Court Rejects Additional Benefits for Widow of Worker Who Died At Steel Plant

The Supreme Court of Ohio today upheld a state agency’s denial of additional death benefits to the widow of a security guard who died of asphyxiation seconds after entering a room accidentally filled with nitrogen gas. The widow had been awarded death benefits but sought additional compensation for violation of a specific safety requirement (VSSR).

In a 6-1 decision, the Supreme Court found TimkenSteel Corporation did not violate a specific safety requirement, which entitles injured workers to additional compensation. The company was accused of failing to provide Kenneth Ray Jr. with respiratory equipment when he needed to conduct safety checks in a pressurized, sealed control room.

The Ohio Industrial Commission concluded the rules in effect at the time of the 2016 accident required respiratory equipment when “toxic gases” were present. Because nitrogen is not considered a toxic gas, but rather is deadly in high concentrations, no rule violation occurred, the commission concluded.

The Tenth District Court of Appeals disagreed, concluding that Industrial Commission erroneously found that nitrogen is not an air contaminant because it is not “per se”’ toxic, and returned the case to the Industrial Commission to reconsider the case based on the Court’s ruling. In a per curiam opinion, a Supreme Court majority reversed the Tenth District’s decision and affirmed the commission’s denial of additional benefits to Ray’s widow, Sharmel Culver.

“There is evidence in the record that nitrogen is not ‘toxic’ and is not a ‘poison’ as those terms are commonly understood,” the per curiam opinion stated.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined the opinion.

In a dissenting opinion, Justice Jennifer Brunner observed that Alabama has executed four inmates using nitrogen gas since 2024, Louisiana has used nitrogen once for an execution, and pending legislation in Ohio proposes the use of nitrogen for executions.

She wrote a nontoxic gas can be considered poisonous in “suitable quantities” and the Tenth District correctly found the commission should have considered the concentration of nitrogen in the room when determining whether there was a safety violation. She stated that “deeming nitrogen gas per se ‘nontoxic’ despite its being used to execute inmates – flies in the face of reason.”

Guard Dies Doing Inspections
As part of his security guard duties, Ray was responsible for conducting safety checks and inspecting fire extinguishers. In March 2016, he inspected the extinguishers in an elevator control room at a TimkenSteel facility in Canton. The room was pressurized to prevent contaminants from entering and interfering with machinery. The room was equipped with an air-handling unit, which filtered outside air and circulated purified air into the room.

The air-handling unit contained a cleaning system, which used bursts of compressed nitrogen gas to dislodge debris from the air filter. Unknown to anyone at the time, the cleaning system malfunctioned and was continuously releasing nitrogen gas rather than just short pulses. Nitrogen displaced the oxygen in the control room. Ray entered the room, which contained 4.7% oxygen and 95% nitrogen. Air containing less than 19.5% oxygen is considered dangerous.

Ray entered the room, and the door closed behind him. He died of asphyxiation seconds later. TimkenSteel, a self-insuring workers’ compensation employer, paid Culver death benefits.

Widow Seeks Additional Death Benefits
In 2017, Culver applied to the workers’ compensation system for additional benefits for violations of specific safety regulations. TimkenSteel objected, and an Industrial Commission staff hearing officer conducted an investigation.

Culver’s allegations included that the company violated the rule for providing respiratory equipment approved for “air contaminants” and failing to minimize Ray’s exposure to air contaminants. At the time of the accident, the Ohio Administrative Code defined “air contaminants” 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 Court’s opinion noted that neither “toxic” nor “toxic gases” were defined in the administrative code, and about three months after the accident, the word “toxic” was removed from the definition of “air contaminants.” The rule now applies to concentrations of gas and other contaminants “in excess of established occupational exposure limits.”

During the Industrial Commission proceedings, Culver provided an expert witness along with publications regarding the use of nitrogen. The expert testified that nitrogen gas is “nontoxic” and the publications noted that nitrogen is not a “poison” in the traditional sense, but the gas presents hazards when it displaces oxygen. The commission hearing officer noted literature that indicated typical breathable air is 78% nitrogen, 21% oxygen, and contains other trace components.

“As nitrogen is the primary component of the air we breathe, it is not per se toxic,” the hearing officer stated. Because nitrogen gas, in and of itself, is not toxic, it did constitute an air contaminant, and its release was not a rule violation, the officer concluded.

Culver filed a case in the Tenth District challenging the Industrial Commission’s ruling. A magistrate was assigned by the Tenth District to consider the matter. The magistrate looked to dictionary definitions of the word “toxic” along with the literature and testimony presented to the Industrial Commission. The magistrate recommended affirming the commission’s decision, finding nitrogen is not a poison and does not meet the definition of “toxic.”

The Tenth District overruled the magistrate’s decisions, finding “toxic” is intrinsically linked to a substance’s “concentration” and a substance that is beneficial can become harmful in excess. The appeals court ordered the commission to conduct the VSSR analysis consistent with the Tenth District’s interpretation of the air contaminant rule.

TimkenSteel appealed to the Supreme Court, which must consider these types of appeals.

Supreme Court Analyzed Rule Requirements
The Court noted a VSSR award is considered by state law as a penalty against the employer. It is an award “over and above” standard workers’ compensation benefits and is paid directly by the employer and not by funds from the workers’ compensation system. Because it is a penalty, the opinion noted, safety requirement rules must “be specific enough to plainly apprise the employer of its legal obligations toward its employees.”

Citing its 1992 State ex rel. Double v. Indus. Comm. decision, the Court stated, “[A]n employer should not have to speculate as to whether it falls within the class of employers to whom a specific safety requirement applies.”

The Court found that under the rule, a gas had to first be considered toxic before a determination if a “hazardous concentration” of the gas was present. If the regulation was meant to protect from hazardous concentrations of all gases, there would have been no need for the rule to include “toxic,” the opinion noted.

The rule prohibited hazardous concentrations of “air contaminants.” The definition of air contaminants did not include gases that had become harmful due to their concentration, but only gases that are toxic. Referring to several dictionaries, the Court concluded that “toxic” requires having “the character or producing the effects of poison.” The Court found nitrogen is not considered a poison and is not a toxic gas.

The Court wrote that the Industrial Commission’s decision must be supported by some evidence. Because Culver’s witness and the industry publications provided by the witness indicated that nitrogen is “hazardous” but “nontoxic,” the commission was justified in finding that nitrogen was not a toxic gas under the applicable rule and thus there were no VSSR violations.

Rules Violated by Hazardous Concentrations of Nitrogen, Dissent Maintains
In her dissent, Justice Brunner wrote the key term at issue is “air contaminants,” and the rule prevents “hazardous concentrations” of toxic gases and other contaminants. While “toxic” has a dictionary definition of “producing the effects of poison,” it is also defined as “extremely harsh, malicious, or harmful.”

She noted Webster’s Third New International Dictionary (2002) also defined “poison” as “a substance that inhibits the activity of another substance or the course of a reaction or process.” In this case, the excess nitrogen displaced the necessary amount of oxygen in the control room that would be safe to breathe, she stated. The nitrogen in the pressurized room constituted a poison and had the characteristics of a toxic gas, she wrote.

“To dispel any doubt about the toxicity of nitrogen gas, we should take notice of the fact that nitrogen gas is now being used in the United States to conduct executions of death-row inmates,” she wrote.

Justice Brunner wrote that the Industrial Commission should reconsider its ruling.

2024-0595. State ex rel. Culver v. Indus Comm., Slip Opinion No. 2025-Ohio-1612.

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