Opinion
No. 87-871
Submitted August 19, 1988 —
Decided November 9, 1988.
Workers' compensation — VSSR — Commission's decision supported by some evidence, when.
APPEAL from the Court of Appeals for Franklin County, No. 85AP-1079.
Appellee-claimant, Ruth A. Mathews, was injured in a power press accident on September 30, 1980, while in the course of and arising out of her employment with appellant, American Home Products Corporation. She was operating a rousselle bowl press equipped with an anti-repeat device, a part revolution clutch and a full barrier guard wired to an electrical interlock. The interlock device rendered the press inoperable when the barrier guard was open. Evidence before the Industrial Commission indicated that when stock was fed through an opening in the front of the barrier guard into the die section, contact was made with an electrical microswitch located behind the die section, which tripped the bowl press.
Following allowance of her workers' compensation claim, appellee filed an application for an additional award for violation of a specific safety requirement, alleging a violation of Ohio Adm. Code 4121:1-5-10 in its entirety (formerly IC- 5.08.03). Specifically, appellee-claimant stated in her affidavit that:
"* * * [A]t the time of the accidents she had opened the hinged barrier guard that pivoted from right to left[.] * * * [A]s she reached into the danger zone to clean the die section the interlock malfunctioned and the press went into full cycle and trapped her right hand in the die section and resulted in her injury of record * * *."
She did not indicate that there were any witnesses to the accident.
The commission also had before it the affidavit of Ted Stanfield, plant manager, that stated:
"* * * [I]n the case of the claimant he feels an unsafe act was performed[:] [T]hat the claimant reached through the feed section of the barrier guard to clean the die section, with the press still running[;] [and that] she evidently struck the microswitch at the rear of the afixed [ sic] die and activated the press and it smashed her fingers."
On January 23, 1984, the commission issued an order adopting Stanfield's version of the accident, finding that "claimant reached through a barrier guard with an opening sufficiently large to allow her hand to enter." In so determining, it found that appellee's injury was the result of the "employer's failure to supply a barrier guard of appropriate dimensions," which failure constituted a violation of former IC- 5.08.03(A)(3). That provision stated:
"Where a gate guard or fixed barrier guard is used, there shall be no openings in the guard which will permit the insertion of a five-eighths (5/8) inch ball if within three (3) inches of any moving part. If farther away than three (3) inches, openings shall not permit the insertion of a one and one half (1 1/2) inch ball."
Appellant's request for a rehearing was denied.
Appellant then filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County, seeking to vacate the commission's finding of a violation of a specific safety requirement. The appellate court affirmed the commission's order and denied the writ.
The cause is now before this court upon an appeal as a matter of right.
Frank E. Gafney and David R. Cook, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Teresa Oglesby McIntyre, for appellee Industrial Commission.
W. Michael Shay, for appellee Mathews.
Appellant specifically contends that the commission's determination of a violation of IC- 5.08.03 (A)(3) was not supported by "any evidence," as it was erroneously premised on an unsupported version of the accident. We disagree.
Where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus will not lie. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. Moreover, as we stated in Burley, "[t]he commission alone shall be responsible for the evaluation of the weight and credibility of the evidence before it." (Emphasis added.) Id. at 20-21, 31 OBR at 72, 508 N.E.2d at 938.
In the present case, the commission, after considering the Stanfield affidavit, determined that appellee-claimant's injury was the result of appellant's failure to satisfy the safety requirements of IC- 5.08.03(A)(3). There was thus some evidence in support of its decision.
Accordingly, we affirm the judgment of the court of appeals denying the writ.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.