Opinion
No. 76-893
Decided March 23, 1977.
Workmen's compensation — Additional award — Denial not abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
Relator, James E. Warr, was employed by the respondent, Wulftange Iron Works, Inc., on September 26, 1969, at a building construction site when he was injured in a fall through an opening in the floor of the building. Respondent Industrial Commission found him permanently and totally disabled as a result of his injuries and awarded him workmen's compensation. On February 3, 1971, relator filed an application for an additional award under Section 35, Article II of the Ohio Constitution, claiming that his employer had violated specific safety requirements. The Industrial Commission denied the application "for the reason that there is no specific safety requirement adopted by the General Assembly or the Industrial Commission of Ohio [which] was violated when claimant sustained the injuries of record." Upon rehearing, the commission affirmed its denial of the application for an additional award. Thereafter, relator filed a complaint in the Court of Appeals seeking a writ of mandamus ordering the Industrial Commission to grant the award.
The Court of Appeals denied the writ, and the cause is now before this court upon an appeal as of right.
Messrs. E.S. Gallon Associates and Mr. John A. Cervay, for appellant.
Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee Industrial Commission of Ohio.
Mr. Samuel M. Allen, for appellee Wulftange Iron Works, Inc.
At the time relator suffered his injuries, there were no guardrails or toeboards provided around the sides of the opening in the floor. Relator claims that the failure to provide this safety equipment violated Industrial Commission Rules IC-3-03.03(B), IC-3-03.05 and IC-3-03.09.
There is some disagreement concerning whether the sides of this opening were "unused" within the meaning of those rules. The record shows that at the time of the injuries, a crane was preparing to lower a piece of conveyor equipment down through the opening. But, it is not necessary to consider whether this was a use of the side of the opening through which the relator fell. The record does not disclose whether this employer, a subcontractor for the installation of stairways and railings, was in control of this construction area or was in any way involved in the construction being carried out in the vicinity of the opening.
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. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24, and cases cited therein. In a case involving a claim for an additional award, which is in the nature of a penalty charged against the employer and may be imposed "only upon that employer whose failure to comply caused death or injury to his employee" ( State, ex rel. Whitman, v. Indus. Comm., 131 Ohio St. 375, 3 N.E.2d 52), the question of whether an injury resulted because of such failure by the employer is a question of fact to be decided by the Industrial Commission, subject only to the abuse of discretion test. State, ex rel. Haines, v. Indus. Comm., supra, at page 17.
Because the record in this case fails to clearly indicate that this employer was in control of the work in the vicinity of the opening in the floor and therefore responsible for compliance with the Industrial Commission's rules, we cannot conclude that the denial of the additional award constituted an abuse of discretion. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.