[Cite as State ex rel. Scott v. Indus. Comm., 2016-Ohio-3525.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Rhoulac Scott,                            :

                 Relator,                               :

v.                                                      :             No. 14AP-894

Industrial Commission of Ohio and                       :          (REGULAR CALENDAR)
LaGanke & Sons Stamping Co.,
                                                        :
                 Respondents.
                                                        :




                                          D E C I S I O N

                                       Rendered on June 21, 2016


                 On brief: Duane E. Cox, for relator.

                 On brief: Michael DeWine, Attorney General, and Cheryl J.
                 Nester, for respondent Industrial Commission of Ohio.

                                              IN MANDAMUS

BROWN, J.
        {¶ 1} Relator, Rhoulac Scott, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio, to
vacate its order denying his application for an additional award for violation of a specific
safety requirement and to enter an order granting the application.
        {¶ 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
attached decision, including findings of fact and conclusions of law, and recommended
that this court deny relator's request for a writ of mandamus. No objections have been
filed to that decision.
No. 14AP-894                                                                               2

       {¶ 3} As there have been no objections filed to the magistrate's decision, and it
contains no error of law or other defect on its face, based on an independent review of the
file, this court adopts the magistrate's decision as its own. Relator's request for a writ of
mandamus is denied.
                                                                               Writ denied.

                             TYACK and KLATT, JJ., concur.

                                  ________________
[Cite as State ex rel. Scott v. Indus. Comm., 2016-Ohio-3525.]


                                                APPENDIX
                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. Rhoulac Scott,                            :

                 Relator,                               :

v.                                                      :               No. 14AP-894

Industrial Commission of Ohio and                       :            (REGULAR CALENDAR)
LaGanke & Sons Stamping Co.,
                                                        :
                 Respondents.
                                                        :



                               MAGISTRATE'S DECISION

                                     Rendered on February 11, 2016


                 Duane E. Cox, for relator.

                 Michael DeWine, Attorney General, and Cheryl J. Nester,
                 for respondent Industrial Commission of Ohio.


                                             IN MANDAMUS

        {¶ 4} In this original action, relator, Rhoulac Scott, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order
denying his application for an additional award for violation of a specific safety
requirement ("VSSR"), and to enter an order granting the application.
Findings of Fact:
        {¶ 5} 1. On October 19, 2011, relator suffered the partial traumatic amputation of
three fingers of his right hand while operating a power press in a factory owned and
operated by respondent, LaGanke & Sons Stamping Co. ("respondent" or "LaGanke
Stamping"). On the date of injury, relator was employed by a temporary employment
No. 14AP-894                                                                           4


agency that sent him to work at LaGanke Stamping which was owned by Charles LaGanke
("LaGanke"). The accident occurred shortly after LaGanke had trained relator on the use
of pullback guards to be used in the operation of the power press.
         {¶ 6} 2. The industrial claim was allowed and assigned claim number 11-358253.
         {¶ 7} 3. On August 21, 2012, relator filed an application for a VSSR award. The
VSSR application prompted an investigation by the Safety Violations Investigative Unit
("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
         {¶ 8} 4. On November 6, 2012, the SVIU investigator conducted an onsite visit at
the LaGanke Stamping factory where the injury had occurred. The investigator met with
LaGanke and his attorney. The investigator photographed the press involved in the injury
and obtained documents. LaGanke Stamping also submitted its own photographs of the
press.
         {¶ 9} 5. On December 5, 2012, the SVIU investigator issued a report containing
eight enumerated paragraphs. The report states:
               [Two] * * * The press identified by the employer was a full
               revolution press, manufactured by [Minster] Machine
               Company of Minster, Ohio * * * which is capable of punching
               and cutting material. The press is powered and equipped
               with an electric motor. Although the employer is unsure of
               the exact press purchase date, Mr. [LaGanke] believes it was
               purchased sometime in the 1950's. The press is actuated by
               means of a foot pedal. Mr. Laganke advised there was not an
               emergency stop button located on the press. It was further
               advised no modifications were made to the press prior to or
               since the incident.

               [Three] * * * On the day of the incident Mr. Laganke
               described he was demonstrating the press and pull backs to
               claimant Scott. Mr. Laganke stated once he believed claimant
               Scott understood the safe operation of the press he
               (Laganke) set up the pull backs. It was further advised by Mr.
               Laganke he had to go to his office for a pen so the daily pull
               back inspection sheet could be completed. Prior to Mr.
               Laganke returning from his office to the press, the claimant
               sustained his injuries. It is believed by Mr. Laganke that
               when he went to the office to retrieve a pen, claimant Scott
               went to the restroom. Once the claimant returned to the
               press he incorrectly placed the pull backs onto his hands
               * * *. Mr. Laganke stated since the incident occurred prior to
               him returning from his office he never had an opportunity to
No. 14AP-894                                                                5


           document his pull back check of the press and claimant Scott
           * * *.

           [Five] The involved Minster #6 press was not equipped with
           a fixed barrier guard, gate guard, two hand control, restraint
           or hold back guards; it was equipped with pull backs.
           Investigator Luker asked if the press was equipped with any
           other means which would provide safeguards, preventing
           hands or fingers of the operator from entering the danger
           zone during operating cycle and which are equivalent to fixed
           barrier guard, gate guard, two hand control, restraint or hold
           back guard; it was equipped with pull backs. Mr. Laganke
           replied it was equipped with pull backs (also known as pull
           guard).

           [Six] Mr. Laganke expressed he was the main person who
           would inspect the press on a weekly and monthly basis. The
           pull backs were inspected on a monthly basis and each time
           an operator would run a press * * *. The logs provided by Mr.
           Laganke were dated with the day and month, but the year
           was not noted.

           [Seven] Mr. Laganke stated claimant Scott was hired on
           October 19th, 2012 as a temporary worker from Lakeland
           Employment Group. Claimant Scott was injured on his first
           day on the job, as reported by Mr. Laganke. It was stated by
           Mr. Laganke he believed claimant Scott had over twenty
           years of experience operating presses. Claimant Scott named
           three or four companies he worked at operating presses,
           stated Mr. Laganke. Mr. Laganke stated he demonstrated
           operation of the press to claimant Scott, including proper use
           of the pull backs. Next Mr. Laganke had claimant Scott
           demonstrate the press operation and pull backs to confirm
           he understood. Finally he verbally quizzed claimant Scott on
           the operation of the press, stated Mr. Laganke. Mr. Laganke
           believed claimant Scott understood the safe use of the pull
           backs. Claimant Scott was verbally advised if he had issues
           with a press or pull backs he was to notify Mr. Laganke or
           another employee.

           [Eight] Investigator Luker was scheduled to obtain an
           affidavit from Rhoulac Scott Jr. October 30th, 2012, at the
           office of Attorney Duanne Cox. On October 29th Investigator
           Luker received a phone call from Attorney Cox stating the
           claimant was unable to make the scheduled meeting.
           Investigator Luker rescheduled the affidavit for
           November 7th, 2012 at the office of Attorney Cox. November
           7th, 2012 Investigator Luker received another phone call
No. 14AP-894                                                                             6


                from Attorney Cox stating Claimant Scott will not be
                available for the scheduled meeting. Investigator Luker
                advised Attorney Cox the VSSR report will be submitted
                without the affidavit from claimant Scott.

          {¶ 10} 6. The SVIU report enumerates and describes ten exhibits. Exhibit No. 2 is
a letter from LaGanke to the SVIU investigator dated November 15, 2012. The letter
states:
                I am sending a signed statement by the other press operator
                that day, John Wronski, who also saw me giving instruction
                and checking the pull-back guard for Rhoulac Scott Jr. the
                day of the accident.

                Both John and Allen Coleman admitted they had seen me at
                the press with Rhoulac while they were operating presses
                F10 and F11 just down the aisle from the accident that
                occurred at F3.

          {¶ 11} 7. Exhibit No. 3 of the SVIU report contains three reports from LaGanke
Stamping. The first report is a one-page report from LaGanke dated November 17, 2011:
                REPORT OF A PRESS ACCIDENT:

                Rhoulac Scott, a temporary employee from Lakeland Labor
                located in Cleveland, Ohio.

                During operation of a press, his second and third fingers
                were lost to the first joint, and to the second joint of his
                fourth finger, all on his right hand. The information of his
                loss was from a phone conversation with Mr. Scott while he
                was in the hospital.

                It was a full revolution press.

                The safeguard was a two hand pullout.
                The failure appears to be Mr. Scott did not put the wrist
                strap on properly shortly after beginning work. Instead of
                having the strap around his whole hand as instructed, he had
                it around just the thumb, which allowed almost a 4 inch
                greater reach into the closed die. Mr. Scott claimed to have
                been an experienced press operator of twenty years, and
                having worked with pullouts many times. After a
                demonstration of the use and proper wearing of the pullouts,
                he demonstrated putting them on without error.
No. 14AP-894                                                                          7


             The feeding used was hands in the die and foot trip.

             One operator ran the press alone.

      {¶ 12} The second report is a one-page report from Allen Coleman dated
October 21, 2011:
             Accident that occurred 10/19/2011 to Rhoulac Scott as
             reported by Allen Coleman;

             I heard yelling and went to see what it was about when I
             witnessed Rhoulac Scott standing by the press waving his
             right hand in the air screaming for help. Charles LaGanke
             went to help him so I did not.

             Shortly after Rhoulac was gone, I assisted Charles LaGanke
             with his investigation of the accident. We could find nothing
             wrong with the press or the pull back devise [sic]. After we
             both could not figure out what had happened, it finally
             occurred to me he must have had the wrist strap on wrong,
             just around his thumb and not the whole hand. That allows
             you to reach into the press even when the press is down.

      {¶ 13} The third report is a two-page report from LaGanke dated October 21, 2011:

             Accident that occurred 10/19/2011 to Rhoulac Scott as
             reported by Charles H. LaGanke:

             After Rhoulac Scott arrived from Lakeland Labor to run a
             Punch Press, I quizzed him on his knowledge and experience
             in operating a Punch Press which he claimed to have run for
             years. He assured me he had been running presses for over
             20 years and appeared to completely understand all that I
             showed him. When I asked where, he listed several stamping
             houses including one just around the corner. I [then]
             proceeded to demonstrate the use and proper wearing of the
             wrist strap and how to place the part in the [gauge]. I ran
             about 1 to 2 dozen parts so he could see how it is done and
             how the machine operates. I [then] watched as he tried on
             the wrist straps while I explained how to place the first four
             fingers completely through both straps, making sure the
             thumb only goes through the first strap so the first strap
             portion is around your entire hand and pulls back between
             the thumb and first finger, which I demonstrated. He could
             take them on and off properly without my assistance,
             claiming he had worked with them many times. I [then]
             checked the adjustment with a part in and the press down to
             1/2 inch from the part, it pulled his hand back over an inch at
No. 14AP-894                                                                   8


           that point. I proceeded to run the press around, when
           forming the part nothing stuck out past the die. He [then]
           ran over a dozen parts while I looked on. I warned him I
           would have to fire him if I saw him run the press just one
           time without the pull back device as that was critical. He said
           he understood and that would not be a problem. I also
           mentioned to watch for anything suspicious, such as a bolt
           on the floor, suspicious noise, press repeat, anything loose,
           etc., and to come and get me if he did. I [then] left after
           telling him I would return shortly to see how he was doing.

           About ten minutes after leaving Rhoulac the accident
           occurred. I heard yelling and ran over his direction to see
           him strapped in the press with his hand bleeding and him
           yelling out. I quickly disconnected him and yelled for another
           employee to take him to the hospital, as I figured that would
           be faster than waiting for an ambulance. I did not thoroughly
           observe how he was strapped in, I just wanted to get him to
           the hospital, and I was too panicked to think too calmly.

           After he was gone, another employee, Allen Coleman, and I
           went over the pull back device to see what had happened. I
           had to replace the wrist strap as I had left that on Rhoulac
           when he was taken to the hospital. The pull back functioned
           every time and nothing appeared wrong. There was a large
           portion of the part bent and protruding when Rhoulac was
           injured, so I climbed a ladder and hung on the pull back
           device to see if the part could have flexed the pullback and
           held him in, but it did not flex at all with all my weight on it.
           Allen Coleman did point out the one possibility, if you put
           the wrist strap on incorrectly with the strap that goes around
           your hand around just your thumb instead, it allows you
           enough distance to get your fingers in the press when closed.
           This would appear to be the only logical explanation.

           Without having to make any adjustments except replacing
           the wrist strap Rhoulac took, I ran the remainder of the parts
           without any incident, the pull back device functioned as
           expected.

           On 10/19/2011 I sent for a temporary worker from Lakeland
           Labor at 7:00 to run a punch press. It was for die #28FA14,
           which was a forming operation, striking .060 thick steel.
           Upon going through my normal instructions and a
           demonstration of wearing a pullback, the press operator
           appeared to be unqualified even though he claimed
           experience. I immediately removed him from running any
           punch presses and called Lakeland saying I would only use
No. 14AP-894                                                                 9


           an experienced press operator. They told me they had just
           the man available with a lot of experience.

           Rhoulac Scott Jr. arrived at about 10:30. When I quizzed him
           he said he had worked running presses for over 20 years and
           could list at least three companies I recognized including one
           nearby. He also said he had used hand pullouts many times.
           He appeared intelligent and alert.

           At the press I demonstrated the proper wearing of the
           pullbacks, telling him any other way of wearing them is
           illegal. He demonstrated putting them on properly, and
           while they were on I jogged the press around to make sure
           his hand could not get caught in the press, with or without a
           part inside, especially at the pinch point which I checked at
           about 1/2 inch gap. I have the operator push hard to make
           sure they cannot be closer than 2", even if he fell in towards
           the press. The press was at the proper location for him and
           needed no adjustments.

           I then had him remove the pullbacks and put them on myself
           to demonstrate the proper running of the job and how to put
           pullbacks on once again. I ran about thirty parts, taking from
           one bin to stack on the press, and then running and tossing
           them into another bin on my left. I explained the bin needs
           to be close enough to reach parts without having to remove
           the pullbacks, he agreed. He then properly put the pullbacks
           on and ran some parts as I observed. I had also told him to
           come and get me if he noticed any strange noise or [if]
           something came loose or a bolt fell on the floor, as that could
           be serious. He was also warned I did not give any second
           warnings about the pullbacks, if I saw him running the press
           just once without using them he would be terminated. For
           safety we also keep records for each press of weekly press
           and monthly pullback inspections per OSHA approved
           procedures along with lock out tag out instructions. After
           about five minutes of watching him run the press, I went to
           the office to get a pen to sign him in. It was about 10:50, and
           I could hear a lot of yelling. I rushed out and saw Rhoulac
           still attached to the press waving his right hand in the air. I
           rushed to him and disconnected the cable snap from his
           wrist strap. On the way I yelled at another employee to get
           Rich Starman to drive him to the hospital. I escorted
           Rhoulac to the office door where Rich was washing his hands
           and I ran in to get some clean white towels to wrap his hand.
           He then left with Rich with the wrist strap still attached.
No. 14AP-894                                                                              10


               I then went to the press to investigate. I removed a bent part
               and attached another wrist strap. I tried bringing the press
               down to see what could have happened. The pullback
               adjustment was still good, so I checked to see if the pullback
               frame could flex and allow his hand to remain in the form die
               as it closed. I climbed a ladder and hung from the frame, it
               would not flex. At this point I could not readily understand
               what could have happened and I asked another experienced
               operator, Allen Coleman, for his opinion. Together we looked
               over everything and could find nothing wrong with the
               device or the adjustment. The only explanation we could find
               was that he had put the wrist strap on improperly, with the
               strap portion that was to go across the hand going around
               the thumb instead. When I tried wearing it this way I was
               able to get some of my fingers in at an angle at the pinch
               point, similar to the injury he had sustained. I then put the
               pullback on properly and finished running the bin without
               any problems.

       {¶ 14} 8. Exhibit No. 7 of the SVIU report is a one-page document captioned
"OSHA's Form 301, Injury and Illness Incident Report."           The document is a form
provided by the U.S. Department of Labor, Occupational Safety and Health
Administration. On October 21, 2011, LaGanke completed the form. In response to the
query "What happened? Tell us how the injury occurred," LaGanke responded: "The
worker was wearing pull backs when he stepped on the pedal with his hand in the press
and was not pulled out. Appears to have put wrist strap on incorrectly."
       {¶ 15} 9. Exhibit No. 8 of the SVIU report is a one-page document captioned
"Pullout Adjustment Record." Under the caption, the following instructions are given:
               Set-up man must record each adjustment made to the safety
               device on all jobs run in this press. BOTH set-up man AND
               operator must initial each recording.

(Emphasis sic.)

       {¶ 16} Thereunder are vertical columns for the "date," "time," "die setter," and
"operator." It can be observed that there is only one entry for the date of October 19, 2011,
which is the date of injury here. "7:25" is entered as the time which precedes the time of
relator's arrival at LaGanke Stamping. Also, the operator is identified as "GR," which is
not the initials of relator.
No. 14AP-894                                                                              11


         {¶ 17} It is undisputed that LaGanke did not enter the requested information
relating to the industrial injury at issue here. The reason for that undisputed fact is
disclosed later in this magistrate's decision.
         {¶ 18} 10. As indicated earlier, the SVIU investigator did not receive an affidavit
from relator prior to the issuance of the SVIU report.
         {¶ 19} 11. The record contains three reports dated April 12, May 17, and June 4,
2013, authored by Richard E. Harkness, Ph.D., who is said to be relator's expert. It is not
entirely clear from the stipulated record when the three reports of relator's expert were
filed.
         {¶ 20} 12. On August 14, 2013, relator's VSSR application was heard before a staff
hearing officer ("SHO"). The hearing was recorded and transcribed for the record.
         {¶ 21} At the hearing, initially, counsel for LaGanke Stamping told the SHO that he
"was handed an expert report that wasn't filed and wasn't provided to me." (Tr. 4)
         {¶ 22} 13. The announcement of counsel for LaGanke Stamping prompted the
following exchange:
               THE HEARING OFFICER: Which expert report?

               MR. REIDY: The expert report dated May 17, 2013 by Mr.
               Harkness.

               THE HEARING OFFICER: It was filed.

               MR. REIDY: Okay. It wasn't provided to me.

               THE HEARING OFFICER: Well, it was filed. It hadn't been
               scanned, though. It was brought to me and placed in the file.

               MR. COX: The same day I mailed it to the employer after I
               had got the stamp, the date stamp, I did mail it to the
               employer. That must have been last week sometime ago.

               THE HEARING OFFICER: When did you receive it?

               MR. REIDY: Today. It was just handed to me.

               THE HEARING OFFICER: You never received it prior?

               MR. REIDY: No, we did not.
No. 14AP-894                                                                           12


              THE HEARING OFFICER: You said you mailed it to the
              employer. Did you mail it to Mr. Reidy?

              MR. COX: No, I mailed it to the employer's representative,
              Ross Brittain.

(Tr. 4-5.)

       {¶ 23} 14. After the SHO asked counsel whether he was requesting a continuance,
counsel discussed the matter with LaGanke and then informed the SHO that LaGanke
Stamping would go forward with the hearing.
       {¶ 24} 15. The April 12, 2013 Harkness report consists of one page, stating:
              Please be advised that I consider Mr. Scott's employer has
              violated the following VSSR's:

              [One] 4121:1-5-10(D)(1)(a)

              The employer failed to properly adjust the pullback (pull-
              out) davice [sic] which is a point of operation device.

              [Two] 4121:1-5-10(C)(3)(a)

              The employer demonstrated the operation of the press by
              leaving his foot continuously under the foot pedal guard
              instead of removing it after each press stroke. This is
              tantamount to removing the guard and thus does not prevent
              unintended operation.

              Further, the employer did not specifically instruct Mr. Scott
              to remove his foot from under the guard after each press
              stroke and to place his foot on the foot pedal only after each
              hand was clear of the point of operation.

       {¶ 25} 16. The May 17, 2013 Harkness report consists of seven type-written pages
followed by several exhibits identified as exhibits I through V.
       {¶ 26} Exhibit No. I of the May 17, 2013 Harkness report is the OSHA form 301
completed by LaGanke, as previously noted.
       {¶ 27} Exhibit No. II of the May 17, 2013 Harkness report is an affidavit executed
by relator.   The affidavit is improbably dated May 7, 2007.       The affidavit avers, at
paragraphs 1 through 11:
No. 14AP-894                                                                      13


             [One] Now comes the affiant and states that on or about
             October 19th, 2011, he was hired as a temporary worker at
             the LaGanke and Sons Stamping Company.

             [Two] That he was referred there by Lakeland Employment
             Group of Cleveland.

             [Three] That he was assigned to operate a punch press
             machine.

             [Four] That he was given limited instructions by the foreman
             and owner, Mr. LaGanke.

             [Five] That Mr. LaGanke instructed Mr. Scott while himself
             sitting at the stamping machine.

             [Six] That Mr. LaGanke instructed Mr. Scott on the
             operation of the machine while maintaining his foot on the
             pedal.

             [Seven] That affiant was later sitting at the machine and
             given further limited instructions as to the use of the
             pullback mechanism.

             [Eight] That affiant pullback were never adjusted for his arm
             length or safety by the foreman or Mr. LaGanke. [sic]

             [Nine] That Mr. LaGanke did not instruct him to remove his
             hands from the die area before inserting his foot under the
             foot switch guard and placing his foot on the pedal.

             [Ten] Mr. LaGanke left the machine area and gave no further
             instruction to the affiant.

             [Eleven] That after processing material for approximately 20
             minutes the machines [sic] pullback did not operate so that
             the machine amputated [sic] fingers of affiant's right hand.

      {¶ 28} Exhibit III of the May 17, 2013 Harkness report is the first page of the
October 21, 2011 report of LaGanke as previously noted.
      {¶ 29} Exhibit IV presents four pages from a document captioned "Instruction
Manual, How to ADJUST and MAINTAIN the Possons Device for MAXIMUM SAFETY."
(Emphasis sic.) The cover page of the document indicates that the instruction manual
was issued in June 1968 by "The Positive Safety Mfg. Co." of Eastlake, Ohio.
No. 14AP-894                                                                             14


       {¶ 30} The second page of the instruction manual provides:
                              IMPORTANT

              FINGER CLEARANCE SHOULD BE CHECKED:

              (1) At the beginning of every shift.
              (2) Each time a different operator is placed on the job.
              (3) Each time a different die is installed.

(Emphasis sic.)

       {¶ 31} The third page of the instruction manual offered by relator's expert is
actually page five of the instruction manual. Page five of the instruction manual provides:
                                   Finger Clearance

              Fasten the wrist bands on the hands of the person who is to
              operate the press and connect them to the pull-back cords.
              * * * Unlock the hex nut "A" on the shaft of the cable storage
              reel and, by means of the cable adjusting handle "B", wind
              the cable in (or out) as required to provide only enough cord
              for the operator to comfortably place the part in the die. No
              more reach should be allowed.

(Emphasis sic.)

       {¶ 32} The fourth page of the instruction manual offered by relator's expert is
actually page six of the instruction manual. Page six of the instruction manual provides:
              Finger clearance should be checked with the work in the die.
              With the power off, the operator's hands should be extended
              to each side of the die and the press turned over slowly by
              hand until there is an opening of not less than 3/4" between
              the lower edge of the punch and the top of the die or work,
              whichever is higher. Now, with fingers extended toward the
              die, there must be a distance of at least 3" from finger tips to
              the pinch point.

       {¶ 33} Returning to the body of the seven-page May 17, 2013 Harkness report, at
pages six and seven, the Harkness report offers six conclusions:
              Based on a reasonable degree of engineering certainty, I
              conclude as follows:

              [One] Mr. Scott was seriously injured when he inadvertently
              actuated the foot pedal while his hand was in the die area.
No. 14AP-894                                                                         15


             [Two] The pullbacks were not properly adjusted for Mr.
             Scott, thus violating [Specific Safety Requirement] 4121[:]1-
             5-10(D)(1)(a).

             [Three] The finger clearance for Mr. Scott was improperly
             checked.

             [Four] Not only were the pullbacks not properly adjusted for
             Mr. Scott, they were improperly adjusted for Mr. [LaGanke].
             This is egregious behavior on the part of [LaGanke].

             [Five] The usefulness of the guard over the foot pedal was
             destroyed by Mr. [LaGanke's] demonstrating press operation
             while keeping his fot [sic] always on the foot pedal instead of
             removing it from the pedal and moving it outside of the
             guard after each power stroke. This is tantamount to
             removing the foot pedal guard and is thus a violation of
             [Specific Safety Requirement] 4121:1-5-10(C)(3)(a).

             [Six] These unsafe acts of [LaGanke] and the violations of
             the Specific Safety Requirements caused the incident in
             which Mr. Scott was injured.

      {¶ 34} 17. The record contains a third report from Harkness dated June 4, 2013.
In this three-page type-written report, Harkness begins by stating that the June 4, 2013
report "is to augment and amplify my preliminary report dated May 17, 2013."
      {¶ 35} 18. It is not clear whether LaGanke's counsel was also handed the June 4,
2013 Harkness report just prior to the August 14, 2013 hearing before the SHO. The
June 4, 2013 report is not mentioned by LaGanke's counsel at the hearing. Unlike the
May 17, 2013 report, the June 4, 2013 report addresses relator's claim that LaGanke
Stamping violated former Ohio Adm.Code 4121:1-5-10(C)(3)(a) regarding foot pedals.
      {¶ 36} 19. At the August 14, 2013 hearing, LaGanke was examined by his counsel
on direct examination. Initially, LaGanke was asked to explain what happened with a
Greg Ramsey who LaGanke had endeavored to train on the power press at issue earlier
that day before he trained relator on the same power press. Ultimately, after allowing
Ramsey to do a test run on the machine, LaGanke sent Ramsey back to the temporary
employment agency.
      {¶ 37} 20. LaGanke testified how he trained Ramsey and set him up to run the
press. The following exchange is recorded:
No. 14AP-894                                                                          16


               He came in. I quizzed him a little bit. We went through the
               whole safety procedure. I checked him off on the pullbacks
               by, what I do is I bring the presses down to within three-
               quarters, half an inch, where your fingers can just fit
               underneath, and I check them from the side. I usually
               measure using my own hands over theirs.

               I show them how to put it on. I then take it off. I have them
               put it on, push all the way in, I then put my hand over it and
               make the measurement. From here to here is two and an
               eighth inches (indicating.)

               Q. Wait a minute. "From here to here," for the record what
               do you mean?

               A. What I do is when they have their hand in, I put my hand
               over theirs, I'm on the side here, I'm never on the right side,
               I'm on the left side, that's where the control button is at, and
               I check to make sure that from the tip of this finger to here
               (indicating) --

               Q. The first joint?

               A. -- the first joint is past where their finger is. That gives
               them two inches. He was standing about three inches, but
               actually OSHA, the OSHA regulations say two inches, and
               that's what they come in for. If you go too far over that,
               they're not happy about that because I get complaints
               because the guys' hands get jerked.

               He was -- I then checked him off on that.

(Tr. 37-38.)

       {¶ 38} 21. LaGanke then testified how he endeavored to train and set up relator on
the power press at issue. The following exchange is recorded:
               Q. Okay. And then Mr. [Scott] showed up around ten was it?

               A. * * * And right the first thing I started asking him was his
               experience. I pointed out the presses, I said "Did you run this
               type of press?"
               And he said "Yes."

               I said "Have you used," these are called "Sargents
               pullbacks?"
No. 14AP-894                                                                   17


           By the way, I do have a Bachelor's of mechanical
           engineering, I've been running those presses for over 40
           years, I am a tool and die maker, and I also am a prior officer
           of the military.

           Q. Okay. Now, after you had the discussion about his
           experience, did you actually sit him down at the press and
           check him out on the pullbacks?
           A. Yes. Well, the first thing I did was I went there, just like I
           normally do, and I went through the procedure, which is this
           is the pullbacks, he was wearing this type right here. What
           you do is you show him how to run it.

           I go through this a couple of times with each hand. You put
           your whole hand through the first loop, four fingers through
           the second, it goes just like this. This has got to be to the
           outside. The strap right here is to be tightened around your
           wrist. This is to the outside. (Indicating.) I go through that
           procedure a couple times. I don't sit down. I always stand.
           The whole hand through the first one, four fingers through
           the second, the thumb's got to be in the middle. I do that
           with the left and right.

           Q. So this loop, this metal loop on this strap --

           A. -- is to the overhead, it's an overhead pullback device sold
           by Sargents.

           Q. All right. So when the ram comes down, tell the Hearing
           Officer how it works, the ram coming down.

           A. There's gearing. First off, the ram's chain is attached to
           the front of the press, and as it comes down, the gearing up
           there multiplies the effect of the distance. So as the distance
           comes down, it starts pulling you back, it pulls you back like
           about two, two and a quarter times for the distance that it
           travels. So, in other words, if it goes down one inch, it pulls
           back two and a quarter inches. You have an adjustment with
           a bar you can adjust and that adjusts in and out. You also
           have the chain which you can pull down and that will pull
           back more or less.

           Q. With regard to Mr. Scott, Chuck, did you adjust the
           pullbacks to fit him specifically?

           A. What I did is I had adjusted them for myself before he got
           there, and knowing he was coming I set -- I already set the
           height of the press to about three-quarters of an inch, so
No. 14AP-894                                                                18


           when he got there it was already at pinchpoint. In other
           words, pinchpoint is where it has to have his hand fully out
           at least two inches in order to keep his hands from being
           crushed, and I already had it down to that point. So after
           demonstrating how to put those on, I didn't touch the press,
           it wasn't running.

           I then had him come over and put them on and just to make
           sure he knew how to put them on. He was to demonstrate to
           me he could do it, and at that point he put his hands in like
           this (indicating.)

           Q. Wait a minute. When you say "like this," you have to
           explain it for the record.

           A. He had the wrist pullbacks on, and he was pushing
           forward like this (indicating.) I told him to push harder. He
           pushed harder, as hard as he could, leaning forward, and at
           that point in time I put my hand over his, the one that was
           the nearest, and I checked the distance and it was past the
           joint on my finger, so it was over two inches.

           Q. Did you in any way adjust or in any way demonstrate to
           Mr. Rhoulac Scott anything differently than you did with Mr.
           Ramsey or anybody else?

           A. No, I gave him the same speech about not using powered
           equipment, watch for any bolts that fell off the press, things
           like that.

           Q. Okay. So the next question would be if we have the pullout
           adjustment records for that day, I don't see RS initials on
           here. Why not?

           A. That's because I told him, I said I didn't have my pocket
           protector with me, I had left it -- actually I left it in the
           restroom, I didn't want to say that. I said "I have it in the
           office. I'll be right back. Just wait a minute."

           Q. Okay. When you say your pocket protector, what's the
           significance of that?

           A. The pocket protector has my pen, my scale, which is a six
           inch measurement, light –

           Q. Okay. This --

           A. -- pencils.
No. 14AP-894                                                                           19



               Q. -- pullout adjustment record is part of the press, is this
               actually hanging on the press?

               A. Yes; yes, I have 14 press pullbacks and they're hanging on
               all the presses. They're inspected once a month, and they
               were added on that press after the press was purchased for a
               safety improvement.

               Q. Okay. So with regard to the timing of everything, after you
               got done demonstrating the pullbacks and adjusting them for
               Mr. Scott, how much time elapsed before the incident
               occurred?

               A. Just minutes.

(Tr. 40-44.)

       {¶ 39} 22. During the August 14, 2013 hearing, John Wronski was called to testify
by counsel for LaGanke Stamping. Wronski was employed by LaGanke Stamping as a die
setter operator at the time of the accident at issue. He was running a press some 15 to 20
feet away from relator at the time of the accident. Counsel asked Wronski how LaGanke
set him up on his press the morning of the accident. The following exchange is recorded:
               Q. * * * in the morning when you came in to work that
               machine, were you checked out on the machine?

               A. Yes.

               Q. By whom?

               A. Chuck [LaGanke].

               Q. And would you explain to the Hearing Officer how that is
               done?

               A. Stick your hand -- you know, Chuck brings the machine
               down about three-quarters of an inch from the bottom of the
               die, which is the pinchpoint. Thereafter I will stick my hands
               in like the stirrups, and stretch them out as far as I can, and
               they have to be at least two inches always from that
               pinchpoint, and then he'll bring the press back up and then
               he'll sign his name and then I'll sign my name.

(Tr. 66.)
No. 14AP-894                                                                         20


      {¶ 40} 23. During the August 14, 2013 hearing, Allen Coleman was called to testify
by counsel for LaGanke Stamping. On the date of the injury at issue, Coleman was
employed by LaGanke Stamping as a "setup man." The following exchange is recorded:
             Q. Okay. Did you make a determination or come to some
             kind of a decision as to how it happened?

             A. Yeah, because I seen people put pullbacks on wrong, you
             know, I make sure that they put them on right, because you
             get more room if you don't hook it up right. You're supposed
             to wear it like this (indicating) so when the cable is on and
             your hands are out, and you make sure you got distance up
             here where before, you know, when it is coming down that it
             don't cut you, you know.

             Q. Okay. So "like this," you've got one loop around your wrist
             and the other loop around all four fingers?

             A. Yeah.

             Q. But not the thumb?

             A. Yeah.

             Q. All right. And what did you determine as far as the cause
             of the accident?

             A. Well, he had to have it on backwards, you know, wrong, it
             would give you all kind of room to get up in the press like
             that, you know.

             Q. Okay. And if he wore it -- now, what you have is you've got
             this one strap around your wrist and the other strap around
             your left thumb, but not around the fingers?

             A. Right, so you got room, it give [sic] you extra room to get
             up in the press and, you know.

             Q. Now, if you wore the strap like that, the wrong way, would
             that jerk your fingers at an angle?

             A. Yeah.

             Q. Okay.

             A. It will pull you back, because this is -- like snatch you up
             like that, but it's not right. You need the whole pullback, you
No. 14AP-894                                                                      21


               got to have it on like this so that it snatches you back, yeah,
               not to the sideways.

               Q. If it snatches you to the side, it actually puts part of your
               fingers into the pinchpoint?

               A. Puts you up in there.

               Q. Now, what we just talked about isn't anything that you
               saw, but this is what you surmised?

               A. Yes, because we checked the machine and did all kind of
               stuff to try to determine, because the pullbacks was [sic]
               working and everything was setting right, I couldn’t get it in.

               Q. All right. So --

               A. And so when I showed him, you know, that there's a
               different way, if you put the strap on wrong you've got more
               room and, you know, there it was.

               Q. Okay. So you, after the incident, you tried to get the
               machine to reproduce the accident?

               A. Yep.

               Q. And you couldn't do it?

               A. Charlie couldn't figure it out, and I come down and
               worked with him and I told him I've seen -- you know, I've
               been working on them and accidentally put it on wrong, but I
               changed it around, you know, I'm not going to make a hit
               with my hand up in there, I put the part in and take my hand
               out and hit the pedal.

(Tr. 79-81.)

       {¶ 41} 24. Following the August 14, 2013 hearing, the SHO issued an order
denying relator's VSSR application. The SHO's order explains:
               On 10/19/2011 the Injured Worker was employed by
               Lakeland Employment Group of Cleveland, a temporary
               employment agency. On that date he was sent to LaGanke
               and Sons Stamping Co. to work as a press operator. The
               Injured Worker was assigned to operate an electric full
               revolution power press. Mr. LaGanke, the owner of the
               stamping company, indicated that the press was purchased
               by the company in the 1950s. The press was equipped with
No. 14AP-894                                                                 22


           pull back guards. Mr. LaGanke instructed the Injured
           Worker on how to wear the guards and how to operate the
           press. A few minutes after the Injured Worker began
           operating the press he suffered an amputation of a portion of
           three fingers of his right hand.

           The parties are in agreement that any claim for a violation of
           a specific safety requirement should be pursued against
           LaGanke and Sons. This is because the stamping company
           controlled the manner and means of performing the work to
           which the Injured Worker was assigned.

           ***

           The Injured Worker has cited Code Section 4121:1-5-
           10(D)(1)(a) and 4121:1-5-10(C)(3)(a). These Code Sections
           became effective on 08/01/77. They, therefore, are not
           applicable to an injury caused by a machine that was put into
           service in the 1950s. The applicable safety requirements are
           those contained in Bulletin No. 203 which became effective
           on 01/01/1951.

           Code Section 4121:1-5-10(D)(1)(a) requires that an employer
           provide and require the usage of point of operation guards or
           properly applied and adjusted point of operation devices for
           every operation performed on a mechanical power press. The
           Injured Worker alleges that the pull back guards on the press
           he operated were not properly adjusted thereby causing his
           injury. The requirement concerning pull back guards in
           Bulletin No. 203, Chapter VII, is that every press in use shall
           be constructed or provided with effective safety devices so
           that the fingers or hands of an operator are prevented from
           entering the danger zone at the time of operation. Pull
           guards are to be designed and adjusted so that no part of the
           operator's hand may remain between the dies during more
           than one-half of the down stroke. Mr. LaGanke testified that
           when he trained the Injured Worker on how to use the press
           he made sure that the pull backs were adjusted so that the
           Injured Worker's fingers were at least two inches from the
           danger zone at the time of the down stroke. Mr. LaGanke
           stated that he taught the Injured Worker how to wear the
           wrist guards properly and that he measured the Injured
           Worker's reach to verify that at least two inches clearance
           was present. The Hearing Officer finds, based on this
           testimony, that the guards were present and properly
           adjusted at the time the Injured Worker began work on the
           machine. There is insufficient evidence to establish that they
           were not properly adjusted when the Injured Worker was
No. 14AP-894                                                                        23


             injured only a few minutes after the training session. The
             Hearing Officer, therefore, finds that there has not been a
             showing of a violation of Chapter VII of Bulletin No. 23 [sic]
             with regard to this issue.

             Section 1-5-10(C)(3)(a) requires that all foot pedals on
             mechanical presses be protected to prevent unintended
             operation of the press by falling or moving objects or by a
             person accidentally stepping on the pedal. This provision
             became effective on 08/01/1977. It, therefore, is also
             inapplicable to the Injured Worker's injury as the press in
             question was put into service in the 1950s. The applicable
             requirement would be set forth in Bulletin No. 203, Chapter
             VII which became effective on 01/01/1951. Bulletin No. 203
             does not contain any safety requirement regarding foot
             pedals on mechanical presses. It only addresses treadles on
             hammers. The Hearing Officer, therefore, finds that there
             has been no showing of a violation of the applicable safety
             requirement with regard to the foot pedal. The Hearing
             Officer also finds, based on the testimony of Mr. LaGanke,
             Mr. Wronski and Mr. Coleman that the foot pedal in
             question was guarded and could not be operated accidentally
             by a falling or moving object or by a person accidentally
             stepping on the pedal.

             The Hearing Officer finds that there has been no showing of
             a violation of a specific safety requirement. The application is
             denied.

      {¶ 42} 25. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-20(E).
In his memorandum in support of rehearing, relator appears to concede that the relevant
administrative rule at issue is found at Chapter VII of Bulletin No. 203, which was
published by the Industrial Commission of Ohio, effective January 1, 1951.
      {¶ 43} 26. On December 12, 2013, another SHO mailed an order denying relator's
request for rehearing. The order explained:
             It is hereby ordered that the Motion for Rehearing filed
             10/28/2013 be denied. The Injured Worker has not
             submitted any new and relevant evidence nor shown that the
             order mailed 10/04/2013 was based on an obvious mistake
             of fact or on a clear mistake of law.
No. 14AP-894                                                                            24


Conclusions of Law:
      {¶ 44} Several issues are presented:      (1) whether the commission abused its
discretion by allegedly failing to consider the reports of relator's expert which are not
mentioned nor discussed in the SHO's order of August 14, 2013; (2) whether the
commission was precluded from finding compliance with the safety rule when LaGanke
used his own hand as a measuring tool to determine the appropriate finger clearance at
the press; (3) whether it must be found that LaGanke adjusted the pullback guards for
himself and not the relator; and (4) whether LaGanke's alleged failure to fully comply with
the safety manual appended to the May 17, 2013 Harkness report precluded the
commission from finding that LaGanke had properly set up relator on the press.
                                   The Safety Rules
      {¶ 45} Chapter 4123:1-5 of the Ohio Adm.Code currently provides rules for
workshop and factory safety.
      {¶ 46} Ohio Adm.Code 4123:1-5-01 is captioned "Scope and definitions."
      {¶ 47} Ohio Adm.Code 4123:1-5-01(A) captioned "Scope," provides:
              Installations or constructions built or contracted for prior to
              the effective date (shown at the end of each rule) of any
              requirement shall be deemed to comply with the provisions
              of these requirements if such installations or constructions
              comply either with the provisions of these requirements [or]
              with the provisions of any applicable specific requirement
              which was in effect at the time contracted for or built.

      {¶ 48} Ohio Adm.Code 4123:1-5-10 is captioned "Mechanical power presses."
      {¶ 49} Ohio Adm.Code 4123:1-5-10(C) is captioned "Mechanical power press
guarding."
      {¶ 50} Thereunder, Ohio Adm.Code 4123:1-5-10(C)(3) currently provides:
              Foot pedals (treadle).

              (a) Pedal mechanism.

              The pedal mechanism shall be protected to prevent
              unintended operation from falling or moving objects or by
              accidental stepping onto the pedal.

      {¶ 51} Ohio Adm.Code 4123:1-5-10(D) is captioned "Safeguarding the point of
operation."
No. 14AP-894                                                                                25


        {¶ 52} Thereunder, Ohio Adm.Code 4123:1-5-10(D)(1) is captioned "General
requirements."
        {¶ 53} Thereunder, Ohio Adm.Code 4123:1-5-10(D)(1)(a) currently provides:
              It shall be the responsibility of the employer to provide and
              require the usage of "point of operation guards" or properly
              applied and adjusted "point of operation devices" on every
              operation performed on a mechanical press.

        {¶ 54} It can be observed, that, effective November 1, 2003, Ohio Adm.Code
4123:1-5-10 replaced Ohio Adm.Code 4121:1-5-10.
        {¶ 55} It can be further observed that the current versions of Ohio Adm.Code
4123:1-5-10(C)(3)(a) and (D)(1)(a) read the same as the versions of Ohio Adm.Code
4121:1-5-10(C)(3)(a) and (D)(1)(a) that were in effect immediately prior to November 1,
2003.
        {¶ 56} It can be further observed that, in support of his VSSR application, relator
cited to former Ohio Adm.Code 4121:1-5-10(C)(3)(a) and 4121:1-5-10(D)(1)(a) as the
specific safety rules claimed to have been violated.
        {¶ 57} Notwithstanding relator's citation to specific safety rules found under
former Ohio Adm.Code 4121:1-5-10, the SHO found that the applicable safety
requirements are found in Bulletin No. 203 which became effective January 1, 1951. A
copy of the relevant portions of Bulletin No. 203 is appended to the brief of respondent.
        {¶ 58} Section 47 of Bulletin No. 203 is captioned "Power Presses and Drop
Hammers—Guarding." Thereunder, Section 47 provides:
              Except where the operator uses both hands out of the danger
              zone to hold the stock while the operation is performed,
              every press in use shall be so constructed or provided with
              effective safety devices so that the hands or fingers of the
              operator are prevented from entering the danger zone at the
              time of operation.

              The following methods of guarding are acceptable:

              1. Manual feed presses, by:

              ***

              (e) Pull guard or two-hand tripping devices (Secs. 52 and 54)
No. 14AP-894                                                                           26


       {¶ 59} Section 52 is captioned "Pull Guard."

       {¶ 60} Thereunder, Section 52 of Bulletin No. 203 provides:

              a. A pull guard is a device operated by the ram and attached
              below the Pittman screw so that movement of the ram will
              pull the operator's hand or hands from the area between the
              punch and the die.

              b. Pull guards are acceptable only where ram stroke is three
              (3) inches or more.

       {¶ 61} Section 57 of Bulletin No. 203 provides:

              If the press is safeguarded by a movable guard or by a two-
              hand tripping device, or by a pull guard, the guard or device
              shall be so designed and adjusted that no part of the
              operator's hand may remain between the dies during more
              than one-half (1/2) of the down stroke.

                                       First Issue
       {¶ 62} In denying the VSSR application, the SHO's order of August 14, 2013 fails to
mention or discuss the reports of relator's expert, Richard Harkness. However, the order
indicates substantial reliance on the hearing testimony of LaGanke. Reliance is also
placed on the hearing testimony of Wronski and Coleman.
       {¶ 63} It is well settled that the commission must specifically state evidence on
which it relies and briefly explain the reasoning for its decision. State ex rel. Noll v.
Indus. Comm., 57 Ohio St.3d 203 (1991), syllabus.          The commission need not cite
evidence it has considered and rejected, nor must it explain why it finds certain evidence
to be unpersuasive. State ex rel. DeMint v. Indus. Comm., 49 Ohio St.3d 19, 20 (1990)
citing State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 (1983).
       {¶ 64} Because the commission does not have to list the evidence considered, the
presumption of regularity that attaches to commission proceedings, State ex rel. Brady v.
Indus. Comm., 28 Ohio St.3d 241 (1990), gives rise to a second presumption—that the
commission indeed considered all the evidence before it. State ex rel. Lovell v. Indus.
Comm., 74 Ohio St.3d 250, 252 (1996). That presumption, however, is not irrebutable.
Id.
No. 14AP-894                                                                                 27


       {¶ 65} Here, in the SHO's order of August 14, 2013, the SHO states reliance on the
hearing testimony of LaGanke, Wronski, and Coleman. It does not state that the reports
of relator's expert were considered, nor does it explain why the expert's reports were
found to be unpersuasive. Nor does well-settled law require the commission to do so.
       {¶ 66} Citing State ex rel. Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-
Ohio-3915, relator endeavors to rebut the presumption of regularity.                Relator also
misquotes from the Scouler case. According to relator's brief, the Scouler court stated:
"[I]f the commission cites to evidence before it, but omits a particular document from that
recitation, then reviewing courts will presume that the commission overlooked the
document." (Relator's Brief, 13.) Clearly, the Scouler court did not make the statement
relator attributes to it here. Nor does relator correctly state well-settled law.
       {¶ 67} Relator's reliance upon Scouler is misplaced. Scouler does not compel
relator's conclusion that the commission failed to consider the reports of relator's expert.
       {¶ 68} In Scouler, the commission denied temporary total disability ("TTD")
compensation to Dennis C. Scouler after January 27, 2005 on grounds that the medical
evidence of his disability was lacking. In September 2005, Scouler applied for TTD
compensation retroactive to January 27, 2005. In support, Scouler submitted several C-
84s from his treating physician, Dr. Paul R. Gutheil, and an October 7, 2005
questionnaire completed by Dr. Gutheil. On it, Dr. Gutheil responded yes to two queries:
                At the time of your evaluation of Mr. Scouler on February 4,
                2005, did you feel that he still remained disabled from his
                original position of employment as a fork lift operator?

                Based on a reasonable medical probability, do you feel that
                his work restrictions related to this injury have been in effect
                limiting him in his employment capabilities continuously for
                the period of October 21, 2004 through the present time?

Id. at ¶ 5-6.

       {¶ 69} In denying Scouler's request for TTD compensation, an SHO found an
"insufficiency of the medical evidence." Id. at ¶ 8. Acknowledging a C-84 from Dr.
Gutheil dated October 4, 2005, covering the period from September 20 to November 18,
2005, the SHO concluded: "[T]here is no C-84 to cover the period of time from
01/27/2005 to 09/19/2005." Id.
No. 14AP-894                                                                            28


       {¶ 70} In granting the writ, the Scouler court was concerned about the
commission's lack of reference to Dr. Gutheil's questionnaire.
       {¶ 71} Acknowledging that "[u]nder most circumstances, such an omission would
be inconsequential," Id. at ¶ 15, the Scouler court nevertheless explains:
                  When the commission, for whatever reason, elects to list all
                  evidence before it, but omits a particular document from that
                  recitation, we will presume that the document was
                  overlooked. State ex rel. Fultz v. Indus. Comm. (1994), 69
                  Ohio St.3d 327, 329, 1994 Ohio 426, 631 N.E.2d 1057. If that
                  document could influence the outcome of the matter in
                  question, we will return the matter to the commission for
                  further consideration. Id.

                  The order now at issue does not contain an actual itemized
                  list of the evidence as Fultz did. Nevertheless, the order
                  states, "All relevant evidence was reviewed and considered."
                  In addition, the order did discuss all of the evidence
                  presented except for Dr. Gutheil's questionnaire. We
                  consider this to be significant, because the tenor of the
                  commission's order is that there is no evidence that certifies
                  disability before September 20, 2005. But Dr. Gutheil's
                  responses do allege disability prior to that date, so it is
                  important that the commission also consider that document.

Id. at ¶ 16-17.

       {¶ 72} Again, relator's reliance on Scouler is misplaced.
       {¶ 73} Other than the fact that the reports of relator's expert are not mentioned in
the SHO's order of August 14, 2013—a fact to be expected when the reports are not found
to be persuasive—there is no other observation to be made to suggest that the reports
were overlooked or not considered. There is nothing in the tenor of the order to suggest
that the reports of relator's expert were not considered.
       {¶ 74} Relator also cites to State ex rel. Donohoe v. Indus. Comm., 10th Dist. No.
08AP-201, 2010-Ohio-1317, in his attempt to rebut the presumption of regularity.
Relator's reliance upon Donohoe is misplaced.
       {¶ 75} Patrick Donohoe ("decedent") died from injuries sustained in a workplace
accident. His injuries resulted from his fall at a construction project. Decedent's widow
filed an application for a VSSR award. There was a factual dispute as to the location from
which decedent fell and the distance he fell. There were no eyewitnesses to the fall.
No. 14AP-894                                                                         29


        {¶ 76} In an ambiguous order, the commission, through its SHO, denied the VSSR
application. Consequently, decedent's widow filed a mandamus action in this court. This
court granted the writ. An appeal as of right was then taken to the Supreme Court of
Ohio.
        {¶ 77} As this court noted in its decision, the parties had submitted competing
expert reports reconstructing the circumstances of decedent's fall. Id. at ¶ 7.
        {¶ 78} Following a June 19, 2007 hearing, an SHO issued an order denying the
VSSR. In the order, the SHO emphasized that no one saw the decedent fall and concluded
that the decedent's widow "can not prove" a VSSR violation. Id. at ¶ 11. As indicated by
this court in its decision, the commission's order omitted any reference to the various
expert reports. Id. at ¶ 23.
        {¶ 79} On the appeal to the Supreme Court of Ohio, this court's judgment was
affirmed. State ex rel. Donohoe v. Indus. Comm., 130 Ohio St.3d 390, 2011-Ohio-5798.
The Supreme Court explains:
              The difficulty in this case, as the court of appeals accurately
              observed, is that the SHO's order—from an evidentiary
              standpoint—can be interpreted in different ways. Id. at ¶ 21.
              The order contained the boilerplate "all evidence was
              reviewed and considered," leading the appellate magistrate
              to assume that the SHO had indeed evaluated the evidence
              and was not persuaded by the widow's version of events. Id.
              at ¶ 22, 45. The court of appeals acknowledged that
              language, but found that other language in the order cast
              doubt on the true extent of evidentiary review. Id. at ¶ 26.

              The court based its conclusion on two things: (1) the SHO's
              preoccupation with the lack of eyewitnesses to the fall and
              (2) her declaration that the widow "can not" prove her case.
              To the court of appeals, the focus on eyewitness testimony
              could be explained only by the SHO's mistaken belief that
              such evidence was legally required to prove a VSSR. Id. at
              ¶ 24. Only the belief in that per se rule, the court continued,
              would justify the SHO's conclusion that the widow "can
              not"—as opposed to "did not"—carry her burden of proof. Id.
              If the SHO had so believed, then she would have had no
              reason to review the rest of the evidence. Id. at ¶ 25.

              An order that can engender two viable, yet irreconcilable,
              interpretations is too ambiguous to withstand scrutiny, and
              one that is potentially based on an erroneous belief that a
No. 14AP-894                                                                             30


                  VSSR cannot be proved in the absence of eyewitnesses is
                  clearly an abuse of discretion. See, e.g. State ex rel. Supreme
                  Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002
                  Ohio 7089, 781 N.E.2d 170, ¶ 69. (The court "has never
                  required direct evidence of a VSSR. To the contrary, in
                  determining the merits of a VSSR claim, the commission or
                  its SHO * * * may draw reasonable inferences and rely on his
                  or her own common sense in evaluating the evidence"). The
                  court of appeals was therefore correct in returning the cause
                  to the commission for clarification and consideration of all
                  the evidence if the SHO did not do so previously.

Id. at ¶ 17-19.

       {¶ 80} The only resemblance between the Donohoe case and the instant one is that
the commission's order at issue omits any reference to the report of an expert. That, in
itself, is not enough to show an abuse of discretion.          As noted, the commission is
ordinarily not required to cite evidence it has considered and rejected, nor must it explain
why it finds certain evidence to be unpersuasive.
       {¶ 81} In Donohoe, the order at issue suggested that the commission erroneously
believed that a VSSR cannot be proven in the absence of eyewitnesses. Here, relator has
failed to point out how the absence of reference to the reports of relator's expert suggests
in any way that the commission operated under an erroneous belief in rendering its
decision. Clearly, relator's reliance on Donohoe is misplaced.
       {¶ 82} The magistrate concludes that the commission is entitled to the
presumption that it considered the reports of relator's expert.
                                         Second Issue
       {¶ 83} As noted earlier, LaGanke testified at the hearing that he used his finger as
the measuring device to determine the appropriate finger clearance.
       {¶ 84} As earlier noted, regarding his training of Greg Ramsey on the press,
LaGanke stated:
                  I have them put it on, push all the way in, I then put my hand
                  over it and make the measurement. From here to here is two
                  and an eighth inches (indicating.)

       {¶ 85} As earlier noted, regarding his training of relator on the press at issue,
LaGanke stated:
No. 14AP-894                                                                            31


              A. He had the wrist pullbacks on, and he was pushing
              forward like this (indicating.) I told him to push harder. He
              pushed harder, as hard as he could, leaning forward, and at
              that point in time I put my hand over his, the one that was
              the nearest, and I checked the distance and it was past the
              joint on my finger, so it was over two inches.

              According to relator:
              Common sense dictates that an employer's hand is not a
              proper measuring tool for determining an employee's reach.
              The employer should actually use a measuring tool for
              measuring distances, as measurements must be exact to
              prevent serious injury.

(Relator's Brief, 15.)

       {¶ 86} The magistrate disagrees with relator's argument.      As he testified on
questioning from the hearing officer, LaGanke had previously measured his own finger:
              THE HEARING OFFICER:                Mr. Laganke, have you
              measured your own hand?

              MR. LAGANKE: Yes.

              THE HEARING OFFICER: That's how you know?

              MR. LAGANKE: That's how I know, yes.

(Tr. 64.)

       {¶ 87} While the SHO did not directly address in the order whether or not it was
improper for LaGanke to use his own finger as a measuring device, it can be presumed
that the SHO did not find a problem with this.          Moreover, relator points to no
administrative rule prohibiting such. The magistrate disagrees with relator's assertion
that common sense dictates a different finding.
                                         Third Issue
       {¶ 88} The third issue is whether it can be found that LaGanke adjusted the
pullback guards for himself and not the claimant.
       {¶ 89} In his brief, relator asserts:
              At the SHO hearing, the Employer's owner - LaGanke -
              testified that he only adjusted the pullback guards for
              himself during his training session with Scott. LaGanke also
No. 14AP-894                                                                            32


                testified that he properly determined the adjustment length
                for the pullback guards by using his own hand as a
                measuring tool. According to LaGanke, it was not necessary
                for him to actually adjust the crank mechanism of the
                pullback to fit Scott's arm length.

(Relator's Brief, 15.)

          {¶ 90} The relevant testimony from LaGanke regarding relator's assertion occurred
during the following exchange, as previously noted:
                Q. With regard to Mr. Scott, Chuck, did you adjust the
                pullbacks to fit him specifically?

                A. What I did is I had adjusted them for myself before he got
                there, and knowing he was coming I set -- I already set the
                height of the press to about three-quarters of an inch, so
                when he got there it was already at pinchpoint. In other
                words, pinchpoint is where it has to have his hand fully out
                at least two inches in order to keep his hands from being
                crushed, and I already had it down to that point.

(Tr. 42-43.)

          {¶ 91} LaGanke explained in his testimony why it was not necessary for him to
adjust the pullbacks or, as relator puts it here, "to actually adjust the crank mechanism."
(Relator's Brief, 15.) It was well within the commission's fact finding discretion to find
that LaGanke did not fail to properly set up relator at the press.
                                       Fourth Issue
          {¶ 92} The fourth issue is whether LaGanke's alleged failure to fully comply with
the safety manual appended to the May 17, 2013 Harkness report precluded the
commission from finding that LaGanke had properly set up relator on the press.\
          {¶ 93} As earlier noted, appended to the Harkness report is a safety manual
published by The Positive Safety Mfg. Co. in June 1968. The manual provides a procedure
for finger clearance. It provides for "an opening of not less than 3/4 [inches] between the
lower edge of the punch and the top of the die or work, whichever is higher." It also
provides "there must be a distance of at least 3 [inches] from finger tips to the pinch
point."
          {¶ 94} Relator argues that LaGanke failed to follow the procedure for finger
clearance as provided in the safety manual.
No. 14AP-894                                                                                33


       {¶ 95} As respondent insightfully points out here, Bulletin No. 203, Section 47
does not adopt the finger clearance procedure of any safety manual, including the one
provided by relator's expert. Thus, that LaGanke used two inches as the minimum
requirement is not necessarily a violation of Bulletin No. 203, Section 47.
                                        Conclusion
       {¶ 96} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.




                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                              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).
