 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State ex rel. Go-Jo Industries v. Indus. Comm.11/10/1998
Per Curiam.
The two specific safety requirements before us are power-disengagement requirements. Go-Jo concedes that there was no power-disengagement device at the location where claimant was injured. At issue is the applicability of those provisions and the evidentiary support underlying the commission's determination that they were violated. For the reasons to follow, we find that the commission did not abuse its discretion in assessing these penalties.
Ohio Adm.Code 4121:1-5-05(C)(2)
This section provides:
"All conveyors, where exposed to contact, shall be equipped with means to disengage them from their power supply at such points of contact."
Go-Jo opposes, on two grounds, the commission's conclusion that the Jones Cartoner was a conveyor. Go-Jo initially argues that this conclusion was barred by the commission's March 2, 1994 order. Go-Jo contends that the March 2 order specifically found that the Cartoner was not a conveyor, and that the commission was subsequently bound by that determination. Appellees dispute the order's conclusive effect, describing the order as simply interlocutory. We agree.
The March 2, 1994 order was generated by Go-Jo's request for reconsideration, and was promulgated pursuant to Ohio Adm.Code 4121-3-20(G), which permits rehearing in two instances - one of which is where there has been an obvious mistake of fact. In what is perhaps an inartfully worded order, the commission follows its conclusion that the Cartoner was not a conveyor with language setting a rehearing - the latter articulating its intent to subject claimant's VSSR application to further review. We have previously held that such a clear indicium of intent supports a finding that an order was interlocutory. See State ex rel. Brewer v. Indus. Comm. (1984), 12 Ohio St.3d 23, 12 OBR 20, 465 N.E.2d 389; State ex rel. Draganic v. Indus. Comm. (1996), 75 Ohio St.3d 461, 663 N.E.2d 929. Indeed, to consider the SHO's finding on the character of the Cartoner to be anything but non-binding is irreconcilable with the SHO's grant of rehearing. A binding determination that the Cartoner was not a conveyor would have automatically rendered Ohio Adm.Code 4121:1-5-05(C)(2) inapplicable, eliminating the need for any further discussion.
Our holding is further supported by the mechanics of Ohio Adm.Code 4121-3-20(G) itself. If reconsideration is granted, the matter goes again to hearing. Isis the written order generated by that hearing which is, according to the express terms of Ohio Adm.Code 4121-3-20(G)(4), deemed final. We find, therefore, that the March 2, 1994 finding was interlocutory, and, pursuant to Draganic, not binding upon the commission.
Further, Go-Jo argues that there is not "some evidence" to support the August 22, 1994 conclusion that the Cartoner was a conveyor. Go-Jo contends alternatively that even if the Cartoner was a conveyor, it was an internal conveyor, which exempts Go-Jo from liability. Neither assertion has merit.
Ohio Adm.Code 4121:1-5-05 does not define "conveyor." Interpretation of that term was, therefore, within the commission's final jurisdiction. State ex rel. Berry v. Indus. Comm. (1983), 4 Ohio St.3d 193, 4 OBR 513, 448 N.E.2d 134. In this instance, the SHO adopted the definition of "conveyor" put forth by the American Society of Mechanical Engineers. Under that definition, "a conveyor" is:
" horizontal, inclined, or vertical device for moving or transporting bulk material, packages, or objects, in a path predetermined by the design of the device, and having points of loading or discharge, fixed or selective. Included are skip hoists,
Page 1 2 3 4 Ohio Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|