[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 105.]
THE STATE EX REL. GRECO, APPELLANT, v. CONRAD, ADMR., ET AL.;
INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
[Cite as State ex rel. Greco v. Conrad, 2001-Ohio-293.]
Workers’ compensation—Allegation of several specific safety violations involving
safety lines, belts, and lanyards by claimant—Court of appeals’ judgment
that no violation of Ohio Adm.Code 4121:1-3-03(J)(1) occurred is
reversed.
(No. 99-946—Submitted November 28, 2000—Decided March 7, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 98AP-108.
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Per Curiam.
{¶ 1} The facts in this case are scant. What is known is that appellantclaimant Anthony Greco worked for T.H.E. Roofing & Sheet Metal Company. On
November 17, 1995, claimant was assigned to clean the gutters of a church. He did
so “by leaning over the edge of the roof and removing the debris by hand.” He was
not wearing a safety belt or line.
{¶ 2} The roof pitch was approximately 3/12 to 4/12, and the distance from
the top edge of the gutter to the ground was approximately twenty-four feet and
eleven inches. While cleaning, claimant fell from the roof and was severely injured.
There were no witnesses to the fall.
{¶ 3} Claimant alleged several specific safety violations (“VSSR”)
involving safety lines, belts, and lanyards. An investigation by the Industrial
Commission of Ohio, appellee, revealed little. Company employees said only that
due to the roof’s low pitch, no safety equipment was used. Claimant averred that
the company had never provided or required the use of safety belts or lines.
SUPREME COURT OF OHIO
{¶ 4} The commission investigator took several pictures of the accident site
and two photos at company headquarters on his visit there on January 8, 1997. The
first picture showed a safety harness, belt, and lifeline and was apparently taken in
the employer’s storeroom. The second showed a roofer’s bracket. In addition,
receipts were provided showing the purchase of similar items in early 1995.
{¶ 5} The commission denied claimant’s application, writing:
“Investigator Creager did establish a distance of 24′ 11″ from the church’s
roof to the ground. Since the uncontroverted evidence finds that the work place
was less than 25′ above the ground, OAC 4121:1-3-03(L) likewise is inapplicable.
“Investigator Creager’s measurements are uncontroverted.
“Employer’s invoices … substantiate the recent purchase of the safety
equipment mandated by OAC 4121:1-3-03(J). The photographs 1 & 2 at Exhibit #
1, moreover, depict equipment evidently soiled from usage, and at least one roof
bracket showing signs of usage. This supports employer’s contentions and detracts
from the credibility of claimant’s allegations. Employer, therefore, is held to have
been in compliance with OAC 4121:1-3-03(J).”
{¶ 6} Reconsideration was denied.
{¶ 7} Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying his
VSSR application. The court of appeals disagreed and denied the writ.
{¶ 8} This cause is now before this court upon an appeal as of right.
{¶ 9} Ohio Adm.Code 4121:1-3-03(J)(1) and (L)(1) are the focus of our
inquiry. The commission found no violations, and the court of appeals agreed. For
the reasons to follow, we find a violation of Ohio Adm.Code 4121:1-3-03(J)(1).
{¶ 10} At the time of claimant’s accident, Ohio Adm.Code 4121:1-3-
03(J)(1) required:
“Lifelines, safety belts and lanyards shall be provided by the employer and
it shall be the responsibility of the employee to wear such equipment when …
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January Term, 2001
exposed to hazards of falling when the operation being performed is more than
fifteen feet above ground ….” 1979-1980 Ohio Monthly Record 4-25.
{¶ 11} Controversy centers on the word “provided,” which is relevantly
defined for purposes of the above rule as “to make available.” Ohio Adm.Code
4121:1-3-01(B)(20). All agree that the named equipment was not at the
accident/job site. “Availability” was found nevertheless based on two pictures
showing soiled equipment in the employer’s storeroom and the invoices for
purchases of safety equipment.
{¶ 12} The equation of possession with availability is troubling. An
employer can own safety equipment, but if it is locked in a remote warehouse, it is
hardly “available.” Possession is meaningless without an additional element –
employee accessibility.
{¶ 13} Accessibility was a key element in finding availability in State ex
rel. Mayle v. Indus. Comm. (1999), 86 Ohio St.3d 74,
711 N.E.2d 687. Mayle
involved a fatal fall from an electric transmission tower. As here, no safety belts
or other similar equipment was on site. Mayle nevertheless found availability based
on two things: (1) equipment accessibility and (2) evidence that claimant’s lack of
a belt stemmed from a personal preference and an industry-wide pattern of avoiding
such equipment as posing an unacceptable risk of electrocution. Regarding the
former, we stressed evidence indicating that prior to every job, the crew assembled
at the home office, where the employees had the chance to obtain whatever safety
equipment was needed for the job. Further testimony revealed that the employer
would deliver to the site any safety equipment that a worker subsequently
requested.
{¶ 14} In this case, the commission points to soilage on the employer’s
equipment as evidence of use, and, therefore, accessibility. The flaw in this logic
is that the photos were taken fourteen months after the accident. Yes, there are
equipment purchase invoices that predate the accident, but these establish only that
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SUPREME COURT OF OHIO
the employer owned some safety equipment on the date of injury. They do not
establish accessibility, nor does the soilage on the equipment. That soilage could
have just as easily occurred in the fourteen months after the accident as before.
{¶ 15} We accordingly find that the commission’s denial of claimant’s
application was not based on “some evidence” of equipment availability on the date
of injury, and we further find that the commission abused its discretion in finding
no violation of Ohio Adm.Code 4121:1-3-03(J)(1).
{¶ 16} In light of the above finding, analysis of Ohio Adm.Code 4121:1-3-
03(L)(1) is unnecessary. If Ohio Adm.Code 4121:1-3-03(J)(1) applies, as we have
found, then the use of safety lines, etc., is not “impractical” and (L)(1) is irrelevant.
{¶ 17} That portion of the court of appeals’ judgment that found no
violation of Ohio Adm.Code 4121:1-3-03(J)(1) is reversed. The balance of the
judgment is affirmed.
Judgment affirmed in part
and reversed in part.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK and LUNDBERG STRATTON, JJ., dissent.
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COOK, J., dissenting.
{¶ 18} Based on the rationale set forth in the decision of the court of
appeals’ magistrate, I respectfully dissent.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
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Mark B. Weisser, for appellant.
Betty D. Montgomery, Attorney General, and Jon D. Grandon, Assistant
Attorney General, for appellee.
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