Summary
applying an "abuse of discretion" standard of review to evidentiary determination by hearing officer
Summary of this case from HCMC, Inc. v. Ohio Department of Job & Family ServicesOpinion
No. 79-1074
Decided February 27, 1980.
Workers' compensation — Industrial Commission — Order not abuse of discretion, when — Refusal to admit evidence proper, when — Mandamus remedy denied.
APPEAL from the Court of Appeals for Franklin County.
On February 5, 1975, Charles T. Comiskey, claimant-appellee herein, was operating a press brake in the course of his employment with Crescent Metal Products, Inc., appellant herein. Comiskey was using the machine to make four separate bends in a flat piece of metal. Each bend required a separate operation of the machine followed by a manual adjustment of the metal in the die. When Comiskey reached into the die area to retrieve the metal, the ram of the machine descended causing the loss of part of his left hand. His claim for workers' compensation was allowed, and he was awarded temporary total and permanent partial disability benefits.
On February 4, 1977, Comiskey filed an application with the Industrial Commission, an appellee herein, for an additional award for violation of specific safety requirement IC-5-08.03. Joseph M. Hudik, appellant's plant foreman, stated in an affidavit filed with the commission that Comiskey had been using the press brake in a "forming and bending process." The commission determined that appellant had violated the specific safety requirement by confirming its hearing officer's finding "that the claimant's injury was the result of the employer's failure to guard the danger zone of the press brake used for a forming and bending operation as required by IC-5-08.03(A) and (G), the Code of Specific Safety Requirements of the Industrial Commission of Ohio***." The commission denied appellant's motion for rehearing.
Appellant then filed a complaint in mandamus in the Court of Appeals seeking a writ "directing the Industrial Commission to vacate its order determining that***[appellant] had violated a specific safety requirement." That court denied the writ.
The cause is now before this court upon appeal as a matter of right.
Messrs. Zellmer Gruber, Mr. Sheldon R. Jaffery and Ms. Joyce L. Koontz, for appellant.
Mr. William J. Brown, attorney general, and Mr. Lee M. Smith, for appellee Industrial Commission.
Mr. Benjamin B. Sheerer, for appellee Comiskey.
IC-5-08.03(A)(1) provides that "[e]very power press in use shall be constructed, or shall be guarded to prevent the hands or fingers of the operator from entering the danger zone during the operating cycle." IC-5-08.03(G) provides that "[t]he requirements of IC-5-08.03(A) to IC-5-08.03(F), inclusive, shall be applicable to power press brakes when used for other then bending or breaking." Appellant does not dispute the finding of the commission that the press brake was not constructed or guarded to meet the requirements of IC-5-08.03(A) and (G). Rather, it alleges that any obligations imposed upon it by IC-5-08.03(A) and (G) are so uncertain as to make them invalid. To be constitutional under Section 35, Article II of the Constitution of Ohio, a specific safety requirement must prescribe specific and definite requirements or standards of conduct which are of a character plainly to apprise an employer of his legal obligations toward his employees. State, ex rel. Trydle, v. Indus. Comm. (1972), 32 Ohio St.2d 257. Clearly, IC-5-08.03(G) contemplates that the construction and guarding requirements of IC-5-08.03(A) apply to certain uses of a power press brake. Appellant contends, in essence, that it does not plainly apprise an employer in the industry that it applies when it is used to make four bends in a piece of sheet metal in four hits by the machine. We do not believe, however, that appellant has met its burden of proof to establish that the requirements of IC-5-08.03(A) and (G) are not sufficiently clear to those in the industry. Indeed, appellant offered evidence before the commission that it is common in the industry to refer to a "forming" operation on a press brake when multiple bends are made with a single hit by the machine. Thus, in essence, it seems that appellant is really arguing that the commission erred in finding that Comiskey was involved in a forming operation when injured.
This court will not issue a writ of mandamus against the commission unless it abused its discretion in that there is no evidence to support its decision. State, ex rel. City Iron Works, v. Indus. Comm. (1977), 52 Ohio St.2d 1, 3. Appellant's own plant foreman, Hudik, testified in his affidavit, however, that Comiskey had been using the press brake in a "forming and bending process" on the date of his injury. Thus, the commission did not abuse its discretion in issuing its finding herein.
Appellant also argues that the commission abused its discretion when its hearing officer refused to admit in evidence a manufacturer's brochure on press brakes and a further affidavit by Hudik as support for appellant's motion for rehearing. The hearing officer refused to admit the evidence because he believed that it was not "new and additional proof." See Ohio Adm. Code 4121-3-20(G). Based on the record before us, we cannot say that this constitutes an abuse of discretion.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.