[Cite as State ex rel. Madison Fire Dist. v. Indus. Comm., 2020-Ohio-463.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Madison Fire District,                :

                 Relator,                               :

v.                                                      :                       No. 18AP-962

Industrial Commission of Ohio et al.,                   :                    (REGULAR CALENDAR)

                 Respondents.                           :


                                            D E C I S I O N

                                    Rendered on February 11, 2020


                 On brief: Wiles Richards, and Michael P. Germano, for
                 relator.

                 On brief: Dave Yost, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 On brief: Leah P. VanderKaay, and Robert C. Ochs, for
                 respondent Joseph P. Purcell.

                                             IN MANDAMUS

LUPER SCHUSTER, J.
        {¶ 1} Relator, Madison Fire District, filed an original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio to
vacate its order finding that Madison Fire District violated a specific safety requirement,
and to order the commission to find no safety violation.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
No. 18AP-962                                                                               2


      {¶ 3} Finding no error of law or other defect on the face of the magistrate's decision,
this court adopts the magistrate's decision as our own, including the findings of fact and
conclusions of law.   In accordance with the magistrate's decision, we deny relator's
requested writ of mandamus.
                                                                Writ of mandamus denied.

                          BROWN and BRUNNER, JJ., concur.
No. 18AP-962                                                                             3


                                        APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Madison Fire District,     :

              Relator,                       :

v.                                           :                    No. 18AP-962

Industrial Commission of Ohio et al.,        :               (REGULAR CALENDAR)

              Respondents.                   :



                         MAGISTRATE'S DECISION

                             Rendered on September 30, 2019



              Wiles Richards, and Michael P. Germano, for relator.

              Dave Yost, Attorney General, and Kevin J. Reis, for
              respondent Industrial Commission of Ohio.

              Leah P. VanderKaay, and Robert C. Ochs, for respondent
              Joseph P. Purcell.


                                     IN MANDAMUS

       {¶ 4} Relator, Madison Fire District, has filed this original action requesting this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which found that relator had violated a specific safety
requirement ("VSSR"), that violation was the proximate cause of injuries to respondent
Joseph P. Purcell ("claimant"), and ordering the commission to find there was no VSSR.
No. 18AP-962                                                                          4


Findings of Fact:
       {¶ 5} 1. Claimant sustained a work-related injury on September 17, 2015 while
exiting the cab of a fire truck in the course of his employment with relator.
       {¶ 6} 2. Claimant's workers' compensation claim has been allowed for the
following conditions:
              Sprain right knee; right medial femoral chondral damage;
              right knee arthritis; adjustment disorder with mixed anxiety
              and depressed mood.

       {¶ 7} 3. In April 2017, claimant filed an application seeking an additional award
for relator's alleged VSSR citing Ohio Adm.Code 4123:1-21-04(H)(4)(c) and (c)(ii), and
(iii). Those provisions provide, in pertinent part:
              4123:1-2-04. Automotive fire apparatus.

              ***

              (H) Vehicle components. * * *

              (4) Body.

              ***

              (c) Steps, platforms, or secure ladders shall be provided so
              that fire fighters have access to all working and storage areas
              of the apparatus. The maximum stepping height shall not
              exceed eighteen inches with the exception of the ground to
              first step. When the ground to first step, platform, or ladder
              rung exceeds twenty-four inches, a permanently attached
              supplemental means of access/egress from the ground to
              these steps, platforms, or secure ladders shall be provided.
              The supplemental access means shall consist of step(s),
              platform(s), or ladder(s). The ground to first step height shall
              be determined with the apparatus on level ground. When the
              apparatus is supplied with stabilizers, the ground to first step
              height shall be determined with the apparatus on level ground
              and the stabilizers deployed according to the manufacturer's
              instructions.

              ***

              (ii) All exterior surfaces designated as stepping, standing, and
              walking areas shall have a minimum average slip resistance of
No. 18AP-962                                                                         5


             0.68 in accordance with ASTM F 1679. All interior steps shall
             provide an average minimum slip resistance of 0.52. Where
             the fuel fill is located at or near a stepping surface, the surface
             shall be constructed of an open grate-type material.

             (iii) All steps shall have a minimum area of thirty-five square
             inches and be arranged to provide at least eight inches of
             clearance between the front of the step and any obstruction.
             All ladders shall have at least eight inches of clearance
             between any rung and the body of the apparatus.

(Emphasis sic.)

      {¶ 8} 4. The Ohio Bureau of Workers' Compensation ("BWC") investigative unit
prepared a report dated December 6, 2017. That report indicates the step to the ground
on engine 2124 measured 25 1/8 inches at the time of claimant's industrial injury.
      {¶ 9} 5. The Madison Fire District Ohio Emergency Services Evaluation and
Master Plan from winter 2009 indicates the following additional comments or
observations were made with regard to Pumper/Tanker 2124, the unit at issue here:
             Pumper/Tanker 2124           Reserve
             1995 Spartan Darley

             Seating Capacity: 6
             Pump Capacity: 1,750 GPM
             Tank Capacity: 1,500 gallons
             Condition: Fair
             NFPA Compliant: Yes
             Mileage: 32,603

             Additional Comments or Observations: No problems
             noted. Equipment is neat and mounted securely. Consider
             installing steps into cab for safety. Clean unit.

(Emphasis sic.)

      {¶ 10} 6. A hearing was held before a staff hearing officer ("SHO") on July 10,
2018. The SHO first found that Ohio Adm.Code 4123:1-21-04(H)(4)(c)(ii) and (iii) were
not applicable because they provided that exterior and interior surfaces should be slip
resistant and provided for the minimum surface area of a step and neither of those were
the proximate cause of claimant's injury. The SHO found that relator did violate Ohio
No. 18AP-962                                                                              6


Adm.Code 4123:1-21-4(H)(c) because the step to ground level on engine 2124 exceeded
the maximum height requirement of 24 inches. The SHO relied on the investigative unit's
report which measured the step to ground on engine 2124 at 25 and 1/8 inches.
       {¶ 11} At the hearing, relator argued that it had directed that engine 2124 be built
to specification using industry standards for the manufacture of the vehicle and that it did
not have knowledge of the existence of a specific danger regarding the engine. The SHO
specifically pointed to the 2009 master plan which recommended the installation of steps
into the cab for safety was enough to put relator on notice of a safety violation.
       {¶ 12} Specifically, the SHO order provides:
              The Staff Hearing Officer finds that there was a VSSR
              violation of 4123:1-21-04(H)(c) in that the step to ground level
              on engine 2124 exceeded the maximum height requirement of
              24 inches. The SVIU report dated 12/06/2017 shows that the
              step to the ground on engine 2124 measured 25-1/8 inches at
              the time of this industrial injury.

              It is further found that the Employer, subsequent to this
              industrial injury, sent engine 2124 for a modification to have
              an additional step added below the original step on engine
              2124 to reduce the height of the step to ground level to less
              than 24 inches and remediate the violation. Chief [Tod] Baker
              testified at hearing that it was his belief that the modification
              to the step was in response to this injury and to avoid anyone
              else from being injured. An invoice dated 10/30/2015 from
              Countryside Truck Services, Inc. contained within the body of
              the SVIU report evidences that a new cab step was installed
              on engine 2124. Therefore, it is the finding of the Staff Hearing
              Officer that no order requiring a correction of the violation
              found herein is appropriate for the reason that the violation
              has been corrected by the Employer and no longer exists.

              The determination of whether the Injured Worker's injury
              resulted from the Employer's failure to comply with a specific
              safety requirement is a factual determination, within the final
              jurisdiction of the Industrial Commission. The facts are that
              the Injured Worker was employed by the named Employer as
              a fire fighter focusing on Injured Worker's job duties which
              required him to enter and exit the cab of engine 2124 to
              perform some of those required job duties. Specifically,
              finding that the Employer did not meet it's [sic] obligation
              with regard to the standards for automotive apparatus for
No. 18AP-962                                                                    7


           steps as set forth in 4123:1-21-04(H)(c) to an Injured Worker
           who was exposed to the apparatus (engine 2124) was a
           potential hazard for injury. Chief Baker testified that it was his
           belief that engine 2124 was modified to prevent the potential
           for further injury. The Staff Hearing Officer finds that the facts
           establish by a preponderance of the evidence that the
           Employers violation of 4123:1-21-04(H)(c) was the proximate
           cause of the injury sustained by Injured Worker. State ex rel.
           S&Z Tool and Die v. Indus. Comm. 84 Ohio St.3d 228is
           instructive as to what circumstances and facts establish
           causation for VSSR purposes. In S&Z claimant established
           that she was working around a foot hazard, that the employer
           was obligated to provide foot protection because of the
           potential for injury and the employer did not. The Staff
           Hearing Officer finds that the circumstances here are
           comparable. Injured Worker was required as a function of his
           job duties as a fire fighter to enter and exit the cab of engine
           2124 on the drivers side of the vehicle, that the Employer was
           obligated to have the step to the ground level of the
           automotive fire apparatus not exceed 24 inches, which, it did
           not, and Injured Worker sustained an injury. As the court
           established in S&Z these circumstances are sufficient to
           establish probable cause.

           The Employer argued that pursuant to State ex rel. Camaco,
           LLC v. Albu, 091417 OH SC 2015-0036 prohibits finding a
           VSSR in this matter. Camaco, reiterates the rule that to a
           VSSR award cannot be sustained when the Employer lacked
           knowledge of the existence of a specific danger requiring a
           safety device.

           The Staff Hearing Officer is not persuaded by the Employer's
           argument. It is acknowledged that the Employer directed
           engine 2124 be built to specification using industry standards
           for the manufacture of the vehicle. The Staff Hearing Officer
           further acknowledges that the injury suffered by Injured
           Worker is the first injury documented by the Employer with
           regard to the step height on engine 2124 in the 20 years the
           vehicle was in service.

           In 2009, the department commissioned a master plan
           evaluation by an independent third party to do a study of
           every aspect of the fire department. As a part of that study, the
           fire engines in use by the department at that time were
           evaluated. Engine 2124 was a part of that evaluation. The
           evaluation report states that the department should consider
No. 18AP-962                                                                                8


                 installing steps into cab for safety to engine 2124. The
                 Employer argues that the language used in the
                 recommendation that the Employer "consider" installing
                 steps into cab for safety was not sufficient to make the
                 Employer aware of or put the Employer on notice of a safety
                 violation.

                 Taking the definition of consider from Black's Law dictionary
                 as: to think about, or to ponder or study and examine the Staff
                 Hearing Officer finds that the recommendation to consider
                 installing steps into cab for safety in the 2009 master plan
                 report put the Employer on notice that there was an issue to
                 consider with regard to the step on engine 2124. Yet, the
                 Employer as far as the evidence presented at hearing shows,
                 did nothing with this information, there is no evidence that
                 the step was evaluated or inspected until after Injured
                 Worker's injury.

                 It is therefore ordered that an additional award of
                 compensation be granted to the Injured Worker in the
                 amount of 30 percent of the maximum weekly rate under the
                 rule of State ex rel. Engle v. Indus. Comm. (1944), 142 Ohio
                 St. 425.

(Sic. passim.)

       {¶ 13} 7. Relator filed a motion for rehearing asserting that it did not know and
could not have known the step was out of compliance with the safety rule and that, in the
years the engine was in service, there was no evidence that any fire officers ever
mentioned a problem with the step. Relator argued that it was a latent defect about which
relator could not have known.
       {¶ 14} 8. In an order mailed October 23, 2018, relator's motion for rehearing was
denied.
       {¶ 15} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 16} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 17} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
No. 18AP-962                                                                             9


the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 18} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 19} In order to establish a VSSR, a claimant must prove that: (1) there exists an
applicable and specific safety requirement in effect at the time of the injury; (2) the
employer failed to comply with the requirements; and (3) the failure to comply was the
proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio
St.2d 257 (1972).
       {¶ 20} The interpretation of a specific safety requirement is within the final
jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193
(1983). Because a VSSR is a penalty, however, it must be strictly construed, and all
reasonable doubts concerning the interpretation of the safety standard are to be
construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm.,
46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer's
failure to satisfy a specific safety requirement is a question of fact to be decided by the
commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F
Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); State ex rel. Ish v. Indus.
Comm., 19 Ohio St.3d 28 (1985). Furthermore, a safety requirement must be specific
No. 18AP-962                                                                             10


enough to plainly apprise an employer of its legal obligations to its employees. State ex
rel. Frank Brown & Sons v. Indus. Comm., 37 Ohio St.3d 162 (1988).
      {¶ 21} There is no dispute that the distance between the step and the ground
exceeds the maximum limit of 24 inches and the specific safety requirement here was
violated. Relator does not dispute this. However, relator contends this is a latent defect
in the product itself about which relator did not, should not, and could not have known.
      {¶ 22} At the hearing, claimant testified that everyone knew the step was high;
however, claimant also testified that no one ever measured the step and neither he, nor
his co-workers, realized the step was higher than required by the Ohio Administrative
Code. Further, Chief Baker testified that, he reviewed the records and did not find any
records indicating there was a problem with the step on the engine in question. He did
acknowledge that it was a big step but basically that it never occurred to anyone that the
step was in violation of the Administrative Code.
      {¶ 23} In support of its argument, relator cites State ex rel. Camaco, L.L.C. v. Albu,
151 Ohio St.3d 330, 2017-Ohio-7569, wherein the Supreme Court held:
             We further hold that an employer does not face liability for the
             violation of a specific safety requirement ("VSSR") when it
             lacked knowledge of a specific danger requiring a safety
             device. We reverse the judgment of the court of appeals and
             issue a limited writ of mandamus ordering the commission to
             determine whether Camaco knew or should have known
             about the latent defect at the time that Albu was injured.

Id. at ¶ 3. In Camaco, the court remanded the matter to the commission to determine
whether the employer knew or should have known about the latent defect at the time of
the employee's injury.
      {¶ 24} Here, the commission considered relator's argument that it could not have
known the height of the step exceeded the safety requirement and rejected that as a
defense. The SHO noted that relator directed that engine 2124 be built to specifications
using industry standards and acknowledged this was the first injury to an employee
regarding the height of the step in the 20 years since the vehicle was put in service. The
SHO looked at the 2009 Master Plan Evaluation and noted the recommendation that
relator consider installing steps into the cab for safety and concluded this information
No. 18AP-962                                                                              11


was sufficient to put relator on notice that there was some issue concerning the step which
should have been evaluated by relator.
       {¶ 25} The magistrate finds the commission did not abuse its discretion when it
determined the information contained in the 2009 evaluation was sufficient to put relator
on notice that the step should have been inspected. Had the step been inspected, relator
would have known it exceeded the 24 inch requirement. The commission cited the
evidence on which it relied and provided a brief explanation for its decision and this
magistrate finds relator has not demonstrated the commission abused its discretion.
       {¶ 26} Based on the foregoing, it is this magistrate's decision that this court should
deny relator's request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA




                              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).
