[Cite as State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 2014-Ohio-2616.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



[State of Ohio ex rel.]                                 :
Armstrong Steel Erectors, Inc.,
                                                        :
                 Relator,
                                                        :                  No. 13AP-190
v.
                                                        :           (REGULAR CALENDAR)
Industrial Commission of Ohio
and Frank P. Seidita,                                   :

                 Respondents.                           :



                                          D E C I S I O N

                                       Rendered on June 17, 2014


                 ICE MILLER, LLP, and Corey V. Crognale, for relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.

                 Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro,
                 and Robert J. Foley, for respondent Frank P. Seidita.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

SADLER, P.J.
        {¶ 1} In this original action, relator, Armstrong Steel Erectors, Inc., requests a
writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order granting the application of respondent Frank P. Seidita ("claimant") for
an additional award for violation of a specific safety requirement ("VSSR") and to enter an
order denying the application.
No. 13AP-190                                                                             2


      {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate concluded that
the commission did not abuse its discretion in granting claimant's application for an
additional award for VSSR. Accordingly, the magistrate recommended that this court
deny the request for a writ of mandamus.
I. RELATOR'S OBJECTIONS
      {¶ 3} Relator presents the following objections to the magistrate's decision:
               [I.] The Magistrate's conclusion that the use of personal fall
               protection equipment was impractical is not supported by the
               record. In fact, the record evidence reflects Seidita's own
               arguments that safety belts and lanyards were required.

               [II.] The Magistrate's failure to find unilateral negligence
               because Seidita did not "tie-off" constitutes an abuse of
               discretion as it authorizes employees to completely disregard
               the employer's stated safety rules and personal protection
               measures.

               [III.] The Magistrate's decision that Armstrong Steel violated
               OAC 4123:1-3-03(L)(3) must be overturned because
               Armstrong neither installed, owned, controlled nor was
               responsible for maintaining the chain link fencing that was
               involved in Claimant's injury.

II. DISCUSSION
      A. First and Second Objections
      {¶ 4} In its first objection, relator contends that the record does not support the
conclusion that the use of personal fall equipment was impractical.         In its second
objection, relator contends that claimant was unilaterally negligent in failing to utilize
personal fall protection equipment.
      {¶ 5} The arguments raised in relator's first and second objections are nearly
identical to those raised and addressed by the magistrate. In addressing these issues, the
magistrate concluded that the commission did not abuse its discretion in determining, at
the time of claimant's injury, the use of personal fall protection equipment was
impractical and that relator did not comply with the applicable safety requirements as
No. 13AP-190                                                                               3


defined by Ohio Adm.Code 4123:1-3-03(L)(3). The magistrate also found the commission
did not abuse its discretion when it did not find, due to its previous determination that
relator had not complied with the safety requirements at issue, that claimant was
unilaterally negligent in failing to wear personal fall protection at the time of his injury.
While relator continues to challenge these conclusions, for the reasons stated in the
magistrate's decision, we reject relator's contentions and find no merit to relator's
objections.
       {¶ 6} Accordingly, relator's first and second objections to the magistrate's
decision are overruled.
       B. Third Objection
       {¶ 7} In its final objection, relator contends for the first time that, because it
neither installed, owned, controlled, nor was responsible for maintaining the safety net
involved in claimant's injuries, it cannot be held responsible for violating Ohio Adm.Code
4123:1-3-03(L)(3). Our review of the record reveals that relator did not raise this issue at
the administrative level. Rather, the issue before the commission was specifically whether
the safety net met the applicable safety standards.
       {¶ 8} It is well-settled law that issues not raised administratively cannot be raised
in a mandamus action. State ex rel. Burns Internatl. v. Smith, 10th Dist. No. 05AP-488,
2006-Ohio-6731, ¶ 3, citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78
(1997). As stated in Burns Internatl., a failure to pursue this issue administratively "bars
this court from addressing it de novo in this action." Id. at ¶ 3. Thus, because we find
relator failed to raise this argument at the administrative level, relator is precluded from
raising it here.
       {¶ 9} Accordingly, relator's third objection to the magistrate's decision is
overruled.
III. CONCLUSION
       {¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We, therefore, overrule
relator's three objections to the magistrate's decision and adopt the magistrate's decision
No. 13AP-190                                                                            4


as our own, including the findings of fact and conclusion of law contained therein.
Accordingly, the requested writ of mandamus is hereby denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                         BROWN and CONNOR, JJ., concur.
                      _____________________________
No. 13AP-190                                                                             5


                                    APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

[State of Ohio ex rel.]                     :
Armstrong Steel Erectors, Inc.,                                   No. 13AP-190
                                            :
               Relator,                                      (REGULAR CALENDAR)
                                            :
v.
                                            :
Industrial Commission of Ohio
and Frank P. Seidita,                       :

               Respondents.                 :



                          MAGISTRATE'S DECISION

                              Rendered on January 13, 2014


               ICE MILLER, LLP, and Corey V. Crognale, for relator.

               Michael DeWine, Attorney General, and Kevin J. Reis, for
               respondent Industrial Commission of Ohio.

               Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro
               and Robert J. Foley, for respondent Frank P. Seidita.


                                    IN MANDAMUS

      {¶ 11} In this original action, relator, Armstrong Steel Erectors, Inc. ("relator" or
"Armstrong"), requests a writ of mandamus ordering respondent Industrial Commission
of Ohio ("commission") to vacate its order granting the application of respondent
Frank P. Seidita for an additional award for violation of a specific safety requirement
("VSSR") and to enter an order denying the application.
No. 13AP-190                                                                                  6


Findings of Fact:
       {¶ 12} 1. On April 23, 2009, Frank P. Seidita ("claimant") fell from a concrete
bridge pier while employed by relator as an iron worker. The bridge runs U.S. Route 62
over Andrews Avenue in Youngstown, Ohio.
       {¶ 13} A chain link fence had been installed aside the pier top on which claimant
was working. However, there was a gap of six inches to one foot between the chain link
fencing and the outermost edge of the work surface.
       {¶ 14} At the time of his fall, claimant was not wearing personal fall protection,
i.e., personal protective equipment, even though that protection was readily available at
the job site. As he was using a two-by-four to pry up a bearing pad he was about to weld,
claimant lost his balance and fell through the gap to the ground below, a distance of over
25 feet. As a result of the fall, claimant sustained multiple fractures and other injuries.
       {¶ 15} 2. On April 21, 2011, claimant filed an application for a VSSR award.
       {¶ 16} 3. The VSSR application prompted an investigation by the Safety
Violations Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation
("bureau").
       {¶ 17} 4. On July 26, 2011, the SVIU investigator visited Armstrong's
headquarters at Newark, Ohio.        During the visit, the investigator met Armstrong's
president, Diane Bednar. The investigator obtained company documents regarding the
industrial accident.
       {¶ 18} 5. Following a July 27, 2011 telephone interview, the SVIU investigator
obtained an affidavit from claimant executed July 28, 2011:
               [Two] I began working at Armstrong Steel Erectors
               Incorporated approximately three weeks prior to my injury
               as an iron worker; this was my position at the time of my
               injury. My job duties consisted of steel construction, welding,
               and refurbishing bridges.

               [Three] I was not provided with any training from Armstrong
               Steel. I had completed an apprenticeship in 1994. I had also
               had completed the [OSHA] 10 hour course prior to working
               for Armstrong Steel Erectors. I believe Armstrong Steel
               conducted tool box talks or safety meetings at the beginning
               of the day; this was two years ago and I do not remember the
               issues discussed. Normally the talks consist of getting
No. 13AP-190                                                                     7


               enough water, tying off, safety glasses, and proper protective
               equipment.

               [Four] At the time of my injury I was required to wear a
               welding hood, safety glasses, hard hat, leather welding
               gloves, and work boots. I was wearing these items at the time
               of my injury.

               [Five] My injury occurred at on the US62 (Madison Freeway)
               bridge over Andrews Avenue. We were raising the bridge to
               install new bearing pads. I was under the bridge on a deck
               welding bearing pads in place. I was prying a bearing pad in
               order to weld the pad. I was using a two by four to pry the
               pad, the wood broke, I lost my balance, and fell.

               [Six] The bridge pier had a safety net under it. There was a
               one foot gap between the safety net and the bridge pier and I
               fell through this gap. I do not know when the safety net was
               installed; it had been installed prior to me starting the job.

               ***

               [Eight] At the time of my injury I was kneeling on the bridge
               pier. The bridge pier was approximately twenty-five feet wide
               and approximately three to four feet long. The bridge pier
               was approximately twenty-five feet six inches from the
               ground. I [fell] approximately twenty-five feet six inches
               landing on the concrete ground.

               [Nine] The company provided safety harnesses, lifelines, and
               lanyards. Armstrong Steel Erectors only required employees
               to wear the fall protection when in an aerial lift. Since the
               safety net was installed Armstrong Steel Erectors did not
               require employees to wear the fall protection when on the
               bridge, pier, or decking. I was not required to wear fall
               protection at the time of my injury because of the safety net.
               At the time of my injury I was not wearing a safety harness.

               [Ten] I had worn fall protection on this job whenever I was
               on the aerial lift. Prior to my injury I had been in the aerial
               lift approximately the day prior to my injury.

               [Eleven] At the time of my injury there was not any place to
               tie off to had I chosen to wear fall protection. There was not
               any tie off cable and I could not have tied off to any steel at
No. 13AP-190                                                                      8


               the time of my injury. The X braces we normally use to tie off
               to had not yet been installed.

               [Twelve] There was not any guard rail or toe board in the
               area where my injury occurred.

       {¶ 19} 6. On November 7, 2011, at Armstrong's request, Craig S. Brue executed
an affidavit, stating:
               [One] I am a journeyman ironworker by trade and have been
               a member of the International Association of Ironworkers,
               Local 207, for the past eight years. Currently, I am jobsite
               foreman with Armstrong Steel Erectors ("Armstrong Steel")
               and am responsible for supervising its crews on road and
               bridge construction projects. As a journeyman ironworker, I
               have participated in job safety training programs, including
               the OSHA ten hour and the OSHA thirty hour competent
               person courses. I have participated in these safety training
               courses not only through my employment with Armstrong
               Steel, but also through my membership with Union Local
               207. These safety programs cover OSHA's Subpart R.
               Subpart R covers safety requirements to protect ironworkers
               while performing steel erection activities.

               [Two] Armstrong Steel has a written safety handbook that is
               maintained at our jobsites. In addition, Armstrong has a
               complete set of safety rules requiring proper safety practices
               required by OSHA standards for us to follow while
               performing steel erection work. One of my responsibilities as
               the jobsite foreman is to ensure that Armstrong Steel's safety
               program is carried out. As such, I discuss the Company's
               safety program beginning with our new hires and I continue
               discussing safety practices with my crew on a daily basis.
               One of Armstrong's safety rules requires the use of fall
               protection equipment. This rule requires us to be tied off
               with the use of a body harness and lanyard whenever work is
               being performed at a height of six feet or more. This is our
               100% tie off rule.

               [Three] Another part of Armstrong's safety program includes
               a weekly toolbox safety talk. Typically, I conduct the weekly
               employee safety talks on Monday mornings. Our talks cover
               safety topics including fall protection requirements, traffic
               hazards, slipping and tripping hazards, and the proper use of
               personal protective equipment. I held our weekly toolbox
               safety talks on our ODOT bridge project where Frank Seidita
No. 13AP-190                                                                      9


               was hurt. During those safety talks, I covered our safety rules
               regarding fall protection and the 100% tie-off rule. In
               addition, every day, I reminded my crew to use their fall
               protection equipment and to make sure they are always tied-
               off while working on the steel.

               [Four] To monitor our safety program, Armstrong Steel has
               engaged a safety consultant who performs random field
               safety audits. The safety audits occur on a periodic basis at
               each of our jobsites. If a problem is identified, the safety
               consultant informs me and our structural steel manager,
               Russ Duskey, of the problem and we immediately address
               the problem or, if an issue cannot be taken care of
               immediately, I am required to clear the area or shut down
               operations.

               [Five] We also enforce our safety rules with a disciplinary
               program that includes verbal and written reprimands, and if
               one of our journeymen fails to follow the Company's' [sic]
               safety rules, it could result in his or her suspension or
               termination. As the jobsite foreman, I have the authority to
               verbally warn my crew for any failure to follow our safety
               rules. I also remind the guys on a daily basis that they need
               to be tied off while working on the steel. I also conduct a pre-
               work safety check, which includes checking on my crew's fall
               protection equipment and making sure that they are wearing
               their full body harnesses properly. I inspect my crew's fall
               protection equipment to make sure it is in satisfactory
               condition and meets safety standards for strength and
               durability.

               [Six] In this case, we were working as a subcontractor for
               A.P. O'Horo Company on an ODOT bridge project at U.S.
               Route 62 over Andrews Avenue in Youngstown, Ohio. The
               scope of our work included removing portions of the bridge,
               X-frames, bearings, and expansion joints. We also replaced
               X-frames, bearings, and expansion joints. For our project,
               Armstrong Steel furnished fall protection equipment for its
               workers. The fall protection equipment included safety
               harnesses, retractable lanyards, and bridge clamps for
               anchorage. I also hauled fall protection equipment in my
               utility truck. That equipment was also available for use by
               our crew.

               [Seven] Our work on the project began the end of March,
               2009. Frank Seidita was a part of our crew and he began
No. 13AP-190                                                                       10


               working at the project on April 7, 2009. At that time, I went
               through the new employee matters with Frank Seidita and
               observed his fall protection equipment to make sure it was
               adequate.

               [Eight] Even though Armstrong Steel provides the necessary
               fall protection equipment, my crew owns and uses their own
               fall protection equipment. As noted, Frank Seidita had his
               own safety harness and lanyard and his safety harness was
               made to hook up to two safety lanyards. His safety harness
               enabled Mr. Seidita to comply with the Company's 100% tie-
               off rule when working on the steel.

               [Nine] Mr. Frank Seidita was also a member of the
               Ironworkers' Local Union 207 and he has participated in the
               OSHA ten hours safety training courses. I also believe he has
               taken the OSHA 30 hour safety training course. Like me, Mr.
               Seidita, through his membership with Local Union 207, he
               has received safety training covering the OSHA standards,
               Subpart R for steel erection work, and, in particular,
               regarding OSHA's fall protection rules. In addition, I have
               worked with Mr. Seidita and have observed him following
               Armstrong's fall protection rules. Armstrong's fall safety
               rules require 100% tie-off while working on the steel six feet
               above ground or, if connecting, when they are more than two
               stories or thirty feet above ground. We are also required to
               be tied off while working in an aerial lift. I also reminded my
               crew on a daily basis to follow the 100% tie-off rule.

               [Ten] In April, 2009, Frank Seidita was part of my work crew
               on the U.S. 62 ODOT bridge project over Andrews Avenue in
               Youngstown, Ohio. Mr. Seidita was well aware of
               Armstrong's fall protection rule and I made him aware of this
               protection policy during his safety orientation when he
               arrived on the jobsite. As I recall, I gave Mr. Seidita a copy of
               the Armstrong safety rules which identify the need to use fall
               protection equipment and to be tied-off 100% of the time.
               For this project, Mr. Seidita was required to wear his fall
               protection equipment, a welding hood, safety glasses, a hard
               hat, welding gloves, and work boots. Prior to his fall, I also
               conducted Armstrong's weekly toolbox safety talks and
               covered a variety of safety topics, which included our fall
               protection requirements and the need for 100% tie-off.

               [Eleven] On April 23, 2009, Mr. Seidita was directed to weld
               bearing pads in place. This required him to work off of a
No. 13AP-190                                                                     11


               concrete bridge pier, which was approximately three feet
               wide and twenty-five feet long. Frank Seidita told me that he
               was using a two by four to pry up a bearing when the board
               broke causing him to lose his balance and fall between the
               safety net and the bridge pier. Mr. Seidita was not tied off at
               the time of his fall. This clearly was a violation of
               Armstrong's 100% fall protection tie-off rule.

               [Twelve] At the time of his fall, Mr. Seidita was working
               alone and he could not be seen by me or the rest of my crew.
               We were installing expansion joints on the bridge decking
               above Mr. Seidita. I had no idea Mr. Seidita was violating our
               safety rules and his training by working without being tied-
               off. Had I observed Mr. Seidita performing any work at a
               height of more than six feet above ground and not being tied-
               off, I would have immediately instructed him to stop what he
               was doing and tie-off. Put simply, Mr. Seidita failed to follow
               our 100% tie-off rule on that jobsite and had he ever
               returned to work following his injury, he would have been
               disciplined. Also, if Mr. Seidita would have followed our
               safety rules and tied-off, he would not have fallen to the
               ground.

               [Thirteen] I have reviewed Mr. Seidita's Affidavit and submit
               that it contains several misstatements. First, Seidita states
               that Armstrong Steel only requires employees to wear fall
               protection when they are in an aerial lift. That is clearly
               wrong. To the contrary, our 100% tie-off rule applies not
               only while in an aerial lift, but also whenever they are
               working at a height of more than six feet above ground or, if
               connecting, when they are more than two stories or 30 feet
               above a lower level. Mr. Seidita was not engaged in any
               connecting work at the time of his accident.

               [Fourteen] On this project, there also was a safety net
               installed. The safety net was installed by American Bridge
               Painters, another contractor on the project. Our 100% tie-off
               rule also applies even when there is a safety net.

               [Fifteen] I am also unclear as to what Mr. Seidita meant in
               his Affidavit that he was not required to wear fall protection
               equipment because there was a safety net. That is wrong. Mr.
               Seidita and the other members of our work crew were always
               required to wear their fall protection equipment whether
               they were working in the aerial lift, on sections of the bridge
               and regardless as to the safety net. Honestly, Mr. Seidita, for
No. 13AP-190                                                                      12


               reasons only known to himself, failed to tie-off. Had Mr.
               Seidita tied-off, he would not have fallen to the ground.

               [Sixteen] I also submit that Mr. Seidita had ample
               opportunity to tie-off while performing the bearing
               installations. Mr. Seidita could have tied-off onto sections of
               the steel or he could have attached bridge clamps to the steel
               and then tie[d]-off on the bridge clamp. On this project, our
               crew had bridge clamps available for use. The clamps were
               stored in our mechanic truck and I even have bridge clamps
               and other fall protection equipment in the utility truck I
               drove to the project.

               [Seventeen] I also note that Mr. Seidita was not working
               anywhere near what could be characterized as a floor
               opening or floor hole. Rather, he was working off a concrete
               bridge pier measuring three to four feet in width and twenty-
               five feet in length. The bridge pier was constructed of
               concrete and rose to a height running from twenty-five feet
               to fifteen feet. Obviously, there existed no opening whether it
               be floor, roof or wall in existence in which in [sic] any person
               or material could fall through.

               [Eighteen] I also note that the steel safety netting was not a
               working or walking surface. The safety net was simply
               another fall protection measure. It was not temporary
               flooring, a platform, runway, nor any type of walking or
               working surface. Likewise, I was unaware of any hole or
               opening in the safety net. As to the slight gap between the
               safety net and the pier, I submit that this was not an opening
               in any walking or working space of any floor, wall or roof.

       {¶ 20} 7. On November 18, 2011, at Armstrong's request, Diane Bednar executed
an affidavit, stating:
               [One] I am President of Armstrong Steel Erectors, Inc., and I
               am familiar with the workers' compensation claim and VSSR
               application of Frank P. Seidita. I am also familiar with the
               nature and scope of our work on the ODOT Bridge Project at
               U.S. Route 62 over Andrews Avenue in Youngstown, Ohio,
               where Mr. Seidita was injured.

               [Two] We staffed that project with union ironworkers who
               were previously schooled in techniques and procedures
               associated steel erection operations and safety. Through the
               apprenticeship and the training programs sponsored by the
No. 13AP-190                                                                     13


               Union Locals, our ironworkers possessed the knowledge and
               understanding in the use, care, and maintenance of personal
               protective equipment, including fall protection. I submit that
               our ironworkers possess this knowledge and competency at
               the time they step on our job project.

               [Three] It is also part of Armstrong Steel's safety program to
               provide ongoing training, supervision, and oversight
               covering the safety requirements associated with the
               performance of steel erection activities in accordance with
               OSHA's Subpart R.

               [Four] Craig S. Brue, our jobsite foreman on the ODOT
               project, and the rest of the ironworkers on that project,
               including Frank D. [sic] Seidita, have participated in safety
               training courses, including, at a minimum, the OSHA 10
               hours course and, the OSHA 30 hour competent person
               course. Additionally, Mr. Brue held weekly toolbox safety
               talks which covered a variety of safety topics including fall
               protection requirements, traffic hazards, slipping and
               tripping hazards, and the proper use of personal protective
               equipment. These weekly toolbox safety talks occurred
               throughout the course of Mr. Seidita's work on that project.

               [Five] I reviewed Mr. Seidita's Affidavit and wish to set the
               record straight with respect to several statements. I will
               address these statement in the order made by Mr. Seidita.

               [Six] First, American Bridge Painters installed a safety net in
               accordance with their obligations on this project. The safety
               net was a fall protection measure, as well as, a means of
               catching debris before it would fall to the ground. Even with
               a safety net, our safety program requires our workers to use
               their fall protection equipment and to be tied-off whenever
               they are working six feet above ground or, if performing
               connecting operations, when they are more than two stories
               or thirty feet above ground. If any of our ironworkers are
               engaged in those activities and not tied-off, they would be in
               violation of our 100% tie-off rule and subject to discipline. I
               submit that this duty applies whether or not a safety net has
               been installed.

               [Seven] On the project where Mr. Seidita worked, as with all
               of our other projects, Armstrong Steel provided all the
               requisite fall protection equipment, including safety
               harnesses, retractable lanyards, and bridge clamps for
No. 13AP-190                                                                     14


               anchorage. All of this equipment was on the job site and
               readily available to all ironworkers.

               [Eight] I am also familiar with the job activities that Mr.
               Seidita was performing on the concrete bridge pier at the
               time of his accident. In the performance of those activities, I
               submit that Mr. Seidita had options within which to properly
               use his fall protection equipment. Specifically, Mr. Seidita
               could have used a choker to wrap around the steel work of
               the bridge and hook to his lanyard or he could have used a
               bridge clamp and then be connected to the clamp. Mr.
               Seidita, however, for reasons only known to himself, failed to
               tie-off as required by our safety rules, and his reciprocal
               obligation under Ohio's specific safety requirements. Given
               Mr. Seidita's action, I submit that he would have been
               disciplined for this failure to follow our safety rules had he
               ever returned to work following his accident.

               [Nine] I also note that it is a misstatement on the part of
               Seidita to state that Armstrong Steel only requires employees
               to wear fall protection equipment when in an aerial lift. As
               repeatedly noted above, this is incorrect and goes against our
               safety rules. I have attached a copy of our written safety
               rules.

               [Ten] Finally, I submit that Mr. Seidita was working on a
               concrete bridge pier that did not constitute what could be
               characterized as a floor, roof, or wall opening that was
               required to be guarded or covered. Nor could the space
               between the bridge pier and the safety net be considered an
               opening in a floor, roof or wall.

       {¶ 21} 8. On June 5, 2012, at claimant's request, Adam Shields executed an
affidavit, stating:
               My name is Adam Shields. I worked for Armstrong Steel
               Erectors on or around April 23, 2009. I am a journeyman
               iron worker and a member of the International Association
               of Ironworkers, Local 207.

               I worked on the ODOT bridge project at U.S. Route 62 over
               Andrews Avenue in Youngstown, Ohio. On this job, safety
               fencing was used as fall protection. Static lines were not used
               on this job unless we were over railroad tracks where the
               fencing was never erected. The static lines are used for iron
               workers to tie off to while walking the iron. There were no
No. 13AP-190                                                                         15


               static lines in the area where Mr. Seidita fell. I remember on
               this job, we relied on the safety fencing as our primary fall
               protection.

      {¶ 22} 9. On September 12, 2012, a staff hearing officer ("SHO") heard the VSSR
application. The hearing was recorded and transcribed for the record.
      {¶ 23} 10. At the September 12, 2012 hearing, early on, claimant tells the hearing
officer how the accident occurred:
               HEARING OFFICER: For my benefit, would you define for
               me what a bridge pier is?

               THE CLAIMANT: Okay.

               HEARING OFFICER: I think I know what you're talking
               about, but I want to hear it from you so I make sure that --

               THE CLAIMANT: Well, it's the concrete part that holds up
               the bridge, the steel part of a bridge. It's just, you know, it's
               on either side of the freeway or the whatever, road or
               whatever.

               HEARING OFFICER: It's the pillars and they're connected
               across the top?

               THE CLAIMANT: Yeah, so the beams could go across the top
               of these piers.

               HEARING OFFICER: Uh-huh.

               THE CLAIMANT: They support the whole structure.

               HEARING OFFICER: Okay.

               A. I was working on top of one of those. And there's a fence
               or netting underneath us. And I was welding some bearing
               plates which the bridge bears on, the weight, okay, it takes
               the load of the bridge; I was welding some up, and I was
               prying on one to get it up against the steel so I could weld it.
               And there was tight steel to work with, and what I was prying
               with was a two-by-four. The two-by-four broke and it
               snapped, and I slipped off of it. And my foot went straight
               down through the -- the -- my work area, which is the fence I
               was working -- that was, you know, going underneath the
               bridge.
No. 13AP-190                                                                  16


                HEARING OFFICER: Uh-huh.

                A. And I went through the hole and I just couldn't hold my
                weight up, and I completely went through the fence. There
                was a gap in there for whatever reason.

                Q. (BY MR. MORO) Were you using any other personal
                protective equipment, and specifically I'm talking about a
                safety belt and a lanyard?

                A. No, I was not.

(Tr. 197-99.)
       {¶ 24} During direct examination by his counsel, claimant testified:
                A. Where I was working, I was underneath the bridge, the
                deck over my head and the fence underneath me. And the
                whole time you're on this, you're working on your hands and
                knees and you never stand straight up. So you're always
                crawling or on your knees doing the work performed, so, in
                my situation. The people around me, there really wasn't any
                work that was being performed right on either side of me. I
                was by myself.

                ***

                Q. Was it required on this job to wear a safety belt and a
                lanyard?

                A. When?

                Q. When you were on the net?

                A. No.

(Tr. 201-03.)
       {¶ 25} During claimant's cross-examination by Armstrong's counsel, the
following exchange was recorded:
                Q. Okay. And your affidavit indicates that on this job site
                where you were hurt, Armstrong Steel provided safety
                harnesses, lanyards, clamps to tie off on, lifelines?

                A. They provided everything. I was -- you know, they would
                provide a welding hood if you needed one, which is
No. 13AP-190                                                                       17


               protective equipment. They had harnesses laying in the back
               of a truck somewhere, yes. I did use my own personal
               harness on that job when I was -- when I was told to or I
               knew I had to, working in the aerial lifts, 'cause I had been in
               the aerial lifts previously on that job.

               Q. Okay.

               A. This one didn't require it, so I didn't. I gathered, again, in
               the morning when I got to work, I gathered the tools that I
               needed for that particular job and went for it. A harness was
               not one of the safety things because there was no fear of
               falling.

               ***

               Q. Okay. Now, you report, and let's go back to, at first you
               were telling the Hearing Officer you were working on the
               fencing, on the net; correct?

               A. Yes, I may have said that.

               Q. But what you did say originally under oath, and that is, at
               the time of your injury you were kneeling on the concrete
               pier; correct?

               A. Yes.

               Q. You were doing your work standing on the concrete pier?

               A. Kneeling on the pier.

               Q. I'm sorry, kneeling on the concrete pier?

               A. And, yes.

               Q. Okay. And that concrete pier you indicate was about 25
               feet wide or long and either 3 or 4 feet wide or long, whatever
               you want to --

               A. Yes.

               ***

               Q. Okay. And apparently your attorney wants or you might
               have thought you now need to say you were working on the
No. 13AP-190                                                                      18


                fencing and saying there was a hole in the fencing; is that
                what your understanding is today?

                A. I guess I didn't mention the complete description of, good
                enough, of the job; but the fence went up to the pier. The
                fencing or the netting or -- it's -- the fencing went up to the
                pier.

                ***

                A. And I was welding. When the two-by-four that I was
                prying with snapped, my foot went off of the pier and onto
                the fencing, and it went through whatever gap was there
                and --

                ***

                A. So I -- I was -- sometimes I was on the fencing, sometimes
                on the pier. To get to the pier, I was crawling on the fencing.
                And to get off of the pier, I would crawl back off the fencing.

(Tr. 222-26.)
       {¶ 26} At the hearing, Russell Duskey testified on direct examination by
Armstrong's counsel. The following exchange occurred:
                Q. Was it Armstrong Steel's obligation under your contract
                with the general contractor, A.P. O'Horo, to put up the
                fencing?

                A. No, it wasn't.

                Q. Okay. And what function did the fencing serve?

                A. Debris net primarily.

                Q. And was the fencing the only fall protection in place on
                this project for Armstrong Steel workers?

                A. Their individual fall protection was in place.

(Tr. 231.)
       {¶ 27} At the hearing, Diane Bednar testified on direct examination by
Armstrong's counsel:
No. 13AP-190                                                                          19


                Q. Okay. And after you learned about Mr. Seidita's accident,
                first of all, does Armstrong have a disciplinary policy in
                which, if someone violates a safety rule, they're disciplined?

                A. We have a disciplinary policy. It's three steps; verbal,
                written, dismissal. Craig Brue would be implementing that,
                so he would have issued the verbal warnings as well as any
                other reprimands.

                Q. And in this case, Mr. Seidita, if he would have come back
                to work at Armstrong Steel, would he have been disciplined
                for his actions?

                A. He would have received a reprimand, yes.

                Q. And the basis for the reprimand would have been?

                A. Not being tied off.

                Q. Okay. And on this project, this fencing that they keep
                referring to as the safety fencing, was that the primary means
                of fall protection for Armstrong?

                A. It was one means, but it was not a primary.

                Q. And the other means is?

                A. 100-percent tie off.

(Tr. 243-44.)
      {¶ 28} At the hearing, claimant testified on redirect examination by his counsel:
                Q. Frank, you've heard the testimony and so forth. Is it fair to
                say that the employer allowed you to rely on the netting and
                fencing as fall protection?

                A. Yes.

                Q. And did you see other Armstrong employees at any time
                during your course of working on this job moving along on
                this fencing or walking along this fencing --

                A. Absolutely.

                Q. -- without safety nets or safety belts and lanyards?
No. 13AP-190                                                                     20


                A. Yes.

                Q. Okay. So you saw other employees walking around on this
                stuff?

                A. Well, just, you know, specifically, Craig Brue, the foreman
                on the job, to -- to like come up, instead of getting on an
                aerial lift or if there wasn't an aerial lift there, he came
                actually to the end of the bridge and crawled out on the fence
                just like I did to -- to come and show me what we were
                talking about. You know what I mean? He was my foreman;
                he showed me what to do. He wasn't in a harness when he
                came and crawled out on the fence. He didn't have a harness
                to throw on or there wasn't a lift available. He ran up to the
                abutment or wherever, the beginning of the bridge, got on
                the fence, crawled out there, and showed me what I was
                talking about.

                Q. And he didn't wear -- he didn't have a safety belt and a
                lanyard on?

                A. Absolutely not[.]

                ***

                Q. When you were up there with Craig Brue and when he
                would see you up there, did he direct you to tie off when you
                were on this net?

                A. Absolutely not. It was never a -- and I talked to him. I
                mean, 25 feet is about what I fell, just over 25 feet, and I
                talked to him on the -- on the ground. Or whoever else is on
                the ground, you talk, you communicate. Nobody's ever -- if
                people are -- you know, this is, and you understand, falling
                off -- tying off is a big deal in our business.

                ***

                A. And each job, you know what I mean, if they would have
                said, you have to have your harness on when you're up on
                that safety net, then we would put our harness on. We
                actually had discussions and they said, when you're up on
                the fence you don't need your harness; that fence is there for
                fall protection.

(Tr. 245-48.)
No. 13AP-190                                                                    21


      {¶ 29} 11. Following a September 12, 2012 hearing, the SHO issued an order
granting the VSSR application. The SHO's order explains:
               [R]egulations 4123:1-3-03(C) (1) and 4123:1-3-03(J) (1-6)
               regarding personal protective equipment, safety belts,
               harness lifelines and lanyards were not required in this case
               as the regulations provide that safety nets may be used in
               lieu of lifelines and safety belts or harnesses. The Staff
               Hearing Officer relies upon Regulation 4123:1-3-03 (J) (7)
               and the undisputed testimony at hearing by the Injured
               Worker himself, stating that his work area on the date of
               injury was protected by safety netting.

               The Staff Hearing Officer finds that a V.S.S.R. award is
               deemed a penalty to the employer and therefore, is subject to
               a rule of strict construction with all reasonable doubts
               concerning the interpretation of the claim to be construed in
               favor of the employer. State ex rel. Burton v. Indus. Comm.
               (1989), 46 Ohio St.3d 170, State ex rel. Cincinnati Drum
               Service Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135. In
               other words, Specific Safety Requirements, being the basis
               for penalizing noncomplying employers, are to be construed,
               where reasonable, against applicability to the employer.
               State ex rel. G & S Metal Products, Inc. v. Moore (1997) 79
               Ohio St.3d 471.

               That being said and acknowledging the multiple denials
               specified above, the Staff Hearing Officer finds that the
               Injured Worker has demonstrated by a preponderance of the
               evidence that Specific Safety Regulations 4123:1-3-03 (L) (1)
               (3) do apply to the facts at hand.

               These regulations provide as follows:

               (L) Safety nets.

               (1) Safety nets shall be provided when workplaces are more
               than twenty-five feet above the ground, water, or other
               surface where the use of ladders, scaffolds, catch platforms,
               temporary floors, safety lines or safety belts or harnesses is
               impractical.

               (3) Safety nets shall extend outward from the outermost
               projection of the work surface in accordance with the
               following table to this rule and shall be installed as close
               under the work surface as practical but in no case more than
No. 13AP-190                                                                     22


               thirty feet below such work surface with the exception of
               bridge construction where only one level of nets is required.
               Nets shall be hung with sufficient clearance to prevent
               employee's contact with the surfaces or structures below.
               Such clearance shall be determined by impact load testing.

               The Staff Hearing Officer finds that 4123:1-3-03 (J) (7)
               permitted the employer [of] record to substitute the use of a
               safety net in place of personal safety equipment.

               Regulations 4123:1-3-03 (L) (1) and (L) (3) provide the
               duties imposed upon an employer for using a safety net.

               The Injured Worker testified at hearing that his work area
               was merely a crawl space between the top of the bridge piers
               and the bottom of the bridge roadway section. While this
               crawl space area was said to be 25' wide by the Injured
               Worker, he also said it was at 3' to 4' long and 25' 6" high.

               Given the Injured Worker's testimony as reflected in the
               hearing transcription regarding his description of attempting
               to weld plates together in this crawl space area that often
               required him to actually roll out onto the safety netting, the
               Staff Hearing Officer concludes that the use of personal
               protective equipment as described earlier, would be deemed
               to be impracticable [sic], as required by 4123:1-3-03 (L) (1).

               Regulation 4123:1-3-03 (L) (3) provides in relevant part, that
               "safety nets shall be installed as close under the work surface
               as practical … with the exception of bridge construction
               where only one level of nets is required. Nets shall be hung
               with sufficient clearance to prevent employees contact with
               the [surfaces] or structures below."

               It is the finding of the Staff Hearing Officer that the Injured
               Worker was employed on the date of injury noted above, by
               the employer as an Iron Worker, and that the Injured
               Worker sustained an injury in the course of and arising out
               of employment when while attempting to weld on a bridge
               pier in a squatting position, the Injured Worker shifted his
               body to weld in a hard to reach area and in doing so, his foot
               slipped off the edge of the pier and thru the gap between the
               pier and safety netting, resulting in the Injured [W]orker
               falling approximately 25 1/2 feet to the ground below.
No. 13AP-190                                                                       23


               It is further the finding of the Staff [H]earing Officer that the
               Injured [W]orker's injury was the direct proximate result of
               stepping off the bridge pier into a gap area between the net
               and pier which was between six inches and one foot wide,
               which resulted in his entire body falling through the gap
               area, over 25 feet below. This gap area is found to violate
               Specific Safety Regulations 4123:1-3-03 (L) (1) and 4123:1-3-
               03 (L) (3), of the Code of Specific Requirements of the
               Industrial Commission relating to Construction.

               The Staff Hearing Officer finds that the Injured Worker
               testified that the netting was similar to a chain link fence and
               was initially installed to abutt the top of the bridge pier. The
               Injured Worker also stated that the netting was installed
               prior to his employment on this job, so he didn't know who
               had installed the netting. The representatives of the
               employer testified that another subcontractor on the job had
               actually installed the netting.

               It is therefore ordered that an additional award of
               compensation be granted to the Injured Worker in the
               amount of fifteen (15) percent of the maximum weekly rate
               under rule of State ex rel. Engle v. Industrial Commission,
               142 Ohio St. 425.

      {¶ 30} 12. On November 19, 2012, relator and claimant each moved for rehearing
pursuant to Ohio Adm.Code 4121-3-20(E).
      {¶ 31} 13. On January 9, 2013, another SHO mailed an order denying the
motions for rehearing. The SHO's order explains:
               It is hereby ordered that the Motions for Rehearing filed by
               the Injured Worker and by the Employer on 11/19/2012 be
               denied. Neither the Injured Worker nor the Employer has
               submitted any new and relevant evidence nor shown that the
               order of 09/12/2012 was based on an obvious mistake of fact
               or on a clear mistake of law.

               Specifically, counsel for the Injured Worker alleged that
               other sections were violated and that the evidence would
               have supported a higher percentage than 15% but there was
               no further explanation or basis given.

               Regarding the Employer's request for re-hearing, there was
               some testimony at the hearing which led the Staff Hearing
               Officer to the conclusion that use of standard lifelines and
No. 13AP-190                                                                             24


                lanyards was impractical, thus requiring use of a safety net.
                The safety net or debris net under the Injured Worker clearly
                was not sufficient to prevent his fall. Even if use of the
                lifelines and lanyards was "practical," there was conflicting
                evidence and testimony as to whether or not their use was
                enforced 100 percent of the time at this job site by this
                Employer.

                As it is found that neither party has met the requirements of
                Ohio Admin. Code 4121-3-20(E) (1) (a) and (b), the requests
                for a VSSR re-hearing are denied.

          {¶ 32} 14. On March 6, 2013, relator, Armstrong Steel Erectors, Inc., filed this
mandamus action.
Conclusions of Law:
          {¶ 33} Three issues are presented:     (1) whether the commission abused its
discretion in determining that the use of personal fall protection was "impractical"
within the meaning of the pertinent safety rule for working on the concrete pier at the
time of injury, (2) whether the commission abused its discretion by not finding that
claimant was unilaterally negligent in failing to wear personal fall protection at the time
of his injury, (3) whether the specific safety rule, Ohio Adm.Code 4123:1-3-03(L)(3),
prohibits the gap between the outermost projection of the work surface atop the
concrete pier and the chain link fence (safety net)—the gap that claimant fell through at
the time of his injury.
          {¶ 34} The magistrate finds: (1) the commission did not abuse its discretion in
determining that the use of personal fall protection was "impractical" within the
meaning of the pertinent safety rule for working on the concrete pier at the time of
injury, (2) the commission did not abuse its discretion in failing to find that claimant
was unilaterally negligent in failing to wear personal fall protection at the time of his
injury, and (3) the specific safety rule, Ohio Adm.Code 4123:1-3-03(L)(3), did prohibit
the gap between the outermost projection of the work surface atop the concrete pier and
the chain link fence (safety net)—the gap that claimant fell through at the time of his
injury.
          {¶ 35} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus, as more fully explained below.
No. 13AP-190                                                                              25


                                    Basic VSSR Law
       {¶ 36} It is well-settled that a VSSR award is deemed a penalty to the employer
subject to the rule of strict construction with all reasonable doubts concerning the
interpretation of the safety standard to be construed against the applicability of the
standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354
(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
       {¶ 37} It is also firmly established that the determination of disputed factual
situations as well as the interpretation of a specific safety requirement is within the final
jurisdiction of the commission, and subject to correction in mandamus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d
1 (1984); State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47 (1956);
State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).
       {¶ 38} Of course, the commission's authority to interpret its own safety rules is
not unlimited. Strict construction does require that the commission's interpretation be
reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d
333, 342 (1997). The commission may not effectively rewrite its own safety rules when
it interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996).
       {¶ 39} Specific safety requirements are intended to protect employees against
their own negligence and folly as well as provide them a safe place to work. State ex rel.
Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 47 (1989).
       {¶ 40} The unilateral negligence defense to VSSR liability derives from State ex
rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988), in which an
employer was exonerated from VSSR liability because an employee had removed part of
a scaffold that had been required by a specific safety requirement. State ex rel. Quality
Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000).
       {¶ 41} However, a claimant's alleged negligence is a defense only where the
employer has first complied with relevant safety requirements. State ex rel.
Hirschvogel, Inc. v. Miller, 86 Ohio St.3d 215, 218 (1999). A claimant's negligence bars
a VSSR award only where the claimant deliberately renders an otherwise complying
device noncompliant. State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352, 355,
(1997); Martin Painting at 339.
No. 13AP-190                                                                             26


                        Applicable Commission Safety Rules
      {¶ 42} Ohio Adm.Code Chapter 4123:1-3 sets forth the commission's safety rules
regarding "Construction Safety."
      {¶ 43} Ohio      Adm.Code     4123:1-3-03     is   captioned   "Personal    protective
equipment."
      {¶ 44} Ohio Adm.Code 4123:1-3-03(A) is captioned "Scope." The first paragraph
thereunder provides:
               The requirements of this rule relate to the personal
               protective equipment listed immediately below, as required
               for employees on operations described in this rule in which
               there is a known hazard, recognized as injurious to the
               health or safety of the employee.

      {¶ 45} Ohio Adm.Code 4123:1-3-03(B) sets forth definitions. Thereunder, the
code provides:
               (2) "Lanyard" means a flexible line of rope, wire rope, or
               strap which generally has a connector at each end for
               connecting the body belt or body harness to a life line or
               anchorage.

               (3) "Vertical Lifeline" means a rope, suitable for supporting
               one person, to which a lanyard or safety belt (or harness) is
               attached.

      {¶ 46} Ohio Adm.Code 4123:1-3-03(C) is captioned "Specific requirements of
general application." Thereunder, the code provides:
               (1) Personal protective equipment furnished by the employer
               shall be issued to the employee in sanitary and proper
               condition so that it will effectively protect against the hazard
               involved.

               (2) Where employees provide their own protective
               equipment, such equipment shall give equal or greater
               protection than that furnished by the employer.

      {¶ 47} Ohio Adm.Code 4123:1-3-03(J) is captioned "Safety belts, harness lifelines
and lanyards." Thereunder, the code provides:
               Lifelines, safety belts or harnesses and lanyards shall be
               provided by the employer, and it shall be the responsibility of
No. 13AP-190                                                                          27


               the employee to wear such equipment when exposed to
               hazards of falling where the operation being performed is
               more than six feet above ground or above a floor or platform
               * * *. Lifelines and safety belts or harnesses shall be securely
               fastened to the structure and shall sustain a static load of no
               less than three thousand pounds.

       {¶ 48} Ohio Adm.Code 4123:1-3-03(J)(7) provides:
               Safety nets may be used in lieu of lifelines and safety belts or
               harnesses.

       {¶ 49} Ohio Adm.Code 4123:1-3-03(L) is captioned "Safety nets." Thereunder,
the code provides:
               (1) Safety nets shall be provided when workplaces are more
               than twenty-five feet above the ground, water, or other
               surface where the use of ladders, scaffolds, catch platforms,
               temporary floors, safety lines or safety belts or harnesses is
               impractical.

               ***

               (3) Safety nets shall extend outward from the outermost
               projection of the work surface in accordance with the
               following table to this rule and shall be installed as close
               under the work surface as practical but in no case more than
               thirty feet below such work surface with the exception of
               bridge construction where only one level of nets is required.
               Nets shall be hung with sufficient clearance to prevent
               employee's contact with the surfaces or structures below.

                                        First Issue
       {¶ 50} The commission determined that the safety rules required that safety nets
be provided when the use of personal fall protection and other listed safety devices are
"impractical."
       {¶ 51} Here, the commission, through its SHO, determined that the use of
personal fall protection was "impractical" and that relator was relying on the chain link
fence as a safety net.
       {¶ 52} According to relator, there exists no evidence that use of personal fall
protection was impractical.       On the other hand, respondents contend that the
commission relied upon some evidence showing that the use of personal fall protection
No. 13AP-190                                                                           28


was "impractical" at the time of the accident. The magistrate agrees with respondents
and finds no abuse of discretion.
       {¶ 53} In the SHO's order of September 12, 2012, the SHO identifies specifically
the evidence relied upon to support the finding that the use of personal fall protection
was impractical. The SHO finds that claimant was required to weld in a "crawl space
between the top of the bridge piers and the bottom of the bridge roadway section."
Further, the SHO found that relator's job on the date of the accident "often required him
to actually roll out onto the safety netting." The SHO also refers to the work site as a
"hard to reach area." Moreover, claimant was required to work in a "squatting position"
while on the pier.
       {¶ 54} As earlier noted, during his direct examination by his counsel at the
September 12, 2012 hearing, claimant testified:
               Where I was working, I was underneath the bridge, the deck
               over my head and the fence underneath me. And the whole
               time you're on this, you're working on your hands and knees
               and you never stand straight up. So you're always crawling or
               on your knees doing the work performed, so, in my situation.
               The people around me, there really wasn't any work that was
               being performed right on either side of me. I was by myself.

       {¶ 55} Clearly, claimant's hearing testimony provided some evidence to support
the commission's finding that use of personal fall protection was impractical on the date
of injury.
       {¶ 56} Here, relator seems to suggest that the use of personal fall protection
cannot be found impractical because means were available for claimant to "tie-off."
Relator points to Mr. Duskey's hearing testimony that heavy duty C-clamps could have
been used as "anchor points." (Relator's reply brief, 4.)
       {¶ 57} Relator's argument or suggestion misses the point. The issue before the
commission in determining whether use of personal protective equipment was
impractical was not whether claimant could have actually tied-off and used his personal
fall protection. Relator is incorrectly arguing what was possible, not what was practical.
Clearly, the availability of heavy duty C-clamps does not disprove that use of personal
fall protection was impractical.
No. 13AP-190                                                                           29


       {¶ 58} In short, the commission did not abuse its discretion in determining that
claimant's use of personal fall protection was impractical on the date of injury.
                                      Second Issue
       {¶ 59} The second issue, as earlier noted, is whether the commission abused its
discretion by not finding claimant unilaterally negligent in failing to "tie-off" using
personal fall protection at the time of injury.
       {¶ 60} The commission's determination that use of personal fall protection was
"impractical" while claimant worked on the concrete pier at the time of the injury, in
effect, determines the question of whether claimant can be unilaterally negligent in his
failure to "tie-off" using personal fall protection. Clearly, under the pertinent safety
rules, where it is impractical for the employee to use personal fall protection and the
other safety devices listed at Ohio Adm.Code 4123:1-3-03(L)(1), the employee may rely
upon an employer-provided safety net for his protection. Contrary to what may be
suggested by relator, the safety rules at issue do not require the employee to use
personal fall protection when the use of personal fall protection is impractical and he
believes that a safety net has been provided for his safety.
       {¶ 61} Moreover, the unilateral negligence defense is available only if the
employer first complies with the applicable safety requirement. Hirschvogel; State ex
rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125, ¶ 16.
Here, as the commission held, relator did not first comply with the applicable safety
requirement. That is, relator failed to satisfy the safety rule pertaining to safety nets,
under circumstances where use of personal fall protection is impractical.
       {¶ 62} However, relator argues that it did first comply with the applicable safety
requirement when it undisputedly provided personal fall protection that claimant failed
to use. (Relator's reply brief, 6.) Relator's argument is flawed because Ohio Adm.Code
4123:1-3-03(J)(1) requiring the employer to provide personal fall protection is not the
applicable safety requirement regarding the unilateral negligence defense. The reason
that Ohio Adm.Code 4123:1-3-03(J)(1) is not the applicable safety rule is because the
use of personal fall protection was found to be impractical by the commission.
No. 13AP-190                                                                            30


       {¶ 63} Given the above analysis, the magistrate concludes that the commission
did not abuse its discretion by not finding claimant unilaterally negligent in failing to
"tie-off" using personal fall protection at the time of his injury.
                                        Third Issue
       {¶ 64} The third issue is whether the specific safety rule, Ohio Adm.Code 4123:1-
3-03(L)(3), prohibits the gap between the outermost projection of the work surface atop
the concrete pier and the chain link fence (safety net)—the gap that claimant fell
through at the time of the accident. This gap was found by the commission to measure
between six inches and one foot. Relator, in effect, argues that the safety rule does not
specifically prohibit the gap through which claimant fell. According to relator, the
commission failed to identify any language in the rule that prohibits the gap, and that, in
the absence of such language, the finding of a safety violation "imposes additional
regulatory burdens on Armstrong Steel without notice and in contravention of strict
construction against the applicability of specific safety requirements." (Relator's brief,
25.)
       {¶ 65} Again, Ohio Adm.Code 4123:1-3-03(L)(3) states in part:
               Safety nets shall extend outward from the outermost
               projection of the work surface in accordance with the
               following table to this rule and shall be installed as close
               under the work surface as practical but in no case more than
               thirty feet below such work surface with the exception of
               bridge construction where only one level of nets is required.
               Nets shall be hung with sufficient clearance to prevent
               employee's contact with the surfaces or structures below.

(Emphasis added.)
       {¶ 66} The following "Table" follows the above-quoted rule:
              Vertical distance from working level to       Minimum required
              horizontal plane of net                       horizontal distance
                                                            of outer edge of net
                                                            from the edge of
                                                            the working
                                                            surface.
              Up to five feet                               Eight feet
              More than five feet up to ten feet            Ten feet
No. 13AP-190                                                                           31


               More than ten feet                         Thirteen feet

       {¶ 67} Clearly, the "Table" does not address the issue regarding the gap. Clearly,
the edge of the chain link fencing that created the gap is not the "outer edge of net"
referred to in the table.
       {¶ 68} The word "from" in the first sentence of Ohio Adm.Code 4123:1-3-03(L)(3)
must be given meaning. Because safety nets shall extend outward from the outermost
projection of the work surface, a gap is not permitted. Relator's argument simply fails to
give any effect or meaning to the word "from" in the first sentence of the rule. The rule
need not specifically state that a gap is not allowed.
       {¶ 69} Accordingly, the magistrate concludes that the gap is prohibited by the
safety rule.
       {¶ 70} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.


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