Opinion
No. 71-507
Decided March 1, 1972.
Workmen's compensation — Violation of specific safety requirement — Denial of additional award — Abuse of discretion, when — Evidence.
The Industrial Commission's denial of an employee's application for an additional award for violation of a specific safety requirement constitutes an abuse of discretion where the uncontested evidence shows that an employer has violated a specific safety requirement resulting in injury to an employee.
APPEAL from the Court of Appeals for Franklin County.
This is an action in mandamus initiated in the Court of Appeals by Charles Truckey, appellee herein, against the Industrial Commission, appellant herein.
On December 6, 1967, the relator, at his place of employment, was struck in the head by a piece of a 36-inch grinding wheel which shattered while being test-run on a grinding machine. The protective guard on the grinding machine had been removed due to the fact that the wheel was of a size which would have rubbed against the guard. The purpose of the test-running was to determine whether the wheel was "running true." It was subsequently to be cut down to fit the machine, at which time the guard would have been reinstalled.
Relator's application for workmen's compensation benefits was allowed, and approximately $3,600 was paid for medical bills and lost wages.
Relator subsequently filed an application with the Industrial Commission for an additional award, alleging that the circumstances were sufficient to constitute a violation of a specific safety requirement, thus entitling him to recovery under Section 35, Article II of the Constitution of Ohio. The application was denied by the commission and a subsequent motion for rehearing was dismissed on August 19, 1970.
Relator then initiated this action in the Court of Appeals for the issuance of a writ of mandamus requiring respondent to determine the amount of the additional award to relator, as provided in R.C. 4121.131.
The Court of Appeals allowed the writ, and an appeal as of right was then filed in this court.
Messrs. Shapiro, Kendis Petro, and Mr. Alan J. Shapiro, for appellee.
Mr. William J. Brown, attorney general, Mr. R. Patrick Baughman, and Mr. James W. Brown, for appellant.
Relator contends in his complaint that the uncontradicted facts clearly and convincingly establish that he was injured as a result of a violation of Section IC-5-09.03(A) of Bulletin IC-5. If this contention is correct, the Industrial Commission must award relator an amount as prescribed in Section 35, Article II of the Ohio Constitution.
Bulletin IC-5, entitled Specific Safety Requirements of The Industrial Commission of Ohio Relating to All Workshops and Factories, is issued by The Industrial Commission of Ohio.
Respondent contends that the writ should not issue unless an abuse of discretion by the Industrial Commission can be shown. This statement of the law cannot be disputed, for Section 35, Article II of the Ohio Constitution, provides exclusive jurisdiction in the Industrial Commission in the determination of disputed factual situations involving violation of a safety regulation. Slatmeyer v. Indus. Comm. (1926), 115 Ohio St. 654; State, ex rel. Howard Engineering Mfg. Co., v. Indus. Comm. (1947), 148 Ohio St. 165; State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15.
An "abuse of discretion" would exist if the uncontradicted facts indicate that the relator was injured, as a result of a violation, by an employer, of a specific safety regulation.
In this case, the uncontradicted facts indicate that the machine was being operated without the requisite guard. Such operation, unless falling within the exceptions noted in IC-5-09.03(A), constitutes a violation of a specific safety requirement. None of the exceptions apply in this case.
IC-5-09.03(A) states that its requirement shall not apply if "* * * the grinding wheels are equipped with protection flanges, bands or chucks" or "if grinding wheels are less than three (3) inches in diameter and are operated at a peripheral speed not exceeding three thousand (3000) feet per minute," or "the material acts as a shield to the periphery of the grinding wheel."
Respondent contends, however, that IC-5-09.03(A) does not apply since this particular accident took place at a time when the machine was not being used for purposes of external grinding. IC-5-09.03(A), in pertinent part, reads as follows:
"On all non-portable grinding machines used for external grinding, a substantial guard shall be provided * * *." (Emphasis added.)
Grammatical construction of that sentence indicates that the word "used" is employed as an adjective, indicating that the grinding machines to which IC-5-09.03(A) pertains are those machines which are used "for external grinding." This construction is substantiated by the statutory intent of the regulations, for they were intended to provide reasonable safety for employees at all times, not just when the particular piece of equipment was being "used" for a particular purpose.
Finding from the uncontested facts that a violation of IC-5-09.03(A) occurred, and that the relator was injured as a result of that violation, we hold that the Industrial Commission's order denying relator's application for additional compensation constitutes an "abuse of discretion," and that the relator is entitled to additional compensation.
A clear legal right to a writ of mandamus having been established in accordance with State, ex rel. Szekely, v. Indus. Comm. (1968), 15 Ohio St.2d 237, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN and LEACH, JJ., concur.
BROWN, J., not participating.