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State ex rel. v. J.A. Croson Co.3/4/1996
PFEIFER J.
The parties to this action contest whether a specific statutory requirement was violated when Lamp sustained his injuries. The parties do not contest whether Lamp was injured during the course of his employment. That issue was determined when Lamp's workers' compensation claim was allowed.
A few simple principles should guide our analysis of whether a specific safety requirement was violated. Specific safety requirements must be sufficiently specific to "plainly * * * apprise an employer of his legal obligation toward his employees." State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257, 261, 61 O.O.2d 488, 490, 291 N.E.2d 748, 752. Because a VSSR results in a penalty, specific safety requirements must be strictly construed in the employer's favor. State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170, 545 N.E.2d 1216.
Under State ex rel. Harris v. Indus. Comm. (1984), 12 Ohio St.3d 152, 153, 12 OBR 223, 224, 465 N.E.2d 1286, 1288, the commission "has the discretion tsinterpret its own rules; however, where the application of those rules to a unique factual situation gives rise to a patently illogical result, common sense should prevail."
We first must determine whether the Ohio Administrative Code sections regulating construction activities apply to this case. The commission determined that the claimant was not engaged in a construction activity, and, thus, that the claimant was precluded from recovering damages as the result of a VSSR. For the following reasons we conclude that the commission erred when it made this determination. Ohio Adm. Code 4121:1-3-01(A) provides:
"The purpose of this code is to provide safety 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 * * * of buildings and other structures and the installation of machinery or equipment and all operations in connection therewith * * *."
After examining this language governing the scope of its rules, the commission stated:
"The claimant alleges that even though the accident occurred before he got to the construction jobsite that the transporting of construction materials is 'an operation in connection therewith' as defined by 4121:1-3-01(A) and thus he was engaged in construction activity at the time of the accident.
"This position is rejected. It is concluded that the transporting of materials was an activity that is only preparatory in nature. That is to say that at the time of the accident the claimant was only preparing to engage in construction activity by the transporting of materials to the jobsite. Construction activity must occur at the jobsite itself, and being that the claimant had yet to arrive at the jobsite, his actions in moving materials to the jobsite would not yet be construction activity.
"If the claimant had been riding in the van after it had arrived at the jobsite wherein it was moving within the jobsite for a construction related purpose or even if the van had left the jobsite after it had arrived and was returning to the jobsite with construction materials, then the claimant would have been engaged in construction activity because those activities would have taken place after the van arrived at the construction site."
We disagree with the commission's conclusion that the claimant was not engaged in a construction activity. While we are normally obligated to defer tsthe commission's interpretation of its own ru
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