STATE BURT v. INDUSTRIAL COMMISSION OF OHIO (1999)

Per Curiam.  Ohio Adm.Code 4121:1-5-11(D)(9) requires:

“Power driven tumblers, rattlers, drums, barrels, containers, or similar machines that rotate, spin, or rock shall be guarded on an area or individual basis.   The guard shall be interlocked with the drive mechanism so that the machine cannot operate unless the guard or enclosure is in place.”

Ohio Adm.Code 4121:1-5-01(B)(69) and (70) define the key terms “guard” and “guarded” as:

“(69) ‘Guard’:  the covering, fencing, railing, or enclosure which shields an object from accidental contact.  * * *

“(70) ‘Guarded’:  means that the object is covered, fenced, railed, enclosed, or otherwise shielded from accidental contact.”

Controversy centers on the employer's duty entailed by the guarding requirements.   GGMP contends that a guard must protect an employee from accidental contact with a machine's moving parts.   Claimant contends that a guard must also protect the employee from accidental contact with objects ejected from a machine.

 This accident demonstrates the desirability of accepting claimant's contention.   Desirability, however, is not the criterion by which to construe a specific safety requirement.   Because a VSSR is an employer penalty, a specific safety requirement must be strictly construed in the employer's favor.  State ex rel. Burton v. Indus. Comm. (1989), 46 Ohio St.3d 170, 545 N.E.2d 1216.   Equally important, a specific safety requirement must plainly apprise an employer of its legal duties towards its employees.  State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257, 61 O.O.2d 488, 291 N.E.2d 748.

 None of the three cited Administrative Code sections plainly apprises an employer of a duty to guard against accidental expulsion of material.   Semantically, both relevant definitions refer to the shielding of an object from accidental contact.   The choice of the term “object” rather than “person” is significant,  particularly when used with the word “from.”   This connotes that it is the worker who is the actor or initiator of potential contact, not the object, i.e., the machine or its moving parts.   Where, as here, material is expelled from a machine, the machine is the “actor,” contrary to claimant's interpretation.

Other Administrative Code sections demonstrate the code authors' ability to protect the employee against expelled material when that is the desired goal.   Ohio Adm.Code 4121:1-5-08(D)(5)(a) (swing cutoff saws) and 4121:1-5-08(D)(7)(a) (radial saws) require that the hooded guards be “constructed in such a manner and of such material that [they] will protect the operator from flying splinters [and] broken saw teeth.”   There are similar provisions for “portable explosive-actuated fastening tools.”   There, for example, a “guard” is specifically defined as a device “attached to the muzzle end of the tool which is designed to confine flying particles.”   Ohio Adm.Code 4121:1-3-12(B)(2).   This requirement is echoed in Ohio Adm.Code 4121:1-5-06(C)(1)(a), which requires that “[t]he muzzle end of the [high-velocity] tool shall have a * * * guard * * * designed to confine any flying fragments or particles that might otherwise create a hazard at the time of firing.”

We, therefore, find that the specific safety requirement at issue did not entail an employer's duty to protect against expelled objects.   Consistent with the applicable definition of “guard,” we find that the spinning machine was appropriately “guarded.”

 Claimant alternatively argues that any such guard violated Ohio Adm.Code 4121:1-5-11(D)(9) nevertheless because the guard was not interlocked with the Spin-A-Batch's drive mechanism.   Claimant states that the video submitted into the record “showed that the Spin-A-Batch could be activated outside of the guarding of the metal enclosure.”   The flaw in this argument is the lack of a proximate cause between this asserted violation and decedent's accident.   Decedent was not killed by coming into contact with a Spin-A-Batch accidently activated from outside an enclosure.   The Spin-A-Batch was simply a motor, meaning that any proper interlock would have permitted only the motor to operate and would not have been the reason for the accident.

We find, therefore, that the commission did not abuse its discretion in denying a VSSR. As such, we turn last to claimant's assertion that State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, was not satisfied.   This argument lacks merit, since the order briefly explains its reasons and the evidence on which it relied.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

PER CURIAM.

MOYER, C.J., DOUGLAS, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.  RESNICK and FRANCIS E. SWEENEY, SR., JJ., dissent and would reverse the judgment of the court of appeals.