Summary
In Dietrich, for instance, the court of appeals had issued a writ of mandamus against the Industrial Commission of Ohio that directed the commission "to determine whether there was a causal relationship between the absence of proper guards and relator's injury, and if it determines that there was such a relationship to determine the amount of the award thereafter."
Summary of this case from In re Proposed Charter PetitionOpinion
No. 86-1970
Decided February 24, 1988.
Workers' compensation — Power driven knives — VSSR granted, when — Ohio Adm. Code 4121:1-5-11, applied.
APPEAL from the Court of Appeals for Franklin County.
On December 21, 1978, appellee, Daniel P. Bernal, was injured in the course of his employment with appellant, Dietrich Industries, Inc., when his left hand and arm were pulled into a slitter machine while he was attempting to manually feed metal sheets into the machine. As a result of this incident, appellee filed for workers' compensation benefits which were eventually allowed for "laceration of left arm; severe arm injury with multiple fractures of the left forearm and denuded area forearm with exposed tendons, muscles, bones and scar contractures of left arm and hand." On December 3, 1979, appellee filed an application for an additional award for violation of a specific safety requirement ("VSSR"). This application was denied on November 10, 1981. Upon rehearing, this application was again denied on September 17, 1982.
On November 4, 1982, Bernal instituted a complaint for a writ of mandamus in the Court of Appeals for Franklin County. On December 28, 1983, the court granted the requested writ, stating:
"For the reasons stated in the opinion of this court rendered herein on December 22, 1983, it is the judgment and order of this court that a writ of mandamus issue against respondent, Industrial Commission of Ohio, ordering it to vacate its order and to determine whether there was a causal relationship between the absence of proper guards and relator's injury, and if it determines that there was such a relationship to determine the amount of the award thereafter."
Pursuant to this order, the Industrial Commission reconsidered appellee's VSSR application. In its order of December 21, 1984 granting appellee a VSSR award, the commission stated:
"It is further the finding of the Industrial Commission that by reason of the writ of mandamus issued by the Franklin County Court of Appeals in this matter violation of a specific safety requirement has already been found, and the sole issues to be determined are whether or not there is approximate cousal [ sic, a proximate causal] relationship between the violation and the injury and if so, the penalty to be assessed."
The commission ultimately determined that appellee's injury was proximately caused by the absence of guarding required under Ohio Adm. Code 4121:1-5-11(D)(13) and assessed a penalty against appellant. A motion for rehearing was denied on June 25, 1985.
On August 7, 1985, appellant instituted the instant action in mandamus in the court of appeals, asserting that the commission's decision constituted an abuse of discretion, and seeking vacation of the VSSR award granted on December 21, 1984. On October 9, 1986, the court of appeals denied the requested writ.
The cause is now before this court as a matter of right.
Schottenstein, Zox Dunn, Felix C. Wade, Reed, Smith, Shaw McClay and Walter G. Bleil, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Helen M. Ninos and Jeffery W. Clark, for appellee Industrial Commission.
Gallon, Kalniz Iorio, Co., L.P.A., and William R. Menacher, for appellee Daniel Bernal.
The first issue before this court concerns the scope of the appellate court's December 22, 1983 opinion granting appellee a writ of mandamus. Appellant submits that the appellate court's writ of mandamus directed the Industrial Commission to first consider whether a violation of Ohio Adm. Code 4121:1-5-11(D)(13)(a) had occurred and, if a violation did exist, to find whether such violation was the proximate cause of appellee's injury.
A careful review of the appellate court's opinion does not support this construction. The issue before the appellate court was whether the Industrial Commission abused its discretion by denying appellee's VSSR application for failing to cite a specific safety requirement which was violated. The appellate court concluded that the guard which existed at the time of the accident did not comply with the specific safety requirements of Ohio Adm. Code. 4121:1-5-11(D)(13)(a).
Based on this finding, the appellate court granted a writ of mandamus, directing the commission "* * * to determine whether there was a causal relationship between the absence of proper guards and relator's injury." The appellate court further instructed the commission that "[i]f there is such a relationship, the amount of the award shall thereafter be determined." The appellate court's journal entry of judgment rendered December 28, 1985 restated this directive.
Clearly, the appellate court's issuance of a writ of mandamus in this case was based upon its finding that the employer had violated a specific safety requirement. Appellant could have contested this factual finding in an appeal to this court. However, appellant did not avail itself of this remedy. A judgment rendered in a mandamus action may operate as res judicata in a subsequent action which seeks to relitigate the issues decided in the mandamus action. Garrison v. Patrick (1945), 145 Ohio St. 580, 31 O.O. 211, 62 N.E.2d 371. Hence, appellant is precluded from attempting to relitigate this issue in the present action.
In its next proposition of law, appellant contends that there is no evidence in the record to support the commission's judgment as to causation.
The commission's finding of causation was based on the affidavits of employees of appellant, and on the fact that the guard did not prevent appellee's hand from entering the danger zone where the blades were exposed to contact.
Ohio Adm. Code 4121:1-5-11(D) (13)(a) requires that all power driven knives be guarded where the knife is exposed to contact, except for the necessary working portion of the blade while it is being used. The affidavits of David V. Sidenbender, a foreman for Dietrich Industries, and Rudolfo J. Garcia, an employee for Dietrich Industries, establish that the guard on the machine at the time of the injury left exposed at least two inches of the bottom of the knives. These affidavits together with the affidavit of Daniel Bernal constitute evidence that the amount of exposure of the knives was in excess of that necessary to cut the sheet metal which appellee was feeding into the machine when the accident occurred. We find that there is some evidence to support the Industrial Commission's decision.
For the reasons set forth in this opinion, we hereby affirm the judgment of the court of appeals which denied the requested writ of mandamus.
Judgment affirmed.
SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
MOYER, C.J., not participating.