Ju^ 18 Ndd CLERK OF COURT SUPREME COURT OF OHIO. State of Ohio, ex rel. David E. Hina, IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO State of Ohio, ex rel. David E. Hina, Appellee, -vs- Industrial Commission of Ohio, et. al., Appellants. On Appeal from the Franklin County Court of Appeals, Tenth Appellate District, Original Action in Mandamus Supreme Court Case No. o7-i984 Court of Appeals Case No. Case No. 07 AP 23 APPELLANT ANCHOR GLASS CONTAINER CORP.'S MERIT BRIEF Thomas L. Reitz (oo68381) Larrimer & Larrimer 165 N. High Street Columbus, Ohio Telephone: (614) Facsimile: (614) tom CQ?larrimer.com Counsel for Appellee, David Hina Joshua R. Bills ( ) Lane, Alton & Horst LLC 175 S. Third Street, Suite 7oo Columbus, OH Telephone: (614) Facsimile: (614) jbillscq?lanealton.com Counsel for Appellant Anchor Glass Container Corp. Kevin Reis (ooo8669) Assistant Attorney General Workers' Compensation Section 15o E. Gay Street, 22nd Floor Columbus, OH Telephone: (614) Facsimile: (614) Counsel for Appellant Industrial Commission of Ohio Ju^ 18 Ndd CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 LAW AND ARGUMENT PROPOSTTION OF LAW...7 H. STANDARD OF REVIEW....7 A. The Hearing Officer's Finding That There Was Not A Violation Of O.A.C. 4121:5-o5(D)(i) Was Based Upon Some Evidence, Which Was Ignored By the Tenth District Court of Appeals C. The Hearing Officer ProperlyApplied O.A.C. 4121: (D)(i) The Hearing Officer's Determination That The Disengagement Lever Was Within Easy Reach Is Based Upon Some Evidence III. CONCLUSION CERTIFICATE OF SERVICE APPENDIX... i6

3 TABLE OF AUTHORITIES Page Cases State ex rel.allerton v. Industrial Com. of Ohio, (1982) 69 Ohio St. 2d State ex rel. Boltenhouse v. Indus. Comm'n, 2oo6 Ohio App. LEXIS 2394, 2oo6-Ohio (Ohio Ct. App. 20o6)... 8,9 State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St. 3d 17o... 9 State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986), 22 Ohio St.3d State ex rel. Crossan v. Cleveland Letter Service, Inc. (2002), 2002 Ohio 43o6...1o State ex rel. Eiliott v. Indus. Comm. (1986), 26 Ohio St.3d State ex rel. Fiber-Lite Corp. v. Indus. Comm. (1988), 36 Ohio St.3d :...7 State ex rel. Goodyear Tire and Rubber Co. v. Indus. Comm. (1974), 38 Ohio St.2d State ex rel. Haylett v. Ohio Bureau of Workers' Comp. (1999), 87 Ohio St. 3d 325, State ex rel. Jeany v. Indus. Comm., Franklin App. No. o2ap-159, 2002-Ohio-6029, at State ex rel. Milburn v. Indus. Comm. (1986), 26 Ohio St.3d State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d State ex rel. Rouch v. Indus. Comm. (1986), 26 Ohio St.3d State ex re1. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d Rules O.A.C 4121:1-5-11(D)(13)... 4, 8 O.A.C. 4121: (D)(2)... 4, 8 O.A.C. 4121: 1-5-o5(D)(1)... 3, 4,11,12,13 ii

4 STATEMENT OF THE CASE AND FACTS This is a workers' compensation case arising as an original action in mandamus. David A. Hina, contended in the Tenth District Court of Appeals that the Industrial Cdmmission of Ohio, abused its discretion in denying his application for a Violation of a Specific Safety Requirement (VSSR) claim. Respondent, Anchor Glass, the employer, maintained in the Court of Appeals that the Commission decision was based upon "some evidence" in the record and therefore Mr. Hina could not show an abuse in discretion and the VSSR must remain denied. The Tenth District Court of Appeals Magistrate heard oral argument on the matter and issued a decision affirming the decision of the Industrial Commission to deny the VSSR filed by Mr. Hina. (R. 69). The magistrate's decision properly held that a lever located on the side of the machine within reach of the operator served as a switch to disengage the machine from power under the administrative code. (R. 69, p. 13). Thus the decision by the Industrial Commission was based on some evidence and therefore not an abuse of discretion in denying the application for a VSSR award. (R. 69, p. 13). Therefore the magistrate determine the court of appeals should deny the writ requested. (R. 69, p. 13). The Court of Appeals, without further oral argument before them, issued a decision (R. 84) and judgment entry (R. 85) reversing only one aspect of the magistrate's findings of fact and conclusions of law as it related to Ohio Adm. Code 4121:1-5-o5(D)(i). However, that one determination the Tenth District held was enough to grant the writ requested in part. (R. 85). The Tenth District held there was a violation of the Ohio Adm. Code 4121:1-5-o5(D)(1). The Court's basis for this decision 1

5 ignores the testimony before the commission that the lever was within reach of the operator and did disengage the cutting head, thereby ignoring "some evidence" in reaching its decision and thus ignoring the law in Ohio. On November 5, 2003, Mr. Hina was injured in the course of and arising out of his employment while working as a machine operator for Anchor Glass Container Corp. (R. 32, p. 1, 2). On April i8, 2005 Mr. Hina filed an application for additional award for violation of specific requirement in a workers' compensation claim, non fatal injury. (R. 32, p. i). On that form Mr. Hina listed only one violation under O.A.C 4121: (D)(13). Mr. Hina also listed only David Lynn and John Gatewood as persons "who witnessed the accident and are familiar with the violation of said specific requirements." (R. 1). Mr. Hina filed an amended VSSR claim on May 12, 2005, this time listing three alleged violations: O.A.C. 4121: 1-5-1i(D)(13) power machine and knives; 4121: 1-5- o5(d)(i) machinery control, disengaging from power supply and 4121: 1-5-o5(D)(2) machine shut down. (R. 32, p. 2). Once again the only witnesses listed with knowledge of facts were David Lynn and John Gatewood. (R. 32, p. 2). Mr. Hina's claim results from his arm becoming caught in a Cincinnati Horizontal Milling Machine (R. 32, p. 4). How his arm became caught is the basis for denial of this VSSR claim as proximate cause of the injury is unknown. Mr. Hina has no memory of the accident (R. 439, P. 77, line 12-19), he doesn't even provide a statement to the Industrial Commission investigator (R. 32, p. 246). Not until after the hearing did Mr. Hina file an affidavit dated post hearing. He had the chance to tell the truth at the hearing and stated he could not remember and even his affidavit is somewhat unclear as to how this machine caused his injury. (R. 32, p. 79). There were no eyewitnesses, despite his listing them on the VSSR application. 2

6 An investigation by the Industrial Commission was commenced by Katie J. Archer and a Report of Investigation completed dated July 26, (R. 32, P ). As this court will see Anchor Glass fully cooperated and provided all witnesses and even provided the actual machine itself to Ms. Archer for review. (R. 32, P. 245). Anchor Glass provided, pursuant to request, a notarized statement regarding the acquisition of the Cincinnati Milling machine (R. 32, p. 258); copy of a statement from Steve Brock (R. 32, p. 26o); copy of a statement from J.F. Beisser (R. 32, p. 261); copy of a statement from Michael Parrish (R. 32, p. 262); copy of Anchor Glass Container Corporation Accident Report (R. 32, p ); copy of OSHA's Form 300, 3ooA & 301 (R. 32, p ); copy of training information (R. 32, p ); copy of Cincinnati Machine Tools Manual (R. 32, P ); copy of machine identification information (R. 32, P. 350); copy of maintenance work order (R. 32, P. 351); and a copy of miscellaneous information including a description of the work site (R. 32, P ). As this court can see the employer did all they could do to determine what happened and if there were safety violations on this machine. The statements of the Anchor Glass employees proved that this machine had never had a prior problem or accident. (R. 32, p. 260, 261, 262). Steve Brock also spoke with Mr. Hina at Riverside Hospital and was told by Mr. Hina he had no recollection of what happened. (R. 32, p. 265). Anchor Glass also provided an affidavit from Kevin Niggemyer, controller, regarding discussions he had with Mr. Hina and his knowledge of the accident. (R. 32, p ). Mr. Niggemyer was at the accident scene shortly after it happened and saw there was no part in the machine. He prepared a report immediately after and made note that there were no witnesses and no part in the machine. (R. 32, p. 243). He also was told there were no witnesses to the accident. Of 3

7 most important note is that Mr. Niggemyer spoke with Mr. Hina on November 7, Mr. Hina claimed he did not remember the accident. (R. 32, p. 371). As this court will see Mr. Hina did not assist Ms. Archer in the attempt to find out what happened during this incident and if a safety violation was the reason. Mr. Hina did not provide an affidavit of what occurred at the time of the injury. In fact, Mr. Hina, through counsel, refused to provide a statement at Mr. Hina's house, but indicated he would provide one at his attorney's office. (R. 32, p. 246). Ms. Archer showed up for the statement from Mr. Hina at his attorney's office on June 3, 2005 as a courtesy. (R. 32, p. 246). Before any statement was provided Mr. Hina's attorney "became rude and stated he did not agree with how the Investigator completed her job." (R. 32, p. 246). No statement was given. Immediately after leaving Ms. Archer contacted Mr. Hina's worker's compensation attorney and was advised by him that he would secure an affidavit. No such affidavit was secured for the investigation or prior to the hearing almost two years later. (R. 32, p. 246). Mr. Hina's witnesses listed on his VSSR application were contacted and all refused to provide an affidavit based upon the pending civil action against Anchor Glass. As such Ms. Archer in #14 of her report provided: Due to the non-cooperation of Mr. Hina's attorney(s), this Investigator was not able to secure an affidavit from David Hina. Furthermore, this Investigator was unsuccessful in securing affidavits from the witnesses due to the witnesses' pending depositions in the civil case involving Mr. Hina and Anchor Glass. (R. 32, p. 246). As this court is aware, no opinion is formulated by the investigator as to whether or not a violation occurred. However, the information contained within the investigators report makes it very clear the only party cooperating on determining what happened to Mr. Hina was his employer, Anchor Glass. Upon completion of the 4

8 investigation, the matter was set for hearing. At no time prior to or at the hearing was an affidavit provided by Mr. Hina as to how the accident occurred. Even his testimony at the hearing made it clear Mr. Hina had no idea how his injury to his left hand occurred: Q. (Mr. Larrimer) And what were you doing with your left hand? A. (Mr. Hina) I've - - I went over this exercise thousands and thousands of times every day. I go through it and try to analyze what actually happened. I cannot visually- - I cannot tell you what I was doing. (emphasis added) (R. 32, P. 437, P. 71, lines 2-7). Mr. Hina did admit that he was not running the machine with a blank in it, simply getting the machine set up. (R. 32, P. 438, P. 75, lines 12-18). However, other times he claimed he was getting ready to run the machine and not merely setting up and had a blank on the machine. On March 16, 20o6, Mr. Hina's VSSR Application was heard before the Commission. (R. 32, p. 3-7). Present at the hearing behalf of the relator were Mr. Hina, his attorney, Mr. Larrimer, fact witness, Mr. Hoff and fact witness, Mr. Emmert. (R. 32, p. 3) Noticeably absent were the witnesses listed on Mr. Hina's two applications. The investigator for the Industrial Commission, Katie J. Archer, attempted to contact Mr. Lynn during her investigation and was told by a female at Mr. Lynn's phone number that "Mr. Lynn will not be returning this investigator's telephone call." (R. 32, P. 245). The other witness listed by Mr. Hina to the accident, Mr. Gatewood, spoke with the investigator but would not give an affidavit of what happened. Mr. Gatewood did tell the Ms. Archer he was one of the first responders to the injury, but made no representation that he saw how the accident occurred or that there was a violation. No further testimony from either of these witnesses was presented for determination in this VSSR claim. 5

9 Present on behalf of the respondent were their attorney, Mr. Hartranft, Anchor Glass controller, Mr. Niggemeyer, Anchor Glass maintenance supervisor, Mr. McLoughlin, Anchor Glass general manager, Mr. Brock, Anchor Glass Production superintendent, Mr. Beisser and expert witness, James Vaughn. The Staff Hearing office Mark Holko conducted a thorough review of all the evidence filed and presented live before issuing his ruling concerning Mr. Hina's VSSR application. The Commission denied Mr. Hina's VSSR application, on the finding that under the three O.A.C. rules presented by claimant there was no violation. Under O.A.C. 4121:1-5-ii(D)(13) the hearing officer determined through the testimony of James Vaughn, the only expert presented in this case and his own personal observation of the cutting wheel that the Cincinnati milling machine did not fall under this administrative code section. (R. 32, p. 4). Under O.A.C. 4121: i-5-o5 (D)(2) the hearing officer determined the claimant presented no evidence of any violation and Anchor Glass submitted a large amount of evidence and therefore there was no violation. (R. 32, p. 4) Lastly, under 4121: 1-5-o5(D)(1) the hearing officer after a lengthy analysis and review of all evidence on shut off/disengaging from power, he determined that claimant could not show how his injury was proximately caused by any alleged violation, even if one were present, which respondent argues it was not. (R. 32, P. 4-7). Mr. Hina filed a motion for reconsideration including the affidavit of Mr. Hina for the first time. (R. 32, P ). A response was filed by Anchor Glass. (R. 32, p ). The Industrial Commission determined there was no new evidence or facts that would warrant a rehearing of the matter. (R. 32, p. io). These findings were based upon all the evidence presented by all parties and the hearing officer set forth with specific detail the basis for his determination of no 6

10 violations. As such, there is some evidence to support the denial of the VSSR application and thus no basis for a mandamus action. LAW AND ARGUMENT 1. PROPOSITION OF LAW The Industrial Commission properly determined under the O.A.C. there was "some evidence" to deny the VSSR application of Mr. Hina. The Tenth District Court of Appeals improperly applied the standard of "some evidence" and substituted its own judgment for that of the Industrial Commission in direct contradiction to Ohio law. As a result, the Tenth District Court of Appeals improperly determined that a Violation of a Specific Safety Requirement (VSSR) existed on a milling machine at Anchor Glass used by Mr. Hina. That determination overturned the decision of the Industrial Commission and the court's magistrate. II. STANDARD OF REVIEW. For a writ of mandamus to have been issued by the Court of Appeals, Mr. Hina had to demonstrate that he had a clear legal right to the relief sought and that the Commission had a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. In order to establish that a clear legal right to relief existed, Mr. Hina must have shown that the Commission abused its discretion by issuing an order that is not supported by any evidence in the administrative record. See State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. Where there is some evidence contained within the record to support the Commission's decision, the courts will not disturb such findings in mandamus. State ex rel. Fiber-Lite Corp. v. Indus. Comm. (i988), 36 Ohio St.3d

11 The Commission's actions are presumed to be valid and performed in good faith and judgment, unless shown to be otherwise. State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167. Moreover, mandamus shall not lie to control the discretion vested in the Commission, so long as the decision is exercised solely within legal bounds. State ex rel. Goodyear Tire and Rubber Co. v. Indus. Comm. (1974), 38 Ohio St.2d 57. It is well established that the determination of disputed facts and the weighing of evidence are exclusively within the jurisdiction and authority of the Commission. State ex rel. Milburn v. Indus. Comm. (1986), 26 Ohio St.3d ii9. Such determinations are subject to change only upon the showing of an abuse of discretion by the Commission. Ohio courts abide by the premise that "a writ of Mandamus is an extraordinary remedy." State ex rel. Haylett v. Ohio Bureau of Workers' Comp. (1999), 87 Ohio St. 3d 325, 334. The relator bears the burden of proof to demonstrate an abuse of discretion. State ex rel. Jeany v. Indus. Comm., Franldin App. No. o2ap-159, 2002-Ohio-6029, at 52. In the instant case, Mr. Hina requested the Court of Appeals to issue a writ of mandamus even though the Commission's decision was clearly exercised within the legal bounds of its discretionary powers and based upon some evidence. The standard in determining whether a VSSR application should be remedied via a writ of mandamus is for Mr. Hina to show this court that there is no evidence which supports the determination. Mr. Hina is simply arguing in his brief that he disagrees with the evidence relied upon, not that there was none present. Mr. Hina must show a clear legal right to the relief sought and that the Commission has a clear legal duty to provide such relief. State ex rel. Boltenhouse v. Indus. Comm'n, 2oo6 Ohio App. LEXIS 2394, 20o6-Ohio (Ohio Ct. App. 2oo6). "A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by 8

12 entering an order that is not supported by any evidence in the record." (emphasis added) Id. at **11. Where the record contains some evidence that supports the Commission's factual findings, those findings will not be disturbed. State ex rel. Allerton v. Industrial Com. of Ohio, (1982) 69 Ohio St. 2d 396. Further, in order to prevail under a VSSR application the law in Ohio requires three elements: (1) the cited code section applies to the circumstances of the employment being performed at the time of the injury; (2) the code section was violated by non-compliance with its mandates; and (3) the violation was the proximate cause of the incident. (R. 3) Also, State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986), 22 Ohio St.3d 191. As a VSSR award is punitive, the specific safety requirement must be strictly construed in favor of the employer. State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St. 3d 170. In light of the above standards, the Industrial Commission properly denied Mr. Hina's VSSR application and the Tenth District Court of Appeals improperly held a violation of the safety requirement had occurred. The determination by the Tenth District Court of Appeals that a violation under the Ohio Adm. Code 4121:1-5-o5(D)(1) existed ignored the above established laws and principles. A. The Hearing Officer's Finding That There Was Not A Violation Of O.A.C. 4121:5-05(D)(1) Was Based Upon Some Evidence, Which Was Ignored By the Tenth District Court of Appeals. The Tenth District Court of Appeals improperly inserted its own opinion for that of the Industrial Commission as it relates to disengaging a machine from the power supply. 9

13 O.A.C. 4121:1-5-05(D)(i) section provides: (D) Machiner control (i) Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mills nor to electrical power generation or conversion equipment. (R. 32, P. 4-5). The Tenth District's opinion that the Cincinnati Milling machine's power engagement arm does not disengage the machine from its power source ignores the evidence submitted and examined by the Industrial Commission. Hearing officer Holko relied upon some evidence in the form of testimony of witnesses and visual inspection of the machine to make a determination that there were means for disengaging the machine. The Staff Hearing Officer found that the milling machine in question had two means of disengaging power: (i) the main shut-off switch; and (2) the engagement/disengagement lever. If either of these means of disengaging power were within the easy reach of an operator standing in Mr. Hina's position at the time of injury, there would be no violation of O.A.C. 4121:i-5-05(D)(i). The Hearing Officer then found that while the main shut off switch was not within easy reach of Mr. Hina because it was located on the other side of the milling machine, the engagement/disengagement lever was within easy reach and, therefore, there was no violation of O.A.C. 4121:1-5-05(D)(1). In the case of State ex rel. Crossan v. Cleveland Letter Service, Inc. (2002), 2002 Ohio 43o6, the Tenth District Court upheld a denial of a VSSR application as there was no evidence present to show a violation under O.A.C. 4121;i-5-o5(D)(i), the same section in this case. In the Crossan case, claimant alleged the machine mysterious turned on and caused his arm to be caught in a printing press. This court held that there 10

14 was no violation because the commission properly viewed the evidence and made a sound determination as claimant could not explain how the machine came on, there were no prior violations and there was no evidence of how the machine failed. In the case at bar, the hearing officer found the lever to disengage the machine was working, there was never a prior incident and Mr. Hina could not explain, even in his affidavit after the hearing, how his arm because caught in the machine. B. The Hearing Officer Properly Applied O.A.C. 4121:1-5-05(D)(1). The Tenth District seems to assume the argument asserted by Mr. Hina that because the disengagement lever did not shut down power to the entire milling machine and did not bring the cutting wheel to a immediate halt, the Staff Hearing officer committed an obvious mistake of fact in holding that the disengagement lever satisfied the requirements of O.A.C. 4121:1-5-o5(D)(1). This allegation which, simultaneously accuses the Hearing Office of improperly removing a requirement from the safety standard while improperly inserting an additional requirement, is without merit. There was testimony at the hearing that the disengagement lever acted like a clutch, disengaging the cutter heads from the power supply. This was supported by testimony of fellow workers and Anchor Glass employees. Mr. Hoff, relator's witness at hearing, testified if the arm was disengaged while a part was running it would vibrate and arm would become disengaged and shut down. Mr. Hoff made it clear that this stopping of the cutter would bust sometimes because when that arm disengaged it would stop immediately. And potentially even break the cutter because it stopped so fast. (R. 32, P. 425, P. 22). The Court of Appeals indicated it was obvious that the lever was not a means of disengaging power, however, the court ignored the evidence of the Cincinnati milling 11

15 machine booklet, which was referenced by the magistrate. Specifically, the booklet states under the heading "Rear Table Feed Engaging Lever" that: The rear table feed lever is shown in Figure 23B. This lever permits the operator to engage power feed from a behind the table operating position. Emphasis added. (R. 32, p. 312) The Hearing officer, properly interpreting the safety standard narrowly, determined that this complied with O.A.C. 4121:1-5-o5(D)(1). The court of appeals ignored the evidence relied upon by the hearing officer and made its own interpretation, which is improper. The Court of Appeals indicated the disengaging standard required a shut off button, which is simply not present under the code. The Court of Appeals matter of factly stated a lever is not a power shut off, and simply ignored the evidence before it. C. The Hearing Officer's Determination That The Disengagement Lever Was Within Easy Reach Is Based Upon Some Evidence. The Court of Appeals state that the lever was not a shut off and therefore no shut was within easy reach is wrong. The Hearing Officer found, Mr. Hina's testimony as to his positioning and activities was "confusing" and "contradictory." (R. 32, p. 6). Specifically at the hearing Mr. Hina claimed he did not know how the accident occurred. A. (Mr. Hina) I cannot truthfully tell you how it happened. I said, you know, I - - don't know. I cannot describe how it happened. I don't know how it happened. Q. (Mr. Hartranft) Okay. Did you tell them what you were doing when the accident happened? A. (Mr. Hina) I can't remember now, truthfully. It's been two and a half years. (R. 32, P. 439, P. 77, line 12-19). Even Mr. Hina's sworn affidavit after the hearing, with all the time in the world to reflect on how his injury occurred, could not come up with an answer: I cannot remember exactly what movement I was engaged in or exactly how my left arm got caught in the revolving spindle... (R. 32, P. 79). 12

16 Mr. Hina claimed there was a blank or mold on the machine per the testimony when questioned by Mr. Hartranft (R. 32, P. 439, P. 19), but had denied any blank in the machine when questioned by the hearing officer. (R. 32, P. 438, p. 74, lines through p. 75, line 1). Further all the witnesses testified that there was no blank in the machine. This combined with the testimony of other witnesses that it was possible to use the disengagement lever from where Mr. Hina was standing at the time of the accident was some evidence for the Hearing Officer to conclude that the disengagement lever was within easy reach. Specifically Mr. Hoff testified that in order to set the speed dial both hands were engaged on the machine and therefore could not be contacted with the cutter (R. 32, P. 427, P. 30). There is no dispute that there was no blank in the machine, therefore the only possibility is that Mr. Hina was setting the machine for use. Which would require both hands. Mr. Beisser, a recently retired Anchor Glass employee which was production superintendent testified that if Mr. Hina was in front of the machine as he claimed at the hearing, that there is no way for an operator's hands to come in contact with any cutting blades. (R. 32, P. 448, p. 115, lines through p. 116, lines 1-4). Mr. Hina's disagreement with the Hearing Officer's findings does not mean there was not some evidence to support his determination. The Court of Appeals ignored this evidence in making its determination and therefore ignored the standard of "some evidence." 13

17 III. CONCLUSION For all of the foregoing reasons, Anchor Glass maintains that the Tenth District Court of Appeals determination that a violation of Ohio Adm. Code 4121:1-5-05(D)(1) is error and ignores the law in Ohio that requires the Court of Appeals to affirm the Industrial Commission's decision as long as there is "some evidence" to support their decision. The Tenth District Court of Appeals did not defer but instead interpreted the evidence to support their own determination, not proper under the law. As this court stated in State ex rel. Rouch v. Indus. Comm. (1986), 26 Ohio St.3d 197: The extraordinary writ of mandamus will not be issued to interfere with or control the exercise of the Industrial Commission's sound discretion in awarding or denying disability benefits when some evidence in the record supports the commission's finding. (emphasis added). In this case, the Commission did not abuse its discretion. Accordingly, Anchor Glass respectfully requests that this Court overturn the decision of the Tenth District and hold that no violation of a specific safety requirement has occurred under the Ohio Adm. Code 4121:1-5-o5(D)(i), and deny Mr. Hina's requested writ of mandamus. Respectfully submitted, LANE, ALTON & HORST LLC oshu R. Bills ( ) Two Miranova Place, Suite 5oo Columbus, OH Telephone: (614) o Facsimile: (614) jbillsc&lah4law.com Attorney for Anchor Glass Container Corp. 14

18 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing was served upon the following by ordinary, U.S. mail, postage prepaid, this day of June, 2oo8: Thomas L. Reitz, Esq. Larrimer & Larrimer 165 N. High Street Columbus, OH Counsel for Relator David Hina Kevin Reis, Esq. Assistant Attorney General Workers' Compensation Section 15o E. Gay Street, 22nd Floor Columbus, OH Counsel for Respondent Industrial Commission of Ohio 15

19 APPENDIX Notice of Appeal of Respondent-Appellant Anchor Glass Container Corporation dated October 26, i Court of Appeals Judgment Entry dated September 13, Court of Appeals Decision dated September 6, Magistrate's Decision Rendered June 19, The Industrial Commission of Ohio Record of Proceedings Ohio Administrative Code 4123: Page 16

20 1 IN THE SUPREME COURT OF OHIO State of Ohio, ex rel. David E. Hina, Relator-Appellee, V. Industrial Commission of Ohio and Anchor Glass Container Corporation. : On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 07AP-23 Respondents-Appellants. NOTICE OF APPEAL OF RESPONDENT-APPELLANT ANCHOR GLASS CONTAINER CORPORATION Joshua R. Bills ( ) Mary Barley-McBride ( ) Edward G. Hubbard ( ) LANE, ALTON & HORST LLC Two Miranova, Suite 500 Columbus, Ohio Telephone: (614) Facsimile: (614) ibilisca'7laneaiton.com Counsel for Respondent-Appellant Thomas L. Reitz ( ) Larrimer & Larrimer 165 N. High Street Columbus, Ohio Telephone: (614) Facsimile: (614) torria-larrimer.com Attorney for Relator-Appellee David Hina Kevin Reis ( ) Assistant Attorney General Workers' Compensation Section 150 E. Gay Street, 22"d Floor Columbus, OH Telephone: (614) Facsimile: (614) Attorney for Respondent-Appellee Industrial Commission of Ohio OCT 2 6 l o(.i ;^ CLERK OF COURT SUPREME COURT OF OHIO { I

21 2 NOTICE OF APPEAL OF RESPONDENT-APPELLANT ANCHOR GLASS CONTAINER CORPORATION Respondent-Appellant Anchor Glass Container Corporation hereby gives notice of appeal to the Supreme Court of Ohio from the judgment of the Tenth Appellate District Court of Appeals, entered in Case No. 07AP-23 on September 13, This case is being appealed as it originated in the Court of Appeals on a mandamus action for a determination of a VSSR award pursuant to Ohio Workers' Compensation law. Attached to this Notice of Appeal is the one page Judgment Entry showing a filing date of September 13, Respectfully submitted, LANE ALTON & HORST LLC Josh^a R. Bfils ( ) arley-mcbride ( ) Edward G. Hubbard ( ) Two Miranova, Suite 500 Columbus, Ohio (614) (phone) (614) (fax) ibillsmanealton.com Attorneys for Respondent-Appellant Anchor Glass Container Corporation 2 2

22 3 CERTIFICATE OF SERVICE I hereby certify that ^ cop of the foregoing was served by regular U.S. Mail, postage prepaid, this ^ October, 2007, to the following: Thomas L. Reitz Larrimer & Larrimer 165 N. High Street Columbus, Ohio Attorney for Relator-Appellee David Hina Kevin Reis Assistant Attorney General Workers' Compensation Section 150 E. Gay Street, 22"d Floor Columbus, OH Attorney for Respondent-Appellant Industrial Commission of Ohio 3 3

23 C. vur I,, "' J State ex rel. David E. Hina, Relator, 4 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT ',,. y 2'l i i r;ii '.', "!! i2ts V.. No. 07AP-23 Industrial Commission of Ohio and (REGULAR CALENDAR) Anchor Glass Container Corporation, Respondents. JUDGMENT ENTRY For the reasons stated in the decision of this court rendered herein on September 6, 2007, we adopt the findings of fact and conclusions of law contained in the magistrate's decision except with respect to Ohio Adm.Code 4121:1-5-05(D)(1). The requested writ of mandamus is granted in part. The finding of the commission that no VSSR occurred is ordered to be vacated. The commission shall enter an order finding a violation of Ohio Adm.Code 4121:1-5-05(D)(1). The commission shall determine whether said violation was a direct and proximate cause of relator's injuries, and if so, enter an appropriate VSSR award. Costs are assessed against respondent Industrial Commission of Ohio. Within three ( 3) days from the flling hereof, the clerk of this court is hereby ordered to serve upon all parties not in default for failure to appear notice of this judgment and its date of entry upon the journal. C-22.d^,.^^. Judge G Gary $^acku f^jgig^'^4 ^^ (.^ x.-,wl1.^.fudge tnlliam A. Klatt Judge Judith L. French

24 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT 2)u7 S^r' -o rii 7: State ex rel. David E. Hina, Relator, v. No. 07AP-23 Industrial Commission of Ohio and Anchor Glass Container Corporation, : (REGULAR CALENDAR) Respondents. D E C I S I 0 N Rendered on September 6, 2007 Larrimer & Lanimer, and Thomas L. Reitz, for relator. Marc Dann, Attomey General, and Kevin J. Reis, for respondent Industrial Commission of Ohio. Lane, Alfon & Horst LLC, and Joshua R. Bills, for respondent Anchor Glass Container Corporation. IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION TYACK, J. {11} Relator, David E. Hina, filed this action in mandamus seeking a writ to compel the Industrial Commission of Ohio ("commission") to vacate its order denying him an award for an alleged violation of a specific safety requirement ("VSSR") from Anchor 5

25 No. 07AP Glass Container Corporation ("Anchor Glass"). Relator requests that the writ also compel the commission to grant him an award for VSSR. {12} In accord with Loc.R. 12, the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated to pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision which contains detailed findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate's decision includes a recommendation that we deny the request for a writ of mandamus. {13} Counsel for relator has filed objections to the magistrate's decision. Counsel for Anchor Glass and counsel for the commission have each filed a memorandum in response. Counsel for relator has also filed a notice of filing of supplemental authority. The case is now before the court for review. {14} Relator had his hand caught in the cutters of a milling machine, resulting in significant injuries. He filed an application for a VSSR award based upon an allegation of failure of Anchor Glass to provide a means for disengaging the machine from its power supply and a failure to provide a device to lock the controls of the machine in the off position when the machine was shut down. { 5} A hearing was heard before a staff hearing officer ("SHO") of the commission, who found no VSSR. The SHO found the milling device had no knives, so no violation of Ohio Adm.Code 4121: (D)(1 3) occurred. The SHO found no violation of Ohio Adm.Code 4121:1-5-05(D)(2) because of Anchor Glass's '9ock outltag-ouy' procedure. {16} In a detailed analysis, the SHO found no vioiation of Ohio Adm.Code 4121:1-5-05(D)(1), despite finding the power switch to be inaccessible to the operator. 6

26 7 No. 07AP-23 3 The SHO reasoned that a lever which acted to engage or disengage the moving parts of the milling machine could be considered as a switch to disengage the machine from its power supply, even though it did not disrupt the flow of electricity Into the milling machine. There also was testimony before the SHO that the lever which engaged or disengaged the moving parts would be held in position by large rubber bands by workers with Anchor Glass because of difficulties in performing the expected tasks. {17} In the objections filed on behalf of relator, counsel for relator questions the distinction drawn between the cutting heads which gouge out a cut and cutting blades. Counsel also questions the interpretation of the SHO and the magistrate with respect to a cut-off switch. {18} As to the cutting head in the milling machine, the SHO was within the range of discretion to find that the milling machine did not house power driven knives or cutting blades. Therefore, Ohio Adm.Code 4121:1-5-11(D)(13) was not violated. This objection is overruled. (19} The provision of Ohio Adm.Code 4121:1-5-05(D)(1) states: (D) Machinery control. (1) Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mills nor to electrical power generation or conversion equipment. { 10} The evidence before the commission clearly establishes that the milling machine had no means within easy access of the operator for disengaging the machine from its power supply. The attempt to equate a lever which moved the moving milling 7

27 No. 07AP parts from one place to another with a switch or other device to immediately cut off the power to the machine is an attempt to avoid the obvious. The machine simply did not comply with Ohio Adm.Code 4121:1-5-05(D)(1). (111) Relator had his arm drawn into the milling machine. He could not hit a cutoff switch because there was no cut-off switch accessible. The VSSR was clearly established unless the honorable court engages in a tortuous interpretation of what a power supply is. We are not willing to do so. We sustain this objection. We adopt the findings of fact and the conclusions of law contained in the magistrate's decision except with respect to Ohio Adm.Code 4121:1-5-05(D)(1). ( 12) As a result, we grant the requested writ of mandamus in part. The finding of the commission that no VSSR occurred is ordered to be vacated. The commission shall enter an order finding the existence of a VSSR based upon a violation of Ohio Adm.Code 4121:1-5-05(D)(1) and assess an appropriate award for the VSSR, following a determination of whether or not the VSSR was a direct and proximate cause of Mr. Hine's injuries. KLATT and FRENCH, JJ., concur. Objections sustained in part; writ of mandamus granted in part. 8

28 9 No. 07AR23 5 APPENDIX A IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. David E. Hina, Relator, v. No. 07AP-23 Industrial Commission of Ohio and Anchor Glass Container Corporation, (REGULAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered on June 19, 2007 Larrimer & Lanimer, and Thomas L. Reitz, for relator. Marc Dann, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio. Lane, Atton & Horst LLC, and Joshua R. Bills, for respondent Anchor Glass Container Corp. IN MANDAMUS (113) Relator, David E. Hina, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order denying his application for an additional award for respondent Anchor Glass Container Corporation's ("employer") violation of a specific 9

29 No. 07AP safety requirement ("VSSR"), and ordering the commission to issue an order granting the requested VSSR award. Findings of Fact: {114} 1. Relator sustained a work-related injury on November 5, 2003, when his left hand was caught in the cutters of a milling machine. Relator sustained significant injuries which are not at issue in this case. { 15} 2. On April 18, 2005, relator filed an appiication seeking an additional award for a VSSR alleging that his employer violated the following Ohio Adm.Code provisions: 4121:1-5-11(D)(13) and 4121:1-5-05(D)(1) and (2). Relator argued that the employer was required to guard the machine in question, did not provide the proper means for disengaging the machine from its power supply, and failed to provide a device to lock the controls of the machine in the off position when it was shut down. { 16} 3. Relator's application was heard before a staff hearing officer ("SHO") on March 16, 2006, and resulted in an order denying the request for an additional award for a VSSR. First, the SHO found that there was no violation of Ohio Adm.Code 4121: (D)(13), which provides: (D) Other power machines and machine tools. (13) Knives. All power driven knives or cutting blades, such as reciprocating knives, endless band knives, flying knives, slicer blades, and similar cutting machines, where exposed to contact, shall be guarded except for the necessary working portion of the blade while being used. Exception. 10

30 11 No. 07AP-23 7 Machinery covered expressly by requirements contained in other codes of specific requirements of the industrial commission of Ohio. tv17) { 1s} 4. The SHO provided the following reasoning: The Cincinnati Horizontal Milling Machine in question does not perform its function with "knives", "cutting blades", "reciprocating knives", "endless band knives", "flying knives", "slicer blades", or some device "similar". The claimant/injured worker brought to hearing two (2) of the cutter items. They are more properly cutter wheels or cutter heads. They can be safely picked up with one's hands. There is not a blade or knife aspect to the items. The employer's expert witness, Mr. Vaughan, testified to what the cutting items were called in this industry. He stated they could be termed cutter heads or miuing heads. The Hearing Officer refies on his testimony in this aspect. There are photographs that show the items in question. These are photographs numbers 4 and number 5. Visually these items confirm Mr. Vaughan's testimony that these items are not knives or blades. 5. Thereafter, the SHO found that there was no violation of Ohio Adm.Code 4121:1-5-05(D)(2), which provides: (D) Machinery control. eww (2) When machines are shut down. The employer shall furnish and the employees shall use a device to lock the controls in the "ofr' position or the employer shall furnish and the employees shall use waming tags when machines are shut down for repair, adjusting, or cleaning. (119) 6. The SHO reasoned as follows: The employer has submitted a large amount of evidence as to its "lock-outitag-out" procedure. This includes instructions, training sessions, and work signatures of employees. The compliance of the employer with this subsection has not been challenged with any evidence. 11

31 No. 07AP {120} 7. The majority of the SHO's order focused on relator's application concerning a violation of Ohio Adm.Code 4121:1-5-05(D)(1), which provides: (D) Machinery control. Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mills nor to electrical power generation or conversion equipment. { 21} 8. In resolving this issue, the SHO acknowledged that the machine was equipped with a power switch which controlled electricity to the entire machine. This switch was located on the opposite side of the operator. The SHO determined that this power switch did not meet the requirements of the above subsection because it was not within easy reach of the operator. However, the SHO noted that the machine was equipped with a lever on the side where the operator stood which acted to engage and disengage the moving parts of the machine. The SHO explained: * * * [A] handle or lever on the side where the operator would stand, started and stopped the moving parts of the machine. The cutter heads attached to a spindle. The spindle and the heads were motionless until the operator pulled the lever forward. The handle or lever controlled the spinning of the spindle and, thus, the cutter heads. When pulled back, the action of the machine stopped. If the lever qualifies as an acceptable means of "disengaging it from its power supply" is a central question here. { 22} 9. After considering the evidence, the SHO ultimately concluded that this lever qualified as a control that could disengage the machine from its power supply. {123} 10. Various employees testified at the hearing concerning the use of the machine at issue. It was explained that the milling machine was used to make cuts, or 12

32 13 No. 07AP-23 9 grooves, in moids. Before a cut could be made, the operator needed to set the proper speed. Testimony indicated that the machine was equipped with a dial which set the speed of the spindle. However, testimony indicated that the dial was not necessarily accurate, and that the operators needed to visually observe the speed of the spindle while adjusting the speed on the diai. As such, the operator would use the lever to engage the spindle so that it was spinning at the same time the operator used the dial to set the speed (both hands would be occupied). Thereafter, the operator would place a mold into the device and prepare to make the cuts. The lever was pulled to one side to engage the cutter heads and begin the spinning; the mold was positioned where the cutter heads could make the cut; once the cuts had been made, the lever was moved in the opposite direction to disengage the cutter heads from spinning. There was also testimony that, when making heavy cuts, the lever would vibrate. When this happened, the cutter heads were affected, the speed changed, and the cutter heads could break. As such, operators routinely used heavy duty rubber bands to secure the lever in place when making heavy cuts. {124} 11. Because the lever both engaged and disengaged the spinning of the spindle and the cutter heads, and the lever was on the same side as the operator, the SHO concluded that the lever satisfied the requirements of Ohio Adm.Code 4121: (D)(1). { 25} 12. Much of the testimony involved the use of the heavy duty rubber bands to hold the lever in place while heavy cuts were being made. The SHO found that the employer acknowledged the use of the banding devices and, as a result, when the rubber bands were being used, there was no effective, non-impaired means of 13

33 No. 07AP disengaging the action of the machine within easy reach of the operator. As such, the SHO found that when heavy cuts were being made, Ohio Adm.Code 4121:1-5-05(D)(1) was being violated. However, the SHO found that relator's injuries did not occur when a heavy cut was being made. (126} 13. The SHO acknowledged that part of the difficuity at the hearing was occasioned by the fact that there were no eye witnesses to the accident and relator admitted that he really could not remember exactly what he was doing or explain how the accident happened. In this regard, the SHO stated as follows: There was no part in the machine when the injury occurred. So, the injury did not occur during the actual cutting phase of the operation of the machine. If a part was in the machine much of the action of the cutter heads would be blocked by the part or blank. However, even with a part, blank, or mold, in the machine there was still, it is found, a risk of injury. The risk would be reduced, but a risk of injury would still be present. However, it would, most likely, not be the type of injury that occurred here with the cutter heads acting to puli the injured worker's arm into the machine. The point is, somewhat, academic because the injury here occurred without a part in the machine. The injured worker was, apparentiy, at some set-up phase of the operation when he was injured. So, there is the question of whether the power shut-off lever was impaired at the phase of the operation at which the injured workers arm was caught in the machine. It has not been shown that the power engagement arm and disengagement arm was impaired when the accident occurred. Even from the injured worker's testimony the status of the power engagement/disengagement arm cannot be determined. The injured worker testified that he would shut the cutters off before loading a part. If he was at the phase of still setting the speed dial, and was in the process of attaching the banding device it would make some sense of the situation. However, it is not clear, if while doing this, whether the power arm or lever had the banding device attached. There is no evidence in the investigation report nor from any witness, including the claimant's witnesses, that the 14

34 15 No. 07AP banding device was holding the power engagement arm or fever when the injured worker's arm was removed from the machine. It has not been shown, therefore, that the power engagement lever was not fully functional to shut the cutter heads off when the accident occurred. Thus, even though it cannot be condoned to use rubber bands to form a device to operate this machine, and even though the use of the banding device impaired the means of disengaging the power to the cutter heads at one phase of the operation of this machine, contra to OAC 4121:1-5-05(D)(1), the use of the banding device was not, or has not been shown, to be the proximate cause of the accident. Therefore, the IC-8 application is denied. {127) 14. Relator filed a motion for reconsideration including an affidavit prepared by relator. That motion was denied. (128) 15. Thereafter, relator filed the instant mandamus action in this court. Conclusions of Law: { 29} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm. (1981), 68 Ohio St.2d

35 No. 07AP (130} In regard to an application for an additional award for a VSSR, the claimant must establish that an applicable and specific safety requirement exists which was in effect at the time of the injury, that the employer failed to comply with the requirement, and that the failure to comply was the proximate cause of the injury in question. State ex ret. Trydte v. lndus. Comm. (1972), 32 Ohio St.2d 257. The interpretation of a specific safety requirement is within the final jurisdiction of the commission. State ex rel Beny v. Indus. Comm. (1983), 4 Ohio St.3d 193. Because a VSSR award is a penalty, however, it must be strictly construed and all reasonable doubts concerning the interpretation of the safety requirement are to be construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170. The question of whether an injury was caused by the employer+s failure to satisfy a specific safety requirement is a question of fact to be decided by the commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F Industries v. Indus, Comm. (1986), 26 Ohio St.3d 136; and State ex rel Ish v. Indus. Comm. (1985), 19 Ohio St.3d 28. ( 31} For the reasons that follow, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying his application for an additional award for a VSSR. { 32} Relator has asserted a violation of Ohio Adm.Code 4121:1-5-11(D)(13), which provides: (D) Other power machines and machine tools. www (13) Knives. 16

36 17 No. 07AP All power driven knives or cutting blades, such as reciprocating knives, endless band knives, flying knives, slicer blades, and similar cutting machines, where exposed to contact, shall be guarded except for the necessary working portion of the biade while being used, Exception. Machinery covered expressly by requirements contained in other codes of specific requirements of the industrial commission of Ohio. {V33j The SHO determined that the cutter heads did not fall under the definition provided above. In making that finding, the SHO relied upon the testimony of Mr. Vaughan, the empioyer's expert witness, who testified that the cutter heads were not knives. The SHO also had the opportunity to personally view and handle the cutter heads. Based upon the testimony and the opportunity to actually view and handle the cutter heads, the SHO concluded that they did not fall under the above definition. The SHO also relied upon photographs numbers four and five, which are at pages 360 and 361 of the stipulated evidence'. The magistrate also notes that photograph 16, at page 366, shows the type of cuts which are made in the molds. In essence, the cutting heads gouge grooves into a mold. Those groves were cut to provide air to circulate while the mold was in use in whatever machine it was designed for. { 34} Whether or not the cutter heads fall under the definition provided in Ohio Adm.Code 4121:1-6-11(D)(13), is a question of fact. The SHO was able to personally view and handle the cutter heads, saw a picture of the type of cut the cutter heads made in molds, and heard testimony. Although relator contends that the cutter heads 17

37 No. 07AP fall under the portion of "similar cutting machines," the magistrate notes that the cutter heads do not make cuts similar to a knife. Instead, the cutter heads gouge out material. This magistrate cannot say that the commission abused its discretion in finding that the cutter heads did not fall under the definition provided in Ohio Adm.Code 4121: (D)(13), (1135) Next, the SHO found that relator did not establish a violation of Ohio Adm.Code 4121:1-5-05(D)(2), which provides: (D) Machinery control. (2) When machines are shut down. The employer shall furnish and the employees shall use a device to lock the contro{s in the "off" position or the employer shall furnish and the employees shall use waming tags when machines are shut down for repair, adjusting, or cleaning. t1361 In this mandamus action, relator does not make an argument that the commission abused its discretion in this regard. After reviewing the stipulation of evidence, the magistrate finds that there was no evidence presented that the machine was shut down for repair, adjusting, or cleaning. Instead, the evidence showed that the machine was turned on and relator was making necessary adjustments in preparation of making a cut on specific molds. As such, the magistrate finds that the commission did not abuse its discretion in finding that Ohio Adm.Code 4121:1-5-05(D)(2) was not violated. ' Pages showing photographs of various parts of the machine are out of order in the stipulation of evidence. They are tocated between pages 243 and 244 in the stipulation of evidence. 18

38 19 No. 07AP {1137} The SHO also found that relator did not establish a violation of Ohio Adm.Code 4121:1-5-05(D)(1), which provides: (D) Machinery control. Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mllis nor to electrical power generation or conversion equipment. {138}!n this regard, the SHO essentially made three relevant findings: (1) the switch on the machine which controlled the electricity for the entire machine was on the opposite side of the operator and did not meet the requirements of the subsection because it was not within easy reach of the operator; (2) when the operator was utilizing rubber bands to secure the spindle lever, the spindle lever was not able to provide the operator with a means of disengaging the spindle and cutter heads from its power supply and, when the rubber bands were being used, there was no effective, nonimpaired means of disengaging the action of the machine within easy reach of the operator; and (3) when rubber bands were not being used to hold the spindle lever in place, the spindle lever provided an acceptable means of disengaging the machine from its power supply. ( 39) In this mandamus action, relator does not challenge the first two findings. However, relator does challenge the commission's finding that when rubber bands were not being used, the spindle lever, in and of itself, provided the operator with an acceptable means of disengaging the machine from its power supply. In arguing that the commission abused its discretion in this regard, relator argues that the spindle lever 19

39 No. 07AP cannot constitute an acceptable means of disengaging the machine from its power supply because moving the spindle lever to the off position did not instantaneously stop the cutter heads from spinning. Instead, the spindle lever was described as being similar to a clutch in a manual transmission car. Putting the lever in the off position essentially put the spindle and cutter heads in neutral. The cutter heads were no longer being turned by a power source; instead, they slowed down and eventually stopped. Relator contends that compliance can only be accomplished if the spindle lever would have immediately stopped the cutter heads from spinning. {140} As noted previously, the testimony and other evidence presented indicates that when the spindle lever was moved from the on to off position, power to the spindle and cutter heads was cut off. As such, whatever gears caused the spindle to turn, those gears were disengaged and no longer kept the spindle and cutter heads turning. Once the power to the spindle was cut off and the gears were no longer causing the spindle and cutter heads to spin, the spindle and cutter heads slowed down until they stopped. None of the witnesses were able to provide any evidence conceming the length of time it took the spindle and cutter heads to stop spinning and no evidence was presented to describe how much faster the spindle and cutter heads would stop spinning once the gears were disengaged if there was an object, in this case relator's hand, in the way. (1141) In reviewing the stipulation of evidence, the magistrate notes that an operator instruction book for this particular machine is provided in the evidence (pages 283 through 349). The section related to machine controls and operating instructions begins at page 305. At page 307, the manual provides as follows: 20

40 21 No. 07AP Starting the Spindle. Start the machine. Move the directional control lever to either "right" or "9eft" position. Move the spindle starting lever all the way to the right. A quick acting brake will stop all moving units when the spindle starting lever is moved al1 the way to the left. ( 42) This paragraph, coupled with the testimony, indicates that the spindle and cutter heads slow down and stop relatively quickly. As such, the question becomes: does Ohio Adm.Code 4121:1-5-05(D)(1) require that the machine stop instantaneously when the machine is disengaged from the power supply? Common sense and experience indicate that this is not the case. Power tools which have spinning parts stop by slowing down. When turned off, the rotation does not stop instantaneously; instead, the rotating part slows down until it stops. Further, nothing in the code provision provides that the machine must instantaneously stop and the magistrate finds that to read such a requirement into the code would add a requirement which is not there. To do so would be improper. Further, relator presented no evidence that would show that, if he was able to push the power switch, the machine would have stopped rotating immediately. Therefore, relator could not show that moving the spindle lever to the off position acted any differently than the act of pushing the power switch. The reason these safety requirements are in the code is to lessen the impact of the accident on the employee. It is understood that, if an employee needs to hit the power switch to shut off the machine, the employee is already being injured. As such, a switch which disengages the machine from power acts to minimize the damage to the employee whereas a guard acts to stop an injury from even happening. The SHO relied on evidence showing that the spindle lever acted in this manner. 21

41 No. 07AP ( 43) Furthermore, the SHO specifically noted that it was impossible to determine exactly what happened. Although relator indicated that he was at that point of set-up where it was time to attach the rubber band, relator did not testify that he was actually attaching the band or the band was in place. Further, relator did not establish that the action of the spindle lever was compromised in any way. As such, if this was the case, relator should have been able to disengage the spindle by moving the spindle lever. In this regard, the SHO found the use of the banding device was not shown to be the proximate cause of relator's injury. Because relator was not able to demonstrate that the spindle lever was in any way compromised, and because the commission found that the spindle lever was an alternative means of complying with Ohio Adm.Code 4121:1-5-05(D)(1), the commission found that relator did not establish a VSSR. After reviewing the entire record in this case, this magistrate cannot say that the commission abused its discretion in this regard. 1144} Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying his application for an additional award for the employer's violation of a specific safety requirement and this court should deny relator's request for a writ of mandamus. /s/sfenhanie Bisca Brooks STEPHANIE BISCA BROOKS MAGISTRATE 22

42 23 io. 07AP NOTICE TO THE PARTIES Civ.R. 53(p)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(1))(3)(a)(i'r), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ. R. 53(D)(3)(b). 23

43 24 IN THE COURT OF APPEALS OF OHIO ;_.9 7 7"Uj F +',?U`i 1 u!...^iqnal State of Ohio ex rel. David E. Hina, Relator, TENTH APPELLATE DISTRICT f U V. No. 07AP-23 Industrial Commission of Ohio and Anchor Glass Container Corporation, (REGULAR CALENDAR) Respondents. MAGISTRATE'S DECISION Rendered on June 19, 2007 Larrimer & Larrimer, and Thomas L. Reitz, for relator. Marc Dann, Attorney General, and Kevin J. Refs, for respondent Industrial Commission of Ohio. Lane, Alton & Horst LLC, and Joshua R. Bills, for respondent Anchor Glass Container Corp. IN MANDAMUS ()N(*^'! j^ 12 Relator, David E. Hina, has filed this orfginal actfon requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio {"commission") to vacate its order denying his application for an additional award for respondent Anchor Glass Container Corporation's ("employer") violation of a specific safety requirement ("VSSR"), and ordering the commission to issue an order granting the requested VSSR award. 24

44 No. 07AP-23 25! g73 3.', 11 2 Findings of Fact: 1. Relator sustained a work-related injury on November 5, 2003, when his left hand was caught in the cutters of a milling machine. Relator sustained significant injuries which are not at issue in this case. 2. On Aprii 18, 2005, relator filed an application seeking an additional award for a VSSR alleging that his employer violated the following Ohio Adm.Code provisions: 4121:1-5-11(D)(13) and 4121:1-5-05(D)(1) and (2). Relator argued that the employer was required to guard the machine in question, did not provide the proper means for disengaging the machine from its power supply, and failed to provide a device to lock the controls of the machine in the off position when it was shut down. 3. Relator's application was heard before a staff hearing officer ("SHO") on March 16, 2006, and resulted in an order denying the request for an additional award for a VSSR. First, the SHO fnund that there was no violation of Ohio Adm.Code 4121:1-5-11(D)(13), which provides: (D) Other power machines and machine tools. (13) Knives. (a) All power driven knives or cutting blades, such as reciprocating knives, endless band knives, flying knives, slicer blades, and similar cutting machines, where exposed to contact, shall be guarded except for the necessary working portion of the blade while being used. (b) Exception. Machinery covered expressly by requirements contained in other codes of specific requirements of the industrial commission of Ohio. The SHO provided the following reasoning: 25

45 971-D 2; A 1 2 No. 07At' _ The Cincinnati Horizontal Milling Machine in question does not perform its function with "knives", "cutting blades", "reciprocating knives", "endless band knives", "flying knives", "slicer biades", or some device "simiiar". The claimant/injured worker brought to hearing two (2) of the cutter items. They are more properiy cufter wheels or cutter heads. They can be safely picked up with one's hands. There is not a blade or knife aspect to the items. The empioyer's expert witness, Mr. Vaughan, testified to what the cutting items were called in this industry. He stated they could be termed cutter heads or milling heads. The Hearing Officer relies on his testimony in this aspect. There are photographs that show the items in question. These are photographs numbers 4 and number 5. Visually these items confirm Mr. Vaughan's testimony that these items are not knives or biades. Thereafter, the SHO found that there was no violation of Ohio Adm.Code 4121:1-5-05(D)(2), which provides: (D) Machinery control. (2) When machines are shut down. The employer shall furnish and the employees shall use a device to lock the controls in the "ofp' position or the employer shall furnish and the employees shall use waming tags when machines are shut down for repair, adjusting, or cleaning. The SHO reasoned as follows: The employer has submitted a large amount of evidence as to its "iock-out/tag-out" procedure. This includes Instructions, training sessions, and work signatures of employees. The compliance of the employer with this subsection has not been challenged with any evidence. The majority of the SHO's order focused on relator's application concerning a violation of Ohio Adm.Code 4121:1-5-05(D)(1), which provides: (D) Machinery control. (1) Disengaging from power supply. 26

46 27 No.07AP-23 4 i3 Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mills nor to electrical power generation or conversion equipment. In resolving this issue, the SHO acknowledged that the machine was equipped with a power switch which controlled electricity to the entire machine. This switch was located on the opposite side of the operator. The SHO determined that this power switch did not meet the requirements of the above subsection because it was not within easy reach of the operator. However, the SHO noted that the machine was equipped with a lever on the side where the operator stood which acted to engage and disengage the moving parts of the machine. The SHO explained: * * * [A] handle or lever on the side where the operator would stand, started and stopped the moving parts of the machine. The cutter heads aftached to a spindle. The spindle and the heads were motionless until the operator pulled the lever forward. The handle or lever controlled the spinning of the spindle and, thus, the cutter heads. When pulled back, the action of the machine stopped. If the lever qualifies as an acceptable means of "disengaging it from its power suppiy" is a central question here. After considering the evidence, the SHO ultimately concluded that this lever qualified as a control that could disengage the machine from its power supply. Various employees testified at the hearing conceming the use of the machine at issue. It was explained that the milling machine was used to make cuts, or grooves, in molds. Before a cut could be made, the operator needed to set the proper speed. Testimony indicated that the machine was equipped with a dial which set the speed of the spindle. However, testimony indicated that the dial was not necessarily accurate, and that the operators needed to visually observe the speed of the spindle while adjusting the speed on the dial. As such, the operator would use the lever to engage the spindle so that It was spinning at the same time the operator used the dial to 27

47 No. 07AP set the speed (both hands would be occupied). Thereafter, the operator would place a moid into the device and prepare to make the cuts. The lever was pulled to one side to engage the cutter heads and begin the spinning; the mold was positioned where the cutter heads could make the cut; once the cuts had been made, the lever was moved in the opposite direction to disengage the cutter heads from spinning. There was also testimony that, when making heavy cuts, the lever would vibrate. When this happened, the cutter heads were affected, the speed changed, and the cutter heads could break. As such, operators routinely used heavy duty rubber bands to secure the lever in place when making heavy cuts. Because the lever both engaged and disengaged the spinning of the spindle and the cutter heads, and the lever was on the same side as the operator, the SHO concluded that the lever satisfied the requirements of Ohio Adm.Code 4121: (D)(1). Much of the testimony involved the use of the heavy duty rubber bands to hold the lever in place while heavy cuts were being made. The SHO found that the employer acknowledged the use of the banding devices and, as a result, when the rubber bands were being used, there was no effective, non-impaired means of disengaging the action of the machine within easy reach of the operator. As such, the SHO found that when heavy cuts were being made, Ohio Adm.Code 4121:1-5-05(D)(1) was being violated. However, the SHO found that relator's injuries did not occur when a heavy cut was being made. The SHO acknowledged that part of the difficulty at the hearing was occasioned by the fact that there were no eye witnesses to the accident and relator admitted 28

48 No. 07AP ^^^'^ 6 that he really could not remember exactly what he was doing or explain how the accident happened. In this regard, the SHO stated as follows: There was no part in the machine when the injury occurred. So, the injury did not occur during the actual cutting phase of the operation of the machine. If a part was in the machine much of the action of the cutter heads would be blocked by the part or blank. However, even with a part, blank, or mold, in the machine there was still, It Is found, a risk of injury. The risk would be reduced, but a risk of injury would still be present. However, it would, most iikeiy, not be the type of injury that occurred here with the cutter heads acting to pull the injured worker's arm into the machine. The point is, somewhat, academic because the injury here occurred without a part in the machine. The injured worker was, apparentiy, at some set-up phase of the operation when he was injured. So, there is the question of whether the power shut-off lever was impaired at the phase of the operation at which the injured worker's arm was caught in the machine. It has not been shown that the power engagement arm and disengagement arm was impaired when the accident occurred. Even from the Injured worker's testimony the status of the power engagement/disengagement arm cannot be determined. The injured worker testified that he would shut the cutters off before loading a part. If he was at the phase of still seiting the speed dial, and was in the process of attaching the banding device it would make some sense of the situation. However, It Is not clear, if while doing this, whether the power arm or lever had the banding device attached. There is no evidence in the investigation report nor from any witness, including the ciaimant's witnesses, that the banding device was holding the power engagement arm or lever when the injured worker's arm was removed from the machine. It has not been shown, therefore, that the power engagement lever was not fully functional to shut the cutter heads off when the accident occurred. Thus, even though it cannot be condoned to use rubber bands to form a device to operate this machine, and even though the use of the banding device impaired the means of disengaging the power to the cutter heads at one phase of the operation of this machine, contra to OAC 4121:i-5-05(D)(1), the use of the banding device was not, or has not been shown, to be the proximate cause of the accident. Therefore, the IC-8 application is denied. 29

49 30 No. 07AP '.^^ 7 (...^ 4. Relator filed a motion for reconsideration including an affdavit prepared by relator. That motion was denied. Conclusions of Law: 5. Thereafter, relator filed the instant mandamus action in this court. In order for this court to Issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rei. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record contains some evidence to support the commission's flndings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165. In regard to an application for an additional award for a VSSR, the claimant must establish that an applicable and specific safety requirement exists which was in effect at the time of the injury, that the employer failed to comply with the requirement, and that the failure to comply was the proximate cause of the injury in questfon. State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257. The interpretation of a specific safety requirement is within the final jurisdict9on of the commission. State ex rel. Beny v. Indus. Comm. (1983), 4 Ohio St.3d 193. Because a VSSR award is a penalty, however, it must be strictly construed and all reasonable doubts concerning the interpretation of the safety requirement are to be construed against its applicability to 30

50 No. 07AP '17 8 pretation of the safety requirement are to be construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170. The question of whether an injury was caused by the empioyer's faiiure to satisfy a speciflc safety requirement is a question of fact to be decided by the commission subject only to the abuse of discretion test. Trydte; State ex rel A-F Indusfries v. Indus. Comm. (1986), 26 Ohio St.3d 136; and State ex rel. lsh v. Indus. Comm. (1985), 19 Ohio St.3d 28. For the reasons that follow, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying his application for an additional award for a VSSR. Relator has asserted a violation of Ohio Adm.Code 4121:1-5-11(D)(13), which provides: (D) Other power machines and machine tools. (13) Knives. (a) All power driven knives or cutting blades, such as reciprocating.knives, endless band knives, flying knives, slicer blades, and similar cutting machines, where exposed to contact, shall be guarded except for the necessary working portion of the blade while being used. (b) Exception. Machinery covered expressly by requirements contained in other codes of specific requirements of the industriai commission of Ohio. The SHO determined that the cutter heads did not faii under the definition provided above. in making that finding, the SHO relied upon the testimony of Mr. Vaughan, the empioyer's expert witness, who testified that the cutter heads were not knives. The SHO also had the opportunity to personally view and handle the cutter 31

51 No. 07AP ^, G 1 ^ 9 heads. Based upon the testimony and the opportunity to actually view and handle the cutter heads, the SHO concluded that they did not fall under the above definition. The SHO also relied upon photographs numbers four and five, which are at pages 360 and 361 of the stipulated evidence1. The magistrate also notes that photograph 16, at page 366, shows the type of cuts which are made in the molds. In essence, the cutting heads gouge grooves into a mold. Those groves were cut to provide air to circulate while the mold was in use in whatever machine it was designed for. Whether or not the cutter heads fall under the definition provided in Ohio Adm.Code 4121:1-5-11(D)(13), is a question of fact. The SHO was able to personally view and handle the cutter heads, saw a picture of the type of cut the cutter heads made in molds, and heard testimony. Although relator contends that the cutter heads fall under the portion of "similar cutting machines," the magistrate notes that the cutter heads do not make cuts similar to a knife. Instead, the cutter heads gouge out material. This magistrate cannot say that the commission abused its discretion in finding that the cutter heads did not fall under the definition provided in Ohio Adm.Code 4121: (D)(1 3). Next, the SHO found that relator did not establish a violation of Ohio Adm.Code 4121:1-5-05(D)(2), which provides: (D) Machinery control. #.. (2) When machines are shut down. The employer shall fumish and the employees shall use a device to lock the controls in the "off" position or the employer shall furnish and the employees shail use warning tags when machines are shut down for repair, adjusting, or cieaning. ' Pages showing photographs of various parts of the machine are out of order in the stipulation of evidence. They are located between pages 243 and 244 in the stipulation of evidence. 32

52 No. 07AP ( ^ ^ ^ 3.." 1 3 In this mandamus action, relator does not make an argument that th^ commission abused its discretion in this regard. After reviewing the stipulation of evidence, the magistrate finds that there was no evidence presented that the machine was shut down for repair, adjusting, or cleaning. Instead, the evidence showed that the machine was turned on and relator was making necessary adjustments in preparation of making a cut on specific moids. As such, the magistrate finds that the commission did not abuse its discretion in finding that Ohio Adm.Code 4121:1-5-05(D)(2) was not violated. The SHO also found that relator did not establish a violation of Ohio Adm.Code 4121:1-5-05(D)(1), which provides: (D) Machinery control. (1) Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator, for disengaging It from its power supply. This shall not apply to rolling departments of iron and steel mills nor to eiectricai power generation or conversion equipment. In this regard, the SHO essentially made three relevant findings: (1) the switch on the machine which controlled the eiectricity for the entire machine was on the opposite side of the operator and did not meet the requirements of the subsection because it was not within easy reach of the operator; (2) when the operator was utilizing rubber bands to secure the spindle lever, the spindle lever was not able to provide the operator with a means of disengaging the spindle and cutter heads from its power supply and, when the rubber bands were being used, there was no effective, non-impaired means of disengaging the action of the machine within easy reach of the operator; and (3) when rubber bands were not being used to hold the spindle lever in place, the spin- 33

53 No. 07AP ^3A2 v 11 dle lever provided an acceptable means of dfsengaging the machine from its power supply. In this mandamus action, relator does not challenge the first two findings. However, relator does challenge the commission's finding that when rubber bands were not being used, the spindle lever, in and of itself, provided the operator with an acceptable means of disengaging the machine from its power supply. In arguing that the commission abused Its discretion in this regard, relator argues that the spindle lever cannot constitute an acceptable means of disengaging the machine from its power supply because moving the spindie lever to the off position did not instantaneously stop the cutter heads from spinning. Instead, the spindle lever was described as being similar to a clutch in a manual transmission car. Putting the lever in the off position essentially put the spindle and cutter heads in neutral. The cutter heads were no longer being tumed by a power source; instead, they slowed down and eventually stopped. Relator contends that compliance can only be accomplished if the spindle lever would have immediately stopped the cutter heads from spinning. As noted previously, the testimony and other evidence presented indicates that when the spindle lever was moved from the on to off position, power to the spindle and cutter heads was cut off. As such, whatever gears caused the spindle to tum, those gears were disengaged and no longer kept the spindle and cutter heads tuming. Once the power to the spindle was cut off and the gears were no longer causing the spindle and cutter heads to spin, the spindle and cutter heads slowed down until they stopped. None of the witnesses were able to provide any evidence conceming the length of time it took the spindle and cutter heads to stop spinning and no evidence was presented to describe how much faster the spindle and cutter heads would stop spin- 34

54 No. 07AP-23, Ho i 12 ning once the gears were disengaged if there was an object, in this case relator's hand, in the way. In reviewing the stipulation of evidence, the magistrate notes that an operator instruction book for this particular machine is provided in the evidence (pages 283 through 349). The section related to machine coritrois and operating instructions begins at page 305. At page 307, the manual provides as follows: Starting the Spindle. Start the machine. Move the directional control lever to either "right" or "left" position. Move the spindle starting lever all the way to the right. A quick acting brake will stop alt moving units when the spindle starting lever Is moved all the way to the left. This paragraph, coupled with the testimony, indicates that the spindle and cutter heads slow down and stop relatively quickly. As such, the question becomes: does Ohio Adm.Code 4121:1-5-05(D)(1) require that the machine stop instantaneously when the machine is disengaged from the power supply? Common sense and experience indicate that this is not the case. Power tools which have spinning parts stop by slowing down. When tumed off, the rotation does not stop instantaneously; Instead, the rotating part slows down until it stops. Further, nothing in the code provision provides that the machine must instantaneously stop and the magistrate finds that to read such a requirement into the code would add a requirement which is not there. To do so would be improper. Further, relator presented no evidence that would show that, if he was able to push the power switch, the machine would have stopped rotating Immediately. Therefore, relator could not show that moving the spindle lever to the off position acted any differently than the act of pushing the power switch. The reason these safety requirements are in the code is to lessen the impact of the accident on the employee. It is understood that, if an employee needs to hit the power switch to shut off the machine, 35

55 No. 07At' ^?J-?a2 13 the employee is already being injured. As such, a swftch which disengages the machine from power acts to minimize the damage to the employee whereas a guard acts to stop an Injury from even happening. The SHO relied on evidence showing that the spindle lever acted in this manner. Furthermore, the SHO specifically noted that it was impossible to determine exactly what happened. Although relator indicated that he was at that point of setup where it was time to attach the rubber band, relator did not testify that he was actually attaching the band or the band was in pface. Further, relator did not establish that the action of the spindle lever was compromised In any way. As such, if this was the case, relator should have been able to disengage the spindle by moving the spindle lever. In this regard, the SHO found the use of the banding device was not shown to be the proximate cause of refator's Injury. Because relator was not able to demonstrate that the spindle lever was In any way compromised, and because the commission found that the spindle lever was an aftemative means of complying with Ohio Adm.Code 4121:1-5-05(D)(1), the commission found that relator did not establish a VSSR. After reviewing the entire record in this case, this magistrate cannot say that the commission abused its discretion in this regard. Based on the foregoing, it is this magistrate's conclusion that relator has not demonstrated that the commission abused its discretion in denying his application for an additional award for the employers violation of a specific safety requirement and this court should deny refator's request for a wrft p nranda mu 36

56 No. 07AP ( ^ ] ^ ^!? ) ) 14 NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or fegal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under M.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b). 37

57 The Industrial Commission of Ohio 38 RECORD OF PROCEEDINGS Claim Number: LT-ACC-OSIF-COV PCN: David E. Hina Claims Heard: ***LARRIMER & LARRIMER, LLC"" 265 NORTH HIGH ST. COLUMBUS OH Date of Injury: 11/05/2003 Risk Number: This claim has been allowed for: This matter was heard on 03/16/2006 before Staff Hearing Officer M. E. Holko, as provided for in Ohio Revised Code (9)(3) on: IC-8 App For Additional Award For VSSR - Non Fatal filed by Injured Worker on 04/18/2005. Issue: 1) VSSR-Merits Of Application-Record Hearing Notices were mailed to the injured worker, the employer, their respective representatives and the Administrator of Workers' Compensation not less than 14 days prior to this date, and the following were present at the hearing: APPEARANCE FOR THE INJURED WORKER: T. Larrimer, IW, R. Hoff, M.. Emmert 4PPEARANCE FOR THE EMPLOYER: J. Hartranft, K. Niggemyer, S. McLoughlin, APPEARANCE FOR THE ADMINISTRATORc N/A S. Brock, J. Beisser, J. Vaughan It is the finding of the Staff Hearing Officer that the Application for Violation of a Specific Safety Requirement be denied for the reason that the in,iured worker has not established that the injury was the result of the employer's failure to comply with a specific safety requirement. In order for an injured worker/claimant to prevail in his or her request for a VSSR award, a claimant must demonstrate that; (1) the cited code section applies to the circumstances of the employment being performed at the time of the injury; (2) the code section was violated by non-compliance with its mandates; and (3) the violation was the prozimate cause of the incident. The claimant's failure to prove any one of these three (3) elements will result in the denial of the request for the additional award. Subsequent to the hearing the Staff Hearing Officer received some correspondence from the counsels for both parties. This was initiated by counsel for the employer. The correspondence concerned the possibility of submitting additional evidence and briefs. There was no request for leave or any mention of such at the hearing. There has been no citation to any rule or provision allowing for the submission of evidence or briefs subsequent to hearing. The Staff Hearing Officer chose to not entertain any such post hearing submission of evidence or briefs. At the beginning of the hearing the employer made a request to continue this matter. The request was that the matter be continued until Federal Court Bankruptcy proceedings involving the employer were completed. The SHO denied the request and cited the judgement entry, concerning a stay, which exempted government entities. The SHO a]so mentioned Industrial Commission Policy. VSSR5 Page 1 38 hr/gipd

58 The Industrial Couunission of Obio RECORD OF PROCEEDINGS Claim Number: The claimant was injured on 11/05/2003 when his left lower arm was caught in a milling machine. Specifically, it was a Cincinnati Horizontal Milling Machine, Cinova 80. The claimant's arm was caught in the cutter heads, or cutter wheels, of the machine. The machine is/was used to cut grooves in "blanks" or "molds/moulds". The "blanks" or "molds" were used to shape glass containers. The machine was not used on a frequent basis. It was used when other machines were unavailable due to busy work times. The injured worker/claimant was taken to Genesis Hospital in Zanesville. He sustained a very significant injury and has undergone multiple surgeries. The injured worker filed an IC-8 application on 04/18/2005 alleging a violation of OAC 4121:1-5-11(D)(13). A subsequent IC-B application was filed on 05/18/2005 alleging violations of the above mentioned section as well as 4121:1-5-05(D)(1), and 4121:1-5-05(D)(2). The SHO finds no violation of OAC 4121:1-5-I1(0)(13). It is found that this section is not applicable to the machine in question. This section of the Code states as follows. (13) Knives. (a) all power driven knives or cutting blades, such as reciprocating knives, endless band knives, flying knives, slicer blades, and similar cutting machines, where exposed to contact, shall be guarded except for the necessary working portion of the blade while being used. (b) Exception. Machinery covered expressly by requirements contained in other codes of specific requirements of the Industrial Commission of Ohio. The Cincinnati Horizontal Milling Machine in question does not perform its function with "knives" "cuttin blades", "reciprocating knives", "endless band knives", "flying Knives", 'slicer blades", or some device "similar". The claimant/injured worker brought to hearing two (2) of the cutter items. They are more properly cutter wheels or cutter heads. They can be safely picked up with one's hands. There is not a blade or knife aspect to the items. The employer's eipert witness, Mr. Vaughan, testified to what the cutting items were called in this industry. He stated they could be termed cutter heads or milling heads. The Hearing Officer relies on his testimony in this aspect. There are photographs that show the items in question. These are photographs numbers 4 and number S. Visually these items confirm Mr. Vaughan's testimony that these items are not knives or blades. The 5H0 finds no violation of OAC 4121:1-5-05(0)(2). This section states as follows: ( 2) When machines are shut down. The employer shall furnish and the employees shall use a devise to lock the controls in the "off" position or the employer shall furnish and the employee shall use warning tags when machines are shut down for repair, adjusting, or cleaning. The employer has submitted a large amount of evidence as to its "lock-out/tag-out" procedure. This includes instructions, training sessions,-and work signatures of employees. The compliance of the employer with this subsection has not been challenged with any evidence. The majority of this order deals with the allegation of a violation of OAC 4121:I-5-05(D)(1). This section reads as follows. (D) Machinery control (1) Disengaging from power supply. Means shall be provided at each machine, within easy reach of the operator for disengaging it from its power supply. This shall not apply to rolling departments of iron and steel mills nor to electrical VSSRS Page 2 39 hr/glpd

59 The Industrial Commission of Ohio RECORD OF PROCEEIJBINGS Claim Number: power generation or conversion equipment. The Cincinnati Horizontal Milling Machine, Cinova 80, the way it was set up, had a switch for electricity to the whole machine on the opposite side of the operator. However, a handle or lever on the side where the operator would stand, started and stopped the moving parts of the machine. The cutter heads attached to a spindle. The spindle and the heads were motionless until the operator pulled the lever forward. The handle or lever controlled the spinning of the spindle and, thus, the cutter heads. When pulled back, the action of the machine stopped. If the lever qualifies as an acceptable means of "disengaging it from its power supply" is a central question here. The switch on the other side of the macbine does not meet the requirements of the subsection as it was not within easy reach. State. ex rel. Harris Y. Industrial Commission et ai. (1984), 12 Ohio St. 3d 152 dealt with this requirement. The opinion stated "appellant could have greatly minimized his injuries had he been able to reach the controls and disengage the press from its power supply when his hand became caught Id, at When applied to the machine in question, the opinion indicates that the lever would qualify as "controls" that could disengage the machine from its power supply. Much of the testimony evidence and discussion of this hearing concerned the use af rubber bands in the operation of the machine in question. The lever would vibrate when the job called for making heavier cuts in harder metal and, thus, using larger cutter heads. To control or stop the vibration the operators would take 3 large rubber bands and make a "banding device". They would take 2 of these banding devices and attach them to the lever and to a protrusion on the machine such as a bolt or a nut. The tension on the banding devices kept the handle or lever from vibrating. There was conflicting evidence as to a necessity of the banding devices. Mr. Hoff and the injured worker testified that the banding device was necessary or else the vibration would cause the cutter heads to break off, and the machine would shut down sometimes. (See transcript page 22, page 57). Mr. Emmert's testimony indicated that he did not use the banding device at all. (See transcript page 43). Mr. McLoughlin and Mr. Brock did not, necessarily, agree the banding device was necessary, but did acknowledge that they knew the operators of the machine were using such a device. Once the banding device was removed after a cut, the lever was pulled back and the spinning uf the cutter heads stopped. One effect of the banding device was to impair the disengaging action of the lever. A VSSR claim can be defeated by an injured worker's unilateral negligence. If an employer first complies with an applicable safety requirement and an employee, then, acts to uadue the employer's compliance, no violation would be found. StatenY rel. Frank Brown and Sons Inc. v Industrial Commission et al (1988), 37 Ohio St. 3d 162. The SHO finds that this is not the situation here when using the machine to make heavy cuts. Several operators would use the banding devices. The devices had a purpose in helping the operation of the machine. The employer, from the testimony of its own witnesses, Mr. McLoughlin and Mr. Brock was aware of the use of the devices when making heavy cuts on this machine. The employer it is found, essentially, acknowledged the use of the banding device with tacit approval and it was an on-going occurrence, The result was that, with the use of the banding device, there was no effective, non-impaired means of disengaging the action of the machine within easy reach af the operator. So, while the heavy cuts were being made OAC 4121:1-5-OS(D)(1) was being violated. The accident, however, did not occur when a heavy cut was being made, The element of proximate cause must be examined, as the accident did not occur when a heavy cut, or when any cut was being made. The evidence is very strong that there was no part, or mold/blank, in the machine when the injury occurred. The investigation report and the employer's witnesses confirmed this and there is no testimony to the contrary. Why the machine was spinning without a part in the vise is a matter for analysis. The VSSRS Page 3 hr/glpd 40