Summary
In State ex rel. Kroger Co. v. Industrial Commission of Ohio, (1980) 62 Ohio St. 2d 4, the Ohio Supreme Court addressed the issue of federal OSH Act preempting Ohio's VSSR.
Summary of this case from Avalon Precision Casting v. Industrial Comm. of OhioOpinion
No. 79-1346
Decided April 2, 1980.
Workers' compensation — Additional award for violation of specific safety requirement — Commission's finding supportable, when — Mandamus remedy not available — Specific safety requirements not preempted by federal law.
APPEAL from the Court of Appeals for Franklin County.
On July 13, 1973, Thomas P. Urban and Lynn R. Miller, claimants herein, were injured in the course of and within the scope of their employment with appellant, The Kroger Co. While claimants were welding an air line into an air dryer in a compressor room, a spark apparently fell through the bunghole of a drum containing methyl alcohol. This ignited the alcohol, causing burns to the claimants. Both received workers' compensation benefits.
In July 1975, claimants filed applications with the Industrial Commission for additional awards, alleging that Kroger violated specific safety requirement IC-5-13.06, which states, "[s]creens or shields shall be provided for the protection of workmen or combustible materials exposed to sparks or falling objects."
Testimony was presented to the commission in each claim through affidavits by a number of individuals. Claimant Urban testified that the company did not furnish any fire resistant shields. Claimant Miller testified that the welding bench in the maintenance shop was equipped with a shield, but that it was welded onto the bench. David Donaldson, a Kroger plant engineer, testified that there was one welding shield provided and it was located on the welding bench. Charles Howell, a mechanic for Kroger, stated that a welding shield was provided in the maintenance shop and that the shield was in the compressor room, scorched and lying on the floor, after claimant's injuries occurred. On July 3, 1978, the commission granted the applications for the additional awards, holding that appellant had violated specific safety requirement IC-5-13.06.
Appellant then instituted a mandamus action in the Court of Appeals for Franklin County alleging that the commission's order as to each claimant was an abuse of discretion. At oral argument appellant asked the appellate court to rule, pursuant to Civ. R. 36, that its requests for admissions be admitted since appellee had failed to answer them. Appellee believed that the answers had been submitted to appellant, but they were not. However, while the requests for admissions had been properly filed and served, they had not been docketed in the court. The court entered the requests on its docket, and further granted appellee's motion pursuant to Civ. R. 6(B) to file the answers late, finding that appellee believed in good faith that the answers had been submitted and that there was excusable neglect. The Court of Appeals then denied the writ.
The cause is now before this court pursuant to an appeal as of right.
Messrs. Porter, Wright, Morris Arthur and Mr. Charles J. Kurtz, III, for appellant.
Mr. William J. Brown, attorney general, and Mr. Lee M. Smith, for appellee.
Appellant asserts that the commission abused its discretion in finding that the appellant did not provide a screen or shield that claimants could have used in the compressor room while welding. The evidence on this question of fact is in conflict. Since there is some evidence supporting the commission's finding, however, mandamus cannot lie. See State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St.2d 55, 58.
Appellant also contends that Ohio's specific safety requirements, such as that in the case at bar, have been preempted by the federal Occupational Safety and Health Act of 1970 (OSHA). It argues that Congress expressly intended to limit state regulation of occupational safety and health matters to areas where federal standards have not been developed, or, where they have been developed, to areas where state plans have been approved by the Secretary of Labor. See Section 667, Title 29, U.S. Code.
However, Section 653(4) of Title 29 provides, "nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." While awards for violations of specific safety requirements are penal insofar as they affect employers, they are compensatory insofar as the employee is concerned. State, ex rel. Emmich, v. Indus. Comm. (1947), 148 Ohio St. 658, paragraph three of the syllabus. The award goes directly to the injured employee, not to the state as a fine. Although compensation is calculated with reference to some standard of employer culpability, additional awards for violations of specific safety requirements are an integral part of Ohio's workers' compensation scheme. Thus, we find that such requirements have not been preempted by federal law.
Finally, appellant contends that the Court of Appeals committed reversible error by allowing appellee to tardily file its answers to appellant's requests for admissions. Pursuant to Civ. R. 6(B)(2), however, the Court of Appeals had the discretion to allow appellee to file the answers late if it found, as it did, that the failure to act was the result of excusable neglect.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
HERBERT, J., not participating.