brock turned around, Highfill was not there, having
fallen to his death approximately twenty-eight feet below.

Immediately upon discovering that Highfill had fallen and before he even
proceeded down to check on the victim, Brock's foreman, Ronnie Creighton,
instructed Brock to "put the safety [expletive] up now." Brock interpreted
Creighton to be ordering the immediate installation of a lifeline. Feeling
uncomfortable with the directive, Brock declined to comply. Other coworkers,
however, obeyed the directive and were observed installing a lifeline by
emergency workers arriving on the scene.

After a workers' compensation death claim had been allowed, decedent's
widow, Donna S. Highfill, appellee herein, filed an application with the Industrial
Commission of Ohio for additional compensation, alleging that LeMaster had
violated several specific safety requirements ("VSSRs"). Ultimately, however,
the parties' primary focus was on Ohio Adm.Code 4121:1-3-03(J)(1), which
required:

"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 * * *
working on * * * steel frame construction * * * [or when] exposed to hazards of
falling when the operation being performed is more than fifteen feet above
ground."1

Despite conflicting evidence, Mrs. Highfill did not dispute the assertion
that decedent had been issued a safety belt and lanyard and was wearing one or

1.
Ohio Adm.Code 4121:1-3-03(J)(1) was amended effective April 1, 1999. See 1998-1999
OMR 843, 846.
2

January Term, 2001
both when he fell. She instead emphasized the absence of a lifeline on the roof's
leading edge. LeMaster responded with a reference to the definitions of the
equipment mandated by Ohio Adm.Code 4121:1-3-03(J)(1), and proposed that a
lanyard could act as a lifeline if it were attached to a substantial object. LeMaster
then produced testimony that decedent could have wrapped his lanyard around an
allegedly adjacent purlin--a steel beam that sits between the rafters--thereby
providing fall protection equivalent to that demanded by the specific safety
requirement. Mrs. Highfill countered with evidence as to both the occupational
feasibility and hazard inherent in such a maneuver. As to the latter, all witnesses
who were questioned on the subject agreed that in order for decedent to have "tied
off" on a purlin, decedent, at a minimum, would have been required to lean out
over the exposed or leading edge of the roof or purlin.

The commission in a lengthy order found no VSSR, writing:

"At the time of decedent's fall he apparently was working near the front
edge of the roof structure * * * and was attempting to secure a side
molding/flashing to the leading edge of the roof structure. He then apparently lost
his balance and fell head first over the front edge.

"At the time of decedent's fall he was wearing a safety belt or harness and
lanyard. Safety cables or lines had been installed across the back, or low edge of
the roof structure, and the left edge, but none had been strung across the front or
high edge, from where the claimant fell.

" * * *

"The claimant's main argument is that the employer is in violation of
Section 4121:1-3-03(J) for failure to provide a safety line or cable across the front
or high edge of the roof structure, to which decedent could have tied off, and
which would have prevented the decedent's fatal fall to the ground. The
employer has argued that the decedent could have tied off to one of the purlins, or
cross-beams, immediately to his left as he was attempting to secure side
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SUPREME COURT OF OHIO
molding/flashing, otherwise known as end dams, to the end of the decking on the
high side of the roof, and that this fact coupled with the fact that the employer had
provided the decedent with a safety belt and lanyard, which he was wearing, was
sufficient to satisfy the requirements of section 4121:1-3-03(J).

"The Staff Hearing Officer agrees with the employer's position in this
regard. Reliance is placed on the hearing testimony of Mr. David Brock, and Mr.
Joshua Haberstroh. Mr. Brock testified that the width of the purlin or cross-beam
was about six inches (Page 104 of transcript) and Mr. Haberstroh testified that
the width was about three to four inches (page 66). Therefore, it is found that the
width of the purlin or cross-beam was between three to six inches, which is found
to be small enough for a worker to have wrapped their [sic] lanyard around and be
able to work on the edge of the decking. Per Mr. Brock and Haberstroh's
testimony the lanyards were a standard six feet in length. Mr. Brock also testified
that the decedent would have been kneeling while attempting to install the end
dams (page 120), and that the decedent was actually wearing knee pads at the
time of his fall. Both Mr. Brock and Haberstroh testified that someone could have
`tied off' by wrapping their [sic] lanyard around a purlin in order to install end
dams. (Brock pages 114, 121 to 124; Haberstroh pages 168 to 170, 176 to 177,
183). Mr. Haberstroh testified that he had tied off in such a manner in the past,
and Mr. Brock testified that he had tied off to column beams in the same manner
in the past (page 106).

"Therefore, it is found that the above testimony supports a finding that the
employer had provided sufficient safety equipment to have enabled the decedent
to have tied off while performing the work which he was doing as of the time of
his fall, that the employer was in compliance with section 4121:1-3-03(J), and that
had the decedent tied off to a purlin with his lanyard and safety belt while doing
such work he would not have sustained the fatal fall to the ground below. In
making this finding the Staff Hearing Officer relies on the recent case of [State ex
4

January Term, 2001
rel.] Maghie & Savage, Inc. v. Nobel (1998), 81 Ohio St.3d 328 [691 N.E.2d
277], wherein the Court made reference to the presence of an equivalent means of
protection, as being sufficient to satisfy a safety requirement. The ability to tie off
by wrapping a lanyard around a purlin is found to be an `equivalent means of
protection,' sufficient to satisfy the requirements of the cited code section in this
case. This decision was also made in reliance upon the rule of [State ex rel.]
Watson v. Indus. Comm. (1986), 29 Ohio App.3d 354 [29 OBR 483, 505 N.E.2d
1015], which held that safety code requirements must be strictly construed in
favor of employers."

Rehearing was denied.

The Court of Appeals for Franklin County, on Mrs. Highfill's petition in
mandamus, issued a writ vacating the commission's order and granting an award.
The court held that Ohio Adm.Code 4121:1-3-03(J)(1) "[d]oes not provide for
alternate means of protection, but mandates the provision and use of lifelines,
safety belts or harnesses and lanyards. To the extent there might be an equivalent,
the equivalent is found in Ohio Adm.Code 4121:1-3-03(L), which provides for
the use of safety nets when work places are more than twenty-five feet above
surfaces but only when the use of other safety devices, such as safety line or belts,
is impractical."

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

Our recent decision in State ex rel. Avalotis Painting Co. v. Indus. Comm.
(2001), 91 Ohio St.3d 137, 742 N.E.2d 1124, applies reasoning markedly similar
to that used by the court below. In Avalotis Painting, the employer had not
provided a lifeline in the area that claimant was assigned to paint, and claimant
fell. Upholding the commission's VSSR finding, we held that a safety belt,
lanyard, and lifeline were three separate and distinct items of equipment and
specifically distinguished a lifeline from either a lanyard or a safety belt. We also
rejected the assertion that tying off to a beam was an acceptable substitute for the
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SUPREME COURT OF OHIO
lifeline mandated by Ohio Adm.Code 4121:1-3-03(J)(1). Therefore, the
purported availability of an adjacent purlin in this case did not relieve LeMaster
of its responsibility to provide a lifeline as directed by the relevant specific safety
requirement.

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.
__________________

Ronald D. Major, for appellee.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., Nicholas E. Davis, Jr.,
and Timothy G. Pepper, for appellant.
__________________
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