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State ex rel Parks v. Industrial Commission3/17/1999
[Cite as State ex rel. Parks v. Indus. Comm. (1999), ___ Ohio St.3d ___.]
Workers' compensation - Specific safety requirements - Workshop and factory safeguards - Protections afforded by Ohio Adm.Code 4121:1-5-23(E)(1) and (2) extend to outdoor industrial injury.
Submitted December 16, 1998
In June 1989, Joseph J. Parks, appellant-claimant, was employed as a "tree service worker" for appellee city of Toledo's Forestry Division when he received an electrical shock from a power line while trimming a storm-damaged tree. At the time of his injury, Parks was elevated in the bucket of a "high ranger" truck and was operating a chain saw. His workers' compensation claim was allowed for "high voltage injury, paresthesia involving right upper extremity."
Parks also applied for additional compensation for violations of specific safety requirements ("VSSRs"), alleging that the city had not complied with Ohio Adm.Code 4121:1-5-23(E)(1) and (2). These rules require employers in the "electric utility and clearance tree-trimming industries" to provide insulated gloves or other protective measures to employees trimming trees around electrical power lines.
Appellee Industrial Commission of Ohio denied Parks's VSSR application, explaining:
" laimant has cited no specific safety requirement adopted by the General Assembly or the Industrial Commission which was violated when he sustained the injuries of record."
"Claimant's application is denied for the reason that he was not injured in a workshop or factory. Workshop or factory is not defined in OAC [Chapter] 4121:1-5, but has been construed in STATE EX REL. YORK TEMPLE COUNTRY CLUB v. INDUSTRIAL COMMISSION to require a `place with definitive and substantial boundaries.' Claimant's testimony makes it clear he was outdoors and up a tree. Pursuant to OAC 4121:1-5-01(A) none of the provisions of OAC [Chapter] 4121:1-5 appl to his injury."
Parks filed a complaint in mandamus requesting an order that the commission vacate its decision and grant his VSSR application. The court of appeals denied the writ.
This cause is now before this court upon an appeal as of right.
Appellant Parks contends that the city violated Ohio Adm.Code 4121:1-5-23(E)(1) and (2), regulations for "electric utility and clearance tree-trimming industries." These are specific safety regulations for acts that cannot practicably be performed indoors. In applying "workshop and factory" safeguards in other cases, this court has implied that Ohio Adm.Code Chapter 4121:1-5 governs only indoor activities. The issue before us in this case is whether the protections afforded by Ohio Adm.Code 4121:1-5-23(E)(1) and (2) also extend to outdoor industrial injury. For the reasons that follow, we hold that the utility/tree-trimming protections in Ohio Adm.Code 4121:1-5-23(E)(1) and (2) apply to Parks's outdoor injury.
The court of appeals held that Parks's injury was outside the scope of this rule because his injury did not occur in a "workshop or factory" as required by Ohio Adm.Code 4121:1-5-01(A). The court relied upon prior cases where we have held that, at a minimum, employees must be within a room or place to be safeguarded against the VSSRs listed in Ohio Adm.Code Chapter 4121:1-5. State ex rel. Waugh v. Indus. Comm. (1997), 77 Ohio St.3d 453, 674 N.E.2d 1385; State ex rel. Buurma Farms, Inc. v. Indus. Comm. (1994), 69 Ohio St.3d 111, 630 N.E.2d 686; State ex rel. Double v. Indus. Comm. (1992), 65 Ohio St.3d 13, 599 N.E.2d 259.
In Buurma Farms, the claimant was injured while operating a conveyor, for which cited safety requirements specifically demanded accessibl
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