[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 36.]
THE STATE EX REL. JOHNSON, APPELLANT AND CROSS-APPELLEE, v. HILLTOP
BASIC RESOURCES, INC., APPELLEE AND CROSS-APPELLANT; INDUSTRIAL
COMMISSION OF OHIO, APPELLEE, ET AL.
[Cite as State ex rel. Johnson v. Hilltop Basic Resources, Inc.,
2002- OHIO-1624.]
Workers’ compensation—Application filed asserting violations of specific safety
requirements against open-pit sand and gravel mine and plant—
Applicability of Ohio Adm.Code Chapters 4121:1-5 and 4121:1-3.
(No. 00-2255—Submitted January 8, 2002—Decided April 10, 2002.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County, No.
99AP-926.
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Per Curiam.
{¶ 1} Appellee and cross-appellant, Hilltop Basic Resources, Inc., is an
open-pit sand and gravel mine and plant. On August 2, 1996, claimant Emmett L.
Johnson, Jr., the appellant and cross-appellee herein, was severely injured on the
job. A workers’ compensation claim was promptly allowed.
{¶ 2} On August 1, 1997, claimant filed the first of four applications
asserting violations of specific safety requirements (“VSSR”). Claimant later
dismissed the application with the intent to refile “under a different regulation.”
{¶ 3} On July 30, 1998, claimant refiled, alleging three violations of Ohio
Adm.Code Chapter 4121:1-5, governing workshops and factories, and four
violations of Ohio Adm.Code Chapter 4121:1-3, governing the construction
industry. He described the accident as follows:
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“Claimant was cleaning build-up of material from fluted self-cleaning
counterweight pulley when the conveyor was turned on without any warning and
he was caught between the counterweight pulley and the conveyor.”
{¶ 4} He also attached a report from the United States Mining Safety and
Health Administration. This report repeated, in more detail, what claimant alleged
above. The report concluded:
“ ‘Two factors contributed to the accident. First, the conveyor power was
not shut off and the conveyor was not blocked against hazardous motion before
work was performed. Secondly, there was no startup warning alarm provided at
the start switch in the mud picker’s booth and the entire length of the conveyor was
not visible from the mud picker’s booth. The conveyor was started from the booth
without an alarm and without checking to see that the conveyor was clear, while
the switch in the primary control room was off.’ ”
{¶ 5} On January 26, 1999, claimant filed an amended application. On it,
claimant added the following description to his accident narrative:
“Darrell Dodge was not authorized to turn on the conveyor. The conveyor
was not in a safe condition because it was not blocked against motion while being
maintained.”
{¶ 6} The application, for the first time, additionally alleged violations of
two sections of R.C. Chapter 1567, pertaining to mine equipment: (1) R.C. 1567.68
(rules governing operation, repair, and lubrication of machinery and equipment)
and (2) R.C. 1567.16 (no unauthorized person shall make connection to any portion
of a mine’s electrical system).
{¶ 7} Three weeks later, on February 18, 1999, claimant filed a second
amended application. It repeated the narrative description of the previous one and
added a violation of R.C. 1567.18(C).
{¶ 8} Appellee Industrial Commission of Ohio, through a staff hearing
officer (“SHO”), denied claimant’s application in a lengthy order that made three
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January Term, 2002
key findings. First, it deemed Ohio Adm.Code Chapter 4121:1-3 inapplicable
because Hilltop was “not in the construction business nor was this location of
claimant’s injury a construction site.” (Emphasis sic.) Second, it found Ohio
Adm.Code Chapter 4121:1-5 inapplicable:
“[A]ny claim of a violation under either of these code sections must fail
because claimant worked as a plant maintenance man outdoors for the employer,
which is engaged in the business of rock, sand, and gravel mining in an open pit.
This distinction is important because the former code section (Chapter 4121:1-5)
deals with workshops and factories and clearly, claimant works out of doors thus
rendering that code section wholly inapplicable. (Interestingly, claimant attempted
to portray his work as being indoors in his description of injury wherein he stated
that his normal work duties were performed ‘ … within some form of structural
enclosure constituting a workshop, factor[y], or construction site.’ This simply is
not true. Claimant’s work was outdoors.)” (Emphasis sic.)
{¶ 9} Finally, the commission found that claimant’s two amended
applications were not filed within two years of the date of injury as Ohio Adm.Code
4121-3-20(A) required and were thus time-barred. The commission rejected
claimant’s assertion that the amendments simply clarified the previous allegations,
ruling instead that they raised new allegations. It wrote:
“[I]n filing his subsequent Applications, claimant materially alters the
description of injury and turns to an entire[ly] separate body of law (Ohio Revised
Code 1567) in an effort to state a colorable claim. With each successive
permutation of the injury described, claimant’s theory of the cause of injury alters
as well. The only constant throughout all these variations is that claimant was
somehow injured while working near a conveyor belt. The Staff Hearing Officer
finds that this is grossly insufficient to apprise the employer of the mechanism of
injury claimed and to reasonably inform the employer of what particular deficiency
claimant is alleging so that they might be able to defend themselves in the matter.
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Because the description of injury materially changed with each successive IC-8
filed by claimant, the Staff Hearing Officer finds little ‘conceptual similarity’
between claimant’s first Application and the ‘amendments’ he filed early in 1999,
and because they were filed beyond the 2 year Statute of Limitations, they are time-barred ….” (Emphasis sic.)
{¶ 10} Six days after the SHO hearing, State ex rel. Petrie v. Atlas Iron
Processors, Inc. (1999), 85 Ohio St.3d 372,
708 N.E.2d 716, issued. That case held
that an outdoor fenced-in scrapyard could be considered a workshop for purposes
of Ohio Adm.Code Chapter 4121:1-5. Citing Petrie, Johnson moved for rehearing.
That motion was denied as follows:
“The Claimant has not submitted any new and relevant evidence nor has the
claimant shown that the order of 4/22/1999 was based on an obvious mistake of
fact.
“Pursuant to OAC 4121-3(20)(G), a Staff Hearing Officer reviews a motion
for rehearing under the following criteria:
“ ‘(a) In order to justify a rehearing of the commission’s order, the motion
shall be accompanied by new and additional proof not previously considered and
relevant to the specific safety requirement violation.
“ ‘(b) A rehearing may also be indicated in exceptional cases where the
order was based on an obvious mistake of fact.’
“For the reason explained below the claimant’s motion fails to satisfy either
criteria cited above.
“In the instant case the claimant’s motion is first premised on the
submission of new case law, namely, State ex rel. Petrie v. Industrial Commission
of Ohio [1999], 85 Ohio St.3d 372,
708 N.E.2d 716, as proporting [sic] to be
additional proof not previously considered.
“The submission of this case is not found to be new and additional proof
because new proof as contemplated by this rule would include such items as new
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January Term, 2002
witness affidavits, records, documents, or other similar items that tend to establish
the truth of a proposition advanced.
“The submission of new case law is not the type of objective neutral proof
that can be evaluated and weighed as the above listed items can[;] therefore, the
submission of the previously cited case law is not found to be new and additional
proof as outlined by rule 4121-3-20.
“Furthermore, the hearing officer’s language in regar[d] to determining that
the area where the accident occurred is not a workshop, and his findings regarding
the legal requirements for amending a VSSR application are both clearly legal not
factual findings, and those findings are consequently outside of Rule 4121-3-
20(G)[,] which permits rehearing for obvious mistakes of fact.” (Emphasis sic.)
{¶ 11} In a mandamus action in the Court of Appeals for Franklin County,
claimant alleged that the commission had abused its discretion. The court, in
adopting the decision of its magistrate, issued a writ ordering further consideration
on the question of the applicability of Ohio Adm.Code Chapter 4121:1-5 in light of
Petrie. It upheld the balance of the commission’s order. This cause is now before
this court upon an appeal and a cross-appeal as of right.
{¶ 12} We must determine the applicability of two administrative code
chapters as well as the timeliness of claimant’s two amended applications. We hold
that the court of appeals determined all of the issues correctly, and its judgment is
hereby affirmed.
A. Applicability of Ohio Adm.Code Chapter 4121:1-5
{¶ 13} The parties disagree on the applicability of Ohio Adm.Code Chapter
4121:1-5, governing workshops and factories. The commission agrees with the
appeals court judgment to issue a limited writ ordering reconsideration. Hilltop
asserts that Petrie does not affect the commission’s decision and opposes
reconsideration. Claimant contends that Petrie dictates the applicability of the
chapter.
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{¶ 14} Hilltop discusses—generally accurately—two recent key decisions
and the principles that had determined the applicability of Ohio Adm.Code Chapter
4121:1-5 prior thereto. The chapter, again, governs workshops and factories. Any
specific safety requirement, however, regardless of chapter, must be specific
enough to “plainly … apprise an employer of his legal obligations toward his
employees.” State ex rel. Holdosh v. Indus. Comm. (1948), 149 Ohio St. 179,
36
O.O. 516,
78 N.E.2d 165, syllabus. “[A]n employer should not have to speculate
as to whether it falls within the class of employers to whom a specific safety
requirement applies.” State ex rel. Double v. Indus. Comm. (1992),
65 Ohio St.3d
13, 17,
599 N.E.2d 259.
{¶ 15} In conformity with these tenets, the chapter governing workshops
and factories was for years limited to indoor work, since “workshop” or “factory”
clearly implied a building. That changed two years ago.
{¶ 16} In State ex rel. Parks v. Indus. Comm. (1999), 85 Ohio St.3d 22,
706
N.E.2d 774, claimant was a tree trimmer injured after contacting an electrical line.
He alleged a violation of Ohio Adm.Code 4121:1-5-23(E)(1) and (2), which
required employers in the “electric utility and clearance tree-trimming industries”
to provide insulated gloves. The commission denied the VSSR. Because claimant
was “outdoors and up a tree,” he was not injured in a workshop or factory, so Ohio
Adm.Code Chapter 4121:1-5 did not apply, the commission decided.
Id. at 23,
706
N.E.2d 774.
{¶ 17} We overturned that decision, stressing two things: (1) the existence
of a specific safety requirement under Ohio Adm.Code Chapter 4121:1-5 that was
directly on point and (2) that the regulated activity was not of a type that could be
done inside:
“[C]ommon sense must prevail where the application of those rules gives
rise to a patently illogical result. … The risk presented by the combination of
clearing tree limbs in the vicinity of power lines rarely, if ever, occurs indoors.
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January Term, 2002
Thus, imposing the general ‘workshop or factory’ limitation on the rule regulating
this activity would essentially eliminate the application of the entire provision.” Id.
at 25,
706 N.E.2d 774.
Consequently, “activities that are regulated in Ohio Adm.Code 4121:1-5-
23(E) and are obviously conducted outdoors must be considered an exception to the
rule that Ohio Adm.Code Chapter 4121:1-5 protects activities occurring indoors in
workshops or factories.” (Emphasis added.) Id.
{¶ 18} In conclusion, we held:
“[W]here specific safety requirements regulate activities that can be
performed indoors or outdoors, the Ohio Adm.Code 4121:1-5-01(A) workshops
and factories restriction limits an employer’s reasonable expectations of liability to
VSSRs that are committed indoors. However, the rule must be different where
activity is regulated but cannot be performed indoors. In that case, the employer
cannot reasonably expect exemption because Ohio Adm.Code 4121:1-5-01(A)
does not apply exclusively to workshops and factories.” (Emphasis sic.) Id., 85
Ohio St.3d at 26,
706 N.E.2d 774.
{¶ 19} Parks did not find that the claimant was injured in a workshop or
factory. It found that when a two-prong test was met, a penalty for a VSSR could
be assessed despite the fact that the claimant was not injured in a workshop or
factory. Here, claimant cannot satisfy that test. In Parks, tree trimming was an
activity specifically regulated by Ohio Adm.Code Chapter 4121:1-5, namely by
section 4121:1-5-23(E)(2). Open-pit mining does not share this status. Therefore,
with this exception unavailable, the claimant can prevail only if he can establish
that he was indeed hurt in an area deemed a workshop or factory. And claimant’s
ability to do so has since been aided considerably by Petrie.
{¶ 20} Petrie was injured while working on a conveyor in a fenced-in
scrapyard. The commission refused to apply Ohio Adm.Code Chapter 4121:1-5
and denied the application for an award for a VSSR. We again overturned the
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decision, finding that “the scrapyard’s perimeter fencing was a structural enclosure
sufficient to classify it as a ‘workshop’ and render Ohio Adm.Code Chapter 4121:1-
5 applicable.” Petrie, 85 Ohio St.3d at 373,
708 N.E.2d 716. We reasoned:
“The fence, in this case, indeed set forth the boundaries of work activity. It
also served to keep unauthorized nonemployees out, and, in so doing, established
its confines as a place accessible only to employees for the purpose of carrying out
the company’s business.” Id.
{¶ 21} Contrary to Hilltop’s representation, the commission in the present
case premised its finding that Ohio Adm.Code Chapter 4121:1-5 does not apply
solely on the fact that claimant was hurt outdoors. Petrie establishes that such
simple reasoning is no longer appropriate. Hilltop opposes reconsideration by the
commission, asserting that the “record does not support a finding that Hilltop’s
entire facility is a ‘workshop or factory’ under this rule as set forth Petrie.” That
determination, however, is for the commission alone to make, which supports the
court of appeals’ decision to order further consideration of this question.
B. Applicability of Ohio Adm.Code Chapter 4121:1-3
{¶ 22} Claimant’s objection to the commission’s determination that Ohio
Adm.Code Chapter 4121:1-3 does not apply is a simple matter of claimant’s
disagreeing—without legal foundation—with the commission’s interpretation.
Ohio Adm.Code Chapter 4121:1-3 covers “construction activity,” which is defined
to include “the demolition, dismantling, excavation, construction, erection,
alteration, repairing, painting, decorating, glazing, cleaning, and pointing of
buildings and other structures and the installation of machinery or equipment and
all operations in connection therewith.” (Emphasis added.) Ohio Adm.Code
4121:1-3-01(A).
{¶ 23} Ohio Adm.Code Chapter 4121:1-3 “covers ‘construction’ activities
of employees whose employer engages in such work as its principal business. It
also covers employees of other employers when the activities are performed in the
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January Term, 2002
course of new construction or subsequent reconstruction of all or part of an existing
structure, as well as substantial demolition or razing of an existing structure, but
does not cover employees of such other employers when the activities are
performed in the ordinary course of maintenance work.” (Emphasis added.) Id.
{¶ 24} Claimant cannot overcome the many obstacles to demonstrating that
his activity was within this definition. Hilltop is an open gravel mine. While its
product may be used by the construction industry, “construction,” as defined in
Ohio Adm.Code 4121:1-3-01(A) is not Hilltop’s principal business. Moreover,
even in the tangential sense of the second quoted paragraph, claimant was doing
maintenance work when hurt. The commission did not, therefore, abuse its
discretion in refusing to apply Ohio Adm.Code Chapter 4121:1-3.
C. Timeliness of Amended Applications
{¶ 25} At issue are claimant’s two amended applications, filed January 26,
1999, and February 18, 1999. An adjudication of timeliness is important to
claimant, since, without it, he cannot pursue violations alleged under R.C. Chapter
1567.
{¶ 26} Ohio Adm.Code 4121-3-20(A) requires that an application for an
award for a VSSR be filed within two years of the date of injury. These were not.
As an exception, subdivision (A)(1) of the same section also permits amendment
within thirty days of the receipt of the commission’s VSSR investigative report by
claimant or counsel, with a possible one-time, thirty-day extension. Neither
application satisfied this standard.
{¶ 27} These deficiencies, however, are not necessarily fatal to an amended
application. An amendment that merely clarifies a previously alleged violation may
be filed without regard to these time limits. State ex rel. R. Bauer & Sons Roofing
& Siding, Inc. v. Indus. Comm. (1998), 84 Ohio St.3d 62, 66-67,
701 N.E.2d 995.
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{¶ 28} In a well-reasoned order, the commission concluded that the
claimant’s amendments raised new claims and fell outside Bauer. See the SHO
order quoted above.
{¶ 29} Indeed, claimant raises an entirely new set of allegations in invoking
R.C. Chapter 1567. Nothing in claimant’s previous applications, attachments, or
narratives would have put Hilltop on timely notice of these alleged infractions
under Ohio’s mine safety provisions. As the SHO observed, claimant materially
changed the description of the accident at every turn to justify his newest allegation.
The employer has the right to know within two years of the date of injury of the
charges made against it. Regarding violations claimed under R.C. Chapter 1567,
notification did not happen.
{¶ 30} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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Anthony B. Pennington, for appellant and cross-appellee.
Taft, Stettinius & Hollister, L.L.P., Charles M. Stephan and Eric K. Combs,
for appellee and cross-appellant.
Betty D. Montgomery, Attorney General, and Cheryl J. Nester, Assistant
Attorney General, for appellee.
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