Split Ohio high court denies award over worker’s death by asphyxiation

A divided Ohio Supreme Court on Wednesday ruled that a widow was not entitled to an enhanced award of benefits for her husband’s death from inhaling nitrogen-saturated air.

Kenneth Ray Jr. was working for TimkenSteel Corp. as a security guard when he entered the elevator control room at the facility when a malfunction caused the system to continuously release nitrogen gas, which displaced the oxygen in the elevator control room and killed him.

Timken paid workers compensation benefits to Mr. Ray’s widow. She also applied for an enhanced award, alleging that Timken’s violation of specific safety regulations caused his death. A staff hearing officer denied the widow’s application, and after the Industrial Commission denied further administrative review, she sought mandamus relief.

A judge with the Court of Appeals for the 10th District of Ohio recommended that the writ be denied.

Under the version of the Ohio Administrative Code in effect at the time of Ray’s death, air contaminants were defined as “hazardous concentrations of fibrosis-producing or toxic dusts, toxic fumes, toxic mists, toxic vapors or toxic gases, or any combination of them when suspended in the atmosphere,” the judge wrote.

At that time, “hazardous concentrations” were those “known to be in excess of those which would not normally result in injury to an employee’s health.” The judge found that the evidence did not support a finding that nitrogen was an air contaminant because it is not a toxic gas.

An appeals court reversed, saying there was expert testimony that nitrogen is not inherently toxic but becomes dangerous and potentially lethal in large quantities due to its ability to deplete oxygen in the air. The court said this meant nitrogen is safe to breathe only when mixed with the appropriate amount of oxygen.

The Ohio Supreme Court in turn said the definition of “air contaminant” in effect at the time of Mr. Ray’s death included only toxic gases and wrote that the appeals court erred in focusing on the “toxic level of a substance” and whether a substance is “toxic due to its concentration.”

The Supreme Court said the plain and ordinary meaning of toxic is “poison” or “poisonous” and that there is evidence in the record that nitrogen is not toxic. Thus, considering the plain and ordinary meaning of toxic, the SHO’s finding that “[n]o evidence has been presented to substantiate [that] nitrogen gas is a toxic gas” is based on “some evidence.”

One judge dissented, arguing that the nitrogen gas in the elevator-control room where Ray died met the definition of a poison as defined in a dictionary: “a substance that inhibits the activity of another substance or the course of a reaction or process.”

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