Defining “Toxic Gases” in VSSR Claims Under Former Ohio Adm.Code 4123:1-5-01(B)(4)

Introduction

This commentary analyzes the Ohio Supreme Court’s decision in State ex rel. Culver v. Industrial Commission of Ohio, Slip Opinion No. 2025-Ohio-1612 (May 7, 2025). The case arose after the tragic on-the-job death of security guard Kenneth Ray Jr., who asphyxiated in a nitrogen-filled elevator control room at a TimkenSteel facility. His widow, Sharmel Culver, successfully obtained standard death benefits but applied for an additional award under the Violation of Specific Safety Requirements (VSSR) statute. The Industrial Commission denied her VSSR claim on the ground that nitrogen is not a “toxic gas” under the Administrative Code provision defining “air contaminants.” The Tenth District Court of Appeals granted mandamus relief, ordering the Commission to resume its VSSR analysis, but the Ohio Supreme Court reversed, holding that the Commission’s finding was supported by “some evidence” and that the appellate court had exceeded its role by re-weighing the evidence and rewriting the Code’s plain terms.

Summary of the Judgment

The Supreme Court of Ohio, in a per curiam opinion, reversed the Tenth District’s grant of a limited writ of mandamus. It held that:

The former definition of “air contaminants” (Adm.Code 4123:1-5-01(B)(4)) covered only “toxic gases,” and the Commission did not err in finding that nitrogen is not a “poison” or “toxic” as those terms are commonly understood.
The Commission’s denial of Culver’s VSSR application was based on “some evidence” (articles and expert testimony characterizing nitrogen as “nontoxic and inert”).
The Tenth District improperly substituted its own view for the Commission’s factual finding and added a “relative concentration” requirement that the Code’s text did not support.
Culver failed to establish a clear legal right to relief, and mandamus was not warranted.

Analysis

Precedents Cited

State ex rel. Mobley v. Industrial Commission, 78 Ohio St.3d 280 (1997): A VSSR order based on “some evidence” will not be disturbed as an abuse of discretion.
State ex rel. Gilbert v. Industrial Commission, 117 Ohio St.3d 421 (2008): The presence of an occupational disease does not automatically mean a “hazardous concentration” exists—“abnormal sensitivity” must be considered.
Watkins v. Affinia Group, 8th Dist. Cuyahoga No. 102612, 2016-Ohio-2830: Tort-law definitions of “toxic” emphasize poison-related characteristics, but are not binding in administrative-code interpretation.
State ex rel. Double v. Industrial Commission, 65 Ohio St.3d 47 (1992): Specific safety rules must be “plainly” applicable and not force employers to “speculate” as to their obligations.

Legal Reasoning

The Court adhered to traditional principles of administrative and statutory construction:

Plain Meaning & Strict Construction: Because “toxic” and “poison” are not defined in the 2016 Code, their ordinary dictionaries definitions govern. “Toxic” means “producing the effects of a poison,” and “poison” means “a substance that injures or kills through chemical action.”
Some Evidence Rule: An administrative order on VSSR is not an abuse of discretion if it is “adequately explained and based on some evidence,” even if contradicted by other evidence.
No Relative-Concentration Requirement: The Court rejected the Tenth District’s view that nitrogen becomes “toxic” when present in “hazardous concentrations.” The text of the 2016 Code required first that a gas be “toxic” in its nature—i.e., a poison—before a “hazardous concentration” inquiry.
Mandamus Standard: Relief requires demonstration of a clear legal right and duty with no adequate remedy at law. The Commission’s factual findings on “toxic gas” precluded Culver’s right to relief.

Impact

This decision crystallizes the employer-favoring construction of the former VSSR regulations:

Claimants must prove that an injurious atmosphere contained a gas that is inherently toxic or poisonous, not merely present in dangerous proportion.
Regulatory definitions surviving periodic Code amendments will control claims based on accidents occurring before changes took effect.
Future rule-making or legislative action may be needed to clarify whether oxygen-displacing but chemically inert gases fall within the VSSR framework.
Workers’ compensation applicants and their counsel should develop expert evidence on a gas’s intrinsic toxicity rather than relying solely on “hazardous concentration” arguments.

Complex Concepts Simplified

VSSR (Violation of Specific Safety Requirement): A constitutional and statutory mechanism allowing an injured worker (or dependent) to seek extra compensation when an employer has failed to follow a specific safety regulation.
Mandamus: An extraordinary writ used to compel a public agency to perform a clear legal duty. In VSSR cases, mandamus may challenge a Commission denial when it rests on legal error or factual findings unsupported by any evidence.
“Some Evidence” Rule: The Commission’s factual determinations will not be overturned so long as there is any competent evidence supporting them, even if other evidence suggests a different conclusion.
Plain Meaning & Strict Construction: When a safety regulation is unambiguous, it must be applied as written. Because VSSR awards are punitive toward employers, any doubt about a regulation’s applicability must be resolved in the employer’s favor.

Conclusion

State ex rel. Culver v. Industrial Commission confirms that, under the Administrative Code in effect at the time of Kenneth Ray’s death, an employer’s duty to provide respiratory protection turned on whether the offending gas is inherently “toxic” or “poisonous.” By upholding the Industrial Commission’s factual finding—grounded in expert testimony and industry publications—that nitrogen in its ordinary form is “nontoxic,” the Court preserved the integrity of the VSSR framework as written. Practitioners should note that claims based solely on “hazardous concentrations” of inert gases will face high hurdles unless and until the Code is amended to encompass oxygen-displacing substances within the definition of “air contaminants.”