Opinion
No. 73-259
Decided November 21, 1973.
Workmen's compensation — Additional award for violation of specific safety requirement — No specific requirement violated, when — R.C. 4101.11, 4101.12 and 4101.13 — Mandamus.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal from the denial of a writ of mandamus by the Court of Appeals for Franklin County.
Terrance Niebel was employed as an apprentice meat cutter for appellee Heinen's, Inc., a supermarket.
He filed applications with the Industrial Commission in August 1970, seeking an additional award for violation of a specific safety requirement respecting an injury occurring September 14, 1968. The applications stated that the injury (partial amputation of middle finger, left hand) occurred "while operating a patty machine. I slipped and put my hand out to catch myself and put my hand under the cutting blade." The applications then asserted that "the safety, guard covering the cutting blade which came with the patty making machine was removed by the employer."
The commission denied the applications "for reason that there is no specific safety requirement adopted by the General Assembly or the Industrial Commission of Ohio which was violated when the claimant sustained the injuries of record."
Niebel then filed the instant mandamus action in the Court of Appeals to require the Industrial Commission to find that the injuries were caused by the employer's violation of a specific safety requirement. The answer filed by the commission denied that the facts alleged in the petition proved that a violation occurred.
The Court of Appeals denied the writ and the cause is now before this court upon an appeal as of right.
Mr. James T. Millican, for appellant.
Mr. William J. Brown, attorney general, Mr. Phillip T. Parisi, and Mr. Arthur Zalud, for appellees.
It is the contention of appellant that the specific safety requirements allegedly violated are prescribed by R.C. 4101.11, 4101.12 and 4101.13. R.C. 4101.11 requires employers to "furnish and use safety devices and safeguards." R.C. 4101.12 admonishes employers from failing to "furnish, provide, and use safety devices and safeguards." R.C. 4101.13 directs that: "No employees shall remove * * * any safety device or safeguard furnished * * *."
Appellant concedes the accuracy of the conclusion of the Court of Appeals, that those statutes are "general in character and that the violation thereof does not produce the basis for an additional award for the violation of a safety requirement." However, he argues that when machinery is equipped with a safety device or safeguard provided by the manufacturer, the removal of the safety device by the employer converts the application of the statutes in question from general to specific because of the employer's affirmative act.
Section 35, Article II of the Constitution of Ohio, reads, in part:
"Such board [the Industrial Commission] shall have full power and authority to hear and determine whether or not an injury * * * resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such board * * *."
The acceptance of appellant's argument would require this court to hold that the general character of the statutes in question is changed by facts extrinsic to such statutes. It is the statute, or commission order, that must be looked to under the Constitution with regard to whether a specific requirement or general course of conduct is contemplated. The statutes in question, general in nature under the test of Holdosh v. Indus. Comm. (1948), 149 Ohio St. 179, are not thus changed by actions of the employer.
For the foregoing reasons, the judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.