August 8, 2012
Specific Safety Requirements

by Justice Paul E. Pfeifer

Skilled Trades Industrial Maintenance is an employment agency that hires and assigns temporary workers to construction projects. In September 2007, the agency hired David D. Barno and assigned him to a building-renovation project that was being overseen by Ruscilli Construction Company.

The workers who were familiar with the site knew that the first floor had numerous openings in the concrete that went down to a basement or subbasement. But David was new to the project.

Three days into his assignment, he was told to remove pieces of wood that had been left on the floor by the night crew. One of those pieces was a ¾-inch-thick plywood board. David stooped to grab it, not knowing that a 15-foot-deep hole lay beneath. He lost his balance while lifting the board and fell into the hole, sustaining massive face and head injuries as a result.

David’s claim for workers’ compensation was allowed following the accident. After that claim was allowed, he filed for additional compensation with the Industrial Commission of Ohio, which handles such matters. David’s second claim was based on an allegation that Ruscilli had violated a specific safety requirement.

As the name suggests, specific safety requirements detail the type of safety measures that must be observed on job sites. David alleged that Ruscilli had violated the safety requirement regarding floor openings.

In proceedings before an Industrial Commission staff hearing officer, two Ruscilli employees described the safety measures that the company had used to protect workers from the floor openings. The openings, they said, were typically covered with a ¾-inch plywood sheet. Generally, holes were covered with a single sheet of plywood, but two sheets were sometimes used in areas with motorized-equipment traffic.

The sheets, whether single or double, were secured to the floor in each corner by “Hilti pins,” which are actually special nails that can be shot through wood and into concrete by a nail gun. Once fastened, it was standard practice to kick the sheet on two of the sides to ensure that it didn’t dislodge. A properly secured sheet took considerable effort to remove.

The area where David was hurt was off limits to motorized equipment, meaning that all floor openings were covered by a single sheet of plywood. The particular board in David’s accident originally had the word “hole” painted on it in bold bright letters, but it had gotten dirty, and the letters might have been unreadable on the day David was injured.

The Ruscilli employees couldn’t remember the last time that they had kick-tested that board prior to the accident, but there were Hilti pins sticking out of the plywood after David fell.

David’s testimony contradicted the Ruscilli witnesses. David indicated that the hole was covered by two stacked pieces of plywood and that the top one looked brand new. He said he removed the first one without effort, dumped it, and returned for the second. He saw no painted warning on the second board, which he claimed he lifted without resistance.

Based on his review, the hearing officer determined that Ruscilli had violated the specific safety requirement. Ruscilli sought reconsideration but was denied, so the company filed a complaint with the court of appeals, alleging that the Commission had abused its discretion in finding a violation of a specific safety requirement.

The court of appeals found in Ruscilli’s favor, concluding that the Commission’s order had misinterpreted the applicable safety requirement and that the order was based on significant mistakes of fact. After that, the case came before us – the Supreme Court of Ohio – for a final review.

The court of appeals had concluded that the hearing officer’s order was premised on two significant mistakes of fact.  We found the order contained at least four major errors involving both law and fact. The result was an analysis premised on findings that lacked evidentiary support.

The most glaring error was a legal one. According to the hearing officer, the Ohio Administrative Code provides that “floor openings shall be guarded by a standard guard railing and toeboard or cover. Standard guard railing and toeboard shall be provided on all exposed sides ...”

But that’s not what the provision says. It actually reads: “Floor openings shall be guarded by a standard guard railing and toeboard or a cover with a safety factor of no less than two and so constructed that the cover cannot be accidentally displaced. A safety belt or harness with a lanyard may be provided in lieu of a standard guard railing and toeboard or cover.”

This error was critical because the key question was whether the plywood in question could be accidentally displaced. The hearing officer’s version of the specific safety regulation doesn’t even recognize the ease of displacement as part of the regulation.

The remaining errors were factual and involved almost every fact that was material to the case. These errors, in turn, fatally distorted the hearing officer’s analysis. For example, she concluded that Ruscilli’s safety measures were inadequate because they didn’t take into consideration the unstable nature of the building’s dirt floor. But the building didn’t have a dirt floor; it was solid concrete.

The hearing officer also stated that according to David, the hole was covered by a single piece of plywood. She criticized Ruscilli for failing to follow its customary practice of covering holes with two sheets and concluded that the accident wouldn’t have happened if Ruscilli had done so.

But these statements were all untrue. Ruscilli’s usual practice was to cover holes with one sheet of plywood, not two, so the purported deviation from custom that the hearing officer decried never happened. And David consistently stated that the hole was covered by two plywood sheets. This invalidated the hearing officer’s assertion that if two boards had been used, the accident would have been prevented.

For those reasons, we affirmed – by a seven-to-zero vote – the judgment of the court of appeals. Ruscilli did not violate a specific safety requirement and thus David was not entitled to additional compensation.

EDITOR'S NOTE: The case referred to is State ex rel. Ruscilli Constr. Co., Inc. v. Indus. Comm., 122 Ohio St.3d 18, 2012-Ohio-1588. Case No. 2010-1614. Decided April 12, 2012. Opinion Per Curiam.