Opinion
No. 71-476
Decided January 26, 1972.
Workmen's compensation — Decision of Industrial Commission one of question of fact, when — No abuse of discretion, when — Mandamus not available remedy, when — Section 35, Article II, Constitution.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal from the judgment of the Court of Appeals for Franklin County denying a writ of mandamus sought by relatrix, as guardian for a minor child, to order the Industrial Commission of Ohio to make an additional award for the death of the ward's father which she alleges was caused by his employer's violation of a specific safety requirement.
In denying the application for an additional award, the respondent found "that the decedent's death was not caused by the employer's violation of any specific safety requirement."
Decedent, David H. Haines, was employed by the Stone Container Corporation. On October 14, 1965, while the plant was shut down for major repairs, decedent was assigned to clean the chipper building of wood chips and sawdust. After cleaning the building, he operated a bulldozer in the plant yard performing certain housekeeping functions. Several weeks prior to that time, the surface of the yard had been excavated for the purpose of installing drainage. This excavation measured approximately 60' long by 12' wide by 6' deep. In operating the bulldozer decedent came too near the edge of the existing drainage ditch, upsetting the bulldozer, which fell on him as it turned over in the ditch.
A claim for death benefits was allowed and paid. Relatrix then filed her application for an additional award. This application was predicated upon the claim that the employer had violated Section 100 of Bulletin No. 203, Specific Safety Requirements of the Industrial Commission of Ohio for Workshops and Factories (now No. 1C-5-02.03), requiring "floor openings," at least where "permanent" to be "guarded with standard guard railings or fixed safety covers with flush hinges," and defining floor openings as meaning "an opening in any floor, platform, pavement or yard (12) inches or more in its least dimensions."
In denying the writ of mandamus, the Court of Appeals held that the Industrial Commission had not abused its discretion in finding that decedent's death was not caused by the employer's violation of any specific safety requirement. An appeal as of right was then filed in this court.
Messrs. Larrimer Larrimer and Mr. Craig Aalyson, for appellant.
Mr. William J. Brown, attorney general, and Mr. David J. Sherriff, for appellee.
This court has held on many occasions that the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion. Slatmeyer v. Indus. Comm. (1926), 115 Ohio St. 654; State, ex rel. Coen, v. Indus. Comm. (1933), 126 Ohio St. 550; State, ex rel. Moore, v. Indus. Comm. (1935), 129 Ohio St. 195; State, ex rel. Berry, v. Indus. Comm. (1935), 129 Ohio St. 228; State, ex rel. Wilms, v. Blake (1945), 144 Ohio St. 619; State, ex rel. Howard Eng. Mfg. Co., v. Indus. Comm. (1947), 148 Ohio St. 165; State v. Ohio Stove Co. (1950), 154 Ohio St. 27; State, ex rel. Reed, v. Indus. Comm. (1965), 2 Ohio St.2d 200.
Assuming that the excavation in question was a "floor opening" requiring guard railings or safety covers within the intendment of Bulletin No. 203, and that a violation of a specific requirement by the employer was thus established (an assumption apparently followed by the Court of Appeals), the explicit language of Section 35, Article II of the Constitution of Ohio, requires not only that there be a "failure of the employer to comply with any specific requirement for the lives, health and safety of employes * * * in the form of an order adopted by such board [Industrial Commission]," but also that the injury, disease or death "resulted because of such failure by the employer."
As a matter of constitutional interpretation, we reject the assertion of appellant that:
"Where a specific safety requirement has been violated and an accidental injury occurs under circumstances which permit a reasonable inference that compliance with the requirement could probably have avoided the injury (although the same facts might also permit the inference that the injury could have occurred despite compliance), an additional award is mandatory."
The question of whether an injury, disease or death "resulted because of such failure by the employer" is a question of fact to be decided by the Industrial Commission, subject only to the "abuse of discretion" test.
As did the Court of Appeals, we conclude that the decision of the Industrial Commission that decedent's death "was not caused by" any violation of a specific safety requirement did not constitute an abuse of discretion on the part of the commission.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.
SCHNEIDER, J., dissents.
BROWN, J., not participating.