[Cite as State ex rel. Scott v. Indus. Comm., 136 Ohio St.3d 92, 2013-Ohio-2445.]




      THE STATE EX REL. SCOTT, APPELLANT, v. INDUSTRIAL COMMISSION
                              OF OHIO ET AL., APPELLEES.

          [Cite as State ex rel. Scott v. Indus. Comm., 136 Ohio St.3d 92,
                                     2013-Ohio-2445.]
Workers’ compensation—Alleged violation of specific safety requirement—Ohio
        Adm.Code 4123:1-5-17(F) and 4123:1-5-18(C), (D), and (E)—Judgment
        denying writ of mandamus to compel Industrial Commission to allow
        award affirmed.
       (No. 2011-1922—Submitted May 8, 2013—Decided June 18, 2013.)
      APPEAL from the Court of Appeals for Franklin County, No. 10AP-713,
                                     2011-Ohio-5467.
                                 ____________________
        O’CONNOR, C.J.
        {¶ 1} Appellant, Troy A. Scott, appeals from the judgment of the Tenth
District Court of Appeals denying his request for a writ of mandamus that would
require appellee Industrial Commission to vacate its order denying his application
for an award for violation of specific safety requirements (“VSSRs”) at his
workplace and to find that he is entitled to such an award.
        {¶ 2} The court of appeals determined that Scott had failed to prove that
the Industrial Commission abused its discretion when it denied his application
based on its conclusion that Scott’s employer, appellee Country Saw & Knife,
Inc. (“Country Saw”), had not violated the specific safety requirements in Ohio
Adm.Code 4123:1-5-17(F) and 4123:1-5-18(C), (D), and (E).
        {¶ 3} Because we agree with the court of appeals that Scott did not
present sufficient evidence to establish that he was entitled to an award for a
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VSSR, we hold that the commission did not abuse its discretion in denying Scott’s
application. We therefore affirm the judgment of the court of appeals.
                                   Relevant Background
        {¶ 4} Scott was employed as a laborer by Country Saw, a business that
sharpens and puts carbide teeth on saw blades. His duties included soldering
carbide saw tips, sharpening carbide saw blades, and operating a brazing machine
that brazed tungsten tips onto saw blades.
        {¶ 5} After working at Country Saw for approximately one and a half
years, Scott developed respiratory problems from his exposure to metal dust—
specifically, dust from cobalt and tungsten. He sought workers’ compensation,
and his claim was allowed for hard-metal pneumoconiosis, open-wound nasal
septum, and related disorders, with a diagnosis date of October 23, 2007.
        {¶ 6} Over a year later, on November 25, 2008, Scott applied for an
additional award, alleging that Country Saw violated the specific safety
requirements in Ohio Adm.Code 4123:1-5-17(F) and 4123:1-5-18(C), (D), and
(E) when it failed to provide adequate protection to minimize his exposure to
metal particles.
        {¶ 7} After a hearing, a staff hearing officer denied Scott’s application.
In so doing, the staff hearing officer relied on test results from an air sampling
conducted at Country Saw on April 16, 2008, by the Occupational Safety and
Health Administration (“OSHA”).               Those test results demonstrated that the
presence of toxic substances in the air in Country Saw’s facility was below
permissible exposure limits.1          The hearing officer considered the test results
relevant and reliable evidence, citing State ex rel. Gilbert v. Indus. Comm., 116
Ohio St.3d 243, 2007-Ohio-6096, 877 N.E.2d 979, because Country Saw had

1. The staff hearing officer stated that OSHA tested only for cobalt, not tungsten. This statement
is contradicted by the OSHA test results, which reported the actual exposure amounts of both
metals. OSHA concluded that the level of cobalt was below OSHA’s permissible exposure limits,
but reported “NA” for tungsten because there was no established permissible exposure limit.




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made no changes to the ventilation system or any of the processes that existed
during the period that Scott was exposed to the materials. The hearing officer
specifically noted that Scott had failed to introduce evidence to show that any
toxic substance had been present at a level that would trigger the specific safety
requirements.
       {¶ 8} Scott filed a complaint for a writ of mandamus in the court of
appeals. The case was referred to a magistrate, who concluded that Scott had
failed to establish that the Country Saw plant contained hazardous concentrations
of either cobalt or tungsten dust in an amount necessary to require Country Saw to
comply with the specific safety requirements. The magistrate agreed that the
OSHA test results constituted some evidence on which the commission could rely
to support its decision and that the commission had not misapplied Gilbert. The
magistrate recommended that the court of appeals deny the request for a writ.
       {¶ 9} Scott filed objections to the magistrate’s conclusions of law. The
court of appeals overruled the objections, adopted the magistrate’s decision, and
denied the writ. Scott now seeks this court’s review.
                                    Analysis
       {¶ 10} There is no dispute that Scott contracted a devastating lung disease
while working at Country Saw and that his workers’ compensation claim for that
disease was properly approved. The issue in this appeal is whether Scott is
entitled to an additional award—one more akin to a penalty—due to his
employer’s violating specific safety requirements. State ex rel. Burton v. Indus.
Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989) (“a VSSR award is a
penalty”).
       {¶ 11} It is well settled that in order to establish a VSSR claim, the
claimant must prove that (1) an applicable and specific safety requirement was in
effect at the time of the injury, (2) the employer failed to comply with the
requirement, and (3) the failure to comply was the proximate cause of the injury in



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question. State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22
Ohio St.3d 191, 193, 489 N.E.2d 288 (1986), fn. 1; State ex rel. Trydle v. Indus.
Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972).
          {¶ 12} Factual questions relevant to proof of a VSSR rest exclusively
within the discretion of the commission. State ex rel. Haines v. Indus. Comm., 29
Ohio St.2d 15, 278 N.E.2d 24 (1972). And the interpretation of a specific safety
requirement is within the final jurisdiction of the commission. Burton at 172;
State ex rel. A-F Industries v. Indus. Comm., 26 Ohio St.3d 136, 497 N.E.2d 90
(1986); State ex rel. Ish v. Indus. Comm., 19 Ohio St.3d 28, 31, 482 N.E.2d 941
(1985).
          {¶ 13} We review the commission’s factual decisions on VSSR only for
an abuse of discretion. Ish at 32. Because a VSSR award is punitive in nature,
however, all reasonable doubts regarding the specific safety requirement’s
interpretation and applicability must be resolved in the employer’s favor. Burton,
46 Ohio St.3d at 172, 545 N.E.2d 1216; State ex rel. Toledo Neighborhood Hous.
Servs., Inc. v. Indus. Comm., 92 Ohio St.3d 229, 230, 749 N.E.2d 739 (2001).
          {¶ 14} With these standards in mind, we turn to the evidence in this case
and the legal question that arises from it.
          {¶ 15} The court of appeals concluded that the commission did not abuse
its discretion when it relied on the OSHA report. The dispositive issue here is
whether the OSHA report constituted some evidence upon which the commission
could rely to deny Scott’s request for a VSSR award.
          {¶ 16} The specific safety requirements at issue in this case require an
employer (1) to provide respiratory-protection equipment when employees are
exposed to hazardous concentrations of air contaminants and (2) to adopt methods
to minimize air contaminants in working environments where employees are
exposed to hazardous concentrations of air contaminants.
          {¶ 17} Ohio Adm.Code 4123:1–5–17(F) provides:




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                 (F) Respiratory protection.
                 (1) Where there are air contaminants as defined in rule
        4123:1-5-01 of the Administrative Code, the employer shall
        provide respiratory equipment approved for the hazard. It shall be
        the responsibility of the employee to use the respirator or
        respiratory equipment provided by the employer, guard it against
        damage and report any malfunction to the employer.


(Emphasis added.)
        {¶ 18} Ohio Adm.Code 4123:1–5–18(C), (D), and (E) provide various
methods to minimize air contaminants in working environments where employees
are exposed to hazardous concentrations of air contaminants.2


2. Ohio Adm.Code 4123:1-5-18 provides:

                  (C) Where employees are exposed to hazardous concentrations of air
        contaminants, the air contaminants shall be minimized by at least one of the
        following methods:
                  (1) Substitute a non-hazardous, or less hazardous material;
                  (2) Confine or isolate the contaminants;
                  (3) Remove at or near source;
                  (4) Dilution ventilation;
                  (5) Exhaust ventilation; (for examples of exhaust ventilation, see rule
        4123:1-5-99.2 of the Administrative Code).
                  (6) Using wet methods to allay dusts. Note: Good housekeeping is of
        definite value in minimizing air contaminants created by dusts.
                  (D) Exhaust systems: machinery and equipment.
                  (1) Grinding, polishing and buffing.
                  (a) Abrasive wheels and belts.
                  (i) Abrasive wheels and belts shall be hooded and exhausted when there
        is a hazardous concentration of air contaminants.
                  (ii) This does not apply to abrasive wheels or belts:
                  (a) Upon which water, oil, or other liquid substance is used at the point
        of the grinding contact; or
                  (b) To small abrasive wheels used occasionally for tool grinding.
                  (b) Separate exhaust systems.
                  Abrasive wheel and buffing wheel exhaust systems shall be separate
        when the dust from the buffing wheel is of flammable material.




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        {¶ 19} For the safety requirements to apply, hazardous concentrations of
air contaminants must be present in the working environment. The term “air
contaminants” is defined as “hazardous concentrations of fibrosis-producing or
toxic dusts, toxic fumes, toxic mists, toxic vapors, or toxic gases, or any
combination of them when suspended in the atmosphere.”                        Ohio Adm.Code
4123:1-5-01(B)(4). “Hazardous concentrations (as applied to air contaminants)”
is defined as “concentrations which are known to be in excess of those which
would not normally result in injury to an employee’s health.” Ohio Adm.Code
4123:1-5-01(B)(74).
        {¶ 20} In the record before us, the only evidence of the levels of cobalt
and tungsten in the air in the Country Saw plant is the evidence that is in the



                  (2) Generation of toxic materials.
                  When toxic materials are generated in hazardous concentrations
        during their application, drying, or handling, they shall be minimized or
        eliminated by at least one of the methods described in paragraph (C) of this rule.
                  (3) Internal combustion engines.
                  Hazardous concentrations of air contaminants produced by internal
        combustion engines shall be exhausted.
                  (E) Exhaust systems - structural requirements.
                  (1) Exhaust or ventilating fan.
                  Each exhaust or ventilating fan located less than seven feet above the
        floor or normal working level shall be guarded.
                  (2) Ductwork.
                  Exhaust ductwork shall be sized in accordance with good design
        practice which shall include consideration of fan capacity, length of duct,
        number of turns and elbows, variation in size, volume, and character of
        materials being exhausted.
                  (3) Discharge.
                  The outlet from every separator or (collector) shall discharge the air
        contaminants collected by the exhaust system, in such manner that the
        discharged materials shall not re-enter the working area in hazardous
        concentrations.
                  (4) Location of air supply openings or inlets.
                  Air supply openings or inlets through which air enters the building or
        room in which the local exhaust system is in operation shall be isolated from any
        known source of contamination from outside of the building.

(Emphases added.)




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OSHA report, which is based on a test conducted several months after Scott’s
exposure period. We have carefully reviewed that evidence.
       {¶ 21} OSHA sampled the air on April 16, 2008, for a total of 404
minutes, using a pump filter attached to the employee who was operating the
brazing machine that Scott had operated. OSHA measured 0.03 milligrams of
cobalt per cubic meter of air. That amount is below the permissible exposure
limit set by OSHA: 0.1 milligrams per cubic meter of air. OSHA also measured
0.33 milligrams of tungsten per cubic meter of air. But OSHA had not established
a permissible exposure limit for tungsten at the time of testing.        Thus, the
evidence from OSHA’s testing does not support a finding that Country Saw was
required to provide respiratory protection or adopt methods to minimize air
contaminants.
       {¶ 22} Despite the fact that OSHA’s testing did not establish the existence
of hazardous concentrations of air contaminants, Scott did not have additional
testing done, and he did not produce any admissible evidence that cobalt or
tungsten was present in hazardous concentrations for purposes of the safety
requirements at issue in this case. Instead, Scott merely challenged the reliability
and relevance of the OSHA testing. In so doing, he failed to establish that
OSHA’s testing was not relevant and reliable.
       {¶ 23} Scott presented the testimony of Stephen Stock, a forensic
engineer, and his testimony pointed out that it was not clear whether the
environment at Country Saw at the time of OSHA’s testing was similar to what it
was when Scott worked there. But Stock offered no evidence that the conditions
were not similar to those when Scott was working.
       {¶ 24} The commission found that OSHA’s test was relevant and reliable
evidence that hazardous concentrations of air contaminants were not present when
Scott worked at Country Saw, even though the test was conducted after Scott’s
exposure period. In reaching this decision, the hearing officer relied on State ex



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rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243, 2007-Ohio-6096, 877 N.E.2d
979, a case with facts similar to this one.
       {¶ 25} In Gilbert, Harvey Gilbert developed lung disease, most likely as a
result of his long-term exposure to chemicals used in his job cleaning
commercial-kitchen exhaust systems.           Gilbert filed a workers’ compensation
claim, which was allowed for a chronic respiratory condition and acute
bronchiolitis.    He also applied for an additional award for VSSR.               More
specifically, he alleged a violation of Ohio Adm.Code 4121:1-5-17(F), now Ohio
Adm.Code 4123:1-5-17(F). Id. at ¶ 3-4.
       {¶ 26} The commission denied his application for a VSSR award, finding
that Ohio Adm.Code 4121:1-5-17(F) did not apply to Gilbert’s employer, because
there was no evidence of “hazardous concentrations” of “air contaminants” as
those phrases were defined in Ohio Adm.Code 4121:1-5-01(B)(4) and (74), now
Ohio Adm.Code 4123:1-5-01(B)(4) and (74). In so doing, the commission relied
on results from an OSHA test that was conducted 19 days after Gilbert’s exposure
period ended. Id. at ¶ 26, 28. The commission determined that the employer had
not violated the specific safety requirement at issue. Id. at ¶ 7-9.
       {¶ 27} Gilbert filed a complaint for a writ of mandamus. He argued that
because he had developed lung disease from exposure to chemicals, the level of
air contaminants he had been exposed to was hazardous.                 We rejected that
argument because it conflicted with the definition of “hazardous concentrations”:


                 The definition describes concentrations that would not
       normally cause injury. As used in that definition, “normally” is a
       qualifying term. Inherent in the use of this word is the recognition
       that some persons may have an abnormal sensitivity to a given
       substance, for which the employer could not be held accountable.
       The presence of an occupational disease does not necessarily




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       establish that hazardous concentrations of contaminant existed,
       since a person may have contracted an occupational disease
       because of abnormal sensitivity to or because of hazardous
       concentrations of a contaminant.


(Emphasis sic.) Id. at ¶ 19.
       {¶ 28} Gilbert also objected to the commission’s reliance on the OSHA
test results as evidence that hazardous concentrations of air contaminants were not
present during his exposure period.       According to Gilbert, because OSHA
sampled the air after his exposure period, the test results were irrelevant. We
rejected his argument because the relevance of tests conducted after exposure
depends upon whether the work environment changed after the exposure. Gilbert,
116 Ohio St.3d 243, 2007-Ohio-6096, 877 N.E.2d 979, at ¶ 26.              We held,
“[W]here the test environment replicates the earlier exposure conditions, the
testing results may be significant.” Id. at ¶ 26. And we specifically emphasized
the importance of the commission’s discretion and authority to evaluate each
situation individually to determine the relevance of test results, particularly when
the only results available are those from a test performed after a problem is
alleged. Id. at ¶ 27.
       {¶ 29} In this case, Scott presented the same arguments to the commission
that were addressed in Gilbert. Scott argued that the fact that he had developed
lung disease from exposure to cobalt and tungsten dust was itself proof that the
levels of those toxic substances were hazardous.
       {¶ 30} The staff hearing officer evaluated the evidence in light of Gilbert
and denied Scott’s application. The order states:


               The Staff Hearing Officer finds that the testing done after
       the Injured Worker’s exposure is relevant and reliable evidence



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       that there were no harmful exposures before the testing was done.
       In arriving at this conclusion the Staff Hearing Officer relies on
       [Gilbert] which upheld the denial of a specific safety violation that
       was based in part upon an OSHA investigation done after the
       Injured Worker’s exposure period. The court found that the report
       remained relevant because there had been no modifications to the
       work environment prior to the investigation. In this case, just as in
       Gilbert there have been no changes to the ventilation system or any
       of the processes that would make the OSHA report unreliable.
              Secondly, although the record in this case clearly shows the
       injured worker suffers from a devastating occupational disease, its
       presence alone does not automatically establish that hazardous
       concentrations of a substance existed. Again, the Staff Hearing
       Officer relies on Gilbert wherein the injured worker had urged
       allowance of his specific safety violation because he had
       contracted an occupational disease. In response to Mr. Gilbert’s
       position the court stated, “This position[,] from the outset, conflicts
       with the definition of ‘hazardous concentration.’ The definition
       describes concentrations that would not normally cause injury. As
       used in that definition, ‘normally’ is a qualifying term. Inherent in
       the use of this word is the recognition that some persons [may]
       have an abnormal sensitivity to a given substance, for which the
       employer could not be held accountable.” [Gilbert at ¶ 19.]


(Bracketed material added to quote within quote to conform the SHO order to
Gilbert.)
       {¶ 31} We agree with the court of appeals that the commission did not
abuse its discretion when it relied on Gilbert to support its conclusion that the




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OSHA test results constituted some evidence upon which it could rely. And we
agree that the commission did not abuse its discretion in denying Scott’s
application for a VSSR award. Indeed, given our precedent and the paucity of the
evidence in this case, reasonable minds could only conclude that Scott did not
discharge his burden of establishing that he is entitled to a VSSR award in
addition to his extant workers’ compensation benefits. Accordingly, we affirm
the judgment of the court of appeals denying a writ of mandamus.
                                                               Judgment affirmed.
       O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
       PFEIFER, J., dissents.
                                ____________________
       PFEIFER, J., dissenting.
       {¶ 32} In cases like this—where the employer knows of a potential hazard
regarding air quality in its workplace but does not periodically undertake testing
to determine whether the air quality is safe and an employee suffers an injury
related to air quality—the burden of proof should be placed on the employer to
prove that it should not be liable for a violation of a specific safety requirement
(“VSSR”). The employer in this case, Country Saw & Knife, Inc. (“Country
Saw”), knew long before it hired the claimant, Troy Scott, that the environment in
which its employees were working was potentially dangerous. Country Saw’s
supplier provided Material Safety Data Sheets (“MSDSs”) indicating that “[d]ust
from grinding * * * has the potential for causing transient or permanent
respiratory disease, including occupational asthma and interstitial fibrosis, in a
small percentage of exposed individuals”; that “[i]nterstitial fibrosis (lung
scarring) can lead to permanent disability or death”; and that “cobalt dust is the
most probable cause of such respiratory diseases.” Further, the Occupational
Safety and Health Administration (“OSHA”) had established permissible
exposure limits for cobalt and tungsten, above which an employer would be



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required to supply respiratory equipment to its employees pursuant to Ohio
Adm.Code 4123:1-5-17(F) and implement processes for the minimization of air
contaminants pursuant to Ohio Adm.Code 4123:1-5-18(C), (D), and (E). But
Country Saw never bothered to check the levels of cobalt and tungsten in its
workplace—an employee testified that air quality had been checked in 1993, but
also testified that he could find no report to substantiate that a test had occurred.
       {¶ 33} The MSDS also contained detailed instructions for minimizing
dust, but for the most part, Country Saw never implemented precautionary
procedures. The comparative knowledge about health threats and the ability to
minimize them were widely disparate between Country Saw and Scott: Country
Saw had information from its supplier about potential threats and abatement
strategies, as well as the wherewithal for testing and abatement, while Scott, on
the other hand, had only the expectation, like all employees, that his employer
would not put him in a dangerous situation. Scott is now profoundly injured, with
no doubt that the cause of his illness was his exposure to metal dust in his
workplace.
       {¶ 34} This case should be remanded for a shifting of the burden of proof.
On remand, the fact that Scott suffered a work-related illness would not in itself
be determinative of whether Country Saw violated a specific safety rule; the level
of metal dust in the air would determine whether Country Saw is liable. But who
should bear the burden of proving what the air-quality levels were at or near the
time of the accident? It should certainly be the party who had knowledge of the
potential danger and the ability to institute periodic testing. If Scott makes the
prima facie case that Country Saw knew of air-quality dangers from its supplier
and did not test for air quality and that Scott suffered an injury related to air
quality, the burden should shift to Country Saw to prove that it is not liable for a
VSSR. Country Saw would have to do better than it did below to make its case—




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better than relying on a test performed by OSHA under circumstances that the
claimant alleges were not substantially similar to the conditions he worked under.
        {¶ 35} The result reached by the majority encourages employers to ignore
MSDSs provided by suppliers of potentially dangerous materials and discourages
periodic testing of air quality in situations where air contamination is a known
risk.
        {¶ 36} Finally, the employer in the case relied on by the majority, State ex
rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243, 2007-Ohio-6096, 877 N.E.2d
979, is another employer that failed to check air-quality levels after being
informed by a supplier of the potentially dangerous respiratory effects of its
product. Since this court failed to place the burden of proof on the employer in
that case, Gilbert should be overruled.
                             ____________________
        Boyd, Rummell, Carach, Curry, Kaufmann & Bins-Castronovo Co.,
L.P.A., and Walter Kaufmann, for appellant.
        Michael DeWine, Attorney General, and Cheryl J. Nester and Colleen C.
Erdman, Assistant Attorneys General, for appellee Industrial Commission.
        Fitch, Kendall, Cecil, Robinson & Barry Co., L.P.A., and Timothy A.
Barry, for appellee Country Saw & Knife, Inc.
                          ________________________




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