[Cite as State ex rel. Angelo Benedetti, Inc. v. Indus. Comm., 129 Ohio St.3d 470, 2011-Ohio-
4131.]




   THE STATE EX REL. ANGELO BENEDETTI, INC., APPELLANT, v. INDUSTRIAL
                     COMMISSION OF OHIO ET AL., APPELLEES.
           [Cite as State ex rel. Angelo Benedetti, Inc. v. Indus. Comm.,
                        129 Ohio St.3d 470, 2011-Ohio-4131.]
Workers’ compensation — Ohio Adm.Code 4121-3-20(C) — Amendment of
        application for additional award of compensation — Enumeration of
        safety-code sections.
    (No. 2007-0619 — Submitted April 5, 2011 — Decided August 24, 2011.)
      APPEAL from the Court of Appeals for Franklin County, No. 06AP-165.
                                 __________________
        Per Curiam.
        {¶ 1} Appellee Industrial Commission of Ohio found that appellant,
Angelo Benedetti, Inc. (“ABI”), violated two specific safety requirements that
resulted in injury to an ABI employee. ABI challenges that determination.
        {¶ 2} ABI is an asphalt-recycling company that uses old asphalt to
repave roads. To accomplish this, existing asphalt is first heated and scraped off
the roadway. The liquid asphalt must then be reconditioned by adding to it both
gravel and a chemical agent.
        {¶ 3} Reconditioning is done on site in a drum-mixer recycling machine
that ABI designed. The gravel needed for this procedure is kept in a large hopper
at the front of the machine and is distributed by two internal augers. The hopper
must be emptied at the completion of every job in order to move the recycling
machine to the next assignment. One way to do this, according to testimony, was
to have a worker climb into the hopper and shovel out the stone. This method
was apparently necessary if the level of gravel dropped below a certain point or
became wet, or an auger jammed.
                             SUPREME COURT OF OHIO



       {¶ 4} On August 5, 1998, appellee Heath Jessop was told to clean out the
hopper.   When Jessop entered the hopper, the augers were moving slowly.
Jessop’s foreman, Amos S. Hostetter, told him to slow the auger way down, to
watch his feet, and to be careful.”
       {¶ 5} Unfortunately, years earlier, a screen grating above the augers had
been removed to prevent gravel from getting clogged. This exposed the augers to
contact, and when Jessop slipped, his left leg became entangled. Among other
serious injuries, Jessop’s left leg was amputated above the knee.
       {¶ 6} In August 2000, Jessop filed with the commission an application
for additional compensation, claiming that his injury was the result of numerous
specific safety requirement violations (“VSSRs”) committed by ABI.              The
application form asked for both a description of the accident and an enumeration
of the specific safety-code sections allegedly breached. Jessop answered the
former as follows: “I was cleaning out gravel tank and I slipped and fell into [an]
Auger * * *.” He then listed the safety violations as “[Ohio Adm.Code] 4121:1-
3-06 all sections; 4121:1-3-03(E) all sections; 4121:1-3-03(J) all sections; 4121:1-
3-03(K) all sections. The claimant cites herein any code section the employer has
reasonable notice of. The claimant cites any previously existing code section.”
       {¶ 7} After years of delay attributable to other litigation arising from the
accident, Jessop’s application was heard by a commission staff hearing officer on
August 15, 2005. A few days prior to the hearing, Jessop moved to amend his
application to allege a violation of former Ohio Adm.Code 4121:1-3-05(D)(1)(b),
1979-1980 Ohio Monthly Record 4-34 to 4-35, effective November 1, 1979 (“The
auger of screw conveyors shall be operated with the covers secured in place”),
and 4121:1-3-05(G)(1), 1979-1980 Ohio Monthly Record 4-35, effective
November 1, 1979 (“A stopping device shall be provided * * * within easy reach
of the operator * * *”). ABI objected to the request to amend as untimely.
       {¶ 8} The staff hearing officer conceded in her order that the amendment
was “well outside the time guidelines for amending an application under [Ohio



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Adm.Code] 4121-3-20[C](1)(a) [and] (b).”             She nevertheless allowed the
amendment after finding that it did not raise new claims but merely clarified those
raised in Jessop’s initial VSSR application.
          {¶ 9} Turning to the merits of the newly clarified violations, the staff
hearing officer found that the auger was not covered as Ohio Adm.Code 4121:1-
3-05(D)(1)(b) required.      She also concluded that Ohio Adm.Code 4121:1-3-
05(G)(1) required an emergency shutoff accessible to Jessop from his position
inside the hopper and that one was not there. Violations of both sections were
found and an award was made in Jessop’s favor. Further rehearing was denied.
          {¶ 10} ABI filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in both
permitting Jessop to amend his VSSR application and in finding violations of the
two specific safety requirements. The court of appeals upheld the commission’s
order and denied the writ, prompting ABI’s appeal as of right to this court.
          {¶ 11} Upon review, we agree with the reasoning provided by the court of
appeals. For the reasons given in that opinion, we hereby affirm its judgment.
                                                                Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
          LANZINGER, J., concurs in judgment only.
                                __________________
          Leonard F. Carr and L. Bryan Carr, for appellant.
          Philip J. Fulton Law Office and David B. Barnhart, for appellee Heath
Jessop.
          Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney
General, for appellee Industrial Commission of Ohio.
                             ______________________




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