[Cite as State ex rel. Amanda Bent Bolt Co. v. Indus. Comm., 2015-Ohio-3487.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


[State ex rel.] Amanda Bent Bolt Company, :

                Relator,                              :

v.                                                    :                         No. 14AP-295

Industrial Commission of Ohio                         :                  (REGULAR CALENDAR)
and Gregory J. Youtsey,
                                                      :
                Respondents.
                                                      :



                                           D E C I S I O N

                                    Rendered on August 27, 2015


                Hahn Loeser & Parks LLP, and Douglas J. Suter, for relator.

                Michael DeWine, Attorney General, and Eric J. Tarbox, for
                respondent Industrial Commission of Ohio.

                Reminger Co., L.P.A., and Kevin R. Sanislo, for respondent
                Gregory J. Youtsey.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, Amanda Bent Bolt Company, commenced this original action in
mandamus seeking an order compelling respondent, Industrial Commission of Ohio
("commission"), to vacate its October 8, 2013 order granting the application of
respondent, Gregory J. Youtsey ("claimant") for an additional award for violation of a
specific safety requirement ("VSSR"), and to enter an order denying the VSSR application.
No. 14AP-295                                                                              2

       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that: (1)
Ohio Adm.Code 4123:1-5-11(E) plainly apprised relator of its duty to properly adjust the
pull guard prior to the claimant's operation of the press so that his hands were prevented
from reaching the danger zone during the press operating cycle; and (2) the commission
did not abuse its discretion in finding that the unilateral negligence defense did not apply
to absolve relator from VSSR liability. Therefore, the magistrate has recommended that
we deny relator's request for a writ of mandamus.
       {¶ 3} Relator has filed objections the magistrate's decision. In its first objection,
relator contends that Ohio Adm.Code 4123:1-5-11(E)(4) and (5) are not specific enough to
plainly apprise an employer of its legal obligation to protect its employees from a known
hazard. We disagree.
       {¶ 4} As noted by the magistrate, Ohio Adm.Code 4123:1-5-11(E)(4) states that
every hydraulic or pneumatic press "shall be guarded, to prevent the hands or fingers of
the operator from entering the danger zone during the operating cycle." The rule further
states that "movement of the ram will pull the operator's hands from the danger zone
during the operating cycle." The rule plainly apprised relator that the pull guard it
provided for the press must pull the operator's hands from the danger zone during the
operating cycle. This included the duty to properly adjust the pull guard prior to the
claimant's operation of the press so that the operator's hands are pulled from the danger
zone during the operating cycle. Here, the pull guard did not pull the claimant's hands
from the danger zone during the operating cycle because the pull guard was not properly
adjusted. The commission did not abuse its discretion in interpreting its rule and in
granting the claimant's VSSR application under these circumstances.          Therefore, we
overrule relator's first objection.
       {¶ 5} In its second objection, relator contends that the magistrate erred by
rejecting its affirmative defense of unforeseeable employee misconduct.          Again, we
disagree.
       {¶ 6} It is well-settled that a claimant's alleged negligence is a defense only when
the employer has first complied with the relevant safety requirements and the claimant
No. 14AP-295                                                                             3

deliberately renders an otherwise complying device noncompliant. State ex rel. Coffman
v. Indus. Comm., 109 Ohio St.3d 298, 2006-Ohio-2421, ¶ 13; State ex rel. R.E.H. Co. v.
Indus. Comm., 79 Ohio St.3d 352, 355 (1997). We agree with the magistrate's reasoning
that because relator failed to properly adjust the pull guard prior to the claimant's
operation of the press, the safety device was not complying, and the commission did not
abuse its discretion when it rejected relator's unilateral negligence defense to the VSSR
violation. Therefore, we overrule relator's second objection.
       {¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                        BROWN, P.J., and BRUNNER, J., concur.
No. 14AP-295                                                                           4

                                       APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

[State ex rel.] Amanda Bent Bolt Company, :

             Relator,                       :

v.                                          :                    No. 14AP-295

Industrial Commission of Ohio               :               (REGULAR CALENDAR)
and Gregory J. Youtsey,
                                            :
             Respondents.
                                            :




                        MAGISTRATE'S DECISION

                             Rendered on January 29, 2015



             Hahn Loeser & Parks LLP, and Douglas J. Suter, for relator.

             Michael DeWine, Attorney General, and Eric J. Tarbox, for
             respondent Industrial Commission of Ohio.

             Reminger Co., L.P.A., and Kevin R. Sanislo, for respondent
             Gregory J. Youtsey.


                                      IN MANDAMUS

      {¶ 8} In this original action, relator, Amanda Bent Bolt Company ("relator" or
"Amanda"), requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate the October 8, 2013 order of its staff hearing officer
("SHO") that granted the application of respondent Gregory J. Youtsey ("Youtsey") for an
additional award for violation of a specific safety requirement ("VSSR"), and to enter an
order denying the VSSR application.
No. 14AP-295                                                                               5

Findings of Fact:
       {¶ 9} 1. On March 20, 2012, while operating a pneumatic press, Youtsey was
injured in the course of and arising out of his employment with Amanda. His left hand
was crushed and portions of two fingers were traumatically amputated.
       {¶ 10} 2. In Youtsey's brief filed in this action, he presents his statement of facts.
See Loc.R. 13(J)(3), regarding briefs filed in an original action. Without adopting all of
Youtsey's factual assertions as true, the magistrate, nevertheless, finds Youtsey's version
of the facts relating to the injury and Amanda's subsequent investigation to be useful to an
understanding of this action:
              Youtsey * * * was operating a four-hundred ton Toledo
              Press/Minster Clutch knuckle-press machine when he was
              injured on March 20, 2012. * * * On [that] day * * * Youtsey
              arrived at work and began to review his assignment for the
              day and then paged for a safety set for press 400. * * * Chuck
              Hurst is a setup man for [Amanda], which means he is
              responsible for setting the safeties on the machines. * * * The
              only individuals who are [allowed] to set the safeties * * * are
              the safety setup persons. * * * Chuck Hurst adjusted the
              hand pull-guards for Youtsey on Machine No. 400 by jogging
              the ram/arm down to make sure his hands were not in the
              pinch point. * * * Youtsey noticed that his left guard had too
              much slack [so] he brought it to Hurst's attention. * * * Hurst
              instructed Youtsey to run the machine through the quality
              control check and to inform him if the safeties still did not
              seem right. * * * After the quality check, Youtsey still felt that
              his guards were improperly adjusted, so he again paged
              Hurst back to the press. * * * Hurst again jogged the machine
              in an attempt to get the guards in place. * * * Hurst informed
              Youtsey that if he still felt uncomfortable that he could have
              the foreman, Bruce Losey, come and check on the safety
              guard later, but [Losey] was "really busy" at the time. * * *

              After running the press for approximately three hours and
              fifteen minutes, Youtsey's left hand was [injured] under the
              ram in the danger zone. * * * The hand that was crushed, the
              left, was crushed by the same guard Youtsey told Hurst was
              too loose.

              Machine No. 400 was only equipped with safety straps
              attached to the operator's wrists, and the machine via cables.
              * * * Once the press was activated, the arm/ram would go
              down and the safeties, when properly adjusted, were
No. 14AP-295                                                                            6

              supposed to pull the operator's hands out of the danger zone.
              * * * The only safety device on Machine No. 400 on
              March 20, 2012, to prevent Youtsey's hands from being in
              the pinch point was the hand pull-back device. * * *

              After the injury, Ms. Putterbaugh, the Employer's Human
              Resource Manager, completed her own investigation of the
              industrial injury. * * * During her investigation, Ms.
              Putterbaugh had Mr. Hurst setup the safety pull-guard on
              machine No. 400 for her. * * * Again, Hurst failed to
              properly set up the safety guard, as Ms. Putterbaugh could
              reach the pinch point area with her left hand. * * * As a result
              of the accident, Mr. Hurst, the safety setup man, was
              disciplined by [Amanda] for failing to setup the safety pull-
              guards correctly resulting in an injury to a press operator. * *
              * Mr. Losey, the foreman also did his own inspection and
              concluded that the safety pull-guard was not properly
              adjusted to fit Youtsey.

(Relator's brief, 3-6.) (Emphasis sic.)

       {¶ 11} 3. On October 17, 2012, Youtsey filed a VSSR application.
       {¶ 12} 4. The VSSR application prompted an investigation by the Safety Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
       {¶ 13} 5. On January 3, 2013, the SVIU special investigator conducted an on-site
investigation at the Amanda plant where the injury occurred. The special investigator met
with Amanda's counsel and Ms. Polly Putterbaugh, who is Amanda's human resource
manager.
       {¶ 14} 6. On January 8, 2013, the SVIU special investigator issued his report of
investigation. In his report, the special investigator presented the factual scenario that
Amanda had presented to him at the January 3, 2013 on-site meeting:
              [Three] The employer states that the claimant was hired on
              October 12, 2011 as a machine press operator. Claimant's job
              duties included operating various presses and metal bending
              machines within the plant. He also measured completed
              work pieces to verify conformance to specifications, by
              utilizing gauges, calipers, templates, and/or rulers. He also
              reviewed work orders, blueprints and production schedules
              to determine specifications, such as which materials to be
              used, locations of cutting lines, and dimensions and
              tolerances. The claimant also performed other job tasks as
              directed by his supervisor.
No. 14AP-295                                                                7

           [Four] The employer stated that the training the claimant
           received included a new hire orientation where the claimant
           received in-class training/programs covering company
           policies & procedures, and work safety/plant operations with
           the human resources manager. Employer states that all new
           personnel received a two week hands-on and on-the-job
           training period. Employer also states that advance machine
           operation is provided to those assigned those duties. The
           claimant was assigned to a machine operator/training and
           provided instruction on the various machine operations
           within the plant. The employer reported that during the
           machine operation job training, personal safety is stressed.

           [Five] The employer further states that safety meetings are
           held once per month. The meetings stress work related
           safety, machine and equipment awareness and skills
           operation along with standard policies and procedures.

           [Six] The employer states that on March 20, 2012 the date of
           the claimant's injury, the claimant was assigned as a press
           operator to machine press #400. Claimant reviewed his
           production instructions and contacted Charles [Hurst] the
           machine set-up person. After completing the set-up of press
           #400, the claimant attached the required safety pullbacks to
           each of his wrists and proceeded operation of the press and
           production of parts. During the press operation the claimant
           ran some test parts for quality check purposes. The employer
           states that the claimant had Mr. [Hurst] recheck the pullback
           set-up on press machine #400.

           [Seven] Per the employer, once the pullbacks were examined
           by [Hurst] the claimant resumed operating #400 press for
           approximately two (2) hours and 45 minutes. Employer
           states that the claimant took a 15 minute break and then
           resumed running parts. Employer states that sometime after
           his return from break, the claimant sustained an injury to his
           left hand. The shift foreman was notified by the claimant
           regarding his injury and a call to 911 was made.

           [Eight] The employer states that during its investigation,
           tests were conducted on the 400 Ton Toledo Press/Minster
           Clutch #664 Knuckle Press machine and no faults were
           found with any of the machine's operation or parts.
           However, the employer reports they did identify that the set-
           up operator failed to properly set the pullback devices in a
           manner which would operate as designed. Furthermore, the
           employer points out that the claimant failed to properly
No. 14AP-295                                                                       8

              communicate with the shift foreman when he discovered that
              his wrist pullback safety system was not set properly.
              Employer also states that all personnel are trained to notify
              their foreman if there are any problems which arise during
              the shift especially in matters involving safety.

(Emphasis sic.)

       {¶ 15} 7. During his investigation, the SVIU special investigator obtained an
affidavit from Youtsey executed December 20, 2012, the affidavit states in part:
              [Four] On March 20, 2012 the date of my injury I had
              reported to my 3:30 pm to 12:00 am shift at the Amanda
              Bent Bolt Company. I reported to machine press #400
              w[h]ere I was assigned for the shift. I took a few minutes to
              review my work instructions after which I went to the phone
              and paged that I needed a safety set at machine press #400,
              hung up the phone and returned to the press.

              [Five] A few moments later set up guy Chuck [Hurst] came
              over to the press and did the set up. After he completed that I
              put on a set of safety straps on my wrist and waited on
              [Hurst]'s instructions. [Hurst] ran the ram up and down
              then started checking the pinch points. [Hurst] said ok, and
              told me to reach in so he could see. I then clipped my safety
              cable leading from the press on my safety straps located on
              my wrist and began to reach in as I was instructed by
              [Hurst].

              [Six] I pulled my arms out and began to step back as [Hurst]
              jogged the ram down some more. Again [Hurst] told me to
              reach in so he could see my reach. I reached in again and
              [Hurst] told me "ok you're good." I then grabbed my scan
              sheet and scanned onto production. I walked back to press
              #400 to run the first 5 parts on the day so I could compare
              them to my blue part and gauge them.

              [Seven] I noticed that my left safety cable felt loose
              compared to my right when I was clipping my cables on my
              wrist restraints. I then began to run first 5 parts and I didn't
              like how the safety cables felt so I unclipped them and went
              back to page [Hurst] to come back and double check my
              safeties. After a few minutes [Hurst] returned and I clipped
              the safety cables back on my wrist and waited for
              instructions. [Hurst] ask[ed] what was wrong and I
              explained that the left safety cable felt loose. [Hurst] then
No. 14AP-295                                                                              9

                 jogged the ram up and down and instructed me to stand
                 back.

                 [Eight] [Hurst] then stopped it at a certain point and told me
                 to reach in, I reached in while he was there and then
                 instructed me to stand back, and he then began jogging the
                 ram down again where he stopped it again. [Hurst] told me
                 to reach in again while he examined it. [Hurst] told me to
                 run it and that I was fine and he assured me I couldn't get my
                 hands in the die. So I started running the press on
                 production like I normally would.

                 [Nine] I ran the press for approximately 2 hours 45 minutes.
                 I then took a 15 minute break at 6:15 pm and finished 6:30
                 pm where I returned to press #400 [and] clipped on my
                 safety equipment. I then began to run parts continuously for
                 1/2 hours. When I reached in to get a part out of the die [is]
                 when [the] ram stopped with my left hand.

                 [Ten] I was looking down at my right hand to grab a part out
                 of my tray in front of me when I noticed pressure on my left
                 hand and [that] was when I noticed that the press rolled over
                 and smashed my left hand and fingers.

       {¶ 16} 8. On October 8, 2013, the VSSR application was heard by an SHO. The
hearing was recorded and transcribed for the record. Following the hearing, the SHO
issued an order finding that relator had violated the specific safety rule set forth at Ohio
Adm.Code 4123:1-5-11(E) and that relator's violation of the rule was the proximate cause
of the injury.
       {¶ 17} 9. The October 8, 2013 order of the SHO explains:
                 It is the order of the Staff Hearing Officer that the Injured
                 Worker was employed on the date of injury noted above, by
                 the Employer as a pneumatic press operator; that the Injured
                 Worker sustained an injury in the course of and arising out
                 of employment when the Injured Worker was operating a
                 pneumatic press (machine #400) on 03/20/2012.

                 The pneumatic press was the 400 Ton Toledo Press/Minster
                 Clutch #664 Knuckle Press machine. This machine was
                 purchased on 09/26/1989 according to the purchase invoice.
                 ***

                 The Injured Worker was assigned to work on press #400 on
                 the day of injury. After reading his job instructions, the
No. 14AP-295                                                                  10

           Injured Worker paged a safety setup person to press #400 to
           set up his safety pull-guards on the machine. The safety
           setup person, Chuck [Hurst], came to the machine and
           checked the pinch points of the machine with the Injured
           Worker's reach with both arms into the machine.

           The safety guard for this press machine [was] pull-guards.
           The pull-guard consists of safety straps, which are attached
           to the Injured Worker's wrists, and two cables which are
           connected to the ram of the machine, and travel above the
           machine, and around the back of the Injured Worker and
           attach onto both wrist safety straps.

           The safety setup of the pull-guards which consist of safety
           cables can only be performed by the safety setup person per
           the Injured Worker's testimony at hearing. The safety setup
           person is to check the ram pinch points with the distance of
           the operator's hands when the ram engages and comes down.

           The setup person is to assure the operator's hands and
           fingers do not enter the danger zone, which are the pinch
           points caused by the ram coming down and making contact.
           The danger zone is the point of operation where a known
           hazard exists. In this particular case, the danger zones are
           the location of the pinch points, where the ram makes
           contact with another material.

           Mr. [Hurst] set up press #400 on 03/20/2012 and
           instructed the Injured Worker that he was set to operate the
           machine. The Injured Worker felt the left safety cable was
           loose compared to the right hand and wrist cable.

           The Injured Worker testified at hearing that he informed Mr.
           [Hurst] that his left side did not feel right as the left cable
           had more slack. Mr. [Hurst] told the Injured Worker to run
           his first five parts, which are quality control parts. After the
           Injured Worker ran the five parts, he paged Mr. [Hurst] to
           check the safety cables which pull his arms out of the press.
           Mr. [Hurst] rechecked the machine and indicated that the
           Injured Worker's safeties (as they are referred as) were good.
           Mr. [Hurst] told the Injured Worker to run the press. Mr.
           [Hurst] also told the Injured Worker that "Bruce" (Losey) the
           Injured Worker's foreman was really busy at that time per
           the Injured Worker's testimony at hearing.

           After running the press for approximately 3 hours and 15
           minutes [sic], the Injured Worker's left hand was caught
No. 14AP-295                                                                 11

           under the ram in the danger zone. The Injured Worker
           severed two finger tips on his left hand, sustained a crush
           injury to his left hand, and significant injuries to three
           fingers on his left hand. The Injured Worker alleges a
           violation of specific safety rule O.A.C. 4123:1-5-11(E) due to
           the Employer's failure to prevent a pneumatic press
           operator's hand or fingers from entering the danger zone
           during the operating cycle.

           It is further the finding of the Staff Hearing Officer that the
           Injured Worker's injury was the result of the left safety pull-
           guard/hold-back guard was not properly and correctly set up
           on press #400. The improper setup of the left pull-
           guard/hold-back guard rendered this guard (which was
           designed to prevent the Injured Worker's left hand from
           entering the danger zone during the operating cycle of the
           press) ineffective. The Staff Hearing Officer finds the left
           safety pull-guard, also known as a hold-back guard, was not
           effective as it was not properly setup by Mr. [Hurst] when he
           performed the initial setup of the safety guard apparatus for
           the Injured Worker at the commencement of the Injured
           Worker's work shift on 03/20/2012.

           It was undisputed by both parties at the hearing that the
           Injured Worker's left hand safety pull-guard was not
           properly set up to prevent the Injured Worker's left hand
           from meeting the pinch points during the press operating
           cycle.

           Following the injury, Ms. Putterbaugh, the Employer's
           Human Resource Manager, completed her own investigation
           of the 03/20/2012 industrial injury. Ms. Putterbaugh, a
           former press operator on machine #400, had Mr. [Hurst]
           setup the safety pull-guard (hold-back guard) on machine
           #400 for her. Mr. [Hurst] did not properly setup Ms.
           Putterbaugh's left safety pull-guard on machine #400 as Ms.
           Putterbaugh could reach the pinch point area with her left
           hand per Ms. Putterbaugh's testimony at hearing. The left
           pull-guard did not prevent Ms. Putterbaugh's left hand and
           fingers from entering the danger zone per Ms. Putterbaugh's
           testimony at hearing.

           Mr. [Hurst], the safety setup person for the Employer, was
           disciplined by the Employer for failing to setup the safety
           pull-backs correctly and resulting in an injury to a press
           operator on 03/20/2012. * * *
No. 14AP-295                                                                  12

           Mr. Losey, the Injured Worker's foreman, also performed a
           post-injury investigation of the safety pull-guards. He
           concluded that the safety pull-guard was not properly setup
           per Mr. Losey's written statement. * * *

           Both Ms. Putterbaugh and Mr. Losey concluded that the
           safety devices were NOT properly adjusted per the
           Employer's Accident Analysis Report completed on
           03/21/2012.

           At hearing, the Employer acknowledged that the safety pull-
           guards for the Injured Worker were not properly set on
           03/20/2012, per Ms. Putterbaugh's testimony at hearing * *
           *.

           Based on testimony at hearing from the Injured Worker and
           Ms. Putterbaugh and based upon the SVIU Exhibits
           enumerated herein, the Staff Hearing Officer finds there was
           not a guard in place at the time of the 03/20/2012 industrial
           injury to prevent the Injured Worker's hand or fingers from
           entering the danger zone during the operating cycle as
           required by O.A.C. 4123:1-5-11(E) the Code of Specific
           Requirements of the Industrial Commission relating to
           guarding of pneumatic presses to prevent the hands or
           fingers of the operator from entering the danger zone during
           the operating cycle.

           ***

           The Staff Hearing Officer finds the Injured Worker's
           industrial injury was due to the fact that the left safety pull-
           guard was not properly setup and adjusted in order to
           prevent his left hand and fingers from entering the danger
           zone. Since the left safety pull-guard was not properly setup,
           the pull-guard was rendered ineffective.

           The Staff Hearing Officer does not find the Injured Worker's
           failure to report his safety concern to his foreman, Mr. Losey,
           was the proximate cause of the industrial injury. The
           Employer argued that employees were instructed at
           numerous monthly safety meetings to report any safety
           concerns to their foreman immediately. The Employer
           alleged that the Injured Worker's failure to report his safety
           concern was the proximate cause of the Injured Worker's
           injury. The Employer alleges the Injured Worker's
           unforeseen misconduct (failure to report his safety concerns
           to his foreman) was the proximate cause of the injury.
No. 14AP-295                                                                13

           The Staff Hearing Officer finds the left safety pull-guard was
           improperly setup and that the improper setup of the left pull-
           guard rendered the guard ineffective in preventing the
           Injured Worker's left hand and fingers from entering the
           danger zone. The Hearing Officer does not find the Injured
           Worker's failure to report his concern about the left safety
           guard to Mr. Losey (his foreman) was the proximate cause of
           the Injured Worker's industrial injury.

           The Staff Hearing Officer relies on [State ex rel. Rockwell
           Internatl. v. Indus. Comm., 10th Dist. No. 79AP-720
           (June 3, 1980)] and State ex rel. Coffman v. Indus. Comm.
           (2006) 109 Ohio St.3d 298.

           Per the Rockwell case, the Court found the employee's injury
           was the proximate result of the pull-back guards not being
           properly adjusted by the Employer so as to prevent the
           employee's hands or fingers from entering the danger zone
           during a punch press operation. The employee was wearing
           the pull-guard safety at the time of the injury but they were
           not adjusted to keep fingertips from the danger area. The
           Court held that the safety device had not failed but rather it
           was not properly adjusted to the employee's hands and arms
           as required by the specific safety requirement.

           In this claim, there was no mechanical failure. The industrial
           injury was proximately related to the improper adjustment
           and setup of the left safety pull-guard. The Employer's post-
           injury investigation found no mechanical failure and
           concluded that the Injured Worker's injury was due to
           improper setup of the left pull-guard.

           Furthermore, the Staff Hearing Officer finds an employee's
           unilateral negligence would bar a finding of a violation of a
           specific safety requirement only if the Employer first
           complied with the applicable specific safety requirement per
           the Coffman case. The Staff Hearing Officer finds the
           Employer had NOT complied with O.A.C. 4123:1-5-11(E) to
           begin with. The Employer did not initially setup the Injured
           Worker's left safety pull-guard to comply with the specific
           safety requirement of O.A.C. 4123:1-5-11(E) as the Injured
           Worker's left hand and fingers were not guarded from
           entering the danger zone. Per the Coffman case, the
           Employer had not initially complied with the specific safety
           requirement. Therefore, the Injured Worker's failure to
           report his concern to his foreman was inconsequential.
No. 14AP-295                                                                            14

              The Staff Hearing Officer notes two prior industrial injuries
              were sustained on this pneumatic press. Two other
              employee's had injuries to fingers and hands due to failure to
              properly protect employee's fingers from the danger zone.

              It is therefore ordered that an additional award of
              compensation be granted to the Injured Worker in the
              amount of 50 percent of the maximum weekly rate under the
              rule of State ex rel. Engle v. Indus. Comm. (1944), 142 Ohio
              St. 425.

(Emphasis sic.)

       {¶ 18} 10. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-20(E).
       {¶ 19} 11. On April 3, 2014, another SHO mailed an order denying rehearing. The
SHO's order explains:
              It is hereby ordered that the Motion for Rehearing filed
              02/28/2014 be denied. The Employer has not submitted any
              new and relevant evidence nor shown that the order of
              10/08/2013 was based on an obvious mistake of fact or on a
              clear mistake of law.

              Particularly, a mistake of law has not been shown in the
              Hearing Officer's declining to find that alleged "unilateral
              negligence" was the proximate cause of this injury.

              As the requirements of OAC 4121-3-20(E)(1)(a) or (b) have
              not been met, the request for a VSSR re-hearing must be
              denied.

       {¶ 20} 12. On April 10, 2014, relator, Amanda Bent Bolt Company, filed this
mandamus action.
Conclusions of Law:
       {¶ 21} Two issues are presented: (1) did Ohio Adm.Code 4123:1-5-11(E) plainly
apprise relator that it not only had a duty to provide Youtsey with a functional pull-guard
absent any defects, but also had the duty to properly adjust the pull-guard prior to
Youtsey's running of the press so that his hands were prevented from reaching the danger
zone during the press' operating cycle, and (2) did the commission abuse its discretion in
finding that the unilateral negligence defense was not applicable to absolve relator from
VSSR liability.
No. 14AP-295                                                                             15

       {¶ 22} The magistrate finds: (1) Ohio Adm.Code 4123:1-5-11(E) did plainly apprise
relator that its duty to Youtsey included the proper adjustment of the pull-guard prior to
Youtsey's running the press so that his hands were prevented from reaching the danger
zone during the press' operating cycle, and (2) the commission did not abuse its discretion
in finding that the unilateral negligence defense was not applicable to absolve relator from
VSSR liability.
       {¶ 23} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
                                The Safety Rule at Issue
       {¶ 24} Ohio Adm.Code 4123:1-5 sets forth specific safety rules applicable to
"Workshop and Factory Safety."
       {¶ 25} Ohio Adm.Code 4123:1-5-11 is captioned "Forging machines, other power
machines and machine tools, hydraulic and pneumatic presses, and power press brakes."
       {¶ 26} Thereunder, Ohio Adm.Code 4123:1-5-11(E) is captioned "Hydraulic or
pneumatic presses."
       {¶ 27} Thereunder, Ohio Adm.Code 4123:1-5-11(E) provides:
              Every hydraulic or pneumatic (air-powered) press shall be
              constructed, or shall be guarded, to prevent the hands or
              fingers of the operator from entering the danger zone during
              the operating cycle. Acceptable methods of guarding are:

              ***

              (4) Pull guard - attached to hands or wrists and activated by
              closing of press so that movement of the ram will pull the
              operator's hands from the danger zone during the operating
              cycle.

       {¶ 28} The specific safety rule at issue here is the "pull-guard" method of guarding
as set forth at Ohio Adm.Code 4123:1-5-11(E)(4).
       {¶ 29} It can be further noted that Ohio Adm.Code 4123:1-5-01(B) sets forth at
least two definitions applicable here:
              (34) "Danger zone": the point of operation where a known
              hazard exists.

              ***
No. 14AP-295                                                                              16

              (70) "Guarded": means that the object is covered, fenced,
              railed, enclosed, or otherwise shielded from accidental
              contact.

                                    Basic VSSR Law
       {¶ 30} It is well-settled that a VSSR award is deemed a penalty to the employer
subject to the rule of strict construction with all reasonable doubts concerning the
interpretation of the safety standard to be construed against the applicability of the
standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354
(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
       {¶ 31} It is also firmly established that the determination of disputed factual
situations as well as the interpretation of a specific safety requirement is within the final
jurisdiction of the commission, and subject to correction in mandamus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 1
(1984); State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47 (1956);
State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).
       {¶ 32} Of course, the commission's authority to interpret its own safety rules is not
unlimited. Strict construction does require that the commission's interpretation be
reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d
333, 342 (1997). The commission may not effectively rewrite its own safety rules when it
interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996).
       {¶ 33} Specific safety requirements are intended to protect employees against their
own negligence and folly as well as provide them a safe place to work. State ex rel.
Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 47 (1989).
       {¶ 34} The unilateral negligence defense to VSSR liability derives from State ex rel.
Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988), in which an
employer was exonerated from VSSR liability because an employee had removed part of a
scaffold that had been required by a specific safety requirement. State ex rel. Quality
Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000).
       {¶ 35} However, a claimant's alleged negligence is a defense only where the
employer has first complied with relevant safety requirements. State ex rel. Hirschvogel,
Inc. v. Miller, 86 Ohio St.3d 215, 218 (1999). A claimant's negligence bars a VSSR award
No. 14AP-295                                                                              17

only where the claimant deliberately renders an otherwise complying device
noncompliant. State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352, 355, (1997);
Martin Painting at 339.
                                        First Issue
       {¶ 36} In State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972),
paragraph one of the syllabus states:
              The term, 'specific requirement,' as used in Section 35,
              Article II of the Constitution of Ohio, does not comprehend a
              general course of conduct or general duties or obligations
              flowing from the relation of employer and employee, but
              embraces such lawful, specific and definite requirements or
              standards of conduct as are prescribed by statute or by
              orders of the Industrial Commission, and which are of a
              character plainly to apprise an employer of his legal
              obligation toward his employees.

       {¶ 37} In State ex rel. Rockwell Internatl. v. Indus. Comm., 10th Dist. No. 79AP-
720 (June 3, 1980), a case extensively discussed in the SHO's order of October 8, 2013,
this court had occasion to apply Trydle when it determined that the commission had not
abused its discretion in issuing a VSSR award.
       {¶ 38} The commission had determined that the employer had failed to properly
adjust the pull-back guards before the claimant began working on the press and that this
failure was the direct and proximate cause of the injury. The commission in Rockwell
addressed the rule found at former Bulletin-IC-5-08.03(D).
       {¶ 39} Unlike the specific safety rule at issue here, in Rockwell, the rule's language
stated that pull-guards shall not be used unless adjusted to keep the finger tips of the
operator from the pinch point.
       {¶ 40} Here, relator asserts that "[t]he 'adjustment' provisions of the old safety
regulation were not incorporated into O.A.C. 4123-1-5-11(E)." (Relator's brief, 5.)
       {¶ 41} Based upon that assertion and this court's decision in Rockwell, relator
concludes that Ohio Adm.Code 4123-1-5-11(E) cannot be interpreted to require relator to
correctly adjust the pull-guard prior to Youtsey's running of the press because, to do so,
would violate the well-settled principle as set forth in Trydle that the safety rule must
plainly apprise an employer of its legal obligation toward its employees. Thus, relator
endeavors to place the duty to adjust the pull-guards squarely on Youtsey. As relator here
No. 14AP-295                                                                             18

puts it, "employee Youtsey failed to ensure that the fully functional safety pull-backs on
Press #400 were adjusted properly before he operated the Press * * *." (Relator's brief,
19.) The magistrate disagrees with relator's argument.
       {¶ 42} Contrary to relator's suggestion here, that Ohio Adm.Code 4123-1-5-
11(E)(4) does not contain language similar to that found at former Bulletin-IC-5-
08.03(D), that specifically requires "adjustment" of the pull-guards, does not
automatically compel the conclusion that Ohio Adm.Code 4123-1-5-11(E)(4) fails to
require pull-guard adjustment by the employer.
       {¶ 43} Again, Ohio Adm.Code 4123-1-5-11(E)(4) provides:
               Every hydraulic or pneumatic (air-powered) press shall be
               constructed, or shall be guarded, to prevent the hands or
               fingers of the operator from entering the danger zone during
               the operating cycle. Acceptable methods of guarding are:

               ***
               (4) Pull guard - attached to hands or wrists and activated by
               closing of press so that movement of the ram will pull the
               operator's hands from the danger zone during the operating
               cycle.

       {¶ 44} In the magistrate's view, employer adjusted pull-guards are mandated when
the safety rule at issue states that every hydraulic or pneumatic press "shall be guarded to
prevent the hands or fingers of the operator from entering the danger zone during the
operating cycle" and when the rule further states that "movement of the ram will pull the
operator's hands from the danger zone during the operating cycle." (Emphasis added.)
That the word "adjustment" is absent from Ohio Adm.Code 4123-1-5-11(E)(4) is of no
consequence.     The rule at issue plainly apprises the employer that the pull-guards
provided by the employer shall be guarded in a manner that will pull the operator's hands
from the danger zone during the operating cycle.
       {¶ 45} Based on the above analysis, the magistrate concludes that the SHO's order
of October 8, 2013 does not misapply the Rockwell case. Moreover, contrary to relator's
position here, Ohio Adm.Code 4123-1-5-11(E)(4) did plainly apprise relator that it had the
duty to properly adjust the pull-guard prior to Youtsey's running of the press.
No. 14AP-295                                                                              19

                                      Second Issue
         {¶ 46} As earlier noted, the second issue is whether the commission abused its
discretion in finding that the unilateral negligence defense was not applicable to absolve
relator from VSSR liability.
         {¶ 47} Relator's argument for the unilateral negligence defense is undermined by
its failure to recognize that Ohio Adm.Code 4123:1-5-11(E) placed a duty on relator to
properly adjust the pull-guard prior to Youtsey's running of the press. Thus, relator
refuses to take responsibility for Hurst's undisputed failure to properly adjust the pull-
guard.
         {¶ 48} To reiterate the key VSSR principle involved here, a claimant's alleged
negligence is a defense only where the employer has first complied with relevant safety
requirements. Hirschvogel. A claimant's negligence bars a VSSR award only where the
claimant deliberately renders an otherwise complying device non-compliant. R.E.H.
         {¶ 49} It is largely undisputed that Hurst, an Amanda employee assigned by
Amanda to perform the safety setup, failed to properly adjust the pull-guard prior to
Youtsey's running of the press. In fact, Amanda disciplined Hurst for his failure to
properly adjust Youtsey's safeties.
         {¶ 50} Because the pull-guard was never properly adjusted prior to Youtsey's
running of the press, relator cannot argue here that it complied with the safety rule at
issue. That is, while the pull-guard itself was not defective, it was never made effective as
a guard due to the failure of Hurst to properly adjust the pull-guard.
         {¶ 51} Given the above analysis, all of relator's endeavors to show negligence on
the part of Youtsey are indeed inconsequential. Even if it can be said that Youtsey was
negligent by his failure to report his concern to his supervisor Mr. Losey, the negligence
does not bar a VSSR award.
         {¶ 52} In short, the commission did not abuse its discretion when it rejected
relator's unilateral negligence defense.
         {¶ 53} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
                                                  /S/ MAGISTRATE
                                                  KENNETH W. MACKE
No. 14AP-295                                                                 20

                          NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
           as error on appeal the court's adoption of any factual finding
           or legal conclusion, whether or not specifically designated as
           a finding of fact or conclusion of law under Civ.R.
           53(D)(3)(a)(ii), unless the party timely and specifically
           objects to that factual finding or legal conclusion as required
           by Civ.R. 53(D)(3)(b).
