11 L. '02 Zd. 31n ttje ^&upremce Court of Yjio

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1 31n ttje ^&upremce Court of Yjio STATE of OHIO, ex rel. DARRIN C. RICHMOND, vs. Appellant, INDUSTRIAL COMMISSION OF OHIO, et al., Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 11 AP 771 Appellees. MERIT BRIEF OF APPELLEE, INDUSTRIAL COMMISSION OF OHIO WALTER KAUFMAN ( ) Boyd, Rummell, Carach, Curry, Kaufman & Bins-Castronovo Co., L.P.A. 440 Huntington Bank Building Youngstown, Ohio fax boydruminell@gmail.com Counsel for Appellant, Darrin C. Richmond MICHAEL DEWINE Ohio Attorney General SANDRA E. PINKERTON* ( ) *Counsel of Record Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio fax Sandra.Pinkerton@OhioAttorneyGeneral.gov Counsel for Appellee, Industrial Commission of Ohio 11 L '02 Zd CLERK OF W^^ ^^ ^^.n d ^EME COUR`i ia on9o Jill T. O'Shea ( ) Cohen, Todd, Kite & Stanford, LLC 250 East Fifth Street, Suite 2350 Cincinnati, Ohio fax JillOshea@ctks.com Counsel for Appellee, Lamar Advertising of Youngstown, Inc.

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION...1 STATEMENT OF FACTS...2 ARGUMENT... 6 Appellee Industrial Commission's Proposition of Law No. 1 :...7 The Industrial Commission interprets Ohio 's specific safety requirements and does not improperly adopt another agency's rules merely by considering industry standards or another administrative agency treatment of the same industry, incident or equipment....:...7 Anuellee Industrial Commission's Proposition of Law No. 2 :...11 The commission may find a hook ladder when securely engaged becomes, at least temporarily, fixed to and a part of the structure for purposes of the safety requirements......:...:...11 Appellee Industrial Commission's Proposition of Law No. 3 : The commission may find an employee's unilateral negligence precludes an award for violation of specific safety requirements...12 CONCLUSION...13 CERTIFICATE OF SERVICE APPENDIX...16 Ohio Adm.Code 4123: Appendix 1 Ohio Adm.Code 4123: Appendix 9 i

3 TABLE OF AUTHORITIES Cases Frisch's Restaurants, Inc. v. Ryan 121 Ohio St.3d 18, 2009-Ohio Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad 92 Ohio St.3d 282 (2001)...12 State ex rel. Athey v. Indus. Comm. 89 Ohio St.3d 473 (2000) , 12 State ex rel. Berry v. Indus. Comm. 4 Ohio St.3d 193 (1983)...7 State ex rel. Brilliant Electric Sign Co. v. Indus. Comm. 57 Ohio St.2d 51 (1979)...11 State ex rel. Burley v. Coil Packing, Inc. 31 Ohio St.3d 18 (1987) State ex rel. Burton v. Indus. Comm. 46 Ohio St.3d 170 (1989) , 9 State ex rel. Coffman v. Indus. Comm. 109 Ohio St.3d 298, 2006-Ohio State ex rel. Commercial Lovelace Motor Freight v. Lancaster 22 Ohio St.3d 191 (1986)...6 State ex rel. Danstar Builders v. Indus. Comm. 10th Dist. No. 04AP309, 2005-Ohio State ex rel. Danstar Builders, Inc. v. Indus. Comm. 108 Ohio St.3d 315, 2006-Ohio State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm. 37 Ohio St.3d 162 (1988) State ex rel. Martin Painting & Coating Co. v. Indus. Comm. 78 Ohio St.3d 333, 1997-Ohio , 13 State ex rel. Mobley v. Indus. Comm. 78 Ohio St. 3d 579 ( 1997)...6 ii

4 TABLE OF AUTHORITIES Cases Frisch's Restaurants, Inc. v. Ryan 121 Ohio St.3d 18, 2009-Ohio-2...:...12 Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad 92 Ohio St.3d 282 (2001)...12 State ex rel. Athey v. Indus. Comm. 89 Ohio St.3d 473 (2000)...6, 12 State ex rel. Berry v. Indus. Comm. 4 Ohio St.3d 193 (1983)...7 State ex rel. Brilliant Electric Sign Co. v. Indus. Comm. 57 Ohio St.2d 51 (1979)...11 State ex rel. Burley v. Coil Packing, Inc. 31 Ohio St.3d 18 (1987)...6 State ex rel. Burton v. Indus. Comm. 46 Ohio St.3d 170 (1989)...7, 9 State ex rel. Coffman v. Indus. Comm. 109 Ohio St.3d 298, 2006-Ohio State ex rel. Commercial Lovelace Motor Freight v. Lancaster 22 Ohio St.3d 191 (1986)...6 State ex rel. Danstar Builders v. Indus. Comm. 10th Dist. No. 04AP309, 2005-Ohio State ex rel. Danstar Builders, Inc. v. Indus. Comm. 108 Ohio St.3d 315, 2006-Ohio State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm. 37 Ohio St.3d 162 (1988)...13 State ex rel. Martin Painting & Coating Co. v. Indus. Comm. 78 Ohio St.3d 333, 1997-Ohio , 13 State ex rel. Mobley v. Indus. Comm. 78 Ohio St. 3d 579 (1997)...6 ii

5 State ex rel. Pass v. C. S. T. Extraction Co. 74 Ohio St.3d 373 (1996)....6 State ex rel. Pressley v. Indus. Comm. 11 Ohio St.2d 141 (1967)...6 State ex rel. Richmond v. Indus. Comm. 10th Dist. No. 11AP-771, 2012-Ohio , 2, 3, 5, 7, 11 State ex rel. Roberts v. Indus. Comm. 10 Ohio St. 3d 1(1984) , 9 State ex rel. Shelly Comp. v. Steigerwald 121 Ohio St.3d 158, 2009-Ohio State ex rel. Stephenson v. Indus. Comm. 31 Ohio St.3d 167 (1987) State ex rel. Supreme Bumpers, Inc. v. Indus. Comm. 98 Ohio St.3d 134, 2002-Ohio State ex rel. Trydle v. Indus. Comm. 32 Ohio St. 2d 257 (1972)...7 Swallow v. Indus. Comm. 36 Ohio St.3d 55 (1988)...12 Statutes R.C Other Authorities Ohio Adm.Code 4123: , 8 Ohio Adm.Code 4123: , 8, 9, 11, 12 iii

6 INTRODUCTION This is an appeal of right from a workers' compensation mandamus action originating in the Tenth District Court of Appeals. Appellant, Darrin Richmond ("Richmond") sought a writ of mandamus to vacate an order of Appellee, Industrial Commission of Ohio ("commission"). The commission denied Richmond's application for an additional award for a violation of a specific safety requirement ("VSSR"). The commission rejected Richmond's argument that his employer, Appellee, Lamar Advertising of Youngstown, Inc. ("Lamar"), violated a specific safety requirement ("SSR"). The commission held that, once attached to the billboard structure, a hook ladder provided an appropriate anchor site for an employee's fall protection safety harness. The Tenth District Court of Appeals denied Richmond's request for a writ of mandamus. The appellate court found no abuse of discretion in the commission's decision that a hook ladder, when used correctly, was "fixed" to the billboard under Ohio Adm.Code 4123:1-3-11(D)(1)(b), attached at Appendix p. 1. Thus, as a part of the structure, the hook ladder could serve as an anchor point for Richmond's safety harness and lanyard ("fall protection") under Ohio Adm.Code 4123:1-3-03(J), attached at Appendix p. 2. State ex rel. Richmond v. Indus. Comm., 10th Dist. No. 11AP-771, 2012-Ohio The lower court found the commission may consider the Occupational Safety and Health Administration's ("OSHA") rules regarding outdoor advertising industry without improperly adopting the other agency's rules. As the sole judge of the credibility and weight of the evidence, the commission was free to rely on the testimony of Richmond's supervisor. Moreover, the lower court held that the commission may find Richmond's unilateral error, his failure to secure the hook ladder within the ladder stops, precluded a VSSR award. The commission respectfully requests that this Court affirm the Tenth 1

7 District's decision to deny a writ of mandamus. STATEMENT OF FACTS AND OF THE CASE Darrin Richmond was injured when he fell from a billboard.l Richmond at 16. Richmond's claim was certified by Lamar and ultimately allowed for significant physical and psychological conditions. Id. In addition to his ordinary benefits, Richmond sought an additional VSSR award. Richmond alleged that Lamar violated the SSRs for ladders and personal protective gear under the construction and workshops and/or factories provisions. Id. at 18. The Bureau of Workers' Compensation Safety Violations Investigation Unit ("SVIU") investigate Richmond's claim. Richmond at 16. Photographs from this report are included. Second Supplement at pp ("SS. "). Several Lamar employees spoke with SVIU and provided Lamar's procedures. In addition to his interview with SVIU, Richmond's supervisor, Brian Conley, testified at the hearing, excerpts from his testimony. (SS ) Lamar billboard installers used a fourteen foot Werner hook ladder, specially made for the billboard industry, equipped with two hooks that extend eight inches over the back of the billboard, feet, corrugated rungs and a "tie off' point or anchor ("Werner ladder"). Richmond at 21. See photos of the Werner ladder. (SS ) The ladder Richmond used on the date of his industrial injury was purchased in 2006 and was in good condition. (SS. 4-5.) Lamar's employees use fall protection, which consists of a safety harness and double lanyard. (SS. 34.) The safety harness wraps around the employee's legs and torso; the lanyard attaches the worker's safety harness to a structure or safety cable. So they remain attached to the 1 Except for a minor change that the ladder stops are located at the top not the bottom of the billboard, the parties did not object to the magistrate's conclusions of fact. To avoid filing unnecessary documents, background information will be cited from the appellate court decision. 2

8 billboard structure when they move from the catwalk to the Werner ladder, Lamar employees use a double rather than the ordinary single lanyard. (Id.) The double lanyard allows Lamar employees to attach their second lanyard to a second anchor point, e.g. the Werner ladder, before releasing their first lanyard from the safety cable along the catwalk. (SS ) A catwalk runs along the bottom of a billboard with a fixed cable along the bottom of the catwalk. Richmond at 21. Employees anchor or tie off their fall protection lanyard to the cable while working from the catwalk. To post a billboard, Lamar employees are instructed to first anchor their fall protection to the cable, then hook the Werner ladder to the top of the billboard inside the ladder stops. (SS. 13.) A ladder stop is a metal bar that protrudes from the back of the billboard structure, which prevents a ladder from slipping off the edge of the billboard structure. (SS. 13 and 32.) Generally, Lamar installers move the ladder to the edge of the billboard to be out of the way. The installer can actually feel the ladder hit the ladder stops when moving it to the edge of the billboard. (SS. 16 and 21.) After attaching the ladder and pulling up supplies, the installer remains anchored to the cable and works from the catwalk to install the lower sections of a billboard. SS. 9; Richmond at 21. To install the upper sections of the billboard, the installer first anchors one of his lanyards to the ladder, then disconnects the other lanyard from the cable, before climbing the ladder to install the upper sections of the billboard. SS On the date of his accident, Richmond failed to secure the ladder inside the ladder stops. When first questioned by SVIU in the hospital, Richmond did not know how his injury occurred. Richmond at 20. Richmond later provided an affidavit. (SS. 1-3.) In his affidavit, Richmond stated while he was climbing the ladder with fall protection attached to the ladder, the ladder slipped off the rounded top edge of the billboard. (SS. 2.) As the ladder slipped, Richmond 3

9 jumped to the catwalk, but, he was pulled to the ground as the ladder fell. (SS. 2.) Richmond at 20. Richmond guessed that he fell because the ladder stops were not in place. (SS. 2.) Ladder stops were in place on the billboard where Richmond fell prior to and at the time of the accident. (SS. 19.) Richmond agreed that employees can see and confirm ladder stops on a billboard structure from ground level. (SS. 27.) Richmond knew the purpose of the ladder stops and does not dispute that the ladder stops were in place on the date of his accident. (SS. 29.) Richmond admitted that, had he looked for them, he would have seen the ladder stops from the ground or when climbing up the billboard's catwalk. (SS ) Conley, Richmond's supervisor, testified that the hook ladder and ladder stops were the standard practice for the outdoor advertising industry. (SS. 17.) Conley explained that, once engaged over the top of the billboard, the hook ladder is considered part of the structure. (SS 13.). Ladder stops prevent the hook ladder from slipping off the edge of the billboard. (SS ) The commission, through its Staff Hearing Officer ("SHO") denied Richmond's VSSR request. (Appendix to Merit Brief of Appellee Lamar at p ("Lamar App. ").) The SHO first determined that Richmond's job site, on an outdoor billboard, was not a workshop or factory, thus, the workshop rules do not apply. (Lamar App. 37.) The SHO found no violation of the fall protection rules because Richmond had, and was wearing, fall protection provided by Lamar. (Lamar App. 3 8.) The SHO then determined that Richmond was using a hook ladder. (Lamar App. 39.) Based on Mr. Conley's uncontroverted testimony, the SHO found the ladder used by Richmond, was manufactured by Werner specifically for use by the outdoor advertising industry. (Lamar App. 38.) The Werner ladder used two large metal hooks to secure the ladder to the top of the 4

10 billboard. Based on the uncontroverted testimony of both Richmond and his supervisor, the SHO found that the Werner ladder was a hook ladder not an extension ladder. (Lamar App. 39.) The SHO further concluded that when the hook ladder was secured inside the ladder or end stops at each end of the billboard, the ladder was fixed to and became part of the billboard structure. (Lamar App. 40.) The SHO found the Werner ladder was the standard ladder used in the outdoor advertising industry. (Id.) The ladder had no defects as the ladder "was still intact, i.e. [had] no broken components" when Mr. Conley inspected it after Richmond's fall. (Id.) The SHO concluded that: Given the testimony of Mr. Conley (company supervisor) regarding the Werner hook ladder and how it was secured to the billboard structure as well as his uncontroverted testimony that this ladder is the "industry standard", the Staff Hearing Officer concludes that when this particular hook ladder is secured to the billboard structure properly, then the hook ladder itself also becomes part of the billboard structure." (Lamar App: 40.) The SHO found no defects in the ladders stops. The SHO found Richmond "never looked for, nor observed whether or not this particular billboard had the two end stops in place" and thus, did not confirm that the ladder was properly installed. (Lamar App. 40.) The SHO also concluded that while alternative equipment, such as safety nets or retractable lanyards, was available, the employer provided safety equipment that "enabled [Richmond] to perform his occupational duties in a viable and acceptable manner." (Lamar App. 40) The SHO denied Richmond's request for a VSSR award. (Id.) The commission denied Richmond's request for reconsideration. Richmond subsequently filed the complaint in mandamus with the lower court. The appellate court rejected Richmond's request for a writ of mandamus. Richmond at 14. The lower court concluded that "some evidence" supported the commission's findings. Id. at 26. The lower court also found that the commission was within its discretion to conclude Lamar did not violate any SSR and Richmond's own negligence contributed to his fall. Id. 5

11 Richmond appealed to this court. ARGUMENT Mandamus is an extraordinary remedy brought in the name of the State, the essential purpose of which is to command the performance of an act that the law specially enjoins as a duty. R.C To obtain a writ of mandamus, the relator must demonstrate a clear legal right to the relief sought in addition to respondent's clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). Moreover, a mandamus proceeding is not a de novo review of the evidence, with the court substituting its judgment for that of the commission. State ex rel. Mobley v. Indus. Comm., 78 Ohio St. 3d 579, 584 (1997). The commission's decisions are "presumed to be valid and performed in good faith and judgment," absent a demonstrated abuse of discretion. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170 (1987). An abuse of discretion is "not merely an error in judgment but a perversity of will, passion, prejudice, partiality, or moral delinquency, to be found only where there is no evidence upon which the Commission could have based its decision." State ex rel. Commercial Lovelace Motor Freight v. Lancaster, 22 Ohio St.3d 191, 193 (1986). The "court's role in the review of mandamus actions [is] limited to a determination as to whether there is some evidence in the record to support the commission's stated basis for its decision." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 21 (1987). "It is immaterial whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to the commission's." State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996). The "commission is the exclusive evaluator of [the] weight and credibility" of the evidence presented. State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473, 475 (2000). (Emphasis added.) Thus, the commission does not abuse its discretion and its order is valid so long as 6

12 "some evidence" supports the commission's decision regardless of the quantity or quality of other evidence to the contrary. Here, the commission's order is supported by some evidence and should not be disturbed. Appellee Industrial Commission's Proposition of Law No. 1: The Industrial Commission interprets Ohio's specific safety requirements and does not improperly adopt another agency's rules merely by considering industry standards or another administrative agency treatment of the same industry, incident or equipment. The lower court did not err in finding the commission did not abuse its discretion by denying Richmond's request for a VSSR award. Richmond at 14. For a VSSR award, the claimant must demonstrate that his employer violated one of the "specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission." State ex rel. Trydle v. Indus. Comm., 32 Ohio St. 2d 257, paragraph one of the syllabus (1972). Violations of other regulations, such as OSHA regulations, will not support a VSSR award. State ex rel. Roberts v. Indus. Comm., 10 Ohio St. 3d 1, 2 (1984). To establish entitlement to a VSSR award, a claimant must demonstrate that: (1) a SSR is applicable to the employer or circumstances of employment at the time of the injury; (2) the employer violated the SSR; and (3) the violation proximately caused of the industrial injury. State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, 46 (Citations omitted). Interpretation of Ohio's SSRs rests solely with the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 (1983). Moreover, that interpretation must be strictly construed in favor of the employer. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989). Richmond alleges violations of the personal protective gear and ladder rules. The personal protective equipment SSR mandates employers provide and employees wear fall protection, e.g. lifeline, lanyard, safety belt or harness, "where the operation being performed 7

13 is more than six feet above ground or above a floor or platform." Ohio Adm.Code 4123: (J)(1). The personal protective equipment SSR provides the following definitions: (2) "Lanyard" means a flexible line of rope, wire rope, or strap which generally has a connector at each end for connecting the body belt or body harness to a life line or anchorage. (3) "Vertical Lifeline" means a rope, suitable for supporting one person, to which a lanyard or safety belt (or harness) is attached. *** (7) "Safety belt or harness" means a device, worn around the body, which, by reason of its attachment to a lanyard and lifeline or a structure, will prevent an employee from falling. Ohio Adm.Code 4123:1-3-03(B). Lanyards or safety harnesses "shall be securely fastened to the structure." Ohio Adm.Code 4123:1-3-03(J)(1). "Safety belt or harness lanyard shall * * * provide for a fall of no more than six feet." Ohio Adm.Code 4123:1-3-03(J)(4). "It shall be the responsibility of the employee to properly use the equipment provided." Ohio Adm.Code 4123:1-3-03(N). The ladder SSR mandates that ladders must meet specified load and construction requirements and be maintained to "meet original specifications or shall be withdrawn from service." Ohio Adm.Code 4123:1-3-11(C)(1) and (2). Portable ladders must "be equipped with safety shoes" or other anti-slip devices except that the anti-slip requirement "does not apply to step ladders, lash ladders, or hook ladders." Ohio Adm.Code 4123:1-3-11(D)(1)(b). The rule defines hook ladders as: (c) Hook ladders. Ladders designed for use by hooking shall be equipped with two or more substantial metal hooks at the top of the ladder. Ohio Adm.Code 4123:1-3-11(D)(1)(c). The SSR defines fixed ladder: "Fixed ladder," as used in this rule, means a ladder is securely fastened in a fixed position, whether to remain as part of the structure or for use during a 8

14 part or all of the construction period." Ohio Adm.Code 4123:1-3-11(B)(4). Ohio Adm.Code 4123:1-3-11(E) sets forth rest platform or landing provisions for "[flixed ladders that cannot be readily moved or carried because it is an iintegral part of a building or structure." The Ohio SSRs provide no special exceptions and impose no special requirements for the outdoor advertising industry. The commission must consider whether Lamar, like any other employer, violated any Ohio SSR when construed strictly in Lamar's favor. Burton. The OSHA regulations are not inherently part of the SSRs, however, the commission may consider OSHA's regulations, testing, investigation and assessments to determine whether the equipment complies with the essential safety functions prescribed by the SSRs.. Roberts held a VSSR award is not appropriate when the employee asserted that the employer violated Federal Regulations. Roberts, 10 Ohio St. 3d at 3. Likewise, compliance with OSHA regulations does not mandate denial of a VSSR award. State ex rel. Danstar Builders v. Indus. Comm., 10th Dist. No. 04AP309, 2005-Ohio-365, 26, affirmed by State ex rel. Danstar Builders, Inc. v. Indus. Comm., 108 Ohio St.3d 315, 2006-Ohio-1060, 13 Richmond misapplies the holding in Roberts and cites the oft-misquoted Roberts decision for the proposition that anything from OSHA is always irrelevant in consideration of a VSSR award. Appellant Merit Brief at p. 21. "The commission is not bound by OSHA findings," however, the commission may consider and rely on OSHA's post-accident testing to determine compliance with Ohio SSR. State ex Nel. Shelly Comp. v. Steigerwald, 121 Ohio St.3d 158, 2009-Ohio-585, 35. The commission may rely on OSHA's regulations to determine what saturation level constitutes "hazardous" concentration of an air contaminant when the SSR set forth specific numerical level. State ex rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243, 2007-Ohio-6096, 25. However, the commission is not required to 9

15 adopt standards recommended by the National Institute for Occupational Safety and Health ("NIOSH") and the American Conference of Governmental Industrial Hygienists ("ACGIH") when the SSR does not adopt these standards and requires the employer to "minimize" air contamination but not provide a dust-free environment. State ex rel. Ish v. Indus. Comm., 19 Ohio St.3d 28, 31 (1985). This Court explained this apparent conflict, when discussing the impact of industry standards when considering a VSSR. Industry standards, like OSHA regulations, are not inherently part of the SSRs. However, the commission may consider industry standards to determine whether the employer violated a SSR. Relying on Ish, this court considered whether the employer's failure to conduct weekly maintenance inspections, as recommended by the machine manufacturer, violated a SSR. State ex rel. G & S Metal Products, Inc. v. Moore, 79 Ohio St.3d 471, 1997-Ohio-137. This Court held that absent express incorporation of manufacturer or industry standards, the commission should not indirectly read those standards into the rule. Id. at 476. Significantly, this Court explained "[t]his is not to say, however, that the commission can never consult manufacturer specifications in evaluating an employer's compliance with SSRs * * * a manufacturer's manual is sometimes relevant to the commission's determination of whether an employer violated a specific safety requirement." Id. (Emphasis added.) The Court "approved of the commission's consideration of manufacturer specifications for the proper construction of a scaffold required by an SSR." Id. citing State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St. 3d 333 (1997). As the G & S Metal court explained, Martin Painting does not hold that "manufacturer instructions are considered an inherent part of an SSR [but rather]. establishes that VSSR liability may lie when failure to comply with manufacturer instructions frustrates the equipment's ability to perform its essential safety function." G & S Metal at

16 As the lower court decided, the commission did not adopt the OSHA regulations, the commission may "consider evidence of whether the employer's actions satisfy the requirements of other codes, such as OSHA. Richmond at 6. The commission relied on the "undisputed testimony of both [Richmond] and [his supervisor] Mr. Conley" to find that Richmond was using "a `Hook' Ladder as defined by 4123:1-3-11(D)(c) and such ladder was provided by [Lamar]." Richmond at 23 and 35. Conley testified that the Werner ladder was "accepted as the industry standard [because] once it is secured, it could not fall." Lamar App. 39. The commission, as fact-finder and sole interpreter of the SSRs, relied on undisputed testimony to find that, once properly secured by the hooks within the ladder stops, the Werner ladder became a part of the structure and Lamar did not violate any SSR. Contrary to Richmond's argument the commission did not indirectly adopt OSHA regulations or the Gannett exception, but reasonably interpreted its own SSRs regarding ladders and fall protection based upon the uncontroverted testimony that, once properly engaged to the billboard, the Werner ladder would not move. Appellee Industrial Commission's Proposition of Law No. 2: The commission may find a hook ladder when securely engaged becomes, at least temporarily, fixed to and a part of the structure for purposes of the safety requirements. The commission does not abuse its discretion in finding that a hook ladder is temporarily affixed to a structure and as part of a structure may serve as an anchor point for an employee's fall protection lanyard. The commission may find an ordinarily portable ladder securely attached to a structure becomes a fixed ladder, within the meaning of the SSR. A"`fixed ladder' * * * means a ladder is securely fastened in a fixed position, whether to remain as part of the structure or for use during a part or all of the construction period." Ohio Adm.Code 4123:1-3-11(B)(4). (Emphasis added.) Like statutes, the words of an administrative rule should be given "their plain and ordinary meaning." State ex rel. Brilliant Electric Sign Co. v. Indus. Comm., 57 Ohio St.2d 11

17 51, 54 (1979). The commission is charged to enforce and interpret the Ohio SSRs. Section 35, Article II, Ohio Constitution. Courts must defer "to an administrative interpretation [of a rule] formulated by an agency that has accumulated substantial expertise, and to which the General Assembly has delegated the responsibility of implementing the legislative command." Swallow v. Indus. Comm., 36 Ohio St3d 55 (1988). A court must "accord due deference to the [commission's] interpretation so long as it is reasonable." Frisch's Restaurants, Inc. v. Ryan, 121 Ohio St.3d 18, 2009-Ohio-2, 16 quoting Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282, 289 (2001). The commission as "the exclusive evaluator of [the] weight and credibility" of the evidence presented and is free to find Conley's testimony persuasive. Athey, 89 Ohio St.3d at 475. Both Richmond and Conley testified the Werner ladder used two substantial hooks that attached the ladder to the top edge of the billboard. Further, the ladder stops prevent the Werner ladder from sliding off the side of the billboard. (SS. 14 and 29.) Conley repeatedly testified when the Werner "ladder is engaged properly it's not going to go anywhere." (SS 21.) The testimonies of Richmond and Conley are "some evidence" upon which the commission can rely. The commission did not abuse its discretion by finding that when the Werner ladder was properly engaged to the billboard with two substantial hooks within the ladder stops, the ladder was securely fastened to the structure and became a fixed ladder under Ohio Adm.Code 4123: (B)(4). Lamar App. 38. The commission's factual finding is wholly within its discretion and supported by "some evidence;" thus, the commission did not err in denying Richmond's VSSR request. Appellee Industrial Commission's Proposition of Law No. 3: The commission may find an employee's unilateral negligence precludes an award for violation of specific safety requirements. 12

18 Richmond's failure to locate the ladder stops and place his hook ladder within the ladder bars his VSSR request. An employee's unilateral negligence bars a VSSR award when the employer complied with the SSR but the employee's actions circumvent the safety procedures or device. State ex Nel. Coffman v. Indus. Comm., 109 Ohio St.3d 298, 2006-Ohio-2421 citing State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988). An employee's own actions cannot transform an otherwise compliant device into a non-compliant devices. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d 333, 1997-Ohio-45. Richmond testified that he did not look for the ladder stops and that he did not ensure that the Werner ladder was within the ladder stops. (SS. 30.) Moreover, Richmond admitted that the ladder stops prevent the Werner ladder from slipping off the side of the billboard. (Id.) The commission, as judge of the weight of the evidence, found that Richmond's failure to engage the ladder stops caused the ladder to fall from the billboard. The commission's decision was supported by "some evidence." The lower court correctly determined that Richmond's writ of mandamus should be denied. Accordingly, this court should affirm the appellate court's decision and deny the request for a writ of mandamus. CONCLUSION The lower court properly found that the commission's order denying Richmond's request for an additional award for violation of a specific safety requirement is supported by "some evidence." It is within the commission's discretion to considered OSHA regulations to interpret the Ohio specific safety requirements. The commission was within its discretion to conclude that Lamar did not violate a specific safety regulation and Richmond's own negligence contributed to his fall. 13

19 The appellate court properly concluded that the commission did not abuse its discretion. Accordingly, this Court should affirm the lower court's decision and deny the requested writ of mandamus. Respectfully submitted, MICHAEL DEWINE (, ) Ohio Attorney G neral V/k 4 -, ', s ANDRA E. I^INKERTON ( ) Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22nd Floor Columbus, Ohio fax S andra. Pinkerton@OhioAttorneyGeneral. gov Counsel for Appellee, Industrial Commission of Ohio 14

20 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on this 24c1 day of April, 2013 on: Via and mail Walter Kaufam Boyd, Rummell, Carach, Curry, Kaufman & Bins-Castronovo Co., L.P.A. 440 Huntington Bank Building Youngstown, Ohio Counsel for Appellant Darrin C. Richmond Jill T. O'Shea Cohen, Todd, Kite & Stanford, LLC 250 East Fifth Street, Suite 2350 Cincinnati, Ohio Counsel for Appellee Lamar Advertising of Youngstown, Inc. 8ANDRA E. PINKERTON ( ) Assistant Attorney General 15

21 APPENDIX 16

22 Search - 1 Result : Personal protective equipment. i ar,%, 1 Ml - OAC Ann. 4123: OHIO ADMINISTRATIVE CODE Copyright (c) 2013 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. *** This document is current through the Ohio Register for the week of March 11, 2013 through March 15, 2013 *** 4123:1 Division of Safety and Hygiene Chapter 4123:1-3 Construction OAC Ann. 4123: (2013) 4123: Personal protective equipment. (A) Scope. The requirements of this rule relate to the personal protective equipment listed immediately below, as required for employees on operations described in this rule in which there is a known hazard, recognized as injurious to the health or safety of the employee. (1) Eye and face protection. (2) Foot (toe) protection. (3) Respiratory protection - includes respirators, masks, canister type masks, supplied-air helmets, etc., for protection of the respiratory system from inhalation of particulate matter, noxious gases and vapors, and oxygen deficiency. Although this rule does not cover engineered protective measures (for example, ventilation), exposure control shall be accomplished as far as is feasible by accepted engineering methods before considering or instituting use of respirators (see rule 4123: of the Administrative Code). (4) Head and hair protection - includes all operations where employees are required to be present in areas where a hazard to their head exists from failing or flying objects, or from physical contact from rigid objects, or from exposures where there is a risk of injury from electrical shock or hair entanglement. ( 5) Protective clothing. ( 6) Hearing protection. ( 7) Safety belts, body harness lifelines and lanyards. (8) Seat belts. (9) Safety nets. ( 10) Working over or near water. (B) Definitions. ( 1) "Head protection devices" means: (a) "Bump cap or hat" means a thin-shelled plastic headgear worn to provide protection to the head from bumps or lacerations but does not meet the requirements for protective helmets. 1 Appendix m=e865aab032d2a07c8fa7e57dd1f54859& brow... 4/2/2013

23 Search - 1 Result : Personal protective equipment. 1 Qr,%, z- mi (b) "Crown straps" means that part of the suspension which passes over the head. (c) "Hair enclosure" means a hat or cap (other than a protective helmet or bump cap) or a hair net specifically designed to protect the wearer from hair entanglement in moving parts of machines, equipment, or where there is exposure to sparks, hot metal, or ignition. (d) "Protective helmet" means a rigid headgear also known as a safety or hard hat, or as a safety or hard cap that is worn to provide protection for the head, or portions thereof, against impact, flying particles, or electrical shock, or any combination thereof; and which is held in place by a suitable suspension. (e) "Suspension" means the internal cradle of a protective helmet or bump cap which holds it in place on the head and is made up of the head band and crown straps. (2) "Lanyard" means a flexible line of rope, wire rope, or strap which generally has a connector at each end for connecting the body belt or body harness to a life line or anchorage. (3) "Vertical Lifeline" means a rope, suitable for supporting one person, to which a lanyard or safety belt (or harness) is attached. (4) "O.D." means optical density and refers to the light refractive characteristics of a lens. (5) "Radiant energy" means energy that travels outward in all directions from its sources. (6) "Respiratory devices" means: (a) "Air-purifying device" means a device which removes contaminants from the atmosphere and can be used only in atmospheres containing sufficient oxygen to sustain life (at least nineteen and one-half per cent by volume at sea level) and within specified concentration limitations of the specific device. (i) "Mechanical-filter respirator" means a device which provides respiratory protection against particulate matter, such as non-volatile dusts, mists, or metal fumes. (ii) "Chemical-cartridge respirator" means a device which provides respiratory protection against certain gases and vapors in concentrations not in excess of one-tenth per cent by volume. (iii) "Gas mask" means a device which provides respiratory protection against certain specific gases and vapors in concentrations up to two per cent by volume or as specified on the canister label and against particulate matter. (b) "Supplied-air device" means a device which delivers breathing air through a supply hose connected to the wearer's facepiece. (c) "Self-contained breathing apparatus" means a device which provides complete breathing protection for various periods of time based on the amount of breathing air or oxygen supplied and the breathing demand of the wearer. The basic types of self-contained breathing apparatus are: (i) Closed-circuit devices (rebreathers): ( a) Compressed oxygen type. (b) Chemical oxygen type. (c) Liquid oxygen type. 2 Appendix m=e865aab032d2a07c8fa7e57ddlf54859& brow... 4/2/2013

24 Search - 1 Result : Personal protective equipment. Yage 3 or 9 (ii) Open-circuit devices: (a) Demand type. (b) Pressure demand type. (7) "Safety belt or harness" means a device, worn around the body, which, by reason of its attachment to a lanyard and lifeline or a structure, will prevent an employee from falling. (C) Specific requirements of general application. (1) Personal protective equipment furnished by the employer shall be issued to the employee in sanitary and proper condition so that it will effectively protect against the hazard involved. (2) Where employees provide their own protective equipment, such equipment shall give equal or greater protection than that furnished by the employer. (D) Eye and face protection. (1) Responsibility. The employer shall provide eye protection for all employees engaged in the operations listed in paragraph (D)(2) of this rule and exposed to an eye hazard. Eye protection shall also be provided for any other employees required to work in the immediate area and who are exposed to the hazards of the operations listed. It shall be the responsibility of the employee to use the eye protection provided by the employer (see sections and of the Revised Code). (See also appendix to paragraph (D) of this rule for "Eye and Face Protector Selection Guide".) (2) Operations requiring eye protection. (a) Eye protection shall be provided to employees performing the following operations: (i) When using hand tools or mechanical equipment to cut, chip, drill, clean, buff, grind, polish, shape, or surface masonry, plaster, stone, plastics, or other hardened substances. This also covers demolition work where the materials listed are part of the operation; (ii) Where acids, sand or shot blast are used in building cleaning operations; (iii) Welding or cutting operations involving the use of gas flames or electric arc. For all electric welding operations the employer shall provide suitable helmets, hoods, or hand shields. (See appendix to this rule); (iv) Where portland cement or similar dust-producing material is taken from an elevated bin, hopper, or similar structure by a chute; (v) All spray paint operations where the employee's eyes are exposed to paint mist in the atmosphere; (vi) All sand or shot blast operations where the employee's eyes are exposed to the blasting; (vii) In the handling of molten metal, hot tars, hot pitch, hot asphalt, hot plastic, or similar hot substances; (viii) Dressing grinding wheels; (ix) Cleaning operations where wire wheels are used; (x) In handling injurious acids, alkalis, or other chemicals; (xi) When working in close proximity to a laser beam in excess of five milliwatts; 3 Appendix m=e865aab032d2a07c8fa7e57ddlf54859& brow... 4/2/2013

25 ZSearch - I Kesult :1-3-U3. Yersonat protective equipment. rage 4 01 y (xii) Cutting, drilling, turning, planing, jointing, and sanding of wood with power tools; (xiii) Operations of portable explosive-actuated fastening tools and portable pneumatically powered fasteners; (xiv) Operations requiring the use of compressed air for cleaning purposes. (b) This rule does not apply where a shield or exhaust equipment provides adequate eye protection for employees otherwise exposed to the hazards covered in paragraphs (D)(2)(a)(i) to (D)(2)(a)(xiv) of this rule. (3) Face shields. Face shields may be used only in conjunction with safety glasses and/or goggles where additional protection for the face is necessary. (4) Material requirements for eye protection shall meet ANSI Z or any revisions to that standard. ( 5) Laser protection. The employer shall provide laser safety goggles which will protect the employee from direct or reflected laser light equal to or greater than watts (bve milliwatts) per square centimeter. The laser safety goggles shall provide protection for the specibc wavelength of the laser and be of optical density (O.D.) adequate for the energy involved. Table 3-3 lists the maximum power or energy density for which adequate protection is afforded by glasses of optical densities from five through eight. Output levels failing between lines in this table shall require the higher density. ( a) Labeling of eye protection. All protective goggles shall bear a label identifying the following data: (i) The laser wavelength for which use is intended; (ii) The optical density of those wavelengths; (iii) The visible light transmission. ( b) Labeling of laser equipment. The employer shall furnish equipment provided with labels containing the following minimum information for continuous-wave (cw) lasers: (i) Wavelength or wavelength range; (ii) Emergent beam size; (iii) Beam divergence; (iv) Maximum average power output; (v) Maximum emergency beam irradiance; (vi) Manufacturer's name and address; 4 Appendix brow... 4/2/2013

26 ZSearch - I Kesult - 41 L.3:1-3-U3. Fersonal protective equipment. rage _-) ot y (vii) Product identification number. (c) Posting. The employer shall post notices in prominent locations in which lasers are being operated. (For examples see appendix to this rule.) (d) Beam shutters or caps shall be utilized, or the laser turned off, when laser transmission is not actually required. When the laser is left unattended for a substantial period of time, such as during lunch hour, overnight or at change of shifts, the laser shall be turned off. (e) Atmospheric conditions. The employer shall require the employee to keep away from the source, range and target of the laser when there is exposure to rain or snow or when there is dust or fog in the air. ( E) Foot (toe) protection. Foot protection shall be worn by the employee where an employee is exposed to machinery or equipment that represents a foot hazard or where an employee is handling material which presents a foot hazard. (F) Respiratory equipment. (1) The employer shall furnish approved respiratory equipment where there are air contaminants as defined in paragraph (B)(1) of rule 4123: of the Administrative Code. It shall be the responsibility of the employee to use the respirator or respiratory equipment provided by the employer, guard it against damage and report any malfunction to the employer (see sections and of the Revised Code). Note: See appendix to this rule for basic guides for the selection of respirators. (2) This requirement does not apply where an effective exhaust system or other means of equal or greater protection has been provided. (G) Head and hair protection. (1) Responsibility. (a) Employer. (i) Whenever employees are required to be present in areas where the potential hazard mentioned in paragraph (A)(4) of this rule are present, employers shall provide them with suitable protective headgear or hair enclosures. Where required, head protection shall meet the requirements of ANSI Z (ii) When required, employers shall provide accessories designed for use with protective headgear and which are suitable for their intended purpose. (iii) Protective helmets and bump caps, or parts thereof, and hair enclosures shall be sanitized before reissue and damaged parts of protective headgear shall be replaced. (b) Employees. Employees shall not alter any head or hair protective equipment that lessens its effectiveness, and shall use such equipment in accordance with instructions and training received. (2) Hair enclosures. (a) A hat, cap, or net shall be worn where there is danger of hair entanglement in moving parts of machinery or equipment, or where there is exposure to means of ignition. It shall be designed to enclose all loose hair and be adjustable to accommodate all head sizes. Material used for a hair enclosure shall be durable, fast-dyed, nonirritating to the skin and capable of withstanding frequent cleaning. It shall not be reissued from one employee to another unless it has been thoroughly sanitized. 5 Appendix m=e865aab032d2a07c8fa7e57dd1f54859& brow... 4/2/2013

27 Nearcri - I Kesult - 41L3:1-3-U3. Yersonal protective equipment. Yage 0 ot 9 (b) Hair enclosures used in areas where there is exposure to sparks, hot or molten metals, or ignition from heat, flames, or chemical reaction shall be made of materials that are nonburning or flame retardant and do not melt. ( H) Protective clothing. ( 1) When handling chemicals injurious to the skin. The employer shall provide rubber or plastic gloves, sleeves and aprons for all operations involving the handling of injurious concentrations of acids, alkalis, epoxy or similar substances. (2) Welding, cutting, brazing, and molten metal exposures. (a) All employees exposed to the hazards created by welding, cutting, brazing, or molten metal operations shall be protected by personal protective equipment. (b) Specified protective clothing. (i) The employer shall provide durable flameresistant gloves for all welders and oxygen cutters. Insulated linings shall be provided when the employee is exposed to high radiant energy. (ii) The employer shall provide cape sleeves or shoulder covers with bibs made of leather or other flame-resistant materials for employees required to perform overhead welding or cutting operations. (iii) Clothing treated with nondurable flame-retardant materials shall be treated after each wetting or cleaning. (3) When working by hand on circuits in excess of two hundred fifty volts. Unless deenergized and grounded, the employer shall provide electricians' rubber gloves with protectors, or other means of insulating employees from ground or current of opposite polarity when working on circuits in excess of two hundred fifty volts. (4) When handling hot asphaltic materials. The employer shall provide suitable foot protection to prevent burns when employees are required to handle hot asphaltic materials. ( I) Hearing protection. Employees exposed to continuous noise levels of ninety or more decibels (dba) slow response shall be provided with approved ear protection. (Variations in noise level involving maxima at intervals of one second or less, are to be considered continuous.) If ear plugs that require fitting are provided, they shall be fitted to the individual employee by a competent person. (3) Safety belts, harness lifelines and lanyards. (1) Lifelines, safety belts or harnesses and lanyards shall be provided by the employer, and it shall be the responsibility of the employee to wear such equipment when exposed to hazards of falling where the operation being performed is more than six feet above ground or above a floor or platform, except as otherwise specified in this chapter, and when required to work on stored material in silos, hoppers, tanks, and similar storage areas. Lifelines and safety belts or harnesses shall be securely fastened to the structure and shall sustain a static load of no less than three thousand pounds. (2) Lifelines, safety belts or harnesses and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, safety harness, or lanyard actually subjected to inservice loading, as distinguished from static load testing, shall be removed from service and shall not be used again for employee safeguarding until inspected and determined by an authorized person to be undamaged and suitable for reuse. 6 Appendix m=e865aab032d2a07c8fa7e57dd1f54859&_brow... 4/2/2013

28 Search - 1 Result :1-3-U3. Personal protective equipment. Yage / ot y (3) Lifelines used on rock-scaling operations, or in areas where the lifeline may be subjected to cutting or abrasion, shall be a minimum seven-eighths-inch wire core manila rope or equivalent. For all other lifeline applications, a minimum of three-fourths-inch manila rope or equivalent shall be provided. (4) Safety belt or harness lanyard shall be a minimum of one-half-inch nylon, or equivalent, with a maximum length to provide for a fall of no more than six feet. The lanyard shall have a breaking strength of no less than three thousand pounds. (5) All safety belt or harness and lanyard hardware shall be drop forged or pressed steel, cadmium plated. Surface shall be smooth and free from sharp edges. (6) All safety belt or harness and lanyard hardware shall be capable of withstanding a tensile loading of three thousand pounds without cracking, breaking, or becoming permanently deformed. (7) Safety nets may be used in lieu of lifelines and safety belts or harnesses. (K) Seat belts. Seat belts shall be provided for crawler-type tractors, bulldozers, rubber-tired earth-moving equipment, off-highway trucks and graders except on equipment that is designed for standup operations only or that has no rollover protective structure. (L) Safety nets. (1) Safety nets shall be provided when workplaces are more than twentyfive feet above the ground, water, or other surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts or harnesses is impractical. (2) Where safety net protection is required by this rule operations shall not be undertaken until the net is in place and has been tested. (3) Safety nets shall extend outward from the outermost projection of the work surface in accordance with the following table to this rule and shall be installed as close under the work surface as practical but in no case more than thirty feet below such work surface with the exception of bridge construction where only one level of nets is required. Nets shall be hung with sufficient clearance to prevent employees' contact with the surfaces or structures below. Such clearance shall be determined by impact load testing. Click here to view image. (4) The mesh size of nets shall not exceed six inches. All new nets shall meet accepted performance standards of seventeen thousand five hundred foot-pounds minimum impact resistance as determined and certified by the manufacturer, and shall bear a label of proof test. Edge ropes shall provide a minimum breaking strength of five thousand pounds. (5) Forged steel safety hooks or shackles shall be used to fasten the net to its supports. Attachment of safety nets to the working platform is prohibited. (6) Connections between net panels shall maintain the full strength of the net. (M) Working over or near water. (1) Where employees are working over or near water, and where the depth or current of the water creates a danger of drowning, the employer shall provide U.S. coast guard-approved life jackets or buoyant work vests for each employee. (2) Ring buoys with no less than ninety feet of line attached shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed two hundred feet. 7 Appendix m=e865aab032d2a07c8fa7e57dd1f54859& brow... 4/2/2013