IN THE SUPREME COURT OF OHIO REPLY BRIEF OF APPELLANT, DARRIN C. RICHMOND

IN THE SUPREME COURT OF OHIO DARRIN C. RICHMOND CASE NO.: 2012 CV 1786 vs. APPELLANT APPEAL FROM THE FRANKLIN COUNTY COURT OF APPEALS, TENTH APPELLATE DISTRICT THE INDUSTRIAL COMMISSION OF OHIO and LAMAR ADVERTISING OF YOUNGSTOWN, INC. 1 2-1786 APPELLEES REPLY BRIEF OF APPELLANT, DARRIN C. RICHMOND WALTER KAUFMANN, ESQ. (0011388) BOYD, RUMMELL, CARACH, CURRY, KAUFMANN & BINS-CASTRONOVO CO., LPA P.O. Box 6565 Youngstown, Ohio 44501-6565 (330) 744-0291 Counsel for Appellant, Darrin C. Richmond JILL T. O'SHEA, ESQ. (0034692) Cohen, Todd, Kite & Stanford, LLC 250 East Fifth Street, Suite 2350 Cincinnati, Ohio 45202-4139 Counsel for Appelle, Lamar Advertising of Youngstown, Inc. LAW OFFICES OF BOYD, RUMMELL. CARACH, CURRY,KAUFMANN & SANDRA PINKERTON, ESQ. (0062217) Assistant Attorney General 150 East Gay Street, 22nd Floor Columbus, Ohio 43215 Counsel for Appellee, Industrial Commission of Ohio BlNSCASTRONOYO CO., L.P. A. FOURTH FLOOR HUNTINGTON BANK BLUG. REPLY TO: P.O. BOX 8565 YOUNGSTOWN. OHIO 4450 7-6565 (330) 744-0291 APR 18 2013 CLERK OF COURT Sl^PPI^NIIIE COCR^^ OF RFI^0 RL APR 16 2013 CLERK OF COURT SUPREME COURT OF OHIO

TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES............ ii LAW AND ARGUMENT... PROPOSITION OF LAW I: The Industrial Commission's decision applying a Federal OSHA rule exemption as the basis of denying Darrin Richmond's Ohio specific safety requirement claim is contrary to law and an abuse of discretion.......................................................................... PROPOSITION OF LAW II: The Industrial Commission's finding that a portable hook ladder is a part of a"structure" for purposes of O.A.C. 4123:1-3-03 (J) (1) is an illogical grammatical construction of the rule which negates the effect of the rule...----...--.-..-.---.----...-----. 8 PROPOSITION OF LAW III The Industrial Commission's decision denying claimant's VSSR application because of his negligence is contrary to law...... 10 CONCLUSION..................................................................................... 11 CERTIFICATE OF SERVICE.................................................................. 12

TABLE OF AUTHORITIES Cases State ex rel. Cotterman vs. Saint Mary Foundry, 46 Ohio State 3d 544 N. E. 2d 877 (1989)............................................................................ 11 State ex rel. Danstar Builders Inc. vs. Industrial Commission 108 Ohio State 3d 318, 2006 Ohio 1060...---.--...-.--.-.--... 5,8 State ex rel. Gilbert vs. Industrial Commission, 116 Ohio State 3d 243, 2007 Ohio 6096... 5,6 State ex re. Haines vs. Industrial Commission (1972) 29 Ohio State 15... 9 State ex rel. Howard Eng. & Mfg. Co. v. Industrial Commission (1947), 148 Ohio St. 165, 35 O.O. 183, 74 N. E. 2d 201............................................... 6 State ex rel. Ish vs. Industrial Commission 19 Ohio State 3d 28 (1985)... 5,6,7 State ex rel. Martin Painting and Coating Company vs. Industrial Commission 78 Ohio State 3d 333 (1997), 78 Ohio St 3d 333, 678, N.E. 2d 206...... 6,7 State ex rel. Morrissey v. Industrial Commission (1985), 18 Ohio St. 3d 285, 287, 18 OBR 336, 338, 480 N. E. 2d 810, 812...................................... 6,7 State ex rel. Roberts vs. Industrial Commission 10 Ohio State 3d (1984)... 6,8 State ex rel. Shelly Company vs. Steigerwald, 121 Ohio State 3d 158, 2009 Ohio 585......................................................................................... 5,6 State ex rel. United Foundries, Inc. Industrial Commission 101 Ohio St. 207, 204 Ohio State 704.... I 10 State ex rel. U.S. Steel Corporation vs. Cook (1983) 10 Ohio Appellant 3d Ohio 183, 461 N.E. 2d 916... 11 Other Authorities O.A.C. 4123:1-3...:... 2,7 O.A.C. 4123 :1-3-01 (A)................................................................ 1 O.A.C. 4123 : 1-3-01 (B)(26)................................................................... 1 O.A.C. 4123:1-3-03 (J)(1)... - ----...------ -- 1,2,7,8 O.A.C. 4121:1-5-11 (E)(4)............................................................... 6,7 ii

LAW AND ARGUMENT PROPOSITION OF LAW I: The Industrial Commission's decision applying a Federal OSHA rule exemption as the basis of denying Danin Richmond's Ohio specific safety requirement claim is contrary to law and an abuse of discretion. THE INDUSTRIAL COMMISSION CANNOT RECOGNIZE AN OSHA VARIANCE AS THE BASIS FOR DECIDING A VSSR CLAIM In its reply brief at pages 11 and 12 Lamar argues that, since OAC 4123:1-3-03 (J) (1 ), which requires, that "lifelines and safety belts or harnesses shall be securely fastened to the structure", does not specifically address the billboard industry, the Industrial Commission is free to reach out to OSHA standards or industry standards as the basis for deciding whether Lamar has met the Ohio specific safety requirements. Lamar, however, never mentions OAC 4123:1-3-01 (A) "scope" which includes Lamar, just like any other employer engaged in "construction activities". It states, in part: "(A) Scope The purpose of this code is to provide for life, limb and health of employees engaged in construction activity. Activities within the scope of this code, generally referred to herein as 'construction', include the demolition, dismantling, excavation, construction, erection, alteration, repair, painting, decorating, glazing, cleaning, and pointing of buildings and other structures.... This code covers 'construction' activities of employees whose employer engages in such work as its principal business.... This code shall not apply to the electric utility industry. The term "structure" is not some term of art. It is specifically defined in OAC 4123:1-3-01 ( B) (26) as: "Structure means that which is built or constructed, an edifice or building of any kind, or any piece of work, artificially 1

built up or composed of parts joined together in some definite manner." There is no exception or exemption for the billboard industry in OAC 4123:1-3, the construction regulations. This did not prevent both the Staff Hearing Officer and Magistrate in the lower Court from relying entirely upon the testimony of Brian Conley, the company's only witness, that the billboard industry is different from all other employers covered by OAC 4123:1-3 and; therefore, deserves a special exemption from the requirement of 4123:1-3-03 (J) (1). In fact, the foundation, for their decision was Conley's testimony that the allegedly unique character of the billboard industry allows Lamar to apply an OSHA "Gannett variance" requiring its employees to use a ring on the portable hook ladder as the "anchorage" or "attachment" point, instead of securing the safety lanyard and harness directly to the billboard structure or a lifeline securely fastened to the billboard structure. Lamar and the Attorney General cite the "some evidence" rule in support of their argument. Yet, the only evidence which supports the SHO and lower court decisions is the testimony of Brian Conley. In case there is any question as to what that testimony actually was, he testified on direct examination, at SR276 and 277 as follows: "Question - Are the hook ladders provided by Werner subject to any type of variance or subject to any type of OSHA regulation that you are aware of? Answer - Yeah, I mean, it's the Gannett ReQulationthat OSHA has that's specific for industry that allows the use of hook ladders, and once the hook ladders are engaged on the sign they become part of the structure andyou are allowed to tie off to the anchorage points on the ladder......... 2

In case there is any question or confusion concerning the substitution of a hook ladder instead of the structure itself as an attachment point, as the OSHA exception, he testified at pages 299 through 305: ""Q. (BY MR. KAUFMANN) With respect to the training materials that was previously referred to on your direct that he signed off on -- A. Uh-huh. Q. - okay, does it not have a section in there that says, in terms of anchorage, an anchorage is a secure attachment point; it must be independent from whatever is supporting or suspending a worker; is that correct? A. That's what it says, yes. Q. In fact, what is supporting Mr. Richmond here is the ladder; is that correct? A. Well, the whole side. I mean, the ladder is part of the structure when it's engaged. Q. Well, wait a minute. What is supporting Mr. Richmond is the ladder; is that correct? A. Yes. Q. Because he's up on the ladder; right? A. Uh-huh. Q. Okay. It says it must be independent from whatever is supporting or suspending the worker. How is heindepen independent of the ladder when he is hooked to the ladder? A. I don't know. Q. So how do you have an anchorage that is secure from the attachment point? A. I don't know. Q. Okay. This is from yourown traininclmaterials; right? A. Uh-huh, uh-huh. Q. Okay. It says here, talks about a horizontal lifeline; is that correct? A. Correct. Q. It talks about a self-retracting lifeline; is that correct? A. Uh-huh. Q. - This is from that training material which you used to train Mr. Richmond; right? A. Correct. Q. And it says that it is a portable self-contained device that are attached to an anchorage point above the work area; is that right? A. Correct. Q. Okay. So an anchorage point in this particular case could be that cable that runs across the top of the billboard; right? A. It could be. Q. Right? And then a full-body harness is connected by lifeline to a reel that hangs from an anchorage point; right? 3

A. Correct. Q. The anchorage point being the cable on the structure; is that correct? A. If that's what you wanted to do, I mean. Q. Okay. It's not the ladder? That is not an anchorage point? A. We've always considered the anchorage points on the ladder the anchorage points. 0. Okay. But here - - A. Our industry is a unique industry, and that's why, you know, there's variances with OSHA and everything, becausewe're not a factorv. Q. Hang on. A. You know, we're out in the open. So they have, I mean - - MS. OSHEA: Let - - he's testifying. Q. Okay. A. And we follow, you know, nationwide the reg ulations that are set down by OSHA. You know, there's a Gannett variance. So a lot of things - - Q. i want to - - HEARING OFFICER: Let him finish and I'll note your objection. A. I'm just saying that a lot of things that apply to other industries, even OSHA has recognized don't apply to our industrx because of the uniqueness of what we do." The Ohio specific safety requirements do not, however, recognize the billboard industry as a "unique industry" that entitles it to "variances" not available to any other employer in the construction industry. This is not a case of applying "industry standards" to interpret the meaning of Ohio specific safety requirements as found by the Industrial Commission and the lower Court. It is, plain and simple, the application of an alleged OSHA variance as an exception to the Ohio specific safety requirements as the basis for deciding a claim. Contrary to Lamar, even the Attorney General, in its Brief at page 9, correctly recognizes that, under Ohio specific safety requirements, there is nothing unique or special about the billboard industry. The Attorney General stated at page 9: "The Ohio SSR's provide no special exceptions and impose no special requirements for the outdoor advertising industry. 4

The Commission must consider whether Lamar, like any other employer, violated any Ohio SSR when construed strictly in Lamar's favor. Burton The OSHA regulations are not inherently part of the SSR's, however, the Commission may consider OSHA regulations, testing, investigation and assessments to determine whether the equipment complies with the essential safety functions prescribed by the SSR's." That is an accurate description of the law in the State of Ohio. It means that, where there are factual disputes as to whether an employer has met an Ohio SSR, an OSHA test or other investigation finding may be considered as evidence to determine whether the employer has met the requirements of the Ohio specific safety regulation. See for example State ex rel. Gilbert vs. Industrial Commission, 116 Ohio State 3d 243, 2007 Ohio 6096, State ex rel. Shelly Company vs. Steigerwald, 121 Ohio State 3d 158, 2009 Ohio 585. This does not mean that the Commission can apply OSHA regulations, which are substantively contrary to, or different from, the Ohio regulations in order to either support or deny a claim. See for example State ex rel. Ish vs. Industrial Commission 19 Ohio State 3d 28 (1985) and State ex rel. Danstar Builders Inc. vs. Industrial Commission, 108 Ohio State 3d 318, 2006 Ohio 1060. Having correctly stated the law in Ohio, the Attorney General then either misconstrues or misrepresents Richmond's position with respect to the OSHA regulations in this case. The attorney general further argues at page 9: "Richmond misapplies the holding in Roberts and cites the off misquoted Roberts decision for the proposition that anything from OSHA is always irrelevant in consideration of a VSSR award". Nowhere, at the Industrial Commission; in the lower Court; or in this Court has Richmond ever argued that OSHA is always irrelevant in any consideration of a VSSR award. The record in this case will bear out the fact that Richmond has always argued; at the Industrial Commission; in the lower Cburt; and in this Court 5

that it is unlawful for the Industrial Commission to use as the basis for deciding a VSSR application an OSHA regulation which contradicts; substantively adds to; or subtracts from, the language of an Ohio specific safety requirement. That is the import of State ex rel. Roberts vs. Industrial Commission, 10 Ohio State 3d (1984). In all its earlier cases this Court has recognized that there is crucial difference between considering OSHA test results; manufacturers instructions or private industry standards as part of the evidence to determine whether a violation of a specific safety requirement has occurred, and simply engrafting such manufacturers, industry or OSHA standards to redefine, or add to, the plain language of an Ohio specific safety requirement. Compare for example Gilbert, Shelly and State ex rel. Martin Painting and Coating Company vs. Industrial Commission 78 Ohio State 3d 333 (1997), State ex rel.!sh and State ex rel. G&S Metal Products, Inc. difference: In G&S Metal Products at pages 475 and 476 this Court explained that "State ex rel. Ish v. Industr'ral Comm. (1985), 19 Ohio St. 3d 28, 19 OBR 24, 482 N.E. 2d 941, justifies G & S's strict reading of SSRs, holding that an employer does not commit a VSSR by failing to comply with industry standards that neither the General Assembly nor the commission has adopted. We have held that SSRs must "forewarn the employer and establish a standard which [the employer] may follow." State ex rel. Howard eng. & Mfg. Co. v. Indus. Comm. (1947), 148 Ohio St. 165, 35 O.O. 183, 74 N.E. 2d 201, paragraph one of the syllabus. Ohio Adm. Code 4121:1-5-11 (E)(4) simply does not require maintenance inspections on a weekly basis. If we were to read a weekly inspection requirement into the rule, we would unfairly dispense with the notice requirement. Moreover, the commission has promulgated SSRs that specifically incorporate manufacturer instructions requiring inspection and repair of certain industrial equipment, see State ex rel. Morrissey v. Indus. Comm. (1985), 18 Ohio St. 3d 285, 287, 18 OBR 336, 6

338, 480 N.E. 2d 810, 812 (administrative rule required that portable explosive-actuated fastening tools be "repaired in accordance with the manufacturer's specifications"), but Ohio Adm. Code 4121:1-5-11(E)(4) is not such a rule. Thus, by imposing the duty Moore proposes, we would also encroach upon the commission's rulemaking authority. This is not to say, however, that the commission can never consult manufacturer specifications in evaluating an employer's compliance with SSRs. As the court of appeals recognized, a manufacturer's manual is sometimes relevant to the requirement. Thus, in State ex rel. Martin Painting & Coating Co. v. Indus. Comm. (1997), 78 Ohio St 3d 333, 678 N.E.2d 206, we approved of the commission's consideration of manufacturer specifications for the proper construction of a scaffold required by an SSR." The Attorney General's argument blurs this crucial difference. In this case the Industrial Commission stepped over the line. It did not make its decision as a "fact finder" or "interpreter" of the applicable specific safety requirement. ]t based its decision instead on an alleged OSHA Gannett variance, which allegedly excepts_lamar from the explicit safety requirement to attach the safety equipment to the billboard structure itself, rather than to whatever is supporting or suspending a worker, namely a portable hook ladder. AII employers covered by OAC 4123:1-3, except the electric utility industry, must follow the clear and concise language of OAC 4123:1-3-03 (J)(1) which is mandatory. It states: "Lifelines, safety belts, or harnesses, and Ianyards shall be provided by the employer...... Lifelines and safety belts or harnesses shall be securely fastened to the structure........." A strict reading of this language in combination with a specific safety regulation definition of "structure" explicitly forewarns Lamar of exactly what must be done. (See!sh and G & S Metal) The clear and explicit language of the regulation does not allow the substitution of a portable hook ladder for the "structure" as an attachment point. 7

The facts of this case demonstrate why this Ohio Specific safety requirement mandates attachment to the structure itself. The reason the harness and lanyard must be attached either to the structure directly or to a lifeline secured to the structure is that, if the worker slips and falls or if a ladder, platform or scaffold which is supporting the worker becomes dislodged or falls, the worker is tethered to the building or structure and does not fall to the ground. Neither the company nor the Attorney General has cited any variance or exception for the billboard industry allowing it to require its employees to substitute a portable hook ladder as an attachment point, as argued by Lamar at the Industrial Commission and in the lower Court. The Industrial Commission decision is in conflict with Roberts, Danstar and the recent cases concerning those areas where OSHA test results; private industry standards; or manufacturers instructions can be considered as evidence in factually determining whether an employer has met the requirements of an Ohio SSR. None of these cases allow the Industrial Commission to apply OSHA, or other standards which vary from, or, in essence, redefine an Ohio SSR. PROPOSITION OF LAW II: The lndustrial Commission's finding that a portable hook ladder is a part of a "structure" for purposes of O.A.C. 4123:1-3-03 (J) (1) is an illogical grammatical construction of the rule which negates the effect of the rule. A PORTABLE HOOK LADDER HUNG OVER A BILLBOARD IS NOT A PART OF THE STRUCTURE At the outset, it must be recognized that the purpose for the VSSR requirements if to provide reasonable safety: therefore, any interpretation of the regulations must meet that threshold criteria. See State ex re1. Haines vs. 8

Industria! Commission (1972) 29 Ohio State 15. When the OSHA variance is properly removed from consideration in this case, Lamar is left the argument that, "the hook ladder becomes part of the structure" (See Lamar Brief at page 18) and the Commission is left with the argument that, "an ordinarily portable ladder securely attached to a structure becomes a fixed ladder within the meeting of VSSR". (See Commission Brief page 11). Neither Lamar, nor the Commission explains how this magical transformation takes place, especially given the facts of this case. Gertrude Stein, a writer, accurately observed, "a Rose is a rose is a rose is a rose." It is not a petunia. Likewise, a portable hook ladder is not a fixed ladder as defined by the specific safety requirements, namely, "a ladder permanently attached to a structure, building, or equipment". How does an "ordinarily portable ladder" become a "fixed ladder" unless it is, "permanently attached to the structure?" How does a portable ladder become, "part of the billboard structure" unless, under the Ohio SSR definition of "structure", it is "built or constructed" into the billboard itself? Why would Lamar base its argument on the application of an OSHA variance unless knew that_hooking to the ladder as the attachment point did not meet the Ohio requirements? Finally, how is the fall arrest purpose of the Ohio requirements, which is designed to prevent the worker from falling off a ladder, plafform, scaffold, or other part of the building satisfied by requiring the worker to hook his fall arrest equipment onto the portable ladder he is standing on? It is simply illogical to hold that the ladder which slid off a structure and pulled Richmond off the billboard and to the ground can be redefined as a "fixed ladder" or part of the "structure". The fatal flaw of this reasoning is demonstrated by the facts of this case. The billboard had, as part of the "structure" a ladder 9

actually built into the billboard, which was used to access the catwalk at the bottom edge of the billboard. This is a fixed ladder. This billboard also had two metal lifeline cables, one along the catwalk and one across the top, rear of the billboard. Both were securely and permanently fastened to the billboard frame. These are secure attachment points to the structure. A portable ladder which, by its very nature must be moved by the employee across the billboard does not transform into a fixed ladder as soon as it hung over the top of the billboard. If that were the case, it would, by definition, never slip off the rounded edge of the billboard, as it did in this case. The mere labeling of a hook ladder as a fixed ladder, or labeling a hook ladder as part of the structure does not make it so under the specific safety requirements. For purposes of interpreting and applying the specific safety requirements, the Industrial Commission must fulfill the essential safety functions of the regulations. In that regard, common sense must prevail. See for example State ex rel. United Foundries vs. lndusfrial Commission 101 Ohio State 3d 207, 204 Ohio 704. It is unlawful for the Industrial Commission to negate the application of an Ohio SSR by redefining a rose as a petunia. For the foregoing reasons, the Industrial Commission decision holding that the portable hook ladder is part of the structure must be reversed, and the decision based on that finding must be overturned. PROPOSITION OF LAW III The Industrial Commission's decision denying claimant's VSSR application because of his negligence is contrary to law. UNILATERAL NEGLIGENCE CANNOT BE INVOKED AS A DEFENSE UNLESS THE EMPLOYER HAS FULLY COMPLIED WITH THE SPECIFIC SAFETY REQUIREMENT 10

A major purpose of the safety requirements, such as the fall arrest system in this case making use of lifelines, lanyards, and harnesses is to prevent injury where an employee is careless negligent, ignorant or even stupid. The threshold issue is always whether the employer met the safety requirement. See for example State ex rel. United State Steel vs. Cook (1983) 10 Ohio Appellant 3d 183, 461 N.E. 2d 916 and State ex rel. Cotterman vs. Saint Mary Foundry, 46 Ohio State 3d 544 N.E. 2d 877 (1989). In this case, the presence, non-presence, or position of the ladder stop on the billboard is a non-issue. Whether Richmond was negligent in placing his ladder outside the ladder stop is a non-issue. Whether Lamar was negligent in placing the ladder stop four to five feet from the edge of the billboard is a non-issue. If Lamar had provided the means to allow Richmond to attach his lanyard to the billboard, or to a lifeline at the top of the billboard, instead of requiring him to attach to the ring on the hook ladder, there would have been no injury when the ladder slipped off the edge. That is the purpose of the Ohio SSR requiring the attachment to the structure itself. Had he been attached to the structure, the fall arrest purpose would have operated exactly as intended namely, to protect Richmond from fafling-to the ground, even if he was negligent in the placement of his ladder. Since Lamar never met the letter, or the spirit of the Ohio SSR for fall arrest protection there can be no consideration of alleged unilateral negligence. CONCLUSION The OSHA variance cannot be applied to vary the language of an Ohio SSR; therefore, the Industrial Commission decision must be reversed. The Industrial Commission's redefinition of hook ladder as a fixed ladder or structure is 11

contrary to the plain meaning of the Ohio SSR and is an abuse of discretion. The decision based on this redefinition must be reversed. Respectfully submitted, BOYD, RUMMELL, CARACH, CURRY, KAUFMANN & BINS-CASTRONOVO CO, LPA Walter Kaufmann (0011388) Huntington Bank Building P.O. Box 6565 Youngstown, OH 44501-6565 330-744-0291 Attorney for Appellant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Merit Brief of Appellant, Darrin.^ ` C. Richmond was served this day of, 20Z _, by regular U.S. mail service upon: Jill T. O'Shea, Esq. Cohen, Todd, Kite & Stanford, LLC 250 E. Fifth Street, Suite 1200 Cincinnati, Ohio 45202 Counsel for Appellee, Lamar Advertising of Youngstown, Inc. and Sandra Pinkerton, Esq. (0062217) Assistant Attorney General 150 East Gay Street, 22"d Floor Columbus, Ohio 43215 Counsel for Appellee, Industrial Commission of Ohio Walter Kaufmann (0011388) Attorney for Appellant 12