Magistrate's ruling against construction firm rejected by appellate court
KEITH ARNOLD, Daily Reporter Staff Writer
A Franklin County appellate court earlier this month reversed a magistrate's decision against a Columbus-based construction firm, which was deemed responsible for a safety violation, or VSSR, resulting in a worker's injury.
The 10th District Court of Appeals held that the court's magistrate improperly placed significant emphasis upon the fact that there was no testimony to establish that Ruscilli Construction Co. Inc. worker "yanked" on a board. Additionally the magistrate applied a different standard for guarding a hole at a construction site, determining that the cover could not be "easily displaced," rather than "accidentally displaced."
"For these reasons, we grant a limited writ of mandamus directing the commission to vacate its July 2009 order and remand this matter to the (Industrial Commission of Ohio) to adjudicate the application for VSSR and determine the facts, either based upon the record or, if necessary, by holding a new hearing," 10th District Judge John Connor wrote for the court.
Ruscilli filed the original action requesting that the court issue a writ of mandamus ordering the Industrial Commission of Ohio to vacate its award to injured worker David Barno for the safety violation, case summary provided. The court referred the matter to a magistrate, who concluded the commission did not abuse its discretion in granting Barno an additional award for a VSSR because there was some evidence in the record that the cover over a hole at the construction site was constructed in a fashion that allowed it to be accidentally displaced.
The magistrate also concluded that the case was distinguishable from State ex rel. Sheeley v. Indus. Comm., 10th Dist. No. 07AP-1011, 2008-Ohio-4547, because the cover in this case was "easily displaced," resulting in claimant's injuries and prompting the magistrate to recommend awarding compensation to the worker.
Ruscilli, on appeal of the magistrate's decision, argued the magistrate erred by substituting the phrase "not easily displaced" for the "cannot be accidentally displaced" language used in Ohio Adm.Code 4123:1-3-04(D)(1) and by assuming facts unsupported by the evidence in the record.
Additionally, the company argued the magistrate improperly attempted to distinguish this case from State ex rel. Sheeley by using a "lack of resistance test" to determine that Ruscilli had failed to comply with the applicable code provision.
Citing Barno's testimony, the staff hearing officer determined the hole was covered with only a single piece of plywood, but that Ruscilli's safety representative had testified it was standard practice to place two pieces of plywood over every hole and to boldly write the word "hole" on the top piece of plywood, summary provided.
The staff hearing officer found that if two pieces of plywood had been covering the hole, Barno would not have been injured. Additionally, the officer concluded the practice of using two-inch nails to hold two pieces of plywood in place over a hole was not an effective way to guard the hole, given the depth of the boards and the limited amount of the nail that would remain available to secure the boards to the compacted dirt, which could shift.
The staff hearing officer's opinion was based upon Ohio Adm.Code 4123:1-3-04(D)(1), which applies to temporary conditions where there exists the danger of employees or materials falling through the floor, roof, wall opening or stairway at a construction site.
The rule's provision requires that any such opening be guarded. Specifically, subsection (D)(1) provides that "floor openings shall be guarded by a standard guard railing and toeboard or a cover with a safety factor of no less than two and so constructed that the cover cannot be accidentally displaced. ..."
"Our review of the record of proceedings reveals relator's safety officer actually testified that it was standard practice to use just one layer of plywood," Connor continued for the court.
"As a result, the nails only had to penetrate one layer of plywood and more of the nail could be inserted into the ground. Furthermore, the witness testimony appears to establish that the plywood was secured into the concrete floor, rather than into compacted dirt.
"The (staff hearing officer) appears to have incorrectly recalled this relevant and significant testimony of the witnesses and thus relied upon that incorrect testimony in reaching her conclusion that relator failed to use an effective method of guarding the hole. In turn, the magistrate appears to have relied upon much of the same inaccurate testimony."
Ruscilli's counsel, Samuel Pipino, partner in the Columbus firm Wiles Boyle Burkholder & Bringardner Co. LPA, was satisfied with the appellate court's outcome.
"Our client places great value and emphasis on safety in the workplace, and we are pleased this was recognized by the court," he said.
Barno's attorney, Mark Heinzerling of the firm Heinzerling, Goodman & Reinhard LLC, was not immediately available for comment late last week.
Presiding Judge Gary Tyack and fellow 10th District Judge Judith French joined Connor to form the majority.
The case is cited as State ex rel. Ruscilli v. Indus. Comm., 2010-Ohio-4126.
Date Published: September 13, 2010