Summary
In Mees, supra (29 Ohio St.2d 128), a writ of mandamus was sought in the Court of Appeals for the grant of an additional award for violation of a specific safety requirement.
Summary of this case from State, ex Rel. Ruggles, v. StebbinsOpinion
No. 71-477
Decided March 1, 1972.
Workmen's compensation — Application for additional award — Claimed violation of specific safety requirement — Refusal to allow additional compensation — Abuse of discretion not shown — Mandamus.
APPEAL from the Court of Appeals for Franklin County.
On October 23, 1967, the appellant, Sam Edward Mees, while employed by the Edgerton Metal Products Company, Inc., suffered an injury which resulted in the amputation of all fingers on his left hand, except numbers four and five, and over half of the palm of his left hand, and a stiffness in finger number four. The injury occurred while the appellant was operating a 150 ton Bliss, OBI mechanical power press which was equipped with dies designed to trim metal parts which measured approximately 6" x 18". At the time of the accident, appellant was inserting a part into the press, and while his hand was in the die area the ram "came down by itself" catching his hand between the dies and causing the injury. The trim press was equipped with a safety device, known as a sweep guard, which appellant claims did not knock his hand from the die area. The maintenance superintendent stated that he inspected the press after the accident and found it to be operating properly and that the sweep guard was perfectly adjusted and operating properly.
On December 21, 1967, appellant filed a claimant's application for compensation with the Bureau of Workmen's Compensation. The claim was allowed, with the following awards being made:
Temporary total to 1/19/60 $3,262 Permanent partial from 10/23/67 to 10/11/70 7,595 Total medical services 908 Amount paid by Bureau $11,765
On April 1, 1969, appellant filed an application with the Industrial Commission for an additional award for violation of a specific safety requirement. Such application was made under favor of Section 35, Article II of the Ohio Constitution, which provides, in part:
"* * * Such board shall have full power and authority to hear and determine whether or not any injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board, and its decision shall be final * * *."
On October 29, 1970, a hearing was held before the Industrial Commission which resulted in the commission finding "that the claimant's injuries were not caused by the employer's violation of any specific safety requirement; therefore, the said application is denied."
On January 4, 1971, appellant filed a petition in mandamus in the Court of Appeals for Franklin County, seeking to have that court command the Industrial Commission to vacate its order, to grant him an additional award of compensation, and for such other relief as he may be entitled in the premises. On May 18, 1971, the Court of Appeals rendered its decision, saying:
"A review of the entire record * * * indicates there was evidence before the respondent from which it could have concluded there was not a violation of a specific safety requirement. Thus, we cannot substitute our judgment for respondent's, or find that respondent abused its discretion in this case, even though we might well have decided otherwise.
"Therefore, the writ of mandamus is denied and the petition dismissed at relator's cost."
The cause comes to this court upon an appeal as of right.
Messrs. Larrimer Larrimer and Mr. Craig Aalyson, for appellant.
Mr. William J. Brown, attorney general, and Mr. Michael J. Hickey, for appellee.
The question presented for our review is whether the Industrial Commission abused its discretion in denying appellant's application for an additional award. As the court said in the syllabus of State, ex rel. Stuber, v. Indus. Comm. (1933), 127 Ohio St. 325:
"In an action in mandamus, to compel the Industrial Commission to make an allowance of additional compensation under the terms of Section 35 of Article II of the Constitution of Ohio, the relator, in order to succeed, must show that the finding of the commission against him amounted to an abuse of discretion."
Pursuant to authority granted it in R.C. 4121.13, the Industrial Commission has fixed reasonable standards and prescribed orders for the adoption of safety devices. Bulletin IC-5, published by the Industrial Commission, delineates regulations applicable to power presses and, in IC-5-08.03 (A)(1), provides that:
"Every 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."
One of the acceptable methods of guarding listed in IC-5-08.03(B)(1)(c) is the sweep guard, defined in IC-5-08.02(D)(8) as a "device actuated by some moving part of the press and shall effectively sweep the hands of the operator from the danger zone when the ram or plunger descends."
Appellant urges his entitlement to the additional award on the basis that the sweep guard failed to effectively clear his left hand from the zone of danger.
Although the word "effectively" means in a manner producing the intended or expected result, it cannot be said that the occurrence of the accident here automatically indicates a violation of safety regulations.
The Industrial Commission determined that there was no violation of safety regulations by appellant's employer. In State, ex rel. Allied Wheel Products, v. Indus. Comm. (1956), 166 Ohio St. 47, 50, it is stated that "the determination of disputed factual situations as well as the interpretation of a specific safety requirement is within the final jurisdiction of the Industrial Commission." The court, in that case, concluded that there was evidence upon which the commission's finding might properly rest, and that, in such circumstance, the commission's determination became final.
Examination of the record herein indicates that it contains evidence which supports the commission's finding. Therefore, there is no basis upon which this court could predicate a finding of abuse of discretion.
This conclusion is supported by our holding in State, ex rel. Barrett, v. Indus. Comm. (1963), 175 Ohio St. 225, which involved facts similar to those in the instant case. There, it was agreed that a mechanical failure of a safety device on a punch press caused the injury. Even in that situation this court declined to find an abuse of discretion on the part of the commission which had refused to allow an additional award sought on grounds of an alleged violation of a specific safety requirement.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN and LEACH, JJ., concur.
SCHNEIDER and HERBERT, JJ., dissent.
BROWN, J., not participating.