Workers' compensation — Additional award for violation of specific safety requirement — Contrary to law, when — Ohio Adm. Code 4121:1-5-05(D)(1), construed.
Per Curiam.
Specific Safety Requirement IC-5-03.07(A), now Ohio Adm. Code Rule 4121:1-5-05(D)(1), provides, in pertinent part, "Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply." (Emphasis added.) Appellant argues that "operator" includes all employees who work at a machine and whose activity is necessary for its operation. Appellant contends further that since there was some evidence before the commission that he was necessary for the operation of the packing machine, the commission's order was not an abuse of discretion.
We believe, however, that appellant's definition of "operator" is too inclusive. At the time of his injury, appellant was folding batts of fiberglass wool on a separate conveyor belt. His task was completed before the batts traveled to the packing machine. Thus, we hold that one merely folding batts on a conveyor belt carrying them to a separate packing machine cannot be an "operator" of the packing machine for purposes of Rule 4121:1-5-05(D)(1). Therefore, we agree with the Court of Appeals that the order of the commission granting an additional award to appellant was contrary to law.
Appellant contends that the decision of the Court of Appeals should be vacated and the cause remanded for new oral argument. While it is regrettable that appellant's counsel was not notified of the hearing, we agree with the Court of Appeals in its denial of appellant's application for reconsideration, that appellant suffered no prejudice.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
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