[Cite as State ex rel. Landers v. Indus. Comm., 2016-Ohio-2732.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Julie Landers,                   :
Adm. of the Estate of Charles B. Landers,
                                                       :
                 Relator,
                                                       :
v.                                                                    No. 15AP-58
                                                       :
Industrial Commission of Ohio                                      (REGULAR CALENDAR)
and Crane 1 Services, Inc.,                            :

                 Respondents.                          :


                                            D E C I S I O N

                                      Rendered on April 28, 2016


                 On Brief: Hahn Loeser & Parks LLP, and Douglas J. Suter,
                 for relator.

                 On Brief: Michael DeWine, Attorney General, and Lisa R.
                 Miller, for respondent Industrial Commission of Ohio.

                 On Brief: LL Patterson LLC, and Lisa L. Patterson, for
                 respondent Crane 1 Services, Inc.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Julie Landers as administrator of the estate of Charles B. Landers filed this
action in mandamus seeking a writ to compel the Industrial Commission of Ohio
("commission") to grant an award for a violation of a specific safety requirement ("VSSR")
as a result of the incident in which Charles B. Landers was killed.
        {¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
No. 15AP-58                                                                                  2


pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision includes a recommendation that we deny the request for a writ.
       {¶ 3} Counsel for the estate of Charles B. Landers has filed objections to the
magistrate's decision. Counsel for the commission and counsel for Crane 1 Services, Inc.,
Charles Lander's employer, have each filed a memorandum in response. The case is now
before the court for a full independent review.
       {¶ 4} Landers and Tim Sutter were inspecting a 25 ton overhead crane while
using a scissor lift to view the crane. The controls for the crane indicated that the crane
was turned off, but the crane still moved and struck the scissor lift. Landers fell over 25
feet and was killed. Sutter was able to hold on to the scissor lift, but was seriously injured.
       {¶ 5} The incident was investigated by William M. Murphy on behalf of Crane 1
Services, Inc. Murphy concluded that the incident occurred as a result of the failure of the
men to lock the controls for the crane in the "off" position. Murphy also faulted the men
for failing to disconnect the power to the crane.
       {¶ 6} The incident was also investigated by Brian Weiss on behalf of the Ohio
Bureau of Workers' Compensation Safety Violation Investigation Unit. Weiss concluded
that the failure of the men to properly lock-out\tag-out the crane was a contributing
factor. Weiss also faulted the way a fall protection device was attached.
       {¶ 7} Finally, Weiss noted that the crane indicator and warning lights were not
functioning. Had the safety devices been properly functioning, the men could have been
warned that the crane was moving or about to move. This last issue is heavily emphasized
by counsel for the estate.
       {¶ 8} Counsel for Crane 1 Services, Inc., argues that the failure of the men to use
the lock-out/tag-out procedure was "the" proximate cause of the incident. Actually the
cause was the crane moving and striking the scissor lift. Arguably the lock-out/tag-out
procedure would have prevented this instead of reliance on a control device which said
the crane was turned off. However, having functioning warning devices might also have
prevented at least some of the injuries sustained but only if the crane had not been de-
energized. The men would have known that the scissor lift was about to be struck and
could have taken measures to protect themselves. In brief, the men were not totally
No. 15AP-58                                                                               3


responsible for the injuries suffered. Further, a VSSR can still be found where the injured
employee made a mistake or did something wrong.
         {¶ 9} Counsel for Crane 1 Services, Inc. says the failure to repair issues were not
before the commission because Ohio Adm.Code 4123:1-5-14(G) was not specifically cited
when the application for an award for a VSSR was filed. Ohio Adm.Code 4123:1-5-14(G)
reads:
               Specific requirements applicable to all paragraphs of
               this rule. (1) Defective safety devices or load-carrying
               equipment.
               Defective crane safety devices or load-carrying equipment
               shall be repaired or replaced.

               (2) Access ladders, stairways, and/or walkways. Crane
               access ladders, stairways, and/or walkways shall be provided
               on all cranes.

               (3) Maximum capacity. The maximum capacity
               recommended by the manufacturer shall be posted on each
               crane.

               (4) Warning signs. Warning signs, "out-of-order" signs, or
               warning devices shall be placed on each crane under repair.

         {¶ 10} However, when the hearing on the application was held, counsel for the
estate indicated that all the sections of Ohio Adm.Code 4123:1-5-14 were to be considered.
         {¶ 11} Counsel for the commission emphasizes that the standards for finding a
VSSR are very high and that the commission properly found that the estate did not meet
those high standards in its application.
         {¶ 12} Counsel for the commission also emphasizes that the application for a VSSR
did not cite to Ohio Adm.Code 4123:1-5-14(G) and argues that, as a result, the arguments
about Ohio Adm.Code 4123:1-5-14(G) have been waived.              Finally, counsel for the
commission points out correctly that if the lock-out/tag-out procedure which was
supposed to be used would have been used, the defective alarms would not have
functioned anyway, but were unnecessary because the crane could not have moved
without power.
No. 15AP-58                                                                            4


       {¶ 13} We view a number of factors as converging to cause this tragedy. However,
we are unwilling to say a VSSR was proved before the commission as demonstrated in our
magistrate's decision.
       {¶ 14} We overrule the objections to the magistrate's decision. We adopt the
findings of fact and conclusions of law in the magistrate's decision. We, therefore, deny
the request for a writ of mandamus.
                                                      Objections overruled; writ denied.

                           BROWN and KLATT, JJ., concur.
No. 15AP-58                                                                                 5


                                  APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Julie Landers,          :
Adm. of the Estate of Charles B. Landers,
                                              :
              Relator,
                                              :
v.                                                                  No. 15AP-58
                                              :
Industrial Commission of Ohio                                  (REGULAR CALENDAR)
and Crane 1 Services, Inc.,                    :

              Respondents.                    :



                          MAGISTRATE'S DECISION

                              Rendered on January 29, 2016



              Hahn Loeser & Parks LLP, and Douglas J. Suter, for relator.

              Michael DeWine, Attorney General, and Lisa R. Miller, for
              respondent Industrial Commission of Ohio.

              LL Patterson LLC, and Lisa L. Patterson, for respondent
              Crane 1 Services, Inc.


                                      IN MANDAMUS

       {¶ 15} Relator, Julie Landers, as the Administrator of the Estate of Charles B.
Landers ("Landers"), has filed this original action requesting that this court issue a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order which denied relator's application for an additional award for a violation
No. 15AP-58                                                                                             6


of a specific safety requirement ("VSSR"), and ordering the commission to grant her
application.
Findings of Fact:
        {¶ 16} 1. On March 8, 2011, Landers and Tim Sutter, both employees of
respondent, Crane 1 Services, Inc. ("Crane"), were performing an inspection of a 25-ton
overhead crane, located at Allegheny Ludlum Steel ("Allegheny Steel") in New Castle,
Indiana.
        {¶ 17} 2. It is undisputed that both Landers and Sutter underwent various safety
training with the Occupational Safety and Health Administration ("OSHA"), Crane, and
Allegheny Steel before they inspected the crane. This was not their first time to inspect
this particular crane. It is also undisputed that, although the crane controls were placed
in the off position, neither Sutter nor Landers performed the lockout/tagout procedures
prior to inspecting the crane.
        {¶ 18} 3. The crane being inspected was an overhead crane which moved on rails
on each side of the crane and was operated by remote control. Sutter and Landers used a
scissor lift to inspect the rails and, at the time of the accident, they were approximately 26
feet in the air. During the inspection, the crane was activated, moved along the rails,
struck the scissor lift, causing it to fall. Landers was thrown from the lift and died at the
scene. Sutter remained in the lift, and suffered serious injuries.
        {¶ 19} 4. On February 26, 2013, relator filed an application for an additional
award for VSSR alleging violations of the following Ohio Administrative Code sections:
                Ohio Adm.Code 4123:1-5-05(D); 4123:1-5-14(C)(1)(c), (D),
                (e); 4123:1-5-14(D)(2)(b); 4123:1-5-14(E)(2)(b); 4123:1-5-
                14(F)(2)(b); 4123:1-9-01; and 4123:1-9-05.1

        {¶ 20} 5. William M. Murphy worked for OSHA for 30 years before he began his
own safety services. Mr. Murphy investigated the case and completed a report which was
submitted to the commission. Mr. Murphy concluded further that the failure of Landers
and Sutter to disconnect the power to the crane caused their injuries. Crane had complied
with Ohio Adm.Code 4123:1-5-05(D)(5), which requires the employer shall furnish and


1
  Relator, through her authorized representative, verbally dismissed from consideration the allegation for
violations of Ohio Adm.Code 4123:1-9-01 and 4123:1-9-05.
No. 15AP-58                                                                                             7


employee shall use a device to lock the controls in the "off" position when machines are
shut down for repair, adjusting or cleaning. Specifically, in his June 30, 2014 report, Mr.
Murphy discussed Adm.Code 4123:1-5-05(D)(5) and stated:
                Crane 1 had a written LOTO [Lock Out/Tag Out] program
                that met the above ORC2 code (Dottery exh. 3), had given the
                decedent and Tim Sutter a copy of the safety manual (Julie
                Landers pull-guard 49) which contained the LOTO program
                therein (Dottery page 30, 51), provided lock out equipment
                including a lock and hasp, (Blind page 56), and had trained
                employees, including the decedent and Tim Sutter (OSHA
                file pg. 89), in the LOTO program. The decedent and Mr.
                Sutter failed to implement the LOTO program and apply
                their lock to the electrical disconnect of the crane before
                placing themselves in danger of the lift being struck by a
                moving crane. The crane moved and struck the scissors lift
                from which they were working. Had they implemented the
                LOTO program as prescribed by the Crane 1 LOTO program,
                the crane would not have moved, even if they unintentionally
                attempted to operate the crane remote control to move the
                crane.

                The Crane 1 LOTO program included provisions that
                required lockout devices to be issued to employees, training
                of employees in the implementation of the LOTO program
                and enforcement of the use of lockout devices. The decedent
                and Tim Sutter had been provided LOTO equipment and
                trained on the requirements of [the] program. Further, as
                Crane 1 managers visited job sites they at times conducted
                audits to monitor implementation of the LOTO program.

                I have formed the opinion within a reasonable
                degree of professional certainty that Crane 1 did, as
                required by the above referenced ORC code, furnish
                the decedent with a device to lock the controls of the
                east bay crane in the "off" position. The decedent's
                failure to disconnect the power to the crane on
                which he was helping service technician Tim Sutter
                inspect and, as required by the above referenced
                ORC code, his failure to apply his lock to the
                disconnect switch to hold the switch in the "off"
                position, caused the injuries that he suffered on


2This appears to be a typographical error and should read Ohio Adm.Code section and not Ohio Revised Code
section.
No. 15AP-58                                                                           8


              March 08, 2011. Had the decedent done so he would
              not have been injured.

(Emphasis sic.)

       {¶ 21} 6. Brian Weiss, an investigator with the Ohio Bureau of Workers'
Compensation ("BWC") Safety Violations Investigation Unit, investigated the incident. In
his August 15, 2013 report, investigator Weiss specifically stated:
              [Six] Witness (co-worker) Timothy Sutton [sic] stated in an
              interview at the hospital, he set the on/off selector switch of
              the overhead crane's remote radio control in the "off"
              position. After doing so, he placed the crane controller on the
              floor of the scissor-lift's work platform. He then stated, they
              did not disconnect the power of the floor disconnect to the
              runway electrification and the crane manual disconnect. The
              floor power to the overhead crane was not disconnected,
              prior to raising the scissor-lift to the girder height. The raised
              scissor-lift was positioned parallel to the crane girders in
              order to inspect the mechanical components.

              ***

              [Nine] Within the employer's investigation report analysis,
              based on what is known from their investigation reports the
              primary cause of the incident was the movement of the
              crane/hoist towards the raised or extended lift. The lift was
              extended upwards to a height of approximately twenty six
              feet (26') from the work base. This measurement was taken
              by Indiana OSHA as the lift was lying on the floor. When the
              movement of the overhead crane came into contact with the
              lift, the lift toppled over and crashing to the concrete floor,
              thereby causing the fatality of Mr. Landers and serious
              injuries to Mr. Sutton [sic].

              [Ten] The secondary cause of the incident, as reported in the
              internal investigation conducted by Crane 1 indicates the
              mainline power was not turned off or disengaged at the
              lockable disconnect located at the floor level. Also it was
              determined that the mainline power to the lockable
              disconnect, located on the bridge controls, was also not
              disconnected. This would indicate a failure to properly lock-
              out and/or tag-out the overhead crane.
No. 15AP-58                                                                            9


              [Eleven] An additional contributing factor identified was
              the failure of the decedent to properly attach the fall
              protection lanyard to the scissor-lift. Mr. Landers did in fact
              have his safety harness on, but evidence indicates the
              harness and lanyard were not attached to the man-lift at the
              time, thereby allowing him to be thrown out of the lift just
              prior to the lift striking the ground.

              [Twelve] Another potential contributing factor as stated in
              the Crane 1 Services investigation report identifies the
              inspection report on the crane, dated January 14, 2011 and
              inspected by Mr. Landers and by Mr. Sutter noted, "the
              crane indicator and warning lights to the bridge were not
              functioning" and the condition noted it as a "required
              repair." The Crane 1 Services investigation report stated, if
              this condition had been repaired, the warning horn should
              have actuated when the controls were turned to the "on"
              position. The report also stated, witnesses did not report
              hearing the warning horn device. If the radio unit were
              correctly turned "off," as reported by Mr. Sutter, then
              subsequently turning it "on" would have actuated the
              warning horn and all would have been alerted.

(Emphasis added.)

      {¶ 22} 7. Relator's application was heard before a staff hearing officer ("SHO") on
July 7, 2014.    Ultimately, the SHO determined that relator did not establish the
applicability of a specific safety requirement and a VSSR. The SHO order provides the
following citation, discussion, evaluation, and application of the various Ohio
Administrative Code provisions, which relator alleged were violated.
              Ohio Adm.Code 4123:1-5-05(D) reads as follows:

              (D) Machinery control.

              (1) Disengaging from power supply.

              Means shall be provided at each machine, within easy reach
              of the operator, for disengaging it from its power supply.
              This shall not apply to rolling departments of iron and steel
              mills nor to electrical power generation or conversion
              equipment.

              (2) When machines are shut down.
No. 15AP-58                                                                      10



              The employer shall furnish and the employees shall use a
              device to lock the controls in the "off" position or the
              employer shall furnish and the employees shall use warning
              tags when machines are shut down for repair, adjusting, or
              cleaning.

              (3) Mechanical belt shifters.

              Tight and loose pulleys shall be equipped with mechanical
              belt shifters.

              (a) Cone pulley drive belts.

              Cone pulley drive belts shall be equipped with a mechanical
              belt shifter permanently attached.

              (b) Where any part of the lower cone pulley is seven feet or
              less above the floor, the belt and pulley shall be guarded.

              (4) Treadles or extensions.

              Treadles or extensions for starting machinery shall be so
              located or guarded as to minimize exit and/or tripping.

                                     SHO Analysis

              It is the finding of the Staff Hearing Officer that the Claimant
              has failed to demonstrate that the Employer violated Ohio
              Adm.Code 4123:1-5-05(D). Specifically, the Hearing Officer
              finds that sections 4123:1-5-05(D)(3)(4) are not applicable to
              the employment being performed by Charles Landers,
              deceased, on 03/08/2011, at the time that the industrial
              accident occurred. The crane being inspected did not have
              any type of pulley system or cone pulley drive belts on it.
              Further, the accident did not occur as a result of an
              accidental tripping over treadles or extensions used for
              starting a crane.

              It is the finding of the Staff Hearing Officer that the
              employer of record did comply with Ohio Adm.Code 4123:1-
              5-05(D)(1) and (2). Specifically, the Hearing Officer finds
              that Mr. Landers, deceased, and his co-worker were
              previously provided tags and locks to be used in disengaging
              the crane to be inspected from its electrical power supply.
              Further, the employer of record provided training to its
No. 15AP-58                                                                    11


              employees, including Mr. Landers and his co-worker on the
              proper procedure in using "tag-out and lock-out." Not only
              was Mr. Landers and his co-worker trained by the employer
              of record in tag-out/lock-out, they were also trained by a
              situs employer, Alleghany Steel. Mr. Sutter, who was Mr.
              Landers' co-worker at the time of the accident, testified that
              all contractors working at an [sic] Alleghany had to undergo
              safety training with Alleghany Steel. Upon completion of
              their safety training, the contractor received a sticker to be
              placed on his hard hat so that it was known to Alleghany
              officials that that contractor had undergone the required
              safety training. Mr. Landers underwent this training on
              03/08/2011. He underwent the training on the day of the
              accident due to the fact that it was his first time to work at
              that Alleghany site. After the accident occurred, Alleghany
              Steel officials and Crane-1 supervisors inspected the accident
              site, and noted that the "tag-out/lock-out" procedure had not
              been used on the crane that was being inspected by Mr.
              Landers and Mr. Sutter. Photos taken by investigators of the
              accident site shows [sic] red locks lying in the basket/work
              platform of the tipped scissor lift used by Mr. Landers and
              Mr. Sutter. Mr. O'Flaherty testified, at the hearing on
              07/07/2014, that the locks shown in the picture were the
              same type of locks provided to his employees to be used for
              the lock-out procedure of a power source to a crane. Mr.
              O'Flaherty also testified that he distinctly remembered
              providing Mr. Landers with such a lock. Mr. O'Flaherty also
              testified that no tag-out or lock was used to turn off and
              disconnect the electrical power supply to the crane that was
              being inspected by Mr. Landers and Mr. Sutter on
              03/08/2011. Mr. Sutter testified that he did not remember if
              he or Mr. Landers had locked out or disengaged the power
              supply. He was unable to remember due to injuries he
              sustained during the accident. The Hearing Officer finds that
              Mr. Landers was supplied with a lock to be used to disengage
              the electrical power supply to the overhead crane that was
              being inspected on 03/08/2011. Further, Mr. Landers was
              provided training by both the employer of record and
              Alleghany Steel on the proper method to tag-out and lock-
              out the power supply to cranes so that its power supply
              would be completed [sic] disengaged. Further, for reasons
              unknown, Mr. Landers and Mr. Sutter did not follow the tag-
              out/lock-out procedure. Further, the Hearing Officer finds
              that if the tag-out and lock-out procedure had been followed
              the power supply to the crane would have been disengaged
              and the crane would have never become activated.
No. 15AP-58                                                                       12



              Ohio Adm.Code 4123:1-5-14(C)(1)(c), (d), (e) reads
              as follows:

              (C) Overhead electric traveling cranes.

              The term "overhead electric traveling crane" shall mean a
              crane consisting of a bridge mounted on trucks which runs
              on rails and the hoisting mechanism mounted on a trolley
              which moves transversely across the bridge, and may be
              controlled from a cab or from remote or pendant controls.

              (1) Equipment.

              (c) Rail stops.

              Rail stops shall be provided at both ends of crane runway
              and at ends of trolley travel.

              (d) Bumpers.

              A crane shall be provided with bumpers or other automatic
              means providing equivalent effect, unless the crane travels at
              a slow rate of speed and has a faster deceleration rate due to
              the use of sleeve bearings, or is not operated near the ends of
              bridge and trolley travel, or is restricted to a limited distance
              by the nature of the crane operation and there is no hazard of
              striking any object in this limited distance, or is used in
              similar operating conditions.

              The bumpers shall be capable of stopping the crane (not
              including the lifted load) at an average rate of deceleration
              not to exceed three ft/s/s when traveling in either direction
              at 20% of the rated load speed.

              A trolley shall be provided with bumpers or other automatic
              means of equivalent effect, unless the trolley travels at a
              slower rate of speed, or is not operated near the ends of
              bridge and trolley travel, or is restricted to a limited distance
              of the runway and there is no hazard of striking any object in
              this limited distance, or is used in similar operating
              conditions.

              The bumpers shall be capable of stopping the trolley (not
              including the lifted load) at an average rate of deceleration
No. 15AP-58                                                                      13


              not to exceed 4.7 ft/s/s when traveling in either direction at
              1/3 the rated load speed.

              (e) Warning device.

              On cab-operated cranes, a warning device or signal shall be
              provided for use in warning personnel of crane travel.

                                         SHO Analysis

              It is the finding of the Staff Hearing Officer that the Claimant
              has failed to demonstrate that the Employer violated Ohio
              Adm.Code 4123:1-5-15(C)(1)(c), (d), (e). Specifically, it is the
              finding of the Staff Hearing Officer that the crane that was
              being inspected by Mr. Landers, deceased, and Mr. Sutter
              was an overhead electric traveling crane that did have rail
              stops on the ends of the crane runway. Further, the crane did
              have bumpers. Further, the placement of rail stops at the end
              of the rails used by the overhead crane being inspected had
              nothing to do with the cause of the accident on 03/08/2011.
              The Administrative Code requires that rail stops are to be
              placed at the end of overhead crane's rails upon which it
              travels. This is to prevent an overhead crane from falling off
              the overhead rails upon which it travels once it reaches the
              end of the rails. Further, the overhead crane at issue did have
              bumpers. The Hearing Officer also finds that the lack of
              bumpers was not the proximate cause of the accident. The
              bumpers would not have prevented the accident from
              occurring. The accident occurred because the electric source
              to the overhead crane had not been disengaged and locked
              out. Finally, the Hearing Officer finds that Ohio Adm.Code
              4123:1-5-14(C)(1)(e) regarding [a] warning device does not
              apply to the accident at hand. That code section requires
              warning devices to be placed on a cab-operated crane. The
              crane that was inspected on 03/08/2011 was not a cab-
              operated crane. The cab had been removed from the crane
              years before. The crane at issue was an overhead electric
              travelling crane operated by remote control. Thus, the crane
              was not required pursuant to the cited section to have a
              warning device or signal to be provided for use in warning
              personnel of the crane's travel.

              Ohio Adm.Code              4123:1-5-14(D)(2)(b)    reads     as
              follows:

              (D) Electric jib cranes.
No. 15AP-58                                                                     14



              (2) Equipment.

              (b) Rail stops.

              Rail stops shall be provided at the outer end of jib boom.

                                      SHO Analysis

              It is the finding of the Hearing Officer that this code section
              does not apply to the crane inspected and at use on
              03/08/2011. Ohio Adm.Code 4123:1-5-14(D) applies to jib
              cranes. Subsection (1) of that code defines [the] electric jib
              crane as a crane designed for lifting or lowering a load within
              the scope of a horizontal circle spanned by a rotating arm or
              jib equipped with a stationery or travelling hoist block. As
              noted above, the crane at issue on 03/08/2011 was not a jib
              crane. It was an overhead electric traveling crane that was
              operated by remote.

              Ohio Adm.Code           4123:1-5-14(E)(2)(b)      reads      as
              follows:

              E) Electric single rail cranes and hoists.

              (2) Equipment.

              (b) Rail stops.

              Rail stops shall be provided at the ends of crane runway.

                                      SHO Analysis

              It is the finding of the Staff Hearing Officer that this code
              section does not apply to the industrial injury that occurred
              on 03/08/2011. Specifically, the crane that was inspected by
              Mr. Landers, deceased, was a dual rail electric crane
              suspended overhead. This code section applies to a hoist
              with or without an operator's cab, suspended from a single
              overhead track or rail. Further, as discussed above regarding
              rail stops the crane inspected on 03/08/2011 did have rail
              stops provided at each end of its runway.

              Ohio Adm.Code           4123:1-5-14(F)(2)(b)      reads      as
              follows:
No. 15AP-58                                                                        15


              (F) Electric gantry cranes.

              (2) Equipment.

              (b) Bumpers, stops, and rail stops.

              (i) A crane shall be provided with bumpers or other
              automatic means providing equivalent effect, unless the
              crane travels at a slow rate of speed and has a faster
              deceleration rate due to the use of sleeve bearings, or is not
              operated near the ends of bridge and trolley travel, or is
              restricted to a limited distance by the nature of the crane
              operation and there is no hazard of striking any object in this
              limited distance, or is used in similar operating conditions.

              The bumper shall be capable of stopping the crane (not
              including the lifted load) at an average rate of deceleration
              not to exceed three ft/s/s when traveling in either direction
              at twenty percent of the rated load speed.

              A trolley shall be provided with bumpers or other automatic
              means of equivalent effect, unless the trolley travels at a slow
              rate of speed, or is not operated near the ends of bridge and
              trolley travel, or is restricted to a limited distance of the
              runway and there is no hazard of striking any object in this
              limited distance, or is used in similar operating conditions.

              The bumpers shall be capable of stopping the trolley (not
              including the lifted load) at an average rate of deceleration
              not to exceed 4.7 ft/s/s when traveling in either direction at
              1/3 of the rated load speed.

              (ii) Rail stops shall be installed on both ends of trolley travel.

                                      SHO Analysis

              It is the finding of the Staff Hearing Officer that Ohio
              Adm.Code 4123:1-5-14(F)(2)(b) does not apply to the
              situation at hand. This cited code section applies to the use of
              electric gantry cranes. An electric gantry crane is a crane
              with the bridge mounted on structural legs which may be
              mobile on rails or stationery. One leg may be at ground level
              the other may be elevated or both legs may be at ground
              level. The crane that was inspected by Mr. Landers,
              deceased, on 03/08/2011 did not have legs and thus was not
              an electric gantry crane. The crane inspected was an
No. 15AP-58                                                                                16


              overhead electric crane mounted on a bridge attached to
              trucks that ran along rails at either end of the bridge.

              Based upon the above stated facts and reasoning, the Staff
              Hearing Officer finds that there is no violation of a specified
              safety requirement and therefore, the Injured Worker's
              Application, filed on 02/26/2013, is denied.

       {¶ 23} 8. Relator filed a motion for rehearing which was denied by order of the
commission mailed December 13, 2014.
       {¶ 24} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 25} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated the commission abused its discretion.
       {¶ 26} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 27} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 28} In order to establish a VSSR, a claimant must prove that: (1) there exists an
applicable and specific safety requirement in effect at the time of the injury; (2) the
No. 15AP-58                                                                             17


employer failed to comply with the requirements; and (3) the failure to comply was the
proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio
St.2d 257 (1972).
      {¶ 29} The interpretation of a specific safety requirement is within the final
jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193
(1983). Because a VSSR is a penalty, however, it must be strictly construed, and all
reasonable doubts concerning the interpretation of the safety standard are to be
construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm.,
46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer's
failure to satisfy a specific safety requirement is a question of fact to be decided by the
commission subject only to the abuse of discretion test.       Trydle; State ex rel. A-F
Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); State ex rel. Ish v. Indus. Comm.,
19 Ohio St.3d 28 (1985).
       {¶ 30} In this mandamus action, relator does not challenge any of the factual
findings made by the SHO. Instead, relator makes the following arguments: (1) the
commission abused its discretion by not finding that the failure of operable visual and
audible warning alarms on the overhead crane was a proximate cause of the injuries and
the SHO should have applied Ohio Adm.Code 4123:1-5-4(G) to the facts of this case, and
(2) neither Crane nor Allegheny Steel had supervisors to ensure that Landers and Sutter
actually followed the lockout/tagout ("LOTO") procedures.
       {¶ 31} Ohio Adm.Code 4123:1-5-4(G) provides:
              (G) Specific requirements applicable to all paragraphs of this
              rule.

              (1) Defective safety devices or load-carrying equipment.
              Defective crane safety devices or load-carrying equipment
              shall be repaired or replaced.

              (4) Warning signs.

              Warning signs, "out-of-order" signs, or warning devices shall
              be placed on each crane under repair.

       {¶ 32} It is undisputed that relator did not list this code section in her VSSR
application. Nevertheless, relator argues that this section applies to all cranes and it is
No. 15AP-58                                                                                 18


immaterial that she failed to include this code section in her application. Because counsel
raised this issue at the hearing, relator asserts that the SHO's failure to discuss this code
section constitutes an abuse of discretion warranting the issuance of a writ of mandamus.
       {¶ 33} Relator cites this court's decision in State ex rel. Precision Steel Servs., Inc.
v. Indus. Comm., 10th Dist. No. 11AP-1083, 2013-Ohio-4381, and argues that this court
held that "the duty to repair or replace defective crane safety devices under OAC 4123:1-5-
14(G) applies to each and every crane described in OAC 4123:1-5-14." (Relator's Brief, 15.)
This is part of relator's argument that it was immaterial that she failed to cite this as a
violation in her application. For the reasons that follow, the magistrate disagrees.
       {¶ 34} First, the claimant in Precision Steel specifically cited Ohio Adm.Code
4123:1-5-14 in the VSSR application whereas here, relator did not.
       {¶ 35} Second, in Precision Steel, the lack of a latch or clip on the hook allowed the
8,000 pound magnet to slip off the hook and crush the claimant's hand. Here, failure to
follow the LOTO procedures allowed the crane to be energized and hit the scissor lift.
       {¶ 36} Third, and most importantly, the Supreme Court of Ohio reversed this court
and found that the commission and this court construed the cited provision too broadly
stating that "Nothing in subsections (C) through (F) of Ohio Adm.Code 4123:1-5-14 refers
to a hook on a crane or hoist. There is no language in the rule that plainly apprised
Precision Steel that a latch on a crane hook constituted either a 'safety device' or 'load-
carrying equipment' for purposes of Ohio Adm.Code 4123:1-5-14(G)(1). As such, there
could be no VSSR for failure to provide a latch on the crane hook." State ex rel. Precision
Steel Servs. v. Indus. Comm., __ Ohio St. __, 2015-Ohio-4798, ¶ 19.
       {¶ 37} To the extent relator uses this court's decision in Precision Steel to assert
that "the duty to repair or replace defective crane safety devices under OAC 4123:1-5-
14(G) applies to each and every crane described in OAC 4123:1-5-14," relator's argument
fails. As such, the magistrate finds the commission did not abuse its discretion when it
found that Ohio Adm.Code 4123:1-5-14(C)(1)(e) regarding warning devices did not apply.
       {¶ 38} In her reply brief, relator argues that Landers and Sutter had to keep the
crane energized in order to inspect it fully. Crane's Operations Manager, Tom O'Flaherty,
testified that part of the inspection required Landers and Sutter to test all warning
devices. Sutter also testified that testing the warning devices was part of the inspection.
No. 15AP-58                                                                              19


Relator then implies that the reason the remote control for the crane was found on the
floor of the lift is evidence the crane had to be energized in order to be inspected.
       {¶ 39} Relator's argument ignores the following: (1) every witness testified that the
failure of Landers and Sutter to follow the LOTO procedure on the crane caused the
injuries; (2) both Landers and Sutter already knew the warning lights/alarm did not work;
(3) this was not a cab-operated crane but was a standby, remote controlled crane; and (4)
the warning lights/alarm could have been tested from the ground before the LOTO
procedures were performed and before Landers and Sutter entered the scissor lift.
       {¶ 40} Relator's second argument is that Crane's failure to have managers on site
in Indiana at Allegheny Steel to supervise whether or not its employees were following the
LOTO procedures relieved Landers and Sutter from the responsibility of following those
procedures.    Specifically, relator points to the following section of Crane's LOTO
procedures:
                                     Responsibilities

              The division manager shall ensure the implementation and
              compliance with the provisions of the lockout/tagout
              procedure. Other employees may be designated to assist in
              compliance. The operations manager or another designated
              manager shall provide employee training, issue all locking
              devices, and inspect for compliance.

(Emphasis sic.)

       {¶ 41} It is undisputed that Crane required its employees to complete the ten-hour
OSHA course which included LOTO training, that Crane also trained its employees in the
LOTO procedure and provided each employee with a copy of the handbook, and that
Allegheny Steel further required LOTO training. In fact, before employees of Crane were
permitted to perform their work assignments, Allegheny Steel required them to get
instruction and they were given a sticker for their helmet only after they had completed
that training. Further, it is undisputed that Allegheny Steel was a 1-hour and 45 minute
drive from Crane's Ohio facility and that Landers and Sutter drove there on the day they
sustained their injuries. No manager was assigned to travel with them.
No. 15AP-58                                                                             20


       {¶ 42} The Ohio Adm.Code section at issue requires the employer provide certain
equipment necessary for employees to follow the LOTO procedures and the employees are
required to use that equipment and follow the LOTO procedures. Relator appears to
argue that where employers comply with the code provision and provide the requisite
safety equipment, Crane's own policy relieves employees of the responsibility of following
the code provision if a manger or supervisor is not present to observe that its employees
actually perform in a manner consistent with their training.
       {¶ 43} There is nothing in the Ohio Adm.Code requiring that supervisors be
present to ensure employees are complying with safety provisions. As such, this cannot
constitute grounds for finding a VSSR.
       {¶ 44} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it determined that she did
not meet her burden of proving a violation of a specific safety requirement and denying
her application.
                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
