Opinion
No. 81-696
Decided February 24, 1982.
Workers' compensation — Application for additional award for violation of specific safety requirement — Alleged Ohio Adm. Code 4121:1-19-02 violation — Not applicable to tree trimmers — "Electric utility industry," defined.
APPEAL from the Court of Appeals for Franklin County.
Appellants are the wife and daughter of James Sorrells (hereinafter "Sorrells"), a deceased employee of appellee Mosier Tree Service. On March 8, 1977, Sorrells was engaged in the process of trimming a tree which was higher than, and adjacent to, an electric power line. At the time, Sorrells was wearing climbers, a safety belt and a safety line. The spurs of Sorrells' climbers became dislodged when a tree limb, after having been cut, swung back and hit the trunk of the tree in which he was working. After being thus dislodged, Sorrells slid down a limb and his feet came into contact with the electric lines, causing his death.
The accident concededly arose out of and during the course of Sorrells' employment and appellants' claim for death benefits was duly recognized. However, on June 19, 1978, appellants filed an application for an additional award based upon the employer's alleged violation of a specific safety requirement. After a hearing, appellee Industrial Commission of Ohio denied the claim for an additional award. Appellants requested reconsideration and the matter was referred to another staff hearing officer. Following the hearing on reconsideration, the Industrial Commission affirmed its earlier decision denying the award.
In relevant part, Ohio Adm. Code 4121:1-19-02, provides:
"(A) Scope. The requirements of 4121:1-19-02 relate to the protective equipment and devices listed immediately below * * *.
"(1) Eye and face protection.
"(2) Foot (toe) protection.
"(3) Respiratory protection * * *.
"(4) Head protection * * *.
"(5) Air testing equipment.
"(6) Ventilating equipment.
"(7) Protective clothing.
"(8) Rubber or plastic line hose, line guards, insulator hoods, blankets and similar protective equipment.
"(9) Hot line tools and hot line equipment and grounding devices.
"(10) Climbers.
"(11) Body belts and safety straps.
"(12) Barriers and warning devices.
"(13) Hearing protection."
Appellants then commenced an action in the Court of Appeals for Franklin County seeking a writ of mandamus to compel the Industrial Commission to make the additional award. The Court of Appeals declined to issue the writ and the cause is now before this court upon an appeal as of right.
E.S. Gallon Associates Co., L.P.A., and Mr. Jeffrey V. Nackley, for appellants.
Messrs. Porter, Wright, Morris Arthur, Mr. Charles J. Kurtz, III and Ms. Roberta Y. Bavry, for appellee Mosier Tree Service.
Mr. William J. Brown, attorney general, and Mr. James E. Uprichard, Jr., for appellee Industrial Commission.
The sole issue presented for resolution herein is whether the Industrial Commission abused its discretion when it denied the application for an additional award. See State, ex rel. Ruggles, v. Stebbins (1975), 41 Ohio St.2d 228, and cases cited therein.
In interpreting Ohio Adm. Code 4121:1-19-02 (formerly IC-19-02), the Industrial Commission determined that it "does not apply to this employer and the work in which this employer was engaged * * *." This interpretation appears reasonable. Ohio Adm. Code 4121:1-19-01(B) provides that "[t]he terms used in these rules shall be interpreted in the most commonly accepted sense consistent with the electric utility industry." The clear import of this provision is that the rules, themselves, are applicable only to the electric utility industry. The phrase "electric utility industry" is not defined in the Revised Code. However, "the word `industry' [has been] defined as:
"`3b. A department or branch of a craft, art, business, or manufacture: a division of productive or profit-making labor, esp. one that employs a large personnel and capital, esp. in manufacturing. c. a group of productive or profit making enterprises or organizations that have a similar technological structure of production and that produce or supply technically substitutable goods, services or sources of income * * * [Webster's New International Dictionary, Unabridged (1961)].'" State v. Jacksonville Port Authority (Fla. 1974), 305 So.2d 166, 168-69. Similarly, "`Industry' has been defined as `any department or branch of art, occupation, or business conducted as a means of livelihood or for profit; especially, one which employs much labor and capital and is a distinct branch of trade.' Black's Law Dictionary, (4th Ed. 1968) pg. 916." Development Authority of DeKalb County v. Beverly Enterprises (1981), 247 Ga. 64, 66, 274 S.E.2d 324.
Utilizing the foregoing definitions, we find that the phrase "electric utility industry" means that industry which is concerned with the production and distribution of electric power. Also, as noted by the Court of Appeals below, the "[specific safety] standards refer to insulative and other requirements that an electric company uses when its employees are working on high voltage electric lines. Tree trimmers do not work on deenergized circuits and do not use equipment like hot tools, plastic line hose, or insulated blankets."
"This court has held on many occasions 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. * * * [Citations omitted.]" State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 50. Under the circumstances present in this case, we cannot say that the Industrial Commission has abused its discretion.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.