[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Camaco, L.L.C. v. Albu, Slip Opinion No. 2017-Ohio-7569.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2017-OHIO-7569
THE STATE EX REL. CAMACO, L.L.C., APPELLANT, v. ALBU ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Camaco, L.L.C. v. Albu, Slip Opinion No.
                                     2017-Ohio-7569.]
Workers’ compensation—Violation of a specific safety requirement—Ohio
        Adm.Code 4123:1-5-17(G)(1)(a)(i)—Protective headgear must be provided
        whenever employees are required to be in places where their heads are
        exposed to potential hazards—Employer’s argument was not waived—An
        employer does not face liability for violation of a specific safety requirement
        when it did not know of the specific danger requiring a safety device—Court
        of appeals’ judgment denying writ of mandamus reversed and limited writ
        granted.
 (No. 2015-0036—Submitted January 10, 2017—Decided September 14, 2017.)
     APPEAL from the Court of Appeals for Franklin County, No. 13AP-1002,
                                      2014-Ohio-5330.
                                  ___________________
                            SUPREME COURT OF OHIO




       DEWINE, J.
       {¶ 1} This is an appeal from the denial of a writ of mandamus in a workers’
compensation matter. Robert Albu suffered a head injury while working for
Camaco, L.L.C. Separate from its award of workers’ compensation benefits, the
Industrial Commission granted an additional award to Albu based upon its finding
that Camaco had violated a “specific safety requirement” in failing to provide Albu
with protective headgear.
       {¶ 2} Camaco challenged the additional award by way of a mandamus
action filed in the Tenth District Court of Appeals. The Tenth District denied the
writ, finding that Camaco had waived a central issue it raised in its mandamus
action—that Albu’s injury had resulted from a latent defect in the manufacturing
equipment involved in his injury—by not raising it during proceedings before the
commission. We conclude that waiver does not apply in this case. The latent-
defect theory was not raised by the parties below; rather, it was raised by the
commission’s staff hearing officer on rehearing. Thus, the mandamus action was
Camaco’s first opportunity to respond to this new theory.
       {¶ 3} We further hold that an employer does not face liability for the
violation of a specific safety requirement (“VSSR”) when it lacked knowledge of a
specific danger requiring a safety device. We reverse the judgment of the court of
appeals and issue a limited writ of mandamus ordering the commission to determine
whether Camaco knew or should have known about the latent defect at the time that
Albu was injured.
                                  Albu’s Claim
       {¶ 4} Albu was injured in 2006 while working for Camaco as a “weld tech
trainee.”   Some machinery had become jammed, and Albu was called to
troubleshoot the problem. After Albu went inside a fenced enclosure containing
the equipment, it suddenly restarted and struck Albu in the head. A workers’
compensation claim was allowed for numerous head injuries. At issue in this case




                                        2
                               January Term, 2017




is Albu’s application for an additional award for a violation of a specific safety
requirement based upon his allegation that Camaco failed to provide him suitable
protective headgear pursuant to Ohio Adm.Code 4123:1-5-17(G).
       {¶ 5} Under Ohio’s workers’ compensation system, a claimant may be
entitled to separate, additional compensation when the claimant’s workplace injury
results from an employer’s violation of a specific safety requirement. Such an
award is specifically authorized in Article II, Section 35 of the Ohio Constitution.
“To establish entitlement to a VSSR award, a claimant must show that a specific
safety requirement * * * is applicable to the employer, that the employer violated
that [specific safety requirement], and that the violation proximately caused the
injury.” State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d 157, 2014-Ohio-
1604, 10 N.E.3d 683, ¶ 17. A “specific safety requirement” is “one of the ‘specific
and definite requirements or standards of conduct as are prescribed by statute or by
orders of the Industrial Commission.’ ” Id. at ¶ 19, quoting State ex rel. Trydle v.
Indus. Comm., 32 Ohio St.2d 257, 291 N.E.2d 748 (1972), paragraph one of the
syllabus. “[B]ecause a VSSR award is a penalty, the commission must resolve all
reasonable doubts in favor of the employer.” State ex rel. Penwell v. Indus. Comm.,
142 Ohio St.3d 114, 2015-Ohio-976, 28 N.E.3d 101, ¶ 17.
       {¶ 6} The calculation of the amount of a VSSR award is tied to the workers’
compensation award for the underlying workplace injury; Article II, Section 35
provides that when an injury is found to have resulted from an employer’s failure
to comply with a specific safety requirement, an “amount as shall be found to be
just, not greater than fifty nor less than fifteen per centum of the maximum award
established by law, shall be added * * * to the amount of the compensation that
may be awarded on account of such injury.” Although based on the same incident
as the underlying workers’ compensation award, a VSSR award “is not a
modification of a previous award, but is a new, separate and distinct award.”




                                         3
                             SUPREME COURT OF OHIO




(Emphasis sic.) State ex rel. Curry v. Indus. Comm., 58 Ohio St.2d 268, 269, 389
N.E.2d 1126 (1979).
          {¶ 7} Albu applied for a VSSR award based on Ohio Adm.Code 4123:1-5-
17(G)(1)(a)(i), which requires employers to provide suitable protective headgear
whenever employees are required to be in places where their heads are exposed to
potential hazards from physical contact with rigid objects. The central issue in this
case is whether that requirement was applicable to Camaco in regard to Albu.
                       Factual and Procedural Background
        Albu Suffers a Workplace Injury While Troubleshooting Malfunctioning
                                    Machinery
          {¶ 8} The machine involved in Albu’s injury was a “seatback
manufacturing system” designed and installed by Wayne Trail Technologies, Inc.
Generally referred to as the “Wayne Trail,” the machine was used to bend metal
tubing to form frames for automobile seats. Included in the manufacturing system
was a Motoman robot, which worked in conjunction with the Wayne Trail, moving
the bent frames through the manufacturing process.            The robot could be
reprogrammed using a handheld device, known as a “teach pendant,” that was
intended to “teach” the robot to incorporate adjustments while it operated at a slow
speed.
          {¶ 9} The Wayne Trail and the Motoman robot were fully automated and
were surrounded by a wire-mesh fence in an area sometimes referred to as the
“cell.” An operator monitored the machines from a control station outside the cell.
Two doors allowed employees to enter the cell; each door was connected to a
safety-interlock system that shut off the power to both machines when either door
was opened. Metal tubing entered and exited the cell area through two separate,
smaller openings in the fence. Signs posted on the fence warned, “DANGER.
THIS MACHINE STARTS AND STOPS AUTOMATICALLY.” (Capitalization
sic.)




                                         4
                               January Term, 2017




       {¶ 10} On the day Albu was injured, Ollie Higgins was operating the Wayne
Trail. The machine stopped moving, and Albu was summoned to investigate. Albu
could not see the problem from outside the fence, so he decided to enter the cell.
Rather than use one of the personnel doors, Albu crawled through the opening
where the materials exited the cell area. Because Albu entered the cell through the
material-exit chute rather than through a safety-interlocked door, the Wayne Trail
remained powered with Albu inside. According to Higgins, once Albu was inside
the fence, Albu said that he saw the problem and, while trying to fix it, tripped a
sensor that activated the machine, causing the transfer arm of the Wayne Trail to
move. The arm hit the back of Albu’s head, driving his head forward into another
part of the machine. Albu does not remember most of the details of the accident.
       {¶ 11} The Safety Violations Investigation Unit (“SVIU”) of the Bureau of
Workers’ Compensation investigated the incident and prepared a report. Camaco’s
human-resources manager, Karen Mayfield, told investigators that Camaco did not
require its employees to wear hardhats to work on the Wayne Trail or the Motoman
robot but they were available upon request. The SVIU’s report also noted that there
were conflicting statements about why Albu had entered the fenced-in area through
the material-exit opening. Albu claimed that he had been trained to do so, but
Camaco officials said that Albu had improperly bypassed the safety-interlocked
doors and had not properly used the teach pendant.
Albu’s Application for an Additional Award for a VSSR Is Initially Denied, but the
                  Commission Grants His Motion for Rehearing
       {¶ 12} A staff hearing officer initially denied Albu’s VSSR application,
concluding that “[t]he question of whether or not head protection was required or
whether or not there was a violation of [Ohio Adm.Code] 4123:1-5-17(G) is not
pertinent” because “there would have been no potential for a head injury to occur
* * * had the personnel doors been used by Mr. Albu”; entry through the personnel




                                        5
                            SUPREME COURT OF OHIO




doors would have “de-energized” the cell and thus prevented any movement by the
transfer arm while he was inside.
       {¶ 13} Albu moved for rehearing, arguing that the hearing officer
misunderstood what Albu was required to do to troubleshoot problems with the
equipment. Albu cited evidence supporting his position that he had to be inside the
cell in order to see the robot and that he needed power to the area to diagnose the
problem. According to Albu, he was in danger of being struck regardless of how
he entered the cell, because the power had to be on to both the Wayne Trail and the
Motoman robot for him to assess the problem. He argued that Camaco knew of the
danger, because it posted warning signs at both entrance doors and at the openings
where material entered and exited the cell.
       {¶ 14} Camaco opposed rehearing, arguing that Albu could have
troubleshot from outside the cell without putting himself in danger and that he was
injured because he had improperly entered the cell through the material-exit chute.
Camaco noted that expert witnesses in related intentional-tort and product-liability
litigation had determined that Albu had circumvented safety features when he
crawled through the material-exit chute. The commission granted Albu’s request
for rehearing.
   On Rehearing, the Staff Hearing Officer Grants a VSSR Award to Albu on a
                        Theory Not Raised by Either Party
       {¶ 15} On rehearing, the parties set forth their familiar arguments before a
different staff hearing officer. Camaco continued to argue that it was not necessary
for Albu to be inside the cell with the power on to both machines to troubleshoot.
It further argued that if he had entered through one of the personnel doors—which
would have shut down power to the cell—he could have used the teach pendant
while only the robot (in teach mode), and not the Wayne Trail, was powered. Albu,
on the other hand, argued that he had to be inside the cell to perform his job and




                                         6
                                 January Term, 2017




that the entire manufacturing system had to be powered for him to activate the
robot.
         {¶ 16} The hearing officer did not accept either party’s view but rather
decided the case on a completely different theory altogether. The hearing officer
acknowledged that Albu had “bypassed a safety device” when he entered the cell
through the material-exit chute but concluded that the injury would have occurred
even had he gone through one of the personnel doors. The hearing officer relied on
a report from Vernon Mangold Jr. that had been submitted in Albu’s related
intentional tort and product-liability civil action. The hearing officer stated:


         The file contains a report from Vernon Mangold, an expert in the
         design and operation of robotic systems. Mr. Mangold indicated
         that it was not possible for [Albu] to enter the enclosure and then
         turn on power only to the robot by means of the teach pendant. Mr.
         Mangold states that the transfer arm of the bending machine was
         capable of moving at full speed when the robot was in teach mode.
         He indicated that even the employees of Wayne Trail who trained
         the employees of [Camaco] were not aware of this.
                The Hearing Officer finds that [Camaco] did present a
         potential hazard of head contact with rigid objects as the system did
         not permit power to be turned off to the bending machine when
         power to the robot was activated. [Camaco], therefore, should have
         provided head protection to [Albu]. * * *
                It is therefore ordered that an additional award of
         compensation be granted to [Albu].


(Emphasis added.)




                                          7
                             SUPREME COURT OF OHIO




       {¶ 17} In other words, the hearing officer determined that a defect in the
manufacturing system—a defect that even the designer/installer of the system was
unaware of when it trained Camaco’s employees—created a condition that required
Camaco to provide head protection to its employees.
       {¶ 18} The hearing officer’s decision granting Albu’s application for a
VSSR award—“in the amount of thirty-five percent of the maximum weekly
rate”—was a final order. Ohio Adm.Code 4121-3-20(E)(4). The commission
summarily denied Camaco’s motion for rehearing (treating it as a “request for
reconsideration”) and likewise summarily denied Camaco’s motion to vacate the
denial of its motion for rehearing.
      The Tenth District Finds that Camaco Waived the Latent-Defect Issue
       {¶ 19} Camaco filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals, alleging that the commission had abused its discretion
because the VSSR award was


       based solely upon the affidavit of a non-testifying expert who
       opined, in the context of a separate products liability case against
       the manufacturer of the machine which Albu was repairing, that
       there were design flaws in the machine that could have rendered the
       machine’s safety interlock devices ineffective to protect users
       against injury from moving machinery.


       {¶ 20} Camaco also alleged that there was no evidence that Camaco knew
or should have known of the design flaws.
       {¶ 21} A magistrate appointed to hear the case refused to consider
Camaco’s defense of lack of knowledge of the design defect because Camaco had
not raised the issue of a hidden, latent defect in the Wayne Trail system during
proceedings before the commission. The magistrate noted that Mangold’s report




                                        8
                                January Term, 2017




constituted some evidence that even if Albu had entered through the safety-
personnel doors, the transfer arm of the Wayne Trail would have been capable of
moving at full speed with the robot in teach mode. Thus, the magistrate concluded
that the commission did not abuse its discretion when it awarded compensation for
a violation of a specific safety requirement.
       {¶ 22} Camaco filed objections to the magistrate’s report. The court of
appeals overruled the objections and denied the writ. This matter is before the court
on Camaco’s appeal as of right.
                                      Analysis
                  Camaco Did Not Waive the Latent-Defect Issue
       {¶ 23} Camaco argues that it cannot be found liable for a violation of a
specific safety requirement when the injury to its employee resulted from a hidden,
latent design or manufacturing defect in the equipment that the employee was
operating and the employee bypassed existing safety devices. Camaco maintains
that because the hearing officer sua sponte introduced the latent-defect issue in the
commission’s final decision, it had no opportunity to challenge the finding at the
administrative level. Thus, Camaco argues, the doctrine of appellate waiver should
not prevent it from seeking mandamus relief.
       {¶ 24} We agree.
       {¶ 25} On rehearing, the commission’s staff hearing officer premised the
VSSR award on a theory that had not been raised by Albu—that there was a latent
defect in the manufacturing equipment involved in his injury. The hearing officer
then determined that because of this defect, Camaco should have provided
protective headgear to Albu, but the hearing officer cited no evidence in the record
that Camaco knew of the purported defect and the concomitant need for protective
headgear. To the contrary, the hearing officer found that the manufacturer/installer
of the Wayne Trail was unaware of the defect when it was training Camaco’s
employees on the machinery.




                                          9
                             SUPREME COURT OF OHIO




       {¶ 26} The sole evidence of a design defect came from Mangold’s report.
Although the report had been submitted by Camaco at the original hearing along
with other reports to demonstrate that Albu’s own experts had confirmed that Albu
had circumvented the safety-door feature, it was never relied on by Albu during the
proceedings on rehearing. Indeed, Mangold never testified as an expert in the
VSSR litigation, and neither party argued that Albu’s injury resulted from a design
defect in the equipment.
       {¶ 27} Camaco should not be expected to have anticipated that the hearing
officer would rely upon a theory not advanced by either party. An award for the
failure of a safety measure “cannot be sustained without evidence of prior
malfunction and employer awareness thereof.” State ex rel. Taylor v. Indus.
Comm., 70 Ohio St.3d 445, 447, 639 N.E.2d 101 (1994); see also State ex rel.
Pressware Internatl., Inc. v. Indus. Comm., 85 Ohio St.3d 284, 290, 707 N.E.2d
935 (1999). And just as an employer cannot be held liable for the first-time failure
of a safety device, State ex rel. M.T.D. Prods., Inc. v. Stebbins, 43 Ohio St.2d 114,
118, 330 N.E.2d 904 (1975), so too must an employer be free from liability for not
providing a safety device when it lacked knowledge of the existence of a specific
danger requiring such a device.
       {¶ 28} The court of appeals held that Camaco waived any opportunity to
raise its lack of knowledge of the defect that could have caused Albu’s injury by
failing to raise the issue in its motion for rehearing at the commission level. See
State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81-83, 679 N.E.2d
706 (1997) (the rule that a reviewing court will not consider an issue that was not
presented to the court below also applies in a mandamus action in which an
administrative determination is challenged).      However, Camaco’s motion for
rehearing was essentially a nullity: Ohio Adm.Code 4121-3-20(E)(4) states that in
VSSR proceedings, “[i]n no case shall a rehearing be granted from an order
adjudicating a rehearing.”     Thus, Camaco’s mandamus action was its first




                                         10
                                 January Term, 2017




meaningful opportunity to challenge the hearing officer’s award. Therefore, we
hold that Camaco did not waive its ability to argue in this mandamus case that the
commission abused its discretion by basing its award on a condition that Camaco
did not know existed.
 The Commission Must Resolve the Factual Question Whether Camaco Knew of
                        the Design Defect at the Time of Injury
       {¶ 29} The determination of the extent of Camaco’s knowledge was left
unaddressed by the commission. The staff hearing officer on rehearing found that
the company that designed and installed the industrial system was unaware of the
defect that caused Albu’s accident when it trained Camaco’s employees. The
hearing officer did not, however, make a specific finding that Camaco remained
unaware of the defect at the time of Albu’s accident. We should not make the
factual determination of the extent of Camaco’s knowledge here; “[f]actual
questions relevant to proof of a VSSR rest exclusively within the discretion of the
commission.” State ex rel. Scott v. Indus. Comm., 136 Ohio St.3d 92, 2013-Ohio-
2445, 990 N.E.2d 598, ¶ 12, citing State ex rel. Haines v. Indus. Comm., 29 Ohio
St.2d 15, 278 N.E.2d 24 (1972).
                                     Conclusion
       {¶ 30} Therefore, we reverse the judgment of the court of appeals and issue
a limited writ of mandamus ordering the commission to vacate its order granting
the VSSR award and to determine whether Camaco, at the time of the injury, knew
or should have known about the specific defect that gave rise to the need for
protective headgear. If Camaco lacked the requisite knowledge of the defect at the
time of the injury, it cannot have violated a specific safety requirement.
                                                                  Judgment reversed
                                                           and limited writ granted.
       O’CONNOR, C.J., and FRENCH and FISCHER, JJ., concur.




                                          11
                             SUPREME COURT OF OHIO




       KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
O’DONNELL, J.
       O’NEILL, J., dissents, with an opinion.
                                _________________
       KENNEDY, J., concurring in part and dissenting in part.
       {¶ 31} Because this court does not require the Industrial Commission to
perform futile acts, I respectfully dissent in part. In the past, this court has
remanded cases to the commission for factual determinations when the facts are
unclear, but when the facts are clear and the evidence is “overwhelming,” we have
resolved cases based on our own factual determinations. State ex rel. Gay v. Mihm,
68 Ohio St.3d 315, 323, 626 N.E.2d 666 (1994). As the majority recognizes, the
commission can grant an award for the violation of a specific safety requirement
(“VSSR”) only when an employer had knowledge of the existence of a specific
danger requiring the employer to provide safety protection.             Because the
commission’s staff hearing officer (“SHO”) who considered this matter upon
rehearing made no finding that appellant, Camaco, L.L.C., knew of the latent defect
at issue in this case and because the evidence does not support such a finding, that
SHO abused her discretion in granting the VSSR claim. Therefore, although I agree
with the majority that the judgment of the Tenth District Court of Appeals must be
reversed, I disagree with its determination that only a limited writ is warranted. I
would fully grant the writ of mandamus sought by Camaco and would order the
commission to vacate the VSSR award.
                                      I. Facts
       {¶ 32} I agree with the statement of facts set forth in the majority opinion.
However, there are other facts that should be highlighted and described in greater
detail to give additional context to those stated in the majority opinion.
       {¶ 33} While the majority is correct that appellee Robert Albu does not
remember many of the details surrounding the accident, his coworker, Ollie




                                          12
                               January Term, 2017




Higgins, was present when the machinery jammed and does remember the accident.
Albu circumvented the safety protections provided in the system that included the
Wayne Trail machine when he entered the energized cell with the teach pendent by
crawling through the material-exit chute.    At that time, Albu knew that the
machinery was fully energized and capable of operation. Higgins testified in a
deposition that Albu did not use the teach pendent to troubleshoot the problem.
Instead, Albu visually observed the machinery and called out, “I see what the
problem is.” According to Higgins, Albu then “hit the part, it hit the sensor, and
that’s when the machine activated,” causing the transfer arm to strike Albu in the
back of the head.
       {¶ 34} On June 19, 2008, more than two years after the accident and in
response to Albu’s filing of his VSSR claim, Stephanie Fox, who was Camaco’s
safety coordinator at the time of the accident, described Camaco’s view of how the
machinery operated if an employee entered the cell through one of the personnel
doors: “The two doors are equipped with electronic safety interlocks connected to
all equipment located within the enclosure. When either access door is open, the
tube bending machine and the [Motoman] robot are rendered inoperable.”
       {¶ 35} In June 2010, an affidavit and report prepared by Albu’s expert
witness, Vernon Mangold Jr., was submitted as evidence in the separate civil
litigation pursued by Albu in common pleas court. Mangold opined that the
manufacturer of the Wayne Trail erroneously believed that entering the work cell
through one of the personnel doors made the transfer arm of the machine incapable
of moving at full speed. Mangold concluded that the manufacturer of the Wayne
Trail “did not provide Camaco with the requisite controls necessary to safely
recover from production interruptions and delays.”
       {¶ 36} Mangold’s report was not the only expert report before the
commission. In 2009, after personally inspecting the Wayne Trail system, another
expert hired by Albu, Steven Kramer, stated in a report he prepared for the case




                                       13
                              SUPREME COURT OF OHIO




filed in common pleas court that Camaco and its employees were unaware that the
robot would “operate in teach mode with the interlocking [personnel door] open.”
After reviewing the pleadings and depositions filed in common pleas court, Tarald
Kvalseth, a third expert hired by Albu for the civil litigation, stated that in his
opinion, the Wayne Trial system was defective when it left the control of the
manufacturer. Kvalseth also discovered that the manufacturer did not give Camaco
the operating manual when it delivered the system to the company. While the
manufacturer gave Camaco the manual several weeks after the equipment was in
use, the manual failed to adequately explain “how the robot could still have been
controlled if an individual entered the cell through an interlocked gate” and how
the “fault recovery” program worked, which would have minimized the need for
Camaco employees to enter the cell to repair it. Finally, Kvalseth concluded that
the manufacturer had failed to adequately train Camaco’s employees in the proper
procedures for fault recovery when the Wayne Trail system jammed.
       {¶ 37} The system had been installed not long before the injury occurred.
It went into operation on August 22, 2005, and Albu was injured about five months
later, on January 31, 2006.
       {¶ 38} The first SHO who considered Albu’s VSSR claim denied it on the
basis that he had intentionally circumvented the safety features of the Wayne Trail
system by using the material-exit chute to enter the cell.
       {¶ 39} The second SHO, in overturning that determination upon rehearing,
relied on Mangold’s report to find that even if Albu would have properly entered
the cell through one of the personnel doors, the injury would have occurred anyway,
because the transfer arm of the Wayne Trail machine “was capable of moving at
full speed when the robot was in teach mode.”
                                    II. Analysis
       {¶ 40} I agree with the majority’s conclusion that Camaco did not waive the
latent-defect argument and with its holding that “an employer does not face




                                         14
                                January Term, 2017




liability” for a VSSR “when it lacked knowledge of a specific danger requiring a
safety device.” Majority opinion at ¶ 3. However, I disagree with the reasoning
the majority uses to resolve whether Camaco waived the latent-defect argument.
       {¶ 41} Although the general rule is that “this court will not consider
arguments that were not raised * * * below,” Belvedere Condominium Unit
Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d 1075
(1993), modified in part on other grounds, Dombroski v. WellPoint, Inc., 119 Ohio
St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538, syllabus, this court has stated, “When
an issue of law that was not argued below is implicit in another issue that was
argued and is presented by an appeal, we may consider and resolve that implicit
issue,” Belvedere at 279.
       {¶ 42} Because an employer must have knowledge of a particular danger in
order to be charged with a duty to provide protection from that danger, see State ex
rel. Taylor v. Indus. Comm., 70 Ohio St.3d 445, 447, 639 N.E.2d 101 (1994); see
also State ex rel. M.T.D. Prods., Inc. v. Stebbins, 43 Ohio St.2d 114, 118, 330
N.E.2d 904 (1975), the issue whether an injury was caused by an unknown latent
defect is always implicit in analyzing a VSSR claim. For this reason, I agree with
the majority, albeit on different grounds, that the issue regarding the latent defect
was not waived.
       {¶ 43} Having determined that the latent-defect issue was not waived, I turn
to the issue before us regarding the second SHO’s alleged abuse of discretion in
granting Albu’s VSSR claim.
       {¶ 44} “ ‘Abuse of discretion’ connotes more than a mere error of law or
judgment, instead requiring a finding that” the decision under review “was
unreasonable, arbitrary, or unconscionable.” Darby v. A-Best Prods. Co., 102 Ohio
St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, ¶ 13, citing In re Consol. Mtge.
Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 5. We
have held that the commission abuses its discretion when “the commission’s




                                         15
                             SUPREME COURT OF OHIO




decision was rendered without some evidence to support it.”            State ex rel.
Tradesmen Internatl. v. Indus. Comm., 143 Ohio St.3d 336, 2015-Ohio-2342, 37
N.E.3d 1203, ¶ 12, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d
18, 20, 508 N.E.2d 936 (1987).
       {¶ 45} As the majority recognizes, in order to grant Albu’s VSSR claim, the
second SHO was required to find that Camaco knew about the latent defect at the
time the injury occurred. See Taylor, 70 Ohio St.3d at 447, 639 N.E.2d 101.
However, the second SHO made no such finding.
       {¶ 46} As set forth above, the first SHO, in denying Albu’s VSSR claim,
found that Albu’s intentional act of bypassing the safety protections provided in the
Wayne Trail system by crawling through the material-exit chute and entering into
the energized cell was the cause of his injury. The second SHO, in overturning the
denial of the claim, found that even if Albu had entered into the cell through a
personnel door and then placed the robot in teach mode, the injury would have
occurred anyway because the Wayne Trail’s arm was still capable of moving at full
speed. In reaching that determination, the second SHO relied on the report of
Albu’s expert, Mangold. Mangold concluded that this design defect was unknown
to the system’s manufacturer. Importantly, the second SHO made no finding that
Camaco knew of the latent defect. Therefore, the determination that Camaco was
required to provide protective headgear was unreasonable.
       {¶ 47} Although the majority agrees that the second SHO did not cite any
evidence to support a required finding that Camaco “knew of the purported defect
and the concomitant need for protective headgear,” majority opinion at ¶ 25, the
majority does not independently examine the evidence in the record to determine
whether there is any evidence to suggest that Camaco knew about the latent defect.
In the past, this court has looked at the record in a case of this type to determine
whether remand is appropriate. Gay, 68 Ohio St.3d at 322-323, 626 N.E.2d 666.




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       {¶ 48} Mangold concluded in his report that the manufacturer of the Wayne
Trail erroneously believed that entering the work cell through one of the personnel
doors made the transfer arm of the machine incapable of moving at full speed.
Mangold stated that the manufacturer did not know about the design defect when
Camaco’s employees were trained and essentially concluded that Camaco was
unaware of it at the time of Albu’s injury. Kramer, another of Albu’s experts, stated
in his report that “the robot will operate in teach mode with the interlocking
[personnel door] open,” and that “this was not adequately, if at all, conveyed to
Camaco since Mr. Albu and other Camaco employees did not know of this feature.”
       {¶ 49} Camaco’s belief that entering the work cell through one of the
personnel doors made the transfer arm of the bending machine incapable of moving
was supported by the testimony of Camaco’s safety supervisor. Two years after
Albu’s injury, Camaco’s safety supervisor testified that “[w]hen either access door
is open, the tube bending machine and the robot are rendered inoperable.”
       {¶ 50} Acknowledging that the Wayne Trail system was defective, another
of Albu’s experts, Kvalseth, concluded that Camaco’s employees did not know the
proper fault-recovery steps to take when the system jammed because those steps
were not sufficiently explained in the system manual, which they did not receive
until after the system was installed.      Moreover, in Kvalseth’s opinion, the
manufacturer failed to adequately train Camaco’s employees. Therefore, they did
not have an adequate understanding of how the system operated at the time of the
accident.
       {¶ 51} Having reviewed the entire record, “[i]t is difficult, in this case, to
view without skepticism the commission’s ability to accomplish anything
meaningful upon a return for further consideration. The commission cannot
identify something that does not exist.” State ex rel. Nickell v. Indus. Comm., 83
Ohio St.3d 185, 188, 699 N.E.2d 69 (1998).




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                                  III. Conclusion
       {¶ 52} Because (1) an employer must have knowledge of the existence of a
specific danger requiring the employer to provide safety protection, (2) the second
SHO made no finding that Camaco knew of the latent defect and failed to protect
against it, and (3) a review of the record demonstrates that there is no evidence to
support such a finding, I dissent in part and would not remand this case to the
commission. “There comes a point in time when, in light of the overwhelming
evidence, the courts must say, ‘enough is enough.’ ” Gay, 68 Ohio St.3d at 323,
626 N.E.2d 666. Given that more than a decade has passed since Albu filed his
VSSR claim, today is that day. Therefore, I would reverse the judgment of the
Tenth District Court of Appeals, fully grant the writ of mandamus, and order the
commission to vacate the VSSR award.
       O’DONNELL, J., concurs in the foregoing opinion.
                                _________________
       O’NEILL, J., dissenting.
       {¶ 53} I must respectfully dissent.        Specifically, I disagree with the
majority’s conclusion that the doctrine of appellate waiver does not apply in this
case. There can be no relief in mandamus when the party seeking this extraordinary
writ has failed to raise a defense at the administrative level.
       {¶ 54} To prevail in this mandamus case, appellant, Camaco, L.L.C., must
demonstrate that appellee Industrial Commission’s decision to issue an award for
the violation of a specific safety requirement (“VSSR”) amounted to an abuse of
discretion. Abuse of discretion occurs when the record contains no evidence to
support the commission’s findings. State ex rel. Burley v. Coil Packing, Inc., 31
Ohio St.3d 18, 20, 508 N.E.2d 936 (1987). So long as there is some evidence
supporting the commission’s order, there is no abuse of discretion and the court




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must uphold the commission’s decision. State ex rel. Turner Constr. Co. of Ohio
v. Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, 29 N.E.2d 969, ¶ 12.
       {¶ 55} Camaco contends that there is no evidence supporting the
commission’s decision that it violated Ohio Adm.Code 4123:1-5-17(G)(1)(a)(i).
Camaco now maintains that the injuries to appellee Robert Albu were caused by a
hidden, latent defect in the industrial system that included the Wayne Trail machine
and by Albu’s bypassing of the safety devices that may have protected him. But
Camaco did not raise the latent-defect defense in the proceedings before the
commission, and the facts found by the commission’s hearing officer are supported
by evidence in the record. It is irrelevant that some members of this court would
have interpreted the facts differently if they had been called on to make the
administrative determination in this case. They were not.
       {¶ 56} Appellees argue that Camaco failed to raise the defense of a latent
defect at the administrative level, so it is waived. Appellees are correct. It is simply
not permissible for Camaco to retry its case in a mandamus action at the court of
appeals and raise, for the first time, the latent-defect defense. Camaco alleges that
the expert report in the administrative record of this case prepared by Vernon
Mangold Jr. identified a hidden, latent design defect that was responsible for Albu’s
injuries. According to Camaco, it cannot be found liable for an unknown hazard.
See State ex rel. Maghie & Savage, Inc. v. Nobel, 81 Ohio St.3d 328, 330, 691
N.E.2d 277 (1998). But, Camaco argues, it had no opportunity to challenge the
finding at the administrative level because the hearing officer sua sponte introduced
the issue in the final decision. Thus, Camaco argues, the doctrine of appellate
waiver should not preclude it from seeking mandamus relief.
       {¶ 57} A review of the record demonstrates otherwise.             Camaco had
Mangold’s report, which had been prepared for the related tort litigation, no later
than 2010, well before the first hearing on the VSSR application, which occurred




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on December 19, 2012. Camaco submitted the report, along with reports from two
other expert witnesses hired by Albu and other evidence, to the commission prior
to the 2012 hearing. Counsel for Camaco referred to the experts’ reports at both
VSSR hearings, in support of its argument that employees were not supposed to
enter the fenced-in area surrounding the machinery when the power was on.
However, counsel never raised the issue of a hidden, latent defect as a defense.
        {¶ 58} A reviewing court need not consider questions not presented to the
court below. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81,
679 N.E.2d 706 (1997). This rule likewise applies in mandamus actions in which
administrative determinations are challenged.         Id. at 81-83.      Under the
circumstances here, the court of appeals did not abuse its discretion when it
concluded that Camaco had waived the defense.
        {¶ 59} Camaco argues, in the alternative, that the court should apply the
plain-error doctrine to remedy a manifest injustice. In civil cases, the plain-error
doctrine is limited to the extremely rare case involving exceptional circumstances
“where the error, left unobjected to * * *, rises to the level of challenging the
legitimacy” of the underlying proceeding itself. Goldfuss v. Davidson, 79 Ohio
St.3d 116, 122, 679 N.E.2d 1099 (1997). Here, Camaco was aware of Mangold’s
report, submitted it as evidence in the proceedings before the commission, and had
ample opportunity to raise the defense. Camaco’s argument based on the plain-
error doctrine fails.
        {¶ 60} In order for Camaco to rely on the latent-design-defect defense,
Camaco had to raise it at the administrative level. It is clear from the record that
Camaco knew about the concerns regarding the latent defect before the hearing but
did not raise the defense until it filed its mandamus action in the court of appeals.
Camaco has lost the right to rely on the defense. It should not be given another bite
at the apple. And because “some evidence” supports the commission’s order, it




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should be upheld. Turner Constr. Co., 142 Ohio St.3d 310, 2015-Ohio-1202, 29
N.E.3d 969, at ¶ 12. Therefore, I must dissent.
                              _________________
       Collins, Roche, Utley & Garner, L.L.C., Richard M. Garner, and Sunny L.
Horacek, for appellant.
       Michael DeWine, Attorney General, and Kevin S. Reis, Assistant Attorney
General, for appellee Industrial Commission.
       Bentoff & Duber Co., L.P.A., and Glen S. Richardson, for appellee Robert
J. Albu.
                              _________________




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