Opinion
No. 31204
Decided May 19, 1948.
Workmen's compensation — Additional award for violating specific-safety requirement — Safety requirement expressly made applicable to specific industry or employment — May not be applied to another separate and distinct classification, when.
Where a specific safety requirement adopted by the Industrial Commission in expressly made applicable to employers in a specific industry or occupation, such requirement is not applicable to employers in another separate and distinct class of employments or occupations, unless expressly made so by a rule or order of the commission.
IN MANDAMUS.
This is an action in mandamus. The relator in its amended petition alleges that on March 13, 1943, it was engaged under contract with The Firestone Tire Rubber Company to construct and install boilers and accessories in the factory building formerly used by the Beach Enameling Company of Coshocton, Ohio; and that on that date one of relator's employees, Charles A. Brode, while attempting to descend from some overhead pipelines by means of a ladder, struck the top of the ladder and fell to a concrete floor, suffering mutiple bone fractures.
Relator alleges further that during all the time of such construction work it was a contributor to the state insurance fund and was engaged solely in building and construction work and not in operating or maintaining a workshop or factory; that Brode made application for benefits from the state insurance fund, which benefits were granted by the respondent commission; that on October 27, 1944, Brode filed with the respondent an application for an additional award for a violation of a specific safety requirement, under Section 35, Article II of the Constitution, claiming that relator was guilty of violating Section 17 of Bulletin 203 of Specific Safety Requirements, relating to workshops and factories, adopted by the respondent Industrial Commission, December 26, 1923; that such application was heard and allowed by the respondent commission and a finding made by it to the effect that Brode's injuries were caused by the violation of a specific safety requirement relating to workshops and factories, in that the ladder used by Brode when he received his injuries was not equipped with safety shoes, metal spikes or spurs, as required by paragraph (a), Section 17, Bulletin 203; and that respondent allowed Brode additional benefits in an amount equal to 20 per cent of the regular compensation previously granted him and ordered the collection of such additional award.
Relator alleges further that Brode died on January 20, 1947, whereupon an application was filed with the respondent commission by his dependents for death benefits from the state insurance fund; that such application was referred to the Canton District Board of Claims for its finding as to such death benefits; that from a finding adverse to relator, "an application for reconsideration and review of said former finding of a violation of Section 17 of Bulletin 203, the ordering of an additional award and its collection, and of said finding of said Canton Board of Claims" was considered by the respondent commission; and that the respondent commission, under date of August 18, 1947, notified the relator that the order of the Canton District Board of Claims was affirmed and relator's application for reconsideration denied, and ordered as payment for such death award the sum of $3,318, from January 27, 1947, to December 26, 1949, and for the violation of such specific requirement the sum of $1,500, which sum is composed of the sum of $836.40, for violation of the specific requirement, to January 12, 1947, and a death award, for violation of a specific requirement, from January 27, 1947, to December 26, 1949, in the sum of $663.60.
The relator alleges further that the findings and awards of the respondent commission were unlawful, arbitrary, unreasonable and a gross abuse of discretion on the part of the respondent commission; that there was no violation of any specific lawful requirement within the purview of Section 35, Article II of the Constitution, for the reason that paragraph (a) of Section 17, Bulletin 203, has no application to construction work and particularly no application to the relator who was not operating a workshop or factory; and that relator has no other adequate remedy at law to protect its legal rights.
The prayer of the amended petition is that the respondent commission be ordered to set aside and cancel the award of the additional compensation and the orders of the respondent commission made with reference thereto, and that the relator be granted such other and further relief to which it may be entitled.
The answer of the respondent commission admits substantially all the operative facts alleged in relator's amended petition, but alleges that the amended petition does not state facts sufficient to constitute a cause of action against the respondent, and that this court does not have jurisdiction of the subject matter of the action.
The relator filed a reply in which it reasserts that Bulletin 203, Specific Requirements, General Safety Standards for Workshops and Factories, and specifically Section 17, paragraph (a) thereof, had no application to the work being performed by relator.
Messrs. Zinn, Allen Leasure, for relator.
Mr. Hugh S. Jenkins, attorney general, and Mr. R. Brooke Alloway, for respondent.
Under date of February 15, 1946, the respondent, as shown by its answer, found "that the stepladder was not equipped with any safety shoes, metal spikes or spurs, as required by paragraph (a) of Section 17, Bulletin 203, the Code of Specific Requirements and General Safety Standards for Workshops and Factories" and "that as a result of the employer's violation of the above-mentioned section of the aforesaid code, the claimant was injured as set forth in his application."
After the present action was commenced, a stipulation was filed by the parties, under date of February 25, 1948, providing "that the entire file of the Industrial Commission of Ohio shall be used as the record in this cause, and furthermore, that if the deposition of Miller Plumbing Company was taken in further amplification of said record, that the same would show as a fact that on the 13 day of March, 1943, in a building formerly used by Beach Enameling Company of Coshocton, Ohio, that Miller Plumbing Company under its contract with Firestone Tire Rubber Company, was performing construction work by way of installing inside of this building, boilers, steam pipelines, and necessary fittings, and was not conducting a workshop or factory at said location."
The record raises the issue whether, when specific safety requirements are formulated and issued by the Industrial Commission for a specific industry or occupation, which purport to exclusively cover that industry or occupation, to wit, workshops and factories, the commission may then apply and use such rules of conduct to find a violation of a specific lawful requirement in another specific industry or occupation, in this case building and construction work.
The orders of the Industrial Commission formulating rules for specific safety requirements have the effect of legislative enactments and are, therefore, subject to the ordinary rules of statutory construction. Such orders and rules are in form and effect applicable to distinct and specific industries and occupations. Rules and orders applicable to workshops and factories and those applicable to building operations, not adopted at the same time or as a comprehensive code intended to cover more than the specific industry or occupation to which they are expressly made applicable, are not in pari materia. Columbus Packing Co. v. State, ex rel. Schlesinger, Pros. Atty., 106 Ohio St. 469, 140 N.E. 376, 37 A. L. R., 1525. The rule of expressio unius est exclusio alterius then applies. Our conclusion is that the Industrial Commission was not warranted in applying the safety requirements adopted for workshops or factories to the relator which was at the time Brode was injured engaged in construction work only.
In applying the rule applicable to workshops and factories to the facts in this case, the Industrial Commission did not consider or apply Section 301 of Specific Safety Requirements, Bulletin 202, applicable to construction work, now admitted by counsel for the respondent to be applicable to the situation of the relator, which rule reads as follows:
"Sec. 301. All ladders placed where there is danger of slipping shall be secured by the use of cleats, metal points, safety shoes, lashing or other effective means." (Italics supplied.)
The respondent having applied an inappropriate rule and having failed to apply the appropriate one, the relator is entitled to a writ of mandamus as prayed for, and such writ is, hereby, allowed.
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.