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by Justice Paul E. Pfeifer
Life for chimney sweeps in old London probably wasn’t as delightful as Bert the Chimney Sweep – Dick Van Dyke’s happy-go-lucky character in Mary Poppins – would have us believe. Sure, dancing on rooftops and singing catchy songs with your fellow sweeps looks like good fun, but Victorian London had a lot of soot-filled chimneys and no system to compensate injured workers. Despite Bert’s opinion, every day was not a jolly holiday, even with Mary.
We don’t have as many chimneys these days, but we do have commercial kitchens with exhaust systems that need cleaning periodically. For that, there’s a company called American Hood Cleaning II, Inc. American Hood Cleaning (“AHC”), as the name implies, specializes in cleaning commercial kitchen exhaust systems. Part of the process involves the use of a chemical stripper to remove accumulated grease and dust. The stripper is mixed with water and transferred into a container that has a hose and a spray nozzle.
The person performing the cleaning sprays the chemical stripper into the exhaust hood by reaching inside a plastic curtain draped around the hood. A pressure washer rinses off the substance after the chemical cleaning is completed. Then the employee finishes by removing the protective plastic curtain and wiping down and polishing the unit.
Harvey Gilbert worked as an exhaust-system cleaner for AHC for four years; before that, he performed the same job for a competitor. In 1999, Gilbert began having episodes of itching and hives. In July 2001, these symptoms were accompanied by anaphylaxis – a severe, whole-body allergic reaction that occurs after initial exposure to a substance.
Gilbert was examined by Dr. D. Ann Middaugh, who assessed Gilbert’s history and his work environment. Dr. Middaugh diagnosed a restrictive lung disease “likely due to the long term, low level exposures to the stripper.”
After being diagnosed, Gilbert filed a workers’ compensation claim, which was allowed for “fumes/vapor, chronic respiratory condition and acute bronchiolitis.” He also applied for additional compensation, alleging that AHC had committed numerous violations of specific safety requirements, including one which required the employer to provide respiratory protection where there are air contaminants that are defined in the Ohio Administrative Code.
Because of the additional claim, Gilbert and AHC had to appear at a hearing before an Industrial Commission staff hearing officer. At the hearing, the parties agreed that Gilbert was not provided with a respirator until after he complained to AHC of respiratory problems. AHC maintained that a respirator had not been provided previously because the level of chemical exposure was below the hazard threshold.
In support of its argument, AHC relied on an air-quality test performed by the Occupational Safety and Health Administration (“OSHA”) during an AHC cleaning job just days after Gilbert’s diagnosis. That test measured the amounts of two chemicals – sodium hydroxide and perchloroethylene – in the work environment and determined that they were far below the permissible exposure limits as defined by the agency.
Gilbert disagreed concerning his level of chemical exposure. He argued that the OSHA test performed after his diagnosis was not evidence of the amount of chemicals that he had been exposed to earlier.
To back his claim, Gilbert cited the chemical stripper’s Material Safety Data Sheet, which indicated that in sufficient concentrations, both sodium hydroxide and perchloroethylene can be harmful – a point that no one disputes. Gilbert also relied heavily on Dr. Middaugh’s report, which confirmed that Gilbert had an occupational disease caused by chemical exposure.
Nevertheless, the staff hearing officer issued a ruling denying Gilbert’s additional claim. The officer denied that any violation of a specific safety requirement had occurred, basing that decision primarily on the OSHA air-quality test. Because that test indicated that “air contaminants” – as defined by the Ohio Administrative Code – were not present, AHC was not required to provide Gilbert with protective respiratory equipment.
Gilbert turned to the court of appeals. After reviewing his case, the court of appeals affirmed that there had been no violation of a specific safety requirement. After that, the case came before us – the Supreme Court of Ohio.
Was AHC required to provide Gilbert with protective respiratory equipment? The Ohio Administrative Code requires such protection where there is “hazardous concentrations” of toxic fumes. “Hazardous concentrations” are those concentrations “which are known to be in excess of those which would not normally result in injury to an employee’s health.”
Gilbert’s position was essentially this: I have an occupational disease due to chemical exposure; therefore, the level of exposure was hazardous. But this position conflicts with the definition of “hazardous concentrations.” The definition describes concentrations that would not normally cause injury. This recognizes that some people may have an abnormal sensitivity to a given substance, for which the employer could not be held accountable.
To declare that a specific safety requirement was violated because an employee got an occupational disease would in effect impose strict liability on an employer, contrary to a long line of previous workers’ compensation cases.
In earlier cases, our court has recognized the “practical impossibility of guaranteeing that a device will protect against all contingencies.” We have also stated that the purpose of specific safety requirements is to “provide reasonable, not absolute safety for employees.”
Specific safety requirements must also contain “specific and definite requirements or standards of conduct…which are of a character plainly to apprise an employer of his legal obligations toward his employees.” A specific standard cannot arise from individual susceptibility – such as someone being particularly sensitive to a certain chemical. There must be a quantifiable baseline from which the employer can work in order to measure compliance. The baseline cannot vary from employee to employee.
The OSHA air-quality test found permissible levels of the two chemicals – sodium hydroxide and perchloroethylene – that are used in the cleaning process. If those levels had been higher, AHC would have been required to provide protective respiratory equipment. But as it stands, we concluded – by a seven-to-zero vote – that there was no violation of a specific safety requirement.EDITOR'S NOTE: The case referred to is State ex rel. Gilbert v. Indus. Comm., 116 Ohio St.3d 243, 2007-Ohio-6096. Case No. 2006-1949. Decided Nov. 21, 2007. Opinion per curium.