State ex rel. Hercules Painting Co. v. Industrial Commission

Per Curiam. The commission found a violation of Ohio AdmuCode 4121:1-3-10(K)(8), which provides: “ * * * Each employee shall be protected by an approved safety belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold) * * *.” The commission’s order is confusing, as the differing interpretations by the referee and appellate court attest. The reasoning underlying the VSSR assessment is particularly critical in this case because it determines the nature of review. If the appellate court’s interpretation is correct, the order’s sufficiency turns on the presence of “some evidence.” If, on the other hand, the referee’s construction is correct, analysis is complete, as there is no question that the commission abused its discretion. The referee’s interpretation is understandable given the order’s statement that “[i]t is not sufficient for the employer to ‘provide’ safety equipment somewhere on the job site.” This language is legally incorrect, since the duty of employer enforcement it implies conflicts with a different specific safety requirement — Ohio Adm.Code 4121:l-3-03(J)(l)1 — and numerous decisions of this court. See State [496] ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170, 545 N.E.2d 1216 (safety requirements to be strictly construed in the employer’s favor); State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257, 61 O.O.2d 488, 291 N.E.2d 748 (safety requirements must plainly apprise employers of their duty); State ex rel. Jeep Corp. v. Indus. Comm. (1989), 42 Ohio St.3d 83, 537 N.E.2d 215 (employers not absolute guarantors of employee safety); State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm. (1988), 37 Ohio St.3d 162, 524 N.E.2d 482; State ex rel. N. Petrochemical Co., Nortech Div. v. Indus. Comm. (1991), 61 Ohio St.3d 453, 575 N.E.2d 200. Upon review, we find that the appellate court’s interpretation of the commission’s order is the more sound. The referee’s interpretation overlooks a crucial finding — the commission’s determination that no safety belt and lifeline were available. This is a failure to provide safety equipment, not a failure to enforce its use. There is no need to reach the question whether the employer ensured equipment use if there was no equipment to use. We must next determine whether “some evidence” supports the commission’s order. We answer this question in the affirmative. The commission relied on, and expressly cited, claimant’s affidavit which averred to the lack of safety equipment on the date of injury. Accordingly, the appellate court’s judgment is affirmed. Judgment affirmed. A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., and Wright, J., dissent. Footnotes [1] Ohio Adm.Code 4121:1 — 3—03(J)(1) provides: “(J) Safety belts, lifelines and lanyards. “(1) 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 support scaffolds, or on other high [496] rigging, on steeply pitched roofs, by employees at work on poles or steel frame construction, by employees worldng on all swinging scaffolds, by all employees exposed to hazards of 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.”