Opinion
No. 80-519
Decided November 19, 1980.
Workers' compensation — Specific safety requirements — Violation — Additional award — Not abuse of discretion, when — Modification of award — Not disturbed, when.
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County.
Linda Faye McKee, claimant herein, was injured on April 7, 1975, while employed as a part-time produce clerk in Buehler Food Markets, Inc. She was working on top of a walk-in cooler where empty produce containers were kept. The claimant stepped up onto an unsupported suspended ceiling abutting the cooler to retrieve a box in that area and fell through the ceiling to the floor below, a distance of ten feet, sustaining injuries. Claimant was found to be permanently and totally disabled and was awarded workers' compensation benefits.
In 1977, claimant filed an application for an additional award for violation of a specific safety requirement. The Industrial Commission found that the employer had violated specific safety requirements IC-5-02.04 (A) and IC-5-02.05 by failing to install a standard guard rail on an elevated platform. The commission awarded additional compensation of 40 percent of the maximum weekly rate. The employer's application for rehearing was found to be timely filed, and the commission subsequently reduced the additional award to 30 percent.
Relator-employer sought a writ of mandamus in the Court of Appeals for Franklin County, declaring that the order of the commission was against the weight of the evidence and constituted gross abuse of discretion. The claimant, McKee, in her cross-complaint also sought a writ of mandamus directed to the commission alleging that it had abused its discretion in reducing an award of additional compensation in the process of the rehearing.
The Court of Appeals denied both writs and the cause is now before this court upon an appeal and cross-appeal as a matter of right.
Messrs. Ward, Kaps, Bainbridge, Maurer, Bloomfield Melvin, Mr. William J. Melvin and Mr. Robert L. Bridges, for appellant and cross-appellee.
Mr. John R. Workman, for appellee and cross-appellant.
Mr. William J. Brown, attorney general, and Mr. Lee M. Smith, for appellee Industrial Commission of Ohio.
I.
Appellant-employer maintains that the commission erred in determining that the top of the walk-in cooler was a "platform" and that the specific safety requirement as applied to this "platform" is so vague that it denies appellant constitutional due process.
The Court of Appeals found that the commission was within its discretionary authority in making the determination that the top of the walk-in cooler fell within the purview of the generally accepted concept of a platform. It was elevated eight feet above the main floor, was approximately 19 1/2 feet long by 10 feet wide, and there were stairs leading to the top of it.
This court has stated the standard of its review of commission findings in State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, at page 16, as follows:
"This court has held on many occasions that the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission and subject to correction by action in mandamus only upon a showing of abuse of discretion. Slatmeyer v. Indus. Comm. (1926), 115 Ohio St. 654; State, ex rel. Coen, v. Indus. Comm. (1933), 126 Ohio St. 550; State, ex rel. Moore, v. Indus. Comm. (1935), 129 Ohio St. 195; State, ex rel. Berry, v. Indus. Comm. (1935), 129 Ohio St. 228; State, ex rel. Wilms, v. Blake (1945), 144 Ohio St. 619; State, ex rel. Howard Eng. Mfg. Co., v. Indus. Comm. (1947), 148 Ohio St. 165; State v. Ohio Stove Co. (1950), 154 Ohio St. 27; State, ex rel. Reed, v. Indus. Comm. (1965), 2 Ohio St.2d 200."
Ordinarily, if there is some evidence to support the commission's finding this court has refused to find an abuse of discretion. State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St.2d 128, 131.
This court has discussed the finality which attaches to determinations of the commission concerning violations of specific safety requirements in State v. Ohio Stove Co., supra, at page 38, as follows:
"In the determination by the Industrial Commission that an additional award will or will not be granted, the primary questions presented are, (1) was there a violation of a specific requirement by the employer and (2) did the injury incurred by the claimant result from such violation? In a decision of these questions, the commission is bound to consider the evidence submitted, make such investigations as it deems proper or necessary to ascertain the facts, and at the end of such inquiry decide the issue presented. Either there was a violation and a consequent injury as a result thereof, or there was no such violation, or, if there was, no such injury resulted thereform. The determination by the commission of these facts, whether favorable or unfavorable to the employee, under the provisions of Section 35, Article II of the state Constitution, is final."
This court also declared, at page 36, that:
"By virtue of the provisions of Section 35, Article II of the state Constitution, the decision of the Industrial Commission in a claim for an additional award for violation of a specific requirement is final. No appeal from such decision is authorized. Where decisions, granting or refusing such awards, have been attacked by proceedings in mandamus, this court has repeatedly held that such decisions will not be set aside in the absence of proof of an abuse of discretion by the commission. See State, ex rel. Richardson, v. Industrial Commission, 128 Ohio St. 570, 192 N.E. 738; State, ex rel. Berry, v. Industrial Commission, 129 Ohio St. 228, 194 N.E. 414; State, ex rel. Davidson, v. Blake, et al., Industrial Commission, 145 Ohio St. 102, 60 N.E.2d 664; and State, ex rel. Howard Engineering Mfg. Co., v. Industrial Commission, 148 Ohio St. 165, 74 N.E.2d 201."
The Court of Appeals in the instant cause was correct in finding that "***this record shows sufficient evidence supporting the decision of the Industrial Commission, finding a violation of a specific safety requirement, and that an injury occurred as a result of that violation."
II.
Cross-appellant, McKee, asserts upon the authority of State v. Ohio Stove Co., supra, that the commission was without power or authority to reduce the additional compensation award from 40 percent to 30 percent on a rehearing absent new and additional proof being adduced which had not previously been considered by the commission.
Cross-appellant's reliance upon State v. Ohio Stove Co., supra, is misplaced. That decision held that the commission was without jurisdiction to enter a contrary decision as to its denial of an additional award, in the absence of evidence showing some new development or changed condition, once the original order had become final. In the instant cause, however, the commission's decision did not become final until 30 days after receipt of the commission's order, and it was found by the commission, as supported by the record herein, that the motion for rehearing was filed by the employer within the required 30-day period.
The commission modified such award based on the recommendation of the hearing officer. The commission's determination in this regard will not be disturbed.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.