[Cite as State ex rel. Donohoe v. Indus. Comm., 130 Ohio St.3d 390, 2011-Ohio-5798.]




      THE STATE EX REL. DONOHOE, APPELLEE AND CROSS-APPELLANT, v.
  INDUSTRIAL COMMISSION OF OHIO, APPELLEE; KENNY HUSTON COMPANY,
                         APPELLANT AND CROSS-APPELLEE.
                  [Cite as State ex rel. Donohoe v. Indus. Comm.,
                        130 Ohio St.3d 390, 2011-Ohio-5798.]
Workers’ compensation—Industrial Commission is to make reasonable inferences
        from evidence—VSSR can be proved without eyewitness testimony—
        Clarification needed—Judgment affirmed.
  (No. 2010-0734—Submitted August 8, 2011—Decided November 17, 2011.)
   APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County,
                           No. 08AP-201, 2010-Ohio-1317.
                                 __________________
        Per Curiam.
        {¶ 1} Patrick Donohoe died from injuries sustained in a workplace
accident. His widow, Catherine M. Donohoe, appellee and cross-appellant, has
filed an application for additional workers’ compensation benefits, claiming that
his accident resulted from his employer’s violations of specific safety
requirements (“VSSRs”) governing the construction industry. Appellee, Industrial
Commission of Ohio, denied her application, but the Court of Appeals for
Franklin County vacated the order and returned the cause to the commission for
further consideration. State ex rel. Donohoe v. Indus. Comm., Franklin App. No.
08AP-201, 2010-Ohio-1317, ¶ 28. That judgment is now before us.
        {¶ 2} In 2004, decedent’s employer, the Kenny Huston Company,
appellant and cross-appellee, was doing masonry work on a construction project
at a military base. In late summer, Huston employees Todd Jenkins and Burt
Selby were assigned to lay the brick on what has been referred to as the building’s
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south parapet or south vestibule parapet wall. This task required them to work
from a temporary platform (“work platform”) that was about 13 feet above the
ground.
       {¶ 3} About 13 feet behind the two men was the building’s one-story
exterior wall that, in one spot, extended only a foot or two above the work
platform. Adjacent to and slightly below the outside of the exterior wall was a
partially assembled scaffold that did not have guardrails on the sides of the
platforms.   The scaffold, which was apparently being dismantled, was not
considered part of the south parapet work area.
       {¶ 4} On August 30, 2004, decedent was assisting Selby and Jenkins. As
a laborer, his main task was to keep the two masons supplied with brick, mortar,
and other necessary materials.    Supplies began to run low by midafternoon,
prompting repeated calls for decedent, but he did not respond. Finally looking to
find him, the men peered over the exterior wall and saw decedent lying on the
ground. He had obviously fallen, lost his hardhat during the descent, and struck
his head on either a concrete footer or the ground surrounding it. Decedent died
later from those injuries.
       {¶ 5} After a workers’ compensation death claim was allowed, his
widow filed her VSSR application with the commission, alleging that her
husband’s accident had occurred because Huston had not complied with
numerous specific safety requirements pertaining both to scaffolding particularly
and, more generally, to work done at a specified height above the ground. The
parties could agree that decedent had fallen from the scaffold. They disagreed on
how far he had fallen and whether he had fallen a short distance from the
scaffold’s cross-braces or from one of its high unguarded platforms.
       {¶ 6} There was evidence suggesting that decedent had fallen from a
height of 12 feet or more, which could encompass either the scaffold’s cross-
braces or one of its platforms. Other evidence indicated that a fall from a height




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as low as one to three feet could have caused the fatal head trauma if decedent’s
head had struck the concrete footer. This second scenario, however, would rule
out the possibility that decedent had fallen from one of the unguarded scaffold
platforms, which were located higher up on the structure. It would also render
inapplicable those specific safety requirements governing work at heights.
       {¶ 7} At a hearing before a commission staff hearing officer (“SHO”),
Huston argued that decedent may have sustained his injuries in a short-distance
fall from the scaffold’s cross-braces. In addition to negating the applicability of
many of the specific safety requirements the widow cited, Huston also argued that
decedent’s presence on the cross-braces constituted unilateral negligence and
would bar any VSSR finding. The widow, on the other hand, continued to assert
that her husband had fallen a much greater distance. She also argued that even if
he had fallen from the cross-braces, he was on them only because Huston had
provided no other way to reach the mason’s work platform. According to the
widow, Huston could not successfully assert a unilateral-employee-negligence
defense because Huston had failed to first comply with a safety regulation
requiring safe access to scaffolds.
       {¶ 8} Huston prevailed. The SHO wrote:
       {¶ 9} “In the present case the decedent fell and hit his head, thereby
causing his death. The facts indicate that no one saw the decedent fall, no one has
knowledge where he was when he fell ie. [sic], did he fall from the scaffold or did
he fall climbing up/down the scaffold. Furthermore, no one knows why he was
where he was at the time of his fall. * * * Consequently, the decedent-widow can
not prove by a preponderance of the evidence that there was a violation of a
specific safety requirement, if there was a violation, which section was violated
and whether that violation caused the decedent’s death. As such, the instant
application for a violation of the specific safety requirement is denied.
       {¶ 10} “All evidence was reviewed and considered.” (Emphasis added.)



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       {¶ 11} Rehearing was denied.
       {¶ 12} Donohoe’s widow filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission had abused its
discretion in denying her application. She argued that the commission had denied
her application solely because there were no eyewitnesses who could definitively
identify the point from which her husband fell.        She argued that a lack of
eyewitnesses should not defeat her claim and asserted that the SHO was required
to draw inferences from the evidence presented and essentially pick one side’s
version of the accident. That the SHO did not, according to the widow, could
mean only that the SHO did not review the evidence.
       {¶ 13} The court of appeals agreed:
       {¶ 14} “[W]e believe the tenor of the SHO’s order is that relator was
incapable of proving her VSSR claim in the absence of eyewitness testimony.
Clearly, the case law does not support such a requirement. * * *
       {¶ 15} “Rather than agreeing with the magistrate’s finding that the
commission considered the reports and found them to be unreliable, we believe
the commission did not consider the reports at all in the absence of supporting
eyewitness testimony. By reciting the uncertainty surrounding decedent’s fall
based upon the absence of witnesses, the commission suggests that there was no
evidence supporting relator’s claim. Indeed, it held that relator ‘can not’ prove
her VSSR claim.” Donohoe, 2010-Ohio-1317, ¶ 23-24.
       {¶ 16} The court issued a limited writ that vacated the order and returned
the cause to the commission for further consideration and an amended order. Id.
at ¶ 28. Both the widow and Huston now appeal to this court as of right.
       {¶ 17} The difficulty in this case, as the court of appeals accurately
observed, is that the SHO’s order—from an evidentiary standpoint—can be
interpreted in different ways. Id. at ¶ 21. The order contained the boilerplate “all
evidence was reviewed and considered,” leading the appellate magistrate to




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assume that the SHO had indeed evaluated the evidence and was not persuaded by
the widow’s version of events. Id. at ¶ 22, 45. The court of appeals acknowledged
that language, but found that other language in the order cast doubt on the true
extent of evidentiary review. Id. at ¶ 26.
       {¶ 18} The court based its conclusion on two things: (1) the SHO’s
preoccupation with the lack of eyewitnesses to the fall and (2) her declaration that
the widow “can not” prove her case. To the court of appeals, the focus on
eyewitness testimony could be explained only by the SHO’s mistaken belief that
such evidence was legally required to prove a VSSR. Id. at ¶ 24. Only the belief
in that per se rule, the court continued, would justify the SHO’s conclusion that
the widow “can not”—as opposed to “did not”—carry her burden of proof. Id. If
the SHO had so believed, then she would have had no reason to review the rest of
the evidence. Id. at ¶ 25.
       {¶ 19} An order that can engender two viable, yet irreconcilable,
interpretations is too ambiguous to withstand scrutiny, and one that is potentially
based on an erroneous belief that a VSSR cannot be proved in the absence of
eyewitnesses is clearly an abuse of discretion. See, e.g. State ex rel. Supreme
Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, 781 N.E.2d
170, ¶ 69. (The court “has never required direct evidence of a VSSR. To the
contrary, in determining the merits of a VSSR claim, the commission or its SHO
* * * may draw reasonable inferences and rely on his or her own common sense
in evaluating the evidence”).     The court of appeals was therefore correct in
returning the cause to the commission for clarification and consideration of all the
evidence if the SHO did not do so previously.
       {¶ 20} The judgment of the court of appeals is affirmed.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.



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                              __________________
       Reminger Co., L.P.A., Patrick Kasson, Mick L. Proxmire, and Melvin J.
Davis, for appellee and cross-appellant.
       Buckley King, L.P.A., and Christopher L. Lardiere, for appellant and
cross-appellee.
       Michael DeWine, Attorney General, and Stephen D. Plymale, Assistant
Attorney General, for appellee.
                           ______________________




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