[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Sunesis Constr. Co. v. Indus. Comm., Slip Opinion No. 2018-Ohio-___.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2018-OHIO-___
     THE STATE EX REL. SUNESIS CONSTRUCTION COMPANY, APPELLANT, v.
              INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Sunesis Constr. Co. v. Indus. Comm., Slip Opinion
                                   No. 2018-Ohio-___.]
Workers’ compensation—Violation of specific safety requirement—Industrial
        Commission did not abuse it discretion in granting additional award—
        Record contained evidence supporting commission’s finding that specific
        safety requirement applied, that employer violated it, and that violation was
        proximate cause of injury—Whether worker disobeyed employer’s
        instruction to stay out of hazardous area is immaterial.
   (No. 2015-1773—Submitted October 17, 2017 — Decided January 2, 2018.)
      APPEAL from the Court of Appeals for Franklin County, No. 13AP-449,
                                      2015-Ohio-3973.
                               _______________________
                            SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, Sunesis Construction Company, filed a petition for a writ
of mandamus in the Tenth District Court of Appeals alleging that appellee
Industrial Commission abused its discretion when it issued an award of additional
compensation for violation of a specific safety requirement (“VSSR”) based on
Ohio Adm.Code 4123:1-3-13(D)(1), (D)(2), (E)(1), (E)(2), and (E)(4), which
regulate trenches and excavations in the construction industry.
       {¶ 2} The court of appeals concluded that there was some evidence
supporting the commission’s decision and denied the writ of mandamus. For the
reasons that follow, we affirm.
                     Facts and Administrative Proceedings
       {¶ 3} Timothy R. Roark was employed by Sunesis as a laborer on a sewer
excavation and construction project. On July 31, 2005, Roark was working alone
at the bottom of a trench. The trench collapsed or caved in on top of him, resulting
in his death. There were no witnesses to the accident. Other workers discovered
Roark buried up to his neck in dirt, rock, and debris. He died from a skull fracture
and traumatic asphyxia.
       {¶ 4} The Bureau of Workers’ Compensation allowed a death claim and
awarded benefits to Roark’s dependent children. The dependents filed a separate
application for an additional award based on numerous violations of specific safety
requirements (“SSRs”) that apply to sloping, shoring, and bracing to stabilize the
sides of trenches and excavations.
       {¶ 5} The commission issued three orders addressing the merits of the
VSSR application. In 2008, a staff hearing officer concluded that Roark’s death
was the result of Sunesis’s failure to properly support the trench excavation in
which he was working. The hearing officer ordered Sunesis to pay an additional
award of compensation based on some, but not all, of the alleged violations of Ohio
Adm.Code 4123:1-3-13.




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       {¶ 6} Sunesis filed for mandamus relief in the Tenth District Court of
Appeals. On September 21, 2010, the court issued a writ of mandamus ordering
the commission to enter a new order that complied with State ex rel. Noll v. Indus.
Comm., 57 Ohio St.3d 203, 567 N.E.2d 245 (1991) (in any order granting or
denying benefits, the commission must specifically state what evidence has been
relied upon and briefly explain its reasoning).
       {¶ 7} In 2011, a staff hearing officer issued a second order, again granting
the VSSR application in part and denying it in part. The hearing officer made the
following factual findings based on photographs taken at the scene and the
testimony of Chuck Renken, the employer’s director of human resources and safety
at the time of the accident, and Jeffrey Darrah, Sunesis’s vice president and
engineer. Roark was working alone at the bottom of a 20-foot-deep trench. Three
sides of the trench were adequately shored. One was composed of solid concrete
and shale rock, one was secured by steel road plates, and a third was secured by a
ten-foot-tall trench box. The fourth wall consisted of soil that Sunesis attempted to
shore up by sloping the wall and inserting a steel plate at the top of the wall above
the sloped area. It was this sloped wall that caved in on Roark.
       {¶ 8} The hearing officer concluded that the slope was not sufficient to
protect employees working in the trench, did not meet accepted engineering
requirements, and did not comply with standards of the Occupational Safety and
Health Administration (“OSHA”) or Sunesis’s own safety standards. Thus, the
hearing officer concluded, based on Renken’s testimony and the depositions of
Gary Bradford, field superintendent, and Anthony Roark, site supervisor and
decedent’s brother, that Roark was working in soft, wet material and was exposed
to moving ground or the possibility of a cave-in in violation of Ohio Adm.Code
4123:1-3-13(D)(1) and (2) (unstable or soft material in trenches where employees
may be exposed to moving ground or cave-ins shall be supported by sufficient
means to protect them).




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       {¶ 9} The hearing officer also determined that the slope did not meet
accepted engineering requirements and that this failure was the proximate cause of
the cave-in. Thus, the hearing officer concluded that Sunesis also violated Ohio
Adm.Code 4123:1-3-13(E)(1), (2), and (4) (excavations in which employees are
exposed to danger from moving ground shall be guarded, shall be designed by a
qualified person, and shall meet accepted engineering requirements).
       {¶ 10} Finally, the hearing officer rejected Sunesis’s argument that Roark
disregarded instructions to work inside a large underground pipe known as a casing
and that his failure to do so was the proximate cause of his death, finding no
evidence that any such instruction was ever given.
       {¶ 11} Sunesis filed a motion for rehearing. The commission determined
that the 2011 order was based on a clear mistake of law and ordered rehearing so
that a staff hearing officer could identify the amount of sloping necessary based on
the type of soil involved, according to Table 13-1 in the appendix to Ohio
Adm.Code 4123:1-3-13(D)(1) and (2).
       {¶ 12} A staff hearing officer issued a third order, in October 2012, adding
language that identified the type of soil involved as “soft material, Class C soil with
ground water” and stated that Table 13-1 addresses the approximate angle of repose
for sloping of sides of excavations. A note to Table 13-1 states, “The presence of
ground water requires special treatment.”
       {¶ 13} In all other respects, the 2012 order was identical to the 2011 order.
       {¶ 14} In March 2013, the commission denied Sunesis’s request for
reconsideration and ordered that the October 2012 order remain in effect.
                         Petition for Writ of Mandamus
       {¶ 15} On May 30, 2013, Sunesis filed a petition for a writ of mandamus in
the Tenth District Court of Appeals seeking an order compelling the commission
to vacate the October 2012 order and to deny the VSSR application.




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                                January Term, 2018




       {¶ 16} The court of appeals denied the writ. The court stated that Roark’s
negligence was not relevant because SSRs are intended to protect even negligent
employees and Roark’s negligence would bar a VSSR award only if he had
deliberately neutralized the slope of the trench.
       {¶ 17} Next, the court of appeals concluded that the hearing officer did not
abuse his discretion when he failed to determine the actual degree of the slope per
Table 13-1:


       The [staff hearing officer’s] order in this case clearly specified that the
       soil on the unbraced end of the trench was wet and presented the
       potential for moving ground requiring “special treatment.” The [staff
       hearing officer] therefore did not need to refer to the slope specifications
       of Table 13-1 for different types of ground because wet ground
       specifically falls outside the table guidelines.


(Footnote omitted.) 2015-Ohio-3973 at ¶ 12.
       {¶ 18} The court further stated that the “testimony in the record clearly
corroborates the reference to Type C soil as soft, wet, non-homogenous, saturated
soil that presented an increased risk of cave-in.” Id. at ¶ 13.
       {¶ 19} In addition, the court of appeals determined that the testimony of
four Sunesis employees—Anthony Roark, Chuck Renken, Jeffrey Darrah, and
Gary Bradford—was sufficient evidence to support the commission’s conclusion
that Sunesis had failed to adequately brace or slope the fourth side of the trench and
that the failure was the proximate cause of the accident. The court stated that this
testimony, along with photographs in the record, constituted some evidence to
support the commission’s determination that the deficient trench design was the
proximate cause of the collapse.




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       {¶ 20} Finally, the court of appeals concluded that there was some evidence
that the design of the trench did not meet accepted engineering requirements,
including evidence, also based on testimony from Sunesis employees, that the
trench did not meet accepted OSHA or Sunesis internal standards.
       {¶ 21} The direct appeal filed by Sunesis is before the court.
                                    Legal Analysis
       {¶ 22} To prevail on its claim for the extraordinary remedy of a writ of
mandamus, Sunesis must demonstrate that the commission’s decision to issue a
VSSR award was an abuse of discretion. See State ex rel. Armstrong Steel Erectors,
Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-Ohio-4525, 41 N.E.3d 1233, ¶ 13.
An abuse of discretion occurs when the record contains no evidence to support the
commission’s order. State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18,
20, 508 N.E.2d 936 (1987). So long as some evidence supports the commission’s
order, there was no abuse of discretion, and the court must uphold the decision.
Armstrong Steel Erectors at ¶ 13.
       {¶ 23} When a VSSR is alleged against an employer, the commission must
determine whether an SSR was in effect and applied at the time of the injury,
whether the employer violated the requirement, and whether the failure to comply
proximately caused the injury. State ex rel. Supreme Bumpers, Inc. v. Indus. Comm,
98 Ohio St.3d 134, 2002-Ohio-7089, 781 N.E.2d 170, ¶ 46.
       {¶ 24} The commission determined that Sunesis violated the following
sections of Ohio Adm.Code 4123:1-3-13:


              (D) Trenches.
              (1) The exposed faces of all trenches more than five feet
       high shall be shored, laid back to a stable slope, or some other
       equivalent means of protection shall be provided where employees




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                                  January Term, 2018




       may be exposed to moving ground or cave-ins. (See appendix
       “Table 13-1”).
                (2) Sides of trenches in unstable or soft material, five feet or
       more in depth, shall be shored, sheeted, braced, sloped, or otherwise
       supported by means of sufficient strength to protection employees
       working within them. (See appendix Table 13-1 and “Table 13-2”).
                ***
             (E) Excavations.
                (1) The walls and faces of all excavations in which
       employees are exposed to danger from moving ground shall be
       guarded by a shoring system, sloping of the ground, or some other
       equivalent means.
                (2) Supporting systems, i.e. piling, cribbing, shoring, etc.,
       shall be designed by a qualified person and shall meet accepted
       engineering requirements.
                ***
                (4) Sides, slopes, and faces of all excavations shall meet
       accepted     engineering     requirements    by    scaling,   benching,
       barricading, rock bolting, wire meshing, or other equally effective
       means.


       {¶ 25} Sunesis argues that the commission’s decision was not supported by
some evidence in the record.        First, Sunesis maintains that it should not be
responsible for Roark’s unilateral negligence in entering a hazardous area when
instructed to stay out. Next, Sunesis argues that the commission failed to address
the requirements in Table 13-1—the angle of the slope and whether “special
treatment” was required. Third, Sunesis contends that there was a lack of evidence
that a VSSR proximately caused the injury.




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                              SUPREME COURT OF OHIO




       {¶ 26} Sunesis’s arguments lack merit.         The commission’s order was
supported by evidence in the record that (1) Sunesis violated the SSRs at issue, (2)
Table 13.1 did not apply, (3) the VSSRs were the proximate cause of Roark’s death,
and (4) unilateral negligence does not apply as a defense.
        {¶ 27} Here, the commission relied on the testimony of Sunesis employees
that the trench at issue was more than five feet high and consisted of unstable or
soft material, thus exposing employees to moving ground or cave-ins.               The
commission also relied on evidence that Sunesis employees had inserted a steel
plate at the top of the fourth wall, but it did not cover the sloped portion of the wall
that caved in on Roark, resulting in his death. Thus, there was some evidence to
support the commission’s conclusion that Sunesis violated 4123:1-3-13(D)(1) and
(2) by failing to provide a support of sufficient strength to protect employees from
moving ground or cave-ins.
        {¶ 28} In addition, the commission relied on the testimony of Sunesis
employees that no one at Sunesis consulted an engineer about the design of the
slope of the trench wall and that the sloped wall did not meet accepted engineering
requirements, including OSHA or Sunesis safety standards. Thus, there was some
evidence that Sunesis had violated Ohio Adm.Code 4123:1-3-13(E)(1), (2), and (4).
The commission acknowledged Table 13-1, but as the court of appeals stated, the
soil on the unbraced end of the trench was wet and presented the potential for
moving ground that required “special treatment” under Table 13-1. Consequently,
the wet ground specifically fell outside the guidelines of Table 13-1.
        {¶ 29} Finally, the defense of unilateral negligence does not apply here.
Because the critical issue in a VSSR claim is always whether the employer
complied with the SSR, see State ex rel. Quality Tower Serv., Inc. v. Indus. Comm.,
88 Ohio St.3d 190, 193, 724 N.E.2d 778 (2000), an employee’s conduct, even if
negligent, is not relevant to a VSSR determination unless the injury is caused by
the claimant’s deliberate circumvention or disabling of a safety device or refusal to




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                               January Term, 2018




use employer-provided safety equipment. State ex rel. Pressware Internatl., Inc. v.
Indus. Comm., 85 Ohio St.3d 284, 288, 707 N.E.2d 935 (1999). The commission
did not abuse its discretion when it refused to consider the issue of unilateral
negligence.
       {¶ 30} Therefore, it was within the commission’s discretion to conclude
that the trench was not properly shored or braced, exposing employees to the danger
of moving ground, and that Sunesis’s failure to comply with the SSRs at issue
proximately caused the death of Roark. Because Sunesis failed to demonstrate that
the commission abused its discretion when it issued a VSSR award, we affirm the
judgment of the court of appeals denying the extraordinary remedy of a writ of
mandamus.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, FRENCH, O’NEILL, FISCHER, and
DEWINE, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                              _________________
       Dunlevy, Mahan & Furry, Douglas S. Jenks, William H. Barney, and Gary
W. Auman, for appellant.
       Michael DeWine, Attorney General, and Andrew J. Alatis and Cheryl J.
Nester, Assistant Attorneys General, for appellee Industrial Commission.
       Fox & Fox Co., L.P.A., Bernard C. Fox, and Karen P. Mitchell, for appellee
Timothy R. Roark, deceased.
                              _________________




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