Paul E. Pfeifer
November 29, 2013
Troy A. Scott worked for Country Saw & Knife, Inc., a business that sharpens and puts carbide teeth on saw blades. His duties included sharpening carbide saw blades and operating a machine that brazed tungsten tips onto saw blades.
After working there for about a year-and-a-half, Troy developed respiratory problems from his exposure to metal dust — specifically, dust from cobalt and tungsten. He sought workers’ compensation, and his claim was allowed for several related respiratory disorders.
A year later, Troy applied for an additional award, claiming that Country Saw violated specific safety requirements when it failed to provide adequate protection to minimize his exposure to metal particles.
The specific safety requirements at issue require an employer (1) to provide respiratory-protection equipment when employees are exposed to hazardous concentrations of air contaminants and (2) to adopt methods to minimize air contaminants in working environments where employees are exposed to hazardous concentrations of air contaminants.
A hearing officer with the Industrial Commission of Ohio — which handles such matters — denied Troy’s application. The hearing officer relied on test results from an air sampling conducted at Country Saw — several months after Troy’s exposure — by the Occupational Safety and Health Administration (“OSHA”).
Those results demonstrated that the presence of toxic substances in the air at the facility was below permissible exposure limits. The hearing officer considered the results relevant and reliable evidence because Country Saw had made no changes to the ventilation system since Troy’s exposure. The hearing officer noted that Troy had failed to introduce evidence to show that any toxic substance had been present at a level that would trigger the specific safety requirements.
After being denied, Troy filed a complaint with the court of appeals, which concluded that he had failed to establish that the Country Saw plant contained hazardous concentrations of either cobalt or tungsten dust in an amount necessary to require Country Saw to comply with the specific safety requirements. Troy then filed an appeal with us — the Supreme Court of Ohio.
There is no dispute that Troy contacted a devastating lung disease while working at Country Saw, and that his workers’ compensation claim for that disease was properly approved. The issue was whether Troy was entitled to an additional award — one more akin to a penalty — due to his employer’s violation of specific safety requirements (“VSSR”). By a six-to-one vote, our court concluded that he was not entitled to a VSSR award, and we affirmed the court of appeals.
For the safety requirements to apply, hazardous concentrations of air contaminants must be present in the working environment. The only evidence of the levels of cobalt and tungsten in the air was from the OSHA report. According to the majority, that evidence didn’t support a finding that Country Saw was required to provide respiratory protection or adopt methods to minimize air contaminants.
Troy didn’t have additional testing done, and he didn’t produce any admissible evidence that cobalt or tungsten was present in hazardous concentrations for purposes of the safety requirements. Rather, Troy only challenged the reliability and relevance of the OSHA testing. In so doing, the majority maintained that he had failed to establish that OSHA’s testing was not relevant and reliable.
Because we had reached the same conclusion in a similar case from 2007, and because of what it called the “paucity of evidence” in this case, the majority determined that reasonable minds could only conclude that Troy did not discharge his burden of establishing that he was entitled to a VSSR award in addition to his workers’ compensation benefits.
I cast the dissenting vote. In cases like this — where the employer knows of a potential hazard regarding air quality in its workplace, but does not periodically undertake testing to determine whether the air quality is safe and an employee suffers an injury related to air quality — the burden of proof should be placed on the employer to prove that it should not be liable for a VSSR.
Country Saw knew long before it hired Troy that the environment in which its employees were working was potentially dangerous. Country Saw’s supplier provided Material Safety Data Sheets (“MSDSs”) indicating that “dust from grinding…has the potential for causing…respiratory disease…in a small percentage of exposed individuals,” and that lung scarring could lead to permanent disability or death. “Cobalt dust,” the MSDSs said, “is the most probable cause of such respiratory diseases.”
But Country Saw never bothered to check the levels of cobalt and tungsten in its workplace — an employee testified that air quality had been checked in 1993, but he couldn’t find a report to substantiate that a test had occurred. The MSDSs also contained detailed instructions for minimizing dust, but for the most part, Country Saw never implemented precautionary procedures.
So Country Saw had information from its supplier about potential threats and abatement strategies, as well as the wherewithal for testing and abatement; Troy had only the expectation, like all employees, that his employer would not put him in a dangerous situation. Now he’s profoundly injured, with no doubt that the cause of his illness was his exposure to metal dust in his workplace.
In my opinion, this case should have been sent back for a shifting of the burden of proof. If it had been, the level of metal dust in the air would determine whether Country Saw is liable. But who should bear the burden of proving what the air-quality levels were at or near the time of the accident? It should certainly be the party who had knowledge of the potential danger and the ability to institute periodic testing.
If Troy could show that Country Saw knew of air-quality dangers and didn’t test for air quality, the burden should shift to Country Saw to prove that it’s not liable for a VSSR. But the result reached by the majority encourages employers to ignore MSDAs provided by suppliers of potentially dangerous materials and discourages periodic testing of air quality in situations where air contamination is a known risk.
Editor’s Note: The case referred to is: State ex rel. Scott v. Industrial Commission, 136 Ohio St.3d 92, 2013-Ohio-2445. Case No. 2011-1922. Decided June 18, 2013. Majority opinion written by Chief Justice Maureen O’Connor.