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State v. Industrial Commission of Ohio12/2/1998
Workers' compensation - Violation of specific safety requirement - Claimants may amend their VSSR applications to clarify prior charges regardless of Industrial Commission deadlines or statutes of limitations - Industrial Commission did not abuse its discretion in finding that Ohio Adm.Code 4121:1-3-09(F)(1), the catch-platform requirement, applies to gutter repair.
Submitted August 19, 1998
Appellant, R. Bauer & Sons Roofing & Siding, Inc. ("Bauer"), seeks a writ of mandamus ordering appellee Industrial Commission to vacate its award of additional compensation to appellee Michael R. McClellan for Bauer's alleged violations of specific safety requirements ("VSSR"). The Court of Appeals for Franklin County denied the writ. Bauer appeals as of right.
On August 16, 1990, McClellan sustained an industrial injury while working for Bauer. He fell approximately seventeen feet from a church roof as he attempted to remove the gutters, breaking his back and causing him to become paraplegic. McClellan's workers' compensation claim was allowed for "fracture of back, multiple injuries, closed head injury."
McClellan filed his VSSR application in September 1991, alleging Bauer's violation of Ohio Adm.Code 4121:1-3-09(F)(1). This rule requires catch platforms according to certain specifications on roofing projects, but allows the use of lifelines and safety belts "in lieu of" a catch platform. McClellan's application also referred to a "construction safety analysis" conducted by the Bureau of Workers' Compensation Division of Safety and Hygiene on the church roofing site several weeks before his accident. The report advised Bauer that the site was not in compliance with Ohio Adm.Code 4121:1-3-09(F)(1) because the roof did not have a "catch platform or other equal safety guards."
A commission investigator looked into McClellan's accident and filed his report in February 1992. In November 1992, McClellan sent notice that he was amending his VSSR application to include a violation of Ohio Adm.Code 4121:1-3-03(J)(1). This rule requires personal protective equipment and specifies safety belts and lifelines for "all employees exposed to hazards of falling when the operation being performed is more than fifteen feet above ground." McClellan's amendment concededly came long after the deadline in Ohio Adm.Code 4121- 3-20(A)(1), which allows the filing of amendments over two years after the date of injury only where the amendment is filed within thirty days of the claimant's receipt of the VSSR investigation report.
The first time the commission heard the cause, it found a violation only of Ohio Adm.Code 4121:1-3-03(J)(1):
"On the date of injury, claimant was in the process of removing the gutter from a church roof. Work on the roof itself had been completed one week to one month earlier. Claimant was sitting or kneeling on the roof to reach down and work on the gutter, reportedly because the ground sloped and the work could not be done from a ladder. The area of roof at which claimant was working was approximately 20 feet long and, because of the slope of the ground, the distance from the ground to the roof was 11 feet, 8 inches at one end and 17 feet, 5 inches at the other end * * *. The undisputed affidavits of the claimant and of Tony Mills place claimant at or near the 17 foot, 5 inch location when claimant slipped and fell to the ground, causing the injuries of record."
"On the initial application, claimant alleged a violation of [Ohio Adm.Code] 4121:1-3-09, and specifically 4121:1-3-09(F)(1). A reading of (F)(1) shows that that section makes reference to safety belts and a lifeline being an acceptable alternative to
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