IN THE SUPREME COURT OF OHIO. STATE OF OHIO, ex rel. ARMSTRONG STEEL ERECTORS, INC., : Case No

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1 Y }, ^?p^g l"^^,trfnrpv`^asf ^,J rf r ;.? i., ^ ^ t2^'^ L IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. ARMSTRONG STEEL ERECTORS, INC., : Case No vs. Appellant-Relator, : ON APPEAL FROM THE FRANKLIN COUNTY COURT OF APPEALS, TENTH APPELLATE DISTRICT INDUSTRIAL COMMISSION OF OHIO AND FRANK P. SEIDITA, Court of Appeals Case No.: 13AP-190 Appellees-Respondents. REPLY BRIEF OF APPELLANT-RELATOR ARMSTRONG STEEL ERECTORS, INC. Corey V. Crognale ( ) (Counsel of Record) Jennifer McDaniel ( ) ICE MILLER LLP 250 West Street, 7th Floor Columbus, Ohio Phone: (614) Facsimile: (614) core.cro nale a,icemitler,com jennifer.medaniel cr,icem.ilter.com Attorneys for Appellant-Relator, Armstrong Steel Erectors, Inc. Joseph A. Moro ( ) Robert J. Foley, Jr. ( ) HELLER MAAS MORO & MAGILL CO., LPA 54 Westchester Drive, Ste. 10 Youngstown, OH Phone: (330) Facsimile: (330) imoroghmmmcol p a. com rfoley^u,linmmcolpa.com Attorney for Appellee-Respondent, Frank P. Seidita!,s o3 +^,^,. ^ D^ `'r' ii s^ ^.%^i0^^tr ^ 4^^"i%^i ^",r3 ds^;^ '.Jiy r^.^? a e^ i ^ ^ ^ig^^,q ^e^':/y^+rr`,^+ % k^/ ^y ^ >i " ``' 1 ^^/^'ti% ^ ^'^7 %^ 4 ' y^ ^ie 8 9 B2 U ^ f r^ ^; n,,,,:^.^...:,..,.:^,.^,z^^.. ^.^u..«. Kevin J. Reis ( ) Assistant Attorney General, State of Ohio Workers' Compensation Section 150 East Gay Street, 22pd Floor Columbus, OH Phone: (614) Facsimile: (614) kevin.reis cr,ohioattorneygeneral.com Attorney for Appellee-Respondent, Industrial Commission of Ohio C

2 TABLE OF CONTENTS 1. INTRODUCTION...,,...,...,...,...,...,...,,...,,...,,...,..1 II. ARGUMENT... I A. ASE Was Not Relying on Chain Link Fencing As Its Primary Means of Fall Protection....,...,...,...1 B. The Use of Personal Fall Protection Equipment was Practical...,,,...2 C. ASE Complied with the Personal Fall Protection Requirements...4 III. CONCLUSION...,,...;...,...,...,...,,,...5 COt i

3 TABLE OF AUTHORITIES Cases State ex rel. Haines v. Indus. Comm., 29 Ohio St. 2d 17, 278 N.E.2d 24 (1972)... 4 Statutes Ohio Adm. Code 4123:1-3-03(2)(7)...2 Ohio Adm. Code 4123:1-3-03(L)... 2 COt ii

4 I. INTRODUCTION Appellees-Respondents offer nothing in their Briefs that effectively counter Appellant- Relator Armstrong Steel Erectors, Inc.'s (ASE) demonstration that the Industrial Commission found a violation of the fall protection standards absent any evidence that the use of personal fall protection equipment was impracticable. Lacking concrete evidence of impracticality, Respondents appear to contend that ASE relied upon chain link fencing as its primaiy means for fall protection. The records evidence, however, offers no basis to support that contention. Moreover, the hearing testimony of Respondent Frank P. Seidita (Seidita) reflects a miscomprehension of his obligation to utilize personal fall protection equipment. Along this line, a claimant's misunderstanding of his reciprocal obligation to use personal protective equipment does not translate to finding the use of such equipment to be impracticable. The Respondent's arguments; thus, should not deflect the Court's focus from ASE's showing that Seidita's use of personal fall protection equipment was not only practical but required. As such, the Industrial Commission's VSSR award was abuse of discretion. II. ARGUMENT A. ASE Was Not Relyiniz on Chain Link Fencing As Its Primary Means of Fall Protection. The testimony of ASE's President, its general superintendent and j obsite foreman, is uniform and unrefuted. Specifically, ASE required its j ourneymen ironworkers to be tied off with the use of a body harness and retractable lanyard whenever exposed to a fall hazard while working at a height of six feet or above. Further, ASE's journeymen ironworkers possessed the knowledge and understanding in the use, care, and maintenance of personal fall protection equipment. Here the journeymen ironworkers received safety training relative to fall protection standards through their union membership, and ASE's safety program, which included, weekly safety toolbox talks covering C

5 fall protection requirements (Rec ; ; Tr, 42-47). Put simply, ASE required the use of personal fall protection equipment as its primary means of abating the fall hazard and required its journeymen ironworkers to be 100% tied off through the use of the body harness and retractable lanyard whenever working at a height of six feet or more - regardless of whether chain link fencing or safety netting was present. This undisputed evidence is fatal to Seidita's VSSR application. B. The Use of Personal Fall Protection Eguipment was Practical. Ohio Adm. Code 4123:1-3-03(L) provides that safety netting shall be provided when the work stations are more than 25 feet above ground and the use of personal fall protection equipment is "impracticable". Absent any case authority, ASE turns to Merriam-Webster for the definition of "impracticable" as: "not practicable; not wise to put into or keep in practice or effect; incapable of dealing sensibly or prudently with practical matters" Merriam-Webster further defines "practical" as: "capable of being put to use or account." Cognizant of these definitions, the record evidence demonstrates the ease of utilizing the fall protection equipment available to Seidita. First, a safety harness is a device worn around the body which, upon attachment to a lanyard, will prevent an employee from falling. In essence, a safety harness is worn in the same fashion as a piece of clothing. Consequently, there existed no impediment preventing Seidita from wearing his safety harness whether he was working in cramped quarters, or in a sitting, kneeling, bending, squatting, or standing position. Likewise, a "lanyard" is a flexible line of rope, wire rope or strap, which generally has a connector at each end for connecting the body harness to a lifeline or anchorage point. See, Ohio Adm. Code 4123:1-3-03(2)(7), Again, there existed no reason prohibiting Seidita from connecting a retractable lanyard to his body hamess. Beyond that, ASE utilized c-clamps as the anchorage points for the retractable lanyards. According C

6 to Russ Duskey, ASE's superintendent, multiple anchorage points existed for the c-clamps, which points included the steel girder, steel flanges, cross reins, and stickers. (A photocopy of the c-clamp is attached). Duskey, as well as, Brue and Bednar provided unrefuted testimony describing the multiple options available for Seidita to utilize this personal fall protection equipment. Brue and Bednar also describe other means of fall protection available to Seidita. Specifically, ASE had chokers to wrap around the bridge steel work which, in turn, Seidita could connect his retractable lanyard to the choker in order to avoid the fall hazard. (Rec , and Tr ). In sum, Seidita, if he so elected, could have utilized his safety harness while working on the concrete pier whether working on his back or stomach, sitting, kneeling, squatting, bending or standing. Given his work surface being over 25 feet above ground, ASE's 100% tie off rule, and Seidita's work experience in safety training, ASE submits that the use of personal fall protection equipment was prudent, required, available, and impracticable to NOT be utilized. It is this set of circumstances that mandates the denial of Seidita's VSSR application. Moreover, Seidita's representation that the use of personal fall protection equipment was not required can only be described as either wrong or disingenuous, given his work experience, safety training and ASE's safety protocol. Put simply, Seidita's contention that such equipment was not required does not translate to proving the use of such equipment to be impractical. Conversely, accepting Scidita's misapprehension, in essence, enables him to circumvent the reciprocal obligation under the specific safety requirements that all employees must utilize personal protective equipment made available by their employers. The Industrial Commission's findings, thus, allow Seidita to ignore his reciprocal obligation of utilizing available personal protective equipment designed to prevent the exposure to the hazard that was the cause of his accident. Accordingly, Seidita's unilateral violation of company safety rule precludes his VSSR award. C

7 C. ASE Complied with the Personal Fall Protection Reguirements. To render a VSSR award, the Industrial Commission must find: I. An applicable specific safety requirement in effect at the time of the injury; 2. The employer failed to comply with that requirement; and, 3. The failure to comply was the cause of the claimant's injuries. See, State ex rel. Haines v. Indus. Comm., 29 Ohio St. 2d 17, 278 N.E.2d 24 (1972). Here, ASE complied with the fall protection standards by providing all the requisite fall protection equipment and associated safety training necessary to abate the fall protection hazard. As such, the utilization of the personal protective equipment would have precluded Seidita's fall. Seidita, however, failed to utilize the available personal protective equipment, which failure was the proximate cause of his injuries. Given ASE's compliance with the specific safety requirements, and Seidita's failure to fulfill his reciprocal obligation to utilize available personal protective equipment, a VSSR award under these circumstances constitutes an abuse of discretion and must be vacated. C

8 III. CONCLUSION For all the foregoing reasons, and for the reasons set forth in its Merit Brief, ASE respectfully requests the Court grant a writ of mandamus ordering the Industrial Commission to vacate its finding of a violation of a specific safety requirement and to deny Seidita's application for a VSSR award in its entirety. Respectfully submitted, Corey V. rogiale (^QO^ r cdaniel (00^j ICE MILLER LLP 250 West Street Columbus, Ohio Telephone: (614) Facsimile: (614) Corey.Cro ale c(^icemiller,com 3ennifer.McDaniel,icemiller.com Attflrneys forappellant-relator, Arnzstrong Steel Ereetors, Inc. C

9 CERTIFICATE OF SERVICE I hereby certify that the foregoing Rely Brief of Appellant-Relator Armstrong Steel Erectors, Inc. was served by regular U.S. mail, postage prepaid, this ^ day of December 2014, upon the following parties: Kevin Reis Assistant Attorney General Ohio Attorney General's Office Workers Compensation Section 150 E. Gay St., 22nd Flr, Columbus, OH Counsel for Respondents, Industrial Commission of Ohio Joseph A. Moro, Esq. Robert J. Foley, Jr. HELLER MAAS MORO & MAGILL CO., LPA 54 Westchester Drive, Suite 10 Youngstown, OH Counsel for Respondent, Frank P. Seidita CO

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