[Cite as State ex rel. 31, Inc. v. Indus. Comm., 2016-Ohio-3526.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State of Ohio ex rel. 31, Inc.,                      :

                 Relator,                                :

v.                                                       :             No. 14AP-925

The Industrial Commission of Ohio                        :          (REGULAR CALENDAR)
and Duane Ashworth,
                                                         :
                 Respondents.
                                                         :



                                             D E C I S I O N

                                       Rendered on June 21, 2016


                 On brief: Black, McCuskey, Souers & Arbaugh, and
                 Brian R. Mertes, for relator.

                 On brief: Michael DeWine, Attorney General, Andrew J.
                 Alatis and Stephen D. Plymale, for respondent Industrial
                 Commission of Ohio.

                 On brief: Nicholas E. Phillips, for respondent Duane
                 Ashworth.


                                    IN MANDMAUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

KLATT, J.
        {¶ 1} Relator, 31, Inc., commenced this original action in mandamus seeking an
order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate
its order granting respondent, Duane Ashworth's ("claimant"), application for an
additional award for violation of a specific safety requirement ("VSSR"), and to enter an
order denying said application.
No. 14AP-925                                                                               2

       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that: (1)
the commission did not abuse its discretion in granting a rehearing; and (2) the
commission did not abuse its discretion in finding that a VSSR award is appropriately
based on relator's failure to provide a means to protect employees exposed to contact with
nip points. Therefore, the magistrate has recommended that we deny relator's request for
a writ of mandamus.
       {¶ 3} Relator has filed objections to the magistrate's decision.          In its first
objection, relator contends that the commission abused its discretion when it granted the
claimant's motion for rehearing because there was no mistake of law in the original
hearing officer's decision. We disagree.
       {¶ 4} As noted by the magistrate, Ohio Adm.Code 4123:1-5-01(A) provides that:
              The purpose of this chapter of the Administrative Code is to
              provide reasonable safety for life, limb, and health of
              employees. In cases of practical difficulty or unnecessary
              hardship, the Ohio bureau of workers' compensation may
              grant exceptions from the literal requirements of the rules of
              this chapter to permit the use of other devices or methods
              when, in the opinion of the bureau, the equivalent protection
              is thereby secured.

       {¶ 5} Under this code provision, in cases where an employer demonstrates
practical difficulty or unnecessary hardship, the Ohio Bureau of Workers' Compensation
("BWC") may grant exceptions to the literal requirements of the rules if equivalent
protection is provided. Here, however, the BWC did not grant relator an exception to the
guarding requirements set forth in Ohio Adm.Code 4123:1-5-11(D)(10)(a). Therefore, the
staff hearing officer's May 14, 2013 order contains a clear mistake of law because it applies
an exception to the guarding requirements contained in Ohio Adm.Code 4123:1-5-
11(D)(10)(a) even though the BWC did not grant an exception prior to the claimant's
injury. We agree with the magistrate that an exception cannot apply until the BWC has
granted it. This conclusion is supported by State of Ohio ex rel. James W. Smith Lumber
Co., Inc. v. Indus. Comm., 10th Dist. No. 81AP-178 (Sept. 15, 1981) (employer needs BWC
approval of equivalent protection in advance of an industrial injury to claim an exception
No. 14AP-925                                                                             3

to the literal requirements of a specific safety rule). For these reasons, we overrule
relator's first objection.
       {¶ 6} In its second objection, relator argues that the magistrate erred when he
relied on State ex rel. Hartco, Inc. Custom Coated Prods. v. Indus. Comm., 38 Ohio St.3d
181 (1981) in finding that the commission did not abuse its discretion in finding that
relator violated Ohio Adm.Code 4123:1-5-11(D)(10)(a). In essence, relator argues that
Ohio Adm.Code 4123:1-5-11(D)(10)(a) does not apply to the calendar machine at issue in
this case because Ohio Adm.Code Chapter 4123:1-13 specifically addresses calendars.
Again, we disagree.
       {¶ 7} As noted by the magistrate, the Hartco court analyzed and interpreted the
very same provisions of the Ohio Adm.Code at issue here. Hartco held that former "Ohio
Adm.Code Chapter 4121:1-13 [now 4123:1-13] must be read as supplementing, not
supplanting, former Ohio Adm.Code 4121:1-5-11(D)(10)(a) [now 4123:1-5-11(D)(10)(a)]."
Therefore, Hartco specifically rejected the argument advanced by relator. The fact that
Hartco involved a reroll machine rather than a calendar is of no significance. Because the
magistrate did not err when he relied upon Hartco, we overrule relator's second
objection.
       {¶ 8} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
                                         Objections overruled; writ of mandamus denied.

                             BROWN and BRUNNER, JJ., concur.
No. 14AP-925                                                                        4

                                       APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT

The State of Ohio ex rel. 31, Inc.,          :

              Relator,                       :

v.                                           :                  No. 14AP-925

The Industrial Commission of Ohio            :               (REGULAR CALENDAR)
and Duane Ashworth,
                                             :
              Respondents.
                                             :


                           MAGISTRATE'S DECISION

                                 Rendered on March 8, 2016


              Black, McCuskey, Souers & Arbaugh, and Brian R. Mertes,
              for relator.

              Michael DeWine, Attorney General, and Andrew J. Alatis,
              for respondent Industrial Commission of Ohio.

              Nicholas E. Phillips, for respondent Duane Ashworth.


                                      IN MANDAMUS

       {¶ 9} In this original action, relator, 31, Inc., requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order
granting to respondent, Duane Ashworth ("claimant"), his application for an additional
award for violation of a specific safety requirement ("VSSR"), and to enter an order
denying the application.
No. 14AP-925                                                                            5

Findings of Fact:
       {¶ 10} 1. On December 20, 2011, claimant severely injured his right upper
extremity while working at a machine known as a calender. On that date, claimant's right
arm was pulled between the rollers of the calender.
       {¶ 11} 2. The industrial claim (No. 11-864624) was allowed.
       {¶ 12} 3. On July 2, 2012, claimant filed an application for a VSSR award. In his
application, claimant alleged that relator had violated Ohio Adm.Code 4123:1-5-
11(D)(10)(a) regarding nip points and that the violation was the cause of his injury.
       {¶ 13} 4. The VSSR application prompted an investigation by the Safety Violations
Investigation Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
       {¶ 14} 5. On September 20, 2012, an SVIU investigator conducted an on-site
investigation at the workshop or factory where claimant was injured. The president of 31,
Inc., Paul Clark, and relator's counsel were present during the on-site visit.
       {¶ 15} 6. On October 9, 2012, the SVIU investigator issued a report of
investigation. Under the heading "Discussion," seven enumerated paragraphs set forth
the investigator's findings during the on-site investigation:
              [Two] During the on-site investigation Investigator Riley
              viewed and photographed the electric Farrel® three roll
              calender (model Three Roll serial number 9179), involved in
              Mr. Ashworth's injury, according to the employer * * *. The
              calender rolls large chunks of rubber into thin gage rubber.
              The calender was purchased in 1999, has not been moved
              from its location since the purchase. Per the employer, the
              calender has not been modified since the purchase.

              [Three] Mr. Clark advised that the claimant, Mr. Ashworth
              was at the back of the calender and was responsible for
              removing the rubber from the bottom roll of three rolls. Mr.
              Ashworth missed the rubber, tried to retrieve the rubber, and
              his hand became caught between the bottom and middle
              rolls * * *. Mr. Clark further advised instead of attempting to
              retrieve the rubber, Mr. Ashworth should have let the rubber
              continue around the roll and alerted the front end person to
              cut the rubber again or he should have activated the
              emergency pull cord to stop the rolls * * *.

              [Four] The rolls are approximately sixty inches (60") in
              length and approximately twenty inches (20") to twenty-two
              inches (22") in diameter, Mr. Clark explained. The rolls are
No. 14AP-925                                                                    6

             power driven in-running rolls and the bottom roll is not
             heated * * *. At the time of the injury there was
             approximately three inches (3") between the middle roll and
             bottom roll. Mr. Clark further explained both the front and
             the back of the calender are equipped with emergency pull
             cords located on each side of the calender * * *. When
             activated the emergency pull cords stop the rolls from
             rolling. Mr. Clark stated the emergency pull cords were
             within easy reach of Mr. Ashworth at the time of the injury
             and were working correctly as he used one to stop the
             calender. The emergency pull cords are inspected daily by
             the shift supervisor. There was not any guarding in the area
             where the injury occurred at the time of the injury * * *.

             [Five] Mr. Ashworth was a mill operator responsible for pre-
             forming uncured rubber, mixing rubber, and getting rubber
             ready for further processing, according to the employer * * *.
             Mr. Ashworth was provided with on-the-job training which
             typically lasts ninety days * * *. Per the employer, at the time
             of the injury Mr. Ashworth was not required to wear any
             personal protective equipment * * *.

             [Six] Listed witnesses Cliff Mayse, George Helter, and
             Cheavis Webb were interviewed during the on-site
             investigation. Affidavits were obtained from all three
             workers at that time * * *.

             [Seven] Investigator Riley interviewed claimant, Duane T.
             Ashworth September 19, 2012 via telephone. An affidavit was
             obtained from Mr. Ashworth on September 27, 2012 * * *.
             Mr. Ashworth stated he was at the back of the calender
             machine and attempted to pull the rubber off of the bottom
             roll. The rubber wrapped around three of his fingers, and his
             right hand was pulled into the roll * * *. Ashworth stated,
             when his injury occurred there were not any guards to
             prevent his hand from entering the rolls * * *. His hand
             became caught between the bottom and middle power driven
             in-running rolls * * *.

      {¶ 16} 7. Appended to the SVIU report is claimant's affidavit executed
September 27, 2012. In the affidavit, claimant avers:
             [Two] I began working at 31 Inc. August 11, 2010 as a mill
             operator (I also worked at the company for a couple of years
             prior to this and left, I do not remember those dates). At the
             time of my injury I was a calender operator responsible for
No. 14AP-925                                                                7

           putting rubber on the machine and operating the calender
           machine.

           [Three] I was provided with some on the job training from a
           supervisor. I basically trained myself by watching others. I
           understood how to perform my job duties at the time of my
           injury.
           [Four] I was not required to wear any personal protective
           equipment at the time of my injury. I was not wearing any
           personal protective equipment at the time of my injury.

           [Five] My injury involved a Calender machine; it is powered
           by electric. I was running the back side of the machine and
           George Helzer [sic] (Supervisor) was pushing material
           (rubber) through the front side of the machine. The rubber
           came on the bottom of the roll, I attempted to pull the rubber
           off of the roll, the rubber wrapped around three of my
           fingers, and my right hand was pulled into the roll. My hand
           was pulled into the machine approximately eight inches.

           [Six] There were three rolls on top of the other. The top two
           rolls open up to allow the rubber to run through. My hand
           became caught between the bottom roll and the middle roll.
           The bottom roll was approximately three and one half feet
           long and approximately two to three feet in diameter. The
           middle and top rolls were approximately this size. The
           bottom roll and middle roll were power driven in running
           rolls.

           [Seven] There was not any guarding for the area where my
           injury occurred. This is an area where employees stand and
           remove the rubber. There was not anything to prevent my
           hand from entering the rolls.

           [Eight] There was an emergency stop cable in the area where
           my injury occurred. I could reach this when my injury
           occurred and I used this cable. When I pulled the cable the
           machine stopped.

           [Nine] I was caught in the rolls longer because Mr. Heltzer
           [sic] did not pull the plates out of the floor to lower the
           bottom roll to release my hand. I was eventually released
           after the roll was lowered.

           [Ten] At the time of my injury we were running a wig wag
           job. There was a water tank located against the back of the
           calender. This left me an approximately two foot area to
No. 14AP-925                                                                         8

             work in; there was two feet between the tank and the
             machine. The chain guard for the tank was against the
             calender. This did not leave me much room to work. Almost
             every job on this machine involves us pulling off the rubber,
             but on this job we are closer to the rolls.

      {¶ 17} 8. Appended to the SVIU report is the affidavit of George Helter executed
September 20, 2012:
             [Two] I began working at 31 Inc. in 1995 as a laborer. At the
             time of Mr. Ashworth's injury I was a supervisor.

             [Three] Mr. Ashworth was not required to wear any personal
             protective equipment at the time of his injury.

             [Four] Mr. Ashworth's injury involved the calender machine.
             I was on the front side of the calender. I had cut the rubber.
             Mr. Ashworth was on the back side of the calender and I am
             not sure what happened. I heard Mr. Ashworth say shut the
             machine off. I activated the two emergency pull cords located
             on each side of the calender on the front side of the calender.
             When I pulled the cords the calender, included the rollers,
             stopped immediately.

             [Five] After I cut the rubber, I put the rubber on the bottom
             roll, and it was fed underneath the calender, and went to the
             other side. Once the rubber reaches the back side an
             employee grabs the rubber, feeds it to the dip tank, and it
             goes onto a belt.

             [Six] The employee on the back side of the calender grabs the
             rubber with his hands. A lot of times the rubber does not
             stick to the roll and falls off itself. The employee does not
             have to reach in between the rolls. Employees are not
             allowed to reach in between the rolls.

             [Seven] If Mr. Ashworth was not able to grab the rubber in
             time, he should have let the rubber continue on the roll, and
             I would have cut it on the front end.

             [Eight] There is not any guard in the area between the rolls.
             There is not any way to place a guard in this area because the
             employee would not be able to access the rubber.

      {¶ 18} 9. On May 14, 2013, the VSSR application was heard by a staff hearing
officer ("SHO"). The hearing was recorded and transcribed for the record. Following the
No. 14AP-925                                                                   9

hearing, the SHO issued an order denying the VSSR application. The SHO's order of
May 14, 2013 explains:
             It is the finding of the Staff Hearing Officer that the
             Application for Violation of a Specific Safety Requirement be
             denied for the reason that the Injured Worker has not cited a
             specific safety requirement which was violated when this
             injury occurred.

             Specifically, the Injured Worker was an operator on a
             calender machine at the time of injury. A mass of warm
             rubber material would be fed into this calender machine on
             the front side. This would be fed through rollers which would
             work it down to the correct size and thickness, and the
             operator on the front side of the machine would then cut the
             material with a knife and feed it over the bottom of three
             rollers to the operators on the back side of the machine.
             These rollers turned relatively slowly, and it was estimated at
             hearing that the roller made approximately seven revolutions
             per minute. The operators on the back side were performing
             the "wig wag" job at the time of this incident. The Injured
             Worker would start to pull the warm, somewhat sticky
             rubber material off of the bottom drum, and he and a co-
             worker would put hooks on both sides of the sheet of rubber,
             and pull it away from the calender to a nearby dip tank.
             While attempting to pull the rubber off of the roll, the rubber
             somehow wrapped around or caught some of the Injured
             Worker's fingers, and his right hand up to his forearm was
             pulled into a three-inch gap between the bottom and middle
             rollers before he and his co-workers could activate the
             emergency stop cords. The rollers did immediately stop, but
             it took about 1/2 hour for others to lower the bottom roller to
             allow enough space to pull the Injured Worker's right arm
             out.

             It is well settled that in order to establish a VSSR claim, the
             Injured Worker must prove that: (1) an applicable and
             specific safety requirement was in effect at the time of the
             injury, (2) the Employer failed to comply with the
             requirement, and (3) the failure to comply was the proximate
             cause of the injury in question. State ex rel. Commercial
             Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191
             (1986).

             The Injured Worker has alleged the violation of Ohio
             Adm.Code 4123:1-5-11(D)(10)(a). Sections (a) and (b) of this
             provision state:
No. 14AP-925                                                                 10

           "(10) Nip points.

           (a) Means shall be provided to protect employees exposed to
           contact with nip points created by power driven in-running
           rolls, rollover platen, or other flat surface material being
           wound over roll surface.
           (b) Exception.

           Machinery covered expressly by requirements contained in
           other codes of specific requirements of the Ohio bureau of
           workers' compensation."

           It is found that the requirements of Ohio Adm.Code 4123:1-
           5-11(D)(10)(a) were in effect at the time of injury herein, but
           that the provisions did not apply to the calender machine
           involved, and that the Employer therefore did not fail to
           comply with the guarding requirements. In the Scope section
           of Ohio Adm.Code 4123:1-5-01(A), it is stated that "in cases
           of practical difficulty or unnecessary hardship, the Ohio
           bureau of workers' compensation may grant exceptions from
           the literal requirements of the rules of this chapter to permit
           the use of other devices or methods when in the opinion of
           the bureau, the equivalent protect[ion] is thereby secured."
           As the operation of the calender machine is described above,
           the rollers turned relatively slowly, and the workers needed
           to be able to grasp the rubber material as it came around the
           bottom roller to pull it away from the calender for further
           processing. Guards over the nip point were not practical, and
           there was testimony at hearing that guards were never used
           (transcript p. 51). Instead, and as provided for in Ohio
           Adm.Code 4123:1-13-03, extra safety lines and emergency
           stop cords and specified stopping limits were required.

           The argument of counsel for the Employer, that the
           "exception" language in Ohio Adm.Code 4123:1-5-
           11(D)(10)(b) meant that only the provisions of 4123:1-13-03
           applied, and not the provisions of 4123:1-5-11(D)(10)(a), is
           rejected. Per State ex rel. Hartco Inc. v. Indus. Comm., 38
           Ohio St.3d 181 (1988), these sections supplement, but do not
           supplant, each other. While the court in Hartco did uphold
           the finding of a violation, the calender machine in that case
           was being used as a roll up machine and not for normal
           calender machine functions.

           Therefore, once again, it is found that the nip point guarding
           provisions were not practical on the calender machine on
           which the injuries in this claim occurred, and that alternative
No. 14AP-925                                                                         11

               means were provided. A violation of the requirements of
               Ohio Adm.Code 4123:1-5-11(D)(10)(a) has not been
               established, and the request for the finding of a VSSR is
               denied.

         {¶ 19} 10. Claimant moved for rehearing pursuant to Ohio Adm.Code 4121-3-
20(E).
         {¶ 20} 11. On September 21, 2013, another SHO mailed an order granting
rehearing. The SHO's order of September 21, 2013 explains:
               It is the order of the Industrial Commission that the Motion
               for Rehearing be granted for the reason that the Injured
               Worker has demonstrated that the order mailed 07/06/2013
               is based on a clear mistake of law or an obvious mistake of
               fact, in accordance with Ohio Administrative Code 4121-3-
               20(E)(1)(b).

               The Order states that the normally required guard was not
               needed due to practical difficulty or unnecessary hardship as
               allowed under 4123:1-5-01(A). The order then states extra
               safety lines and emergency stop cords and specified stopping
               limits were provided instead. However, the order does not
               state the evidence relied upon in finding the extra safety
               lines, emergency stop cords, and specified stopping limits
               were provided. Further, the order does not explain how these
               provide equivalent protection to the normally required
               guard. Finally, the order does not address why the Industrial
               Commission can make such a finding without the BWC
               granting the exception first as discussed in the rule. Based on
               this it appears the order fails to comply with the legal
               requirement to provide the evidence relied upon to find
               alternatives were provided and they provided equivalent
               protection.

               Pursuant to Ohio Adm.Code 4121-3-20, the order mailed is
               vacated. The Injured Worker's application is ordered set for
               rehearing.

         {¶ 21} 12. On June 30, 2014, another SHO conducted a rehearing. The rehearing
was recorded and transcribed for the record. Following the rehearing, the SHO issued an
order granting the VSSR application. The SHO determined that relator had violated Ohio
Adm.Code 4123:1-5-11(D)(10)(a) relating to workshops and factories. The SHO rejected
relator's argument that the "exception" language of Ohio Adm.Code 4123:1-5-11(D)(10)(b)
No. 14AP-925                                                                      12

mandates that only the provisions of Ohio Adm.Code 4123:1-13-3 relating to the rubber
and plastic industries apply. The SHO relied heavily upon the decision of the Supreme
Court of Ohio in State ex rel. Hartco, Inc., Custom Coated Prods. v. Indus. Comm., 38
Ohio St.3d 181 (1988).
      {¶ 22} 13. The SHO's order of June 30, 2014 explains:
             It is the finding of the Staff Hearing Officer that the
             Application for Violation of a Specific Safety Requirement,
             filed by the Injured Worker 07/12/2014 [sic], is granted for
             the reason that the Injured Worker has cited a specific safety
             requirement which was violated when this injury occurred.

             Specifically, the Injured Worker was an operator on a
             calendar [sic] machine at the time of injury. A cubed mass of
             warm rubber material was fed into this calendar [sic]
             machine on the front side. This was fed through rollers
             which would work it down to the correct size and thickness,
             and the operator on the front side of the machine would then
             cut the material with a knife and feed it over the bottom of
             three rollers to the operators on the back side of the
             machine. These rollers turned relatively slowly, estimated at
             approximately 7 revolutions per minute. The operators on
             the back side, including the Injured Worker, were
             performing the "wig wag" job at the time of this industrial
             accident. The Injured Worker would start to pull the warm,
             somewhat sticky rubber off of the bottom drum, and he and a
             co-worker would put hooks on both sides of the sheet of
             rubber, and pull it away from the calendar [sic] to a nearby
             dip tank. While attempting to pull the rubber off of the roll,
             the rubber somehow wrapped around or caught some of the
             Injured Worker's fingers, and his right hand up to his
             forearm was pulled into a three-inch gap between the bottom
             and middle rollers before he and his co-workers could
             activate the emergency stop cords. The rollers did
             immediately stop, but it took about 1/2 hour for others to
             lower the bottom roller to allow enough space to pull the
             Injured Worker's right arm out away from the heated middle
             roll.

             It is further the finding of the Staff Hearing Officer that the
             Injured Worker's injury was the result of the Employer's
             failure to provide "Means to protect employees exposed to
             contact with nip points created by power driven in-running
             rolls, rollover platen, or other flat surface material being
             wound over roll surface" as required by Ohio Administrative
No. 14AP-925                                                                13

           Code section 4123:1-5-11(D)(10)(a) relating to Workshops
           and Factories. Sections (a) and (b) of this provision state:

           (10) Nip points

           (a) Means shall be provided to protect employees exposed to
           contact with nip points created by power driven in-running
           rolls, rollover platen, or other flat surface material being
           wound over roll surface.

           (b) Exception

           Machinery covered expressly by requirements contained in
           other codes of specific requirements of the Ohio Bureau of
           Workers' Compensation.

           The Employer asserts the defense that it was not subject to
           Ohio Administrative Code section 4123:1-5-11(D)(10)
           because it was in the Rubber and Plastics industry, which is
           subject to the separate safety requirements contained in
           Ohio Administrative Code 4123:1-13. Ohio Administrative
           Code section 4121:1-13-03 requires safety trips and stopping
           limits for calendars[sic]. It was stipulated by the parties at
           hearing that compliance with this section was met and that
           emergency stop cords were activated. The Employer asserts
           that it was not required to provide any guarding or other
           protection from contact with the nip point. The Employer
           presented a sales flyer of calendars [sic] in the Rubber and
           Plastics industry in order to demonstrate that no calendars
           [sic] provide guarding or other protection from contact with
           the nip point. Mr. Clark, on behalf of the Employer, testified
           that he had been in the Rubber and Plastics industry for over
           25 years and had never seen a calendar [sic] machine in use
           which provided protection or other guarding from the nip
           point.

           This argument by the Employer that the "exception"
           language in Ohio Administrative Code 4123:1-5-11(D)(10)(b)
           meant that only the provisions of 4123:1-13-03 applied, and
           not the provisions of 4123:1-5-11(D)(10)(a) is not persuasive.
           Pursuant to State ex rel. Hartco, Inc. v. Indus. Comm.
           (1988), 38 Ohio St.3d 181, 527 N.E.2d 815, these
           requirements for the Rubber and Plastics industry
           supplement, but do not supplant Ohio Administrative Code
           section    4123:1-5-11(D)(10)     which    provides     safety
           requirements for all Workshops and Factories. Hartco held,
           and the Staff Hearing Officer finds, that the Employer is
No. 14AP-925                                                                14

           required to prevent contact with nip points in a calendar
           [sic], as required by Ohio Administrative Code 4123:1-5-
           11(D)(10), as well as providing means to quickly stop the
           calendar [sic], as provided in Ohio Administrative Code
           section 4123:1-13-03. The reasoning is that the guarding
           required by section 4123:1-5-11(D)(10)(a) prevents an injury
           from occurring, while compliance with the plastics and
           rubber code section 4123:1-13-03 helps to minimize an
           injury after it has already happened.

           Since the Staff Hearing Officer finds that the requirements of
           Ohio Administrative Code section 4123:1-5-11(D)(10)(a) were
           in effect at the time to the injury in this case, the Scope
           section of Ohio Administrative Code 4123:1-5-01(A) applies.
           The Scope section of Ohio Administrative Code 4123:1-5-
           01(A) states "in cases of practical difficulty or unnecessary
           hardship, the Ohio Bureau of Workers' Compensation may
           grant exceptions from the literal requirements of the rules of
           this chapter to permit the use of other devices or methods
           when, in the opinion of the Bureau, the equivalent protection
           is thereby secured." In this case, the Employer did not obtain
           a prior determination that it was entitled to an exception. As
           such, an exception has not been granted and therefore the
           Staff Hearing Officer finds that the Employer has not
           complied with the safety requirements of the applicable Code
           section 4123:1-5-11(D)(10)(A) [sic]. The Staff Hearing Officer
           agrees in this instance with the Injured Worker's counsel's
           argument that "the Employer may not unilaterally decide to
           ignore the specific safety requirement, wait until a worker is
           injured, and then claim that compliance with the
           requirements was not required because the requirements
           were not practical. If that were allowed, many employers
           would choose not to comply with safety requirements and to
           take their chances if an employee was injured" (See Brief of
           Duane T. Ashworth in Support of Motion for Re-Hearing,
           page 4). Counsel for the Injured Worker also submits State of
           Ohio ex rel. James W. Smith Lumber Co., Inc. v. The
           Industrial Commission of Ohio and Jackie D. Alley, (Sept. 15,
           1981) Tenth Appellate District No. 81AP-178, 1981 WL 3463,
           p. 2, holding that an Employer must seek an advance
           determination as to whether it is entitled to an exception
           from a safety requirement, in support of this argument.

           It is therefore ordered that an additional award of
           compensation be granted to the Injured Worker in the
           amount of 35 percent of the maximum weekly rate under
No. 14AP-925                                                                            15

              rule of State ex rel. Engle v. Indus. Comm., (1944), 142 Ohio
              St. 425.

       {¶ 23} 14. On November 7, 2014, relator, 31, Inc., filed this mandamus action.
Conclusions of Law:
       {¶ 24} As the commission explained in its June 30, 2014 order granting the VSSR
application, relator did not comply with Ohio Adm.Code 4123:1-5-11(D)(10)(a) requiring
that the employer shall provide a means to protect employees exposed to contact with nip
points. It is largely undisputed that relator failed to provide such means. However,
relator argues that Ohio Adm.Code 4123:1-5-11(D)(10)(b) provides an "exception" that
permitted relator to comply with the nip point rule by complying with the safety rules set
forth at Ohio Adm.Code 4123:1-13-03 regarding calenders. It is largely undisputed that
relator did comply with the safety rules regarding calenders as set forth in Ohio Adm.Code
4123:1-13-03. Thus, the controversy here is focused on the interpretation to be given to
the "exception" language of Ohio Adm.Code 4123:1-5-11(D)(10)(b).
       {¶ 25} Two issues are presented: (1) did the commission abuse its discretion in
granting rehearing pursuant to Ohio Adm.Code 4121-3-20(E), and (2) assuming that the
commission appropriately granted rehearing, did the commission abuse its discretion in
finding an unexcepted violation of Ohio Adm.Code 4123:1-5-11(D)(10)(a) that was the
cause of the industrial injury.
       {¶ 26} The magistrate finds: (1) the commission did not abuse its discretion in
granting rehearing, and (2) the commission did not abuse its discretion in finding that a
VSSR award is appropriately based upon relator's failure to provide a means to protect
employees exposed to contact with nip points.
              Pertinent Provisions of the Ohio Administrative Code
       {¶ 27} Chapter 4123:1-5 of the Ohio Administrative Code provides for "Workshop
and Factory Safety."
              Ohio Adm.Code 4123:1-5-01 is captioned "Scope and definitions."
              Thereunder, Ohio Adm.Code 4123:1-5-01(A) captioned "Scope" provides:
              In cases of practical difficulty or unnecessary hardship, the
              Ohio bureau of workers' compensation may grant exceptions
              from the literal requirements of the rules of this chapter to
              permit the use of other devices or methods when, in the
No. 14AP-925                                                                        16

                opinion of the bureau, the equivalent protection is thereby
                secured.

                The specific requirements of this chapter are requirements
                upon an employer for the protection of such employer's
                employees and no others and apply to all workshops and
                factories subject to the Workers' Compensation Act. * * *
                Specific requirements of other chapters of the Administrative
                Code adopted by the Ohio bureau of workers' compensation
                shall apply to the particular industry covered by any such
                other chapter, and, to the extent of conflict between this
                chapter and such other chapter, the latter shall govern, but in
                all other respects this chapter shall be deemed to apply and
                the other to be a supplement of this chapter.

       {¶ 28} Ohio Adm.Code 4123:1-5-11 is captioned "Forging machines, other power
machines and machine tools, hydraulic and pneumatic presses, and power press brakes."
       {¶ 29} Thereunder, Ohio Adm.Code 4123:1-5-11(D) is captioned "Other power
machines and machine tools."
       {¶ 30} Thereunder, Ohio Adm.Code 4123:1-5-11(D)(10) is captioned "Nip points."
Thereunder, the code provides:
                (a) Means shall be provided to protect employees exposed to
                contact with nip points created by power driven in-running
                rolls, rollover platen, or other flat surface material being
                wound over roll surface.

                (b) Exception.

                Machinery covered expressly by requirements contained in
                other codes of specific requirements of the Ohio bureau of
                workers' compensation.

       {¶ 31} Chapter 4123:1-13 of the Ohio Administrative Code is captioned "Rubber
and Plastic Industries."
       {¶ 32} Thereunder, Ohio Adm.Code 4123:1-13-01 is captioned "Scope and
definitions."
       {¶ 33} Thereunder, Ohio Adm.Code 4123:1-13-01(A), captioned "Scope," provides:
                The purpose of these safety requirements is to provide
                reasonable safety for life, limb and health of employees. In
                cases of practical difficulty or unnecessary hardship, the
                Ohio bureau of workers' compensation may grant exceptions
No. 14AP-925                                                                       17

              from the literal provisions of these requirements or permit
              the use of other devices or methods when, in the opinion of
              the industrial commission, equivalent protection is thereby
              secured.

              These specific requirements supplement those of Chapter
              4123:1-5 of the Administrative Code, "Specific Safety
              Requirements of the Ohio Bureau of Workers' Compensation
              Relating to All Workshops and Factories," and are minimum
              requirements of an employer for the protection of such
              employer's employees and no others and apply to the rubber
              and plastic industries where rubber or plastics are processed.

       {¶ 34} Thereunder, Ohio Adm.Code 4123:1-13-01(B)(3) provides the following
definition:
              "Calender" means a machine equipped with two or more
              metal rolls revolving in opposite directions and used for
              continuously sheeting or plying up rubber or plastic
              compounds and for frictioning or coating fabric with rubber
              or plastic compounds.

       {¶ 35} Ohio Adm.Code 4123:1-13-03 is captioned "Calenders."
       {¶ 36} Thereunder, Ohio Adm.Code 4123:1-13-03(A) is captioned "Calender safety
controls."
       {¶ 37} Thereunder, the code provides:
              (1) Safety trip, face.

              A safety trip rod, cable, or wire center cord shall be provided
              across each pair of in-running rolls, extending the length of
              the face of the rolls. It shall be readily accessible and shall
              operate whether pushed or pulled. The safety tripping
              devices shall be located within easy reach of the operator and
              no more than seventy-two inches above the level on which
              the operator stands.

              (2) Safety trip, side.

              On both sides of the calender and near each end of the face
              of the rolls, there shall be a cable or wire center cord
              connected to the safety trip. These lines shall be no more
              than twelve inches from the faces of the respective rolls and
              no less than two inches from the calender frame. They shall
              be anchored to the frame no more than six inches from the
No. 14AP-925                                                                            18

              floor or operator's platform and shall operate readily when
              pushed or pulled.

                              The Granting of Rehearing
       {¶ 38} Ohio Adm.Code 4121-3-20(E) provides for the filing of a motion for
rehearing of a VSSR decision. Thereunder, Ohio Adm.Code 4121-3-20(E)(1) provides:
              (a) In order to justify a rehearing of the staff hearing officer's
              order, the motion shall be accompanied by new and
              additional proof not previously considered and which by due
              diligence could not be obtained prior to the prehearing
              conference, or prior to the merit hearing if a record hearing
              was held and relevant to the specific safety requirement
              violation.

              (b) A rehearing may also be indicated in exceptional cases
              where the order was based on an obvious mistake of fact or
              clear mistake of law.

       {¶ 39} Claimant moved for rehearing based upon an alleged obvious mistake of
fact or a clear mistake of law that he found in the SHO's order of May 14, 2013 that denied
his VSSR application. In the May 14, 2013 order, the SHO found that relator had met the
"exception" provision of Ohio Adm.Code 4123:1-5-11(D)(10)(b) by alleged compliance
with the scope section of Ohio Adm.Code 4123:1-5-01(A), which states in part:
              In cases of practical difficulty or unnecessary hardship, the
              Ohio bureau of workers' compensation may grant exceptions
              from the literal requirements of the rules of this chapter to
              permit the use of other devices or methods when, in the
              opinion of the bureau, the equivalent protection is thereby
              secured.

       {¶ 40} There was clearly a mistake of law in the May 14, 2013 SHO's order
regarding the SHO's application of the scope section of Ohio Adm.Code 4123:1-5-01(A).
As the SHO who granted rehearing appropriately found:
              [T]he order does not address why the Industrial Commission
              can make such a finding without the BWC granting the
              exception first as discussed in the rule.

       {¶ 41} While the SHO's order of September 21, 2013 appropriately explains why
the SHO's order of May 14, 2013 contains a clear mistake of law, the SHO's order of June
30, 2014 perhaps explains it better:
No. 14AP-925                                                                                19

              In this case, the Employer did not obtain a prior
              determination that it was entitled to an exception. As such,
              an exception has not been granted and therefore the Staff
              Hearing Officer finds that the Employer has not complied
              with the safety requirements of the applicable Code section
              4123:1-5-11(D)(10)(A) [sic].

       {¶ 42} Also, the SHO's order of September 21, 2013 appropriately quotes from
claimant's brief in support of his motion for rehearing.
       {¶ 43} Furthermore, the SHO's order of September 21, 2013 appropriately cites to
this court's decision in State ex rel. James W. Smith Lumber Co., Inc. v. Indus. Comm.,
10th Dist. No. 81AP-178 (Sept. 15, 1981), for the proposition of that an exception from
compliance with the safety code must be obtained prior to the industrial injury at issue.
       {¶ 44} In short, the commission did not abuse its discretion in granting rehearing.
                          The Granting of the VSSR Award
       {¶ 45} As earlier noted, the second issue is whether the commission abused its
discretion in finding an unexcepted violation of Ohio Adm.Code 4123:1-5-11(D)(10)(a)
that was the cause of the industrial injury.
       {¶ 46} Hartco is dispositive of relator's arguments here.
       {¶ 47} John Runyon was injured when his right arm and hand were drawn into a
reroll machine that was winding a sheet of rubberized material. The injury occurred in
the course of and arising out of Runyon's employment with Hartco, Inc., Custom Coated
Products ("Hartco"). Runyon filed a VSSR application alleging employer violations of
former Chapters 4121:1-5 and 4121:1-13, which are now designated as Chapters 4123:1-5
and 4123:1-13 of the Ohio Administrative Code. Following a hearing, the commission
found a violation of former Ohio Adm.Code 4121:1-5-11(D)(10)(a), which is now
designated as Ohio Adm.Code 4123:1-5-11(D)(10)(a). The commission found that
Runyon's injury resulted from Hartco's failure to guard the nip point created by material
being wound over the surface of a roll. Hartco was denied rehearing. Hartco then filed a
mandamus action in the Supreme Court of Ohio.
       {¶ 48} The issue, as explained by the court, was Hartco's contention that former
Ohio Adm.Code 4121:1-5-11(D)(10)(b) exempts it from the requirements of former Ohio
Adm.Code 4121:1-5-11(D)(10)(a).
No. 14AP-925                                                                                   20

       {¶ 49} As relator does here, Hartco contended that, because the machine in
question was used in the rubber and plastics industry covered under former Ohio
Adm.Code 4121:1-13, the (D)(10)(b) exception applies.            The Supreme Court rejected
Hartco's contention. The Hartco court relied upon the scope provision of former Ohio
Adm.Code 4121:1-13-01(A), which stated "[t]hese specific requirements supplement those
of Chapter 4121:1-5 of the Administrative Code." (Emphasis sic.) Hartco at 182. The
court also pointed out that former Ohio Adm.Code 4121:1-5-01(A) states that former
Chapter 4121:1-5's specific requirements "apply to all workshops and factories."
(Emphasis sic.) Hartco at 182.
       {¶ 50} Pointing out that former Ohio Adm.Code Chapter 4121:1-13 contains no nip
point protection provision, the Hartco court held that former Ohio Adm.Code Chapter
4121:1-13 must be read as supplementing, not supplanting former Ohio Adm.Code 4121:1-
5-11(D)(10)(a). The court pointed out that, to interpret the Ohio Administrative Code as
Hartco suggested would effectively deprive rubber and plastic workers of nip point
protection simply because of the nature of the employer's industry.
       {¶ 51} The Hartco court emphasized that a safety cord does not prevent contact
with nip points; it provides a way to stop the machine should body entanglement occur.
       {¶ 52} Here, in its opening brief, relator fails to even mention the Hartco case.
Relator made no effort to distinguish the case until its reply brief was filed. This is so even
though the commission's order specifically relies on Hartco.
       {¶ 53} In its reply brief, relator asserts that respondent's reliance on Hartco is
misplaced. First, relator points out that the machine in Hartco was not a calender, but a
reroll machine. However, relator neglects to mention that the Hartco court analyzed and
interpreted the very same provisions of the Ohio Administrative Code at issue here. Given
that scenario, it is difficult to see how it is significant that the Hartco case involved a reroll
machine.
       {¶ 54} In its reply brief, relator asserts:
               In this matter, because the machinery involved in Ashworth's
               injury is expressly covered by 4123:1-13-03, pursuant to
               4123:1-5-11(D)(10)(b), the requirement of 4123: 1-5-
               11(D)(10)(a) does not apply. To conclude otherwise would be
               to completely disregard subsection (b). The basic tenets of
               statutory interpretation do not allow for such a result.
No. 14AP-925                                                                           21

(Relator's Reply Brief, 4-5.)

       {¶ 55} Notwithstanding relator's assertion, the Hartco court decided the issue that
relator has raised here. Relator cannot prevail here without undoing the decision of the
Hartco court.
       {¶ 56} Based upon the foregoing analysis, the magistrate concludes that the
commission did not abuse its discretion in granting a VSSR award.
       {¶ 57} Accordingly, 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).
