[Cite as State ex rel. Metcalfe v. Indus. Comm., 121 Ohio St.3d 347, 2009-Ohio-1220.]

THE STATE EX REL. METCALFE, APPELLANT, v. INDUSTRIAL COMMISSION OF 

OHIO ET AL., APPELLEES. 

[Cite as State ex rel. Metcalfe v. Indus. Comm., 

121 Ohio St.3d 347, 2009-Ohio-1220.]

Workers’ compensation — Violation of specific safety requirement — Ohio 

Adm.Code 4123:1-5-05(D)(2) — Commission’s denial of award upheld. 

(No. 2007-2275 — Submitted February 17, 2009 — Decided March 24, 2009.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 06AP-830, 2007-Ohio-6180. 

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Per Curiam. 

{¶ 1} Nicholas Metcalfe died in an industrial accident. After a claim for 

death benefits was allowed, appellant, Kimberly Metcalfe, his widow, moved 

appellee Industrial Commission of Ohio for an additional award, alleging that 

Nicholas’s employer, appellee Ultimate Systems, Ltd. (“USL”), had committed 

several violations of specific safety requirements (“VSSR”). The commission 

denied her application, and the court of appeals upheld that order, which now 

brings the matter here. 

{¶ 2} USL makes flooring materials. One of its products was a rubber 

and polyurethane compound commonly used in gyms and health clubs. At the 

time of Metcalfe’s accident, a bulk loading system was used to manufacture the 

material. The system consisted of a pellet-feed system, wet auger, weigh hopper, 

and mixer. The latter two are the focus of this litigation. 

{¶ 3} The mixer was tub-shaped and approximately 32 inches deep and 

30 inches across. For this particular operation, it combined a polyurethane glue 

mixture with dry rubber buffings from the weigh hopper, which was suspended 
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immediately above it. The hopper had clamshell doors that operated 

pneumatically to dispense the buffings. 

{¶ 4} The mixer needed daily cleaning, which was usually done near the 

end of the second shift. Both management and employees described this as one of 

the worst jobs in the plant. The employee assigned to the task had to scrape the 

semihardened plastic from the inside of the mixer. To do this, the worker was 

given a scraper, an air hose to blow out the scrapings, a crock pot full of hot wax, 

and a brush to coat the mixer blades and the inside of the mixer with wax to 

reduce the likelihood that the glue mixture would adhere to the blades and mixer. 

The job could take between 45 minutes and one and one-half hours, depending on 

the type of materials run that day. 

{¶ 5} In addition to the sheer physical exertion required, the task was 

complicated by the layout of the equipment. The mixer and hopper were located 

on an elevated platform that backed onto a wall. The safest way to clean the 

mixer was for an employee to kneel on the platform’s catwalk and reach into the 

mixer. Unfortunately, that method was not the most effective for two reasons. 

First, the distance between the suspended hopper and the mixer below was only 

nine inches. Second, the mixer was over two feet wide, with no access to the 

back side because the mixer was flush against a guardrail. Consequently, the only 

access to the mixer was from the front, which, as the staff hearing officer 

observed, made it “very difficult to reach across the 30 inch face, through the 9 

inch opening, to clean the back wall of the mixer.” 

{¶ 6} To more easily and effectively clean the mixer, some employees 

devised a much more dangerous cleaning procedure. Rather than clean from the 

outside, they would open the hopper doors to allow for clearance and then crawl 

into the mixer. This method allowed the employee to sit or kneel in the mixer 

with his head and torso between the open hopper doors. 
January Term, 2009 

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{¶ 7} Nicholas Metcalfe was cleaning the mixer this way on the night of 

August 15, 2002. But he could not have known that one of the valves controlling 

air pressure to the hopper doors had failed. Air was slowly bleeding out of the 

lines, and when the pressure was exhausted, the hopper doors closed, crushing 

him. 

{¶ 8} Investigation revealed that Metcalfe had properly locked out the 

controls to the mixer. There was, however, no way for him to lock out the weigh 

hopper controls, one of the violations appellant alleged in her VSSR application. 

Former Ohio Adm.Code 4121:1-5-05(D)(2), now 4123:1-5-05(D)(2), required: 

{¶ 9} “Auxiliary Equipment 

{¶ 10} “* * * 

{¶ 11} “(D) Machinery Control. 

{¶ 12} “* * * 

{¶ 13} “(2) When machines are shut down.

{¶ 14} “The employer shall furnish * * * a device to lock the controls in 

the ‘off’ position or * * * warning tags when machines are shut down for repair, 

adjusting, or cleaning.” (Emphasis added.) 

{¶ 15} A commission staff hearing officer denied the VSSR application. 

Although he found that USL did not furnish a device to lock the weigh hopper 

controls in the off position, he also found that the absence of a lockout device was 

not the proximate cause of Metcalfe’s accident. The failure of the pneumatic 

valve’s solenoid, he wrote, caused the hopper doors to close, so even if the 

controls had been locked out, it would not have prevented the air pressure from 

bleeding out of the lines. 

{¶ 16} Rehearing was denied. 

{¶ 17} Appellant petitioned the Court of Appeals for Franklin County for 

a writ of mandamus ordering the commission to vacate its decision and allow an 

award for a VSSR. The court denied the writ, finding no abuse of discretion in 
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the commission’s conclusion that USL’s noncompliance with Ohio Adm.Code 

4121:1-5-05(D)(2) had not proximately caused the industrial accident. 

{¶ 18} This cause is now before this court on an appeal as of right. 

{¶ 19} Like the court of appeals, we find that the commission did not 

abuse its discretion in denying VSSR liability. The question raised by our review 

is whether the commission reached the right result for the wrong reason. The 

commission’s conclusion is inherently based on a determination that Ohio 

Adm.Code 4121:1-5-05(D)(2) applied to these facts. We do not believe that it 

does. 

{¶ 20} Ohio Adm.Code 4121:1-5-05(D)(2) required the employer to 

supply a device to lock a machine’s controls in the off position “when machines 

are shut down for repair, adjusting, or cleaning.” The fatal machine in this case 

was the hopper, not the mixer, and two findings in this regard are crucial. First, 

the staff hearing officer specifically found that part of the cleaning procedure 

required the employee to blow out the dust and buffings in the weigh hopper. 

This meant that regardless of whether the employee climbed into the mixer, the 

hopper doors still had to be open for some part of the cleaning process. Second, 

the commission’s safety-violations investigations unit reported that for those 

doors to be opened and kept open, the hopper controls had to be in the on 

position: 

{¶ 21} “There is a knob on the main control panel that activates the 

pneumatic valve which opens the weigh hopper doors. The pneumatic valve is 

designed to hold the weigh hopper doors in the open position until the knob is 

turned to the closed position. The pneumatic valve had to be manually activated

prior to the Decedent climbing in the mixer and inside the weigh hopper.” 

(Emphasis added.) 

{¶ 22} Metcalfe could not, therefore, accomplish all of his assigned duties 

with the hopper’s controls in the off position, and therefore Ohio Adm.Code 
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4121:1-5-05(D)(2) is inapplicable. See State ex rel. Harris v. Indus. Comm.

(1984), 12 Ohio St.3d 152, 12 OBR 223, 465 N.E.2d 1286. In Harris, the 

printing press at issue had to be running in order to clean it. The claimant was 

injured while cleaning the press and asserted a violation of Ohio Adm.Code 

4121:1-5-05(D)(2). The employer argued that because the press was on, it was 

not “shut down” for cleaning, and the regulation did not apply. The claimant, on 

the other hand, argued that because the press “was not engaged in the printing 

process,” it was in effect shut down, and Ohio Adm.Code 4121:1-5-05(D)(2) 

controlled. 

{¶ 23} We agreed with the employer: 

{¶ 24} “The purpose of this safety rule is to guard against the possibility 

that a machine might turn on unexpectedly, thereby catching a repairman or 

another nearby person unawares. * * * It was reasonable for the commission to 

hold that the rule does not apply when the machine is already running, because 

the fact of its running, itself, provides adequate warning.” Id at 154, 12 OBR 223, 

465 N.E.2d 1286. 

{¶ 25} As in Harris, Metcalfe could not have done all the cleaning tasks 

required with the hopper controls in the off position, and Ohio Adm.Code 4121:1-

5-05(D)(2) does not apply. Appellant is not entitled to an additional VSSR award. 

{¶ 26} For the reasons stated above, the judgment of the court of appeals 

is affirmed. 

Judgment affirmed. 

 MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

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Larrimer & Larrimer and Thomas L. Reitz, for appellant. 

Richard A. Cordray, Attorney General, and Stephen D. Plymale, Assistant 

Attorney General, for appellee Industrial Commission. 
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Bugbee & Conkle, L.L.P., and Gregory B. Denny, for appellee Ultimate 

Systems, Ltd. 

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