[Cite as State ex rel. Camaco, L.L.C. v. Albu, 2014-Ohio-5330.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Camaco, LLC,                              :

                 Relator,                               :

v.                                                      :            No. 13AP-1002

Robert J. Albu and The Industrial                       :         (REGULAR CALENDAR)
Commission of Ohio,
                                                        :
                 Respondents.
                                                        :



                                            D E C I S I ON

                                    Rendered on December 2, 2014


                 Davis & Young, Richard M. Garner and Sunny L. Horacek,
                 for relator.

                 Bentoff & Duber Co., LPA, and Glen Richardson, for
                 respondent Robert J. Albu.

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


                                    IN MANDAMUS
                        ON OBJECTIONS TO MAGISTRATE'S DECISION

DORRIAN, J.
        {¶ 1} Relator, Camaco, LLC ("relator"), filed this original action requesting a writ
of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate its order granting a violation of a specific safety requirement ("VSSR") award
related to a workplace injury sustained by respondent Robert J. Albu ("claimant"), and
ordering the commission to find that there was no VSSR.
No. 13AP-1002                                                                            2


      {¶ 2} Pursuant to Civ.R. 53(D) 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 recommends
that this court deny the request for a writ of mandamus.
      {¶ 3} Relator sets forth two objections to the magistrate's decision:
             1. The Magistrate incorrectly found that Albu was entitled to
             the VSSR Award where the undisputed evidence proves that
             Albu's injuries were caused by: (a) a hidden, latent design or
             manufacturing defect in the Wayne Trail 2; and/or (b) Albu
             knowingly and unilaterally bypassing safety devices for the
             Wayne Trail 2 that would have protected him from injury.

             2. The Magistrate incorrectly found that Camaco waived the
             right to argue that Albu's injuries were caused by a hidden,
             latent design or manufacturing defect in the Wayne Trail 2.

      {¶ 4} As explained in the magistrate's decision, claimant was injured while
correcting a malfunction in a system that used a Motoman robot to transfer pipes to a
Wayne Trail 2 bending machine that bent the pipes to form frames for automobile seats.
The system was contained inside a fenced area, or "cell." The cell could be accessed via
two safety-interlocked doors that were designed to stop power to the Motoman robot and
the Wayne Trail 2 bending machine when opened. On the day he was injured, claimant
entered the cell to make adjustments to the Motoman robot through an opening in the
perimeter fence that was intended to allow finished product to exit, rather than through
the interlocked doors. In support of his VSSR claim, claimant offered a report from
Vernon Mangold, Jr., an expert in the design and operation of robotic systems, who
concluded that the emergency stop circuit on the system was improperly and defectively
designed.
      {¶ 5} Following an initial order denying the VSSR claim, the commission granted
claimant's request for rehearing, and a second staff hearing officer ("SHO") granted the
award. The second SHO relied on the Mangold report and concluded that claimant's
injury would have occurred even if claimant had entered the cell through the main door
because of the defective stop circuit. The SHO further noted that "[Mangold] indicated
that even the employees of Wayne Trail who trained the employees of the Employer were
No. 13AP-1002                                                                                3


not aware of this." (Second SHO Report, 2.) On review of relator's mandamus claim, the
magistrate concluded that the Mangold report constituted some evidence on which the
commission could rely in concluding that relator violated a safety requirement. The
magistrate further concluded that relator waived the argument that a VSSR award was
inappropriate because the accident resulted from a latent defect and that relator was
unaware of the defect.
       {¶ 6} We begin with relator's second objection, in which relator asserts that the
magistrate incorrectly concluded that it waived the right to argue that the accident
resulted from a latent defect. Generally, reviewing courts do not "consider an error which
the complaining party 'could have called, but did not call, to the trial court's attention at a
time when such error could have been avoided or corrected by the trial court.' " State ex
rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997), quoting State v.
Williams, 51 Ohio St.2d 112, 117 (1977). This principle has been applied in cases involving
the commission and in cases seeking mandamus relief. See Quarto Mining at 81-82; State
ex rel. Gibson v. Indus. Comm., 39 Ohio St.3d 319, 320 (1988); State ex rel. M.T.D.
Prods., Inc. v. Stebbins, 43 Ohio St.2d 114, 118 (1975).
       {¶ 7} In M.T.D. Prods., the claimant was injured while operating a plastic
injection molding machine. M.T.D. Prods. at 114. The commission granted a VSSR award,
concluding that the injury was caused by the lack of an effective guard on the machine. Id.
at 117. On appeal, the Supreme Court of Ohio concluded that the machine in question had
a safety gate that complied with the relevant safety requirements and that the safety gate
had not malfunctioned prior to the claimant's injury. Id. at 117-18. The Supreme Court
held that the commission abused its discretion in granting the VSSR award because a
single failure of the safety gate was not sufficient to find that the regulation was violated.
Id. at 118. In reaching its decision, the Supreme Court rejected the claimant's argument
that the employer had notice that the machine was not operating properly because the
claimant asserted this argument for the first time on appeal. Id.
       {¶ 8} The present case presents a scenario similar to M.T.D. Prods. In this case,
after the second SHO granted the VSSR award, relator filed a motion for rehearing. In the
memorandum in support of its motion, relator argued that the Mangold report was
inaccurate and that the expert reports and witness testimony that relator presented
No. 13AP-1002                                                                                              4


contradicted the Mangold report. Relator claimed that the second SHO abused her
discretion by failing to make a credibility determination with respect to the contradictory
expert reports. However, in its motion for rehearing, relator did not argue that the
accident resulted from a latent defect, nor that it lacked notice or knowledge of any defect
in the system.1 Relator could have offered this as an alternative basis for granting
rehearing but failed to raise this issue before the commission.2 Instead, relator asserted
the argument for the first time in this court before the magistrate. The magistrate
properly concluded that relator waived the issue by failing to assert it in the proceedings
before the commission. We agree and reject relator's second objection that the magistrate
erred by concluding that relator waived the latent-defect argument.
        {¶ 9} As an alternative, relator asserts that, even if the latent-defect argument was
waived, the commission's grant of the VSSR award constitutes plain error. In a civil
proceeding, "plain error involves those extremely rare cases where exceptional
circumstances require its application to prevent a manifest miscarriage of justice, and
where the error complained of, if left uncorrected, would have a material, adverse effect
on the character of and public confidence in, judicial proceedings." In re Moore, 10th Dist.
No. 04AP-299, 2005-Ohio-747, ¶ 8, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 122
(1997). Reviewing courts must proceed with "the utmost caution" in applying the doctrine
of plain error in civil cases. Goldfuss at 121. We are unaware of any case in which the
plain-error doctrine has been applied to overrule a commission decision granting a VSSR
award, and relator fails to cite any such decision. Relator argues that it would be unjust to
impose VSSR liability when the accident was the result of a latent defect. However,
although relator states in its objections that the second SHO found that claimant's
circumvention of the safety feature did not cause the accident "because there was a

1 In its motion for rehearing, relator quoted portions of the second SHO's report and highlighted in

particular the following: "Mr. Mangold indicated that it was not possible for the Injured Worker to enter the
enclosure and then turn on power only to the robot by means of the teach pendant. Mr. Mangold states that
the transfer arm of the bending machine was capable of moving at full speed when the robot was in teach
mode." (Motion for Rehearing, 2.) Relator then inserted ellipses in lieu of the following sentence from the
second SHO's report: "[Mangold] indicated that even the employees of Wayne Trail who trained the
employees of the Employer were not aware of this." It is the latter sentence which relator now highlights on
appeal.
2 Relator filed a "Motion to Vacate and to Reinstate Motion for Rehearing" after the commission denied its

motion for rehearing. Therein, relator raised only technical/procedural issues but did not raise the issue of
latent defect.
No. 13AP-1002                                                                                      5


hidden, latent defect in Wayne Trail 2, that neither Albu nor Camaco knew of" that
allowed the transfer arm to continue to operate in teach mode, careful reading of the
SHO's finding belies relator's statement. (Emphasis added.) (Objections, 7.) While the
SHO did find that the transfer arm was capable of moving at full speed in teach mode, she
noted that Mangold indicated that "the employees of Wayne Trail who trained the
employees of the Employer were not aware of this." (Emphasis added.) (Second SHO
Report, 2.) Relator argues this necessarily means that relator could not have been aware
of it. We do not agree. Contrary to relator's assertion, the SHO did not find that relator
was unaware of the defect.3 Furthermore, relator points us to no evidence in support of its
argument that it was unaware. Under these circumstances, we conclude that this is not
one of those rare cases where the plain-error doctrine must be applied to prevent a
manifest miscarriage of justice.
       {¶ 10} Accordingly, relator's second objection to the magistrate's decision lacks
merit and is overruled.
       {¶ 11} In relator's first objection, it argues that the magistrate erred by finding that
claimant was entitled to the VSSR award because his injuries were caused by a latent
defect in the system and because claimant unilaterally bypassed safety devices that would
have protected him from injury. With respect to the first argument, that claimant's
injuries were caused by a latent defect, as explained above, relator waived this argument
by failing to assert it before the commission. With respect to the second argument, that
claimant unilaterally bypassed safety devices by entering the enclosure through an exit
chute rather than the main door, the second SHO rejected this argument. Relying on the
Mangold report, the second SHO concluded the injury would have occurred even if
claimant had entered through the main door. The magistrate properly concluded that the
Mangold report constituted some evidence on which the commission could rely in
granting the VSSR award.
       {¶ 12} Accordingly, relator's first objection to the magistrate's decision lacks merit
and is overruled.

3 Here, we note as well that there was evidence presented to the commission indicating that, prior to
claimant's accident, another employee was nearly struck when performing a similar task and that one
employee spoke with relator's maintenance supervisor about modifying the system to avoid the risk of
injury. See Sheppard Depo., Stipulated Evidence at 254, 260-61.
No. 13AP-1002                                                                          6


      {¶ 13} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule relator's two objections to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. Accordingly, the requested writ of mandamus is hereby denied.
                                                      Objections overruled; writ denied.
                            TYACK and KLATT, JJ., concur.
                                 _______________
No. 13AP-1002                                                                          7


                                    APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Camaco, LLC,                  :

             Relator,                       :

v.                                          :                   No. 13AP-1002

Robert J. Albu and The Industrial           :              (REGULAR CALENDAR)
Commission of Ohio,
                                            :
             Respondents.
                                            :




                         MAGISTRATE'S DECISION

                               Rendered on May 29, 2014



             Davis & Young, Richard M. Garner and Sunny L. Horacek,
             for relator.

             Bentoff & Duber Co., LPA, and Glen Richardson, for
             respondent Robert J. Albu.

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


                                    IN MANDAMUS


      {¶ 14} Relator, Camaco, LLC ("relator" or "Camaco"), 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 finding that relator violated a
No. 13AP-1002                                                                                 8


specific safety requirement ("VSSR") relative to the work-related injury sustained by
Robert J. Albu ("claimant"), and ordering the commission to find that there was no VSSR.
Findings of Fact:
       {¶ 15} 1. Claimant sustained a work-related injury on January 31, 2006 when he
was struck in the head by the transfer arm of a Wayne Trail 2 bending machine and then
struck his head on a pipe. Claimant's workers' compensation claim has been allowed for
the following conditions:
              Open skull/other fracture-brief coma; encephalocele;
              fracture condyle process mandible-closed; contusion, face;
              cortex contusion-brief coma; ankylosis left ear ossicles; orbit
              deformity due to trauma-right; open wound face
              complicated; open wound external left ear; open wound
              scalp-complicated; traumatic brain injury; subdural
              hemorrhage; brain conditions; nonpsychotic brain
              syndrome; brief depressive reaction; conductive hear loss
              tympanic membrane, left ear; cervical syndrome.

       {¶ 16} 2. There is no real dispute by the parties concerning how claimant's injuries
occurred. Claimant was employed as a weld technician by Camaco, which manufactures
automotive parts. The machine in question was a Wayne Trail 2 bending machine that
bent pipes to form frames for automobile seats. In the same area, a Motoman robot
would transfer pipes to the bending machine to accomplish this task. The job of the weld
tech is to alter the program on the robot (teach the robot) to adjust for a weld operation.
       {¶ 17} At the time of the accident, the Wayne Trail 2 was being operated by Ollie
Higgins—another Camaco employee. After Higgins changed parts during production, the
robot picked up a part and moved it to another station, but then the entire process
abruptly halted—presumably because it did not trip the sensor for the machine to keep
running. Claimant was called to troubleshoot the problem.
       {¶ 18} Claimant's job as a weld-tech required him to correct malfunctions
(troubleshoot) inside a fenced area or cell that contained the Wayne Trail 2 bending
machine and a robot called a Motoman. On the day in question, claimant was called to
resolve a jam that had occurred inside the cell when the transfer process between the
Motoman and the Wayne Trail 2 malfunctioned. In order to troubleshoot or diagnose the
problem, claimant could either be inside or outside the enclosed fenced area.
No. 13AP-1002                                                                                  9


       {¶ 19} On the day of injury, claimant was not able to see the problem area from
outside the fenced area and needed to go inside the fenced area. Claimant did not gain
access through the interlock doors. Claimant testified that he crawled through the gap
between the machine and the fence where the machine's discharge or exit chute delivers
the finished part. Entering the fenced area through the exit ramp chute does not shut
down electricity to the Wayne Trail 2 or the Motoman robot.
       {¶ 20} When claimant entered the cell with the power on, he attempted to adjust
the Motoman robot using the teach pendant. He apparently made an adjustment and the
transfer arm from the Wayne Trail 2 moved and struck him in the head, driving his head
into a pipe that was in the machine. This incident resulted in serious injuries to claimant.
       {¶ 21} 3. On April 27, 2007, claimant filed an application for an additional award
for a VSSR under Ohio Adm.Code section 4123:1-5-17(G) alleging that relator failed to
provide suitable protective headgear where his work activity exposed his head to potential
physical contact with rigid objects.
       {¶ 22} 4. The Ohio Bureau of Workers' Compensation Safety Violations
Investigation Unit conducted an investigation to determine whether claimant's injury was
caused by relator's violation of a VSSR. The March 26, 2008 report is contained in the
stipulation of evidence; however, the investigators did not reach a conclusion, and,
instead, stated:
              There are conflicting statements about why Robert Albu
              entered into the wire-mesh fencing area of the machine.
              Robert Albu states in his sworn affidavit he was trained by
              Roland Sheppard, an experienced Weld Tech, to climb
              through the material exit opening of the fencing in order to
              program the Motoman robot (Exhibit 1). The employer states
              Robert Albu would have not received any injuries had he
              used the Motoman Teach Pendant properly and
              programmed the Motoman robot from outside the wire-
              mesh fencing. Also, the employer states Robert Albu would
              not have received any injuries had he not bypassed the
              machine's safety features, the man-door interlocks, and
              entered the wire-mesh fencing through the material exit
              opening in the fencing.

(Emphasis sic.)
No. 13AP-1002                                                                           10


       {¶ 23} 5. While acknowledging that this will be a very simplistic description of how
these machines work, the magistrate notes these basic facts. Two machines were involved
here: the Wayne Trail 2 is used to bend metal tubing to form seat frames for automobiles
and it uses a Motoman robot to move bent frame tubes to different molds during the
manufacturing process. The machines are fully automated and are surrounded by a
perimeter fence to keep workers safe and away from the machines. There are two safety-
interlocked doors which are designed to de-energize both machines when opened.
       {¶ 24} Claimant was employed by relator as a weld tech trainee and his duties
included troubleshooting robotic problems with some of the automated machines used by
relator including the Wayne Trail 2 and its Motoman robot. Employees such as claimant
used a "teach pendant" to re-program the Motoman robot.              The teach pendant is
supposed to control the Motoman robot at a slow speed while the Wayne Trail 2 is de-
energized.
       {¶ 25} 6. At the hearings before the commission, relator's argument focused on the
fact that it was undisputed that claimant gained access to the area inside the perimeter
fence through an opening in the fence and did not utilize the safety doors. In this regard,
relator asserts that if claimant would have entered the area through the safety doors,
power to the machines would have been off, and claimant would not have sustained his
injuries.
       {¶ 26} In response, claimant admitted that he gained access to the machine
through an opening in the perimeter fencing and that he had been taught this method.
Claimant also acknowledged that opening the safety doors would shut off power to both
the Wayne Trail 2 and the Motoman robot. Claimant also indicated that it was necessary
to have power turned on to both machines in order to troubleshoot the problems and use
the teach pendant to alter the Motoman robot's actions. Because both machines needed
to be energized, the opening in the perimeter fence was utilized by employees so that the
machines would not need to be de-energized and then re-energized since that took time.
       {¶ 27} 7. Three different experts prepared reports relative to ongoing litigation.
The magistrate has reviewed all three reports and below has noted salient findings and
opinions of those three experts which are relevant to the issues raised here.
No. 13AP-1002                                                                           11


          {¶ 28} (a) At the outset of his September 15, 2009 report, Steven Kramer, Ph.D.,
stated:
                At issue is the fence surrounding the work cell. The salient
                questions about the fence are: [1] Is it strong enough? [2] Is
                it large enough or too large? and [3] Does it do what it is
                supposed to do? The answers are: [1] yes, the fence is strong
                enough in that someone cannot break through and enter the
                work cell. [2] the work cell was made larger than it should
                have been in the area where workers needed to view the
                robot gripper in order to make adjustments.

                To question number three; does it do what it is supposed to
                do? The answer is yes and no. Yes to the portion of the fence
                with the two interlocking gates because when either is
                opened, the electrical, hydraulic and pneumatic power are
                shut down and therefore all motion of the robot and other
                equipment in the work cell stops. In depositions taken in
                May 2009, it was stated by Wayne Trail [hereafter noted as
                WT], that the robot will operate in teach mode with the
                interlocking gate open. However, this was not adequately, if
                at all, conveyed to Camaco since Mr. Albu and other Camaco
                employees did not know of this feature. Back to question
                three: The part of the answer which is No pertains to the
                portion of the fence where the parts exit the work cell in what
                has been called the exit opening or exit chute.

                At the time of the accident the portion of the fence where the
                bent tubes exited the work cell consisted of an opening that
                was 32 inches high by 71 inches wide starting at a height of
                21 inches above the floor.

                This opening was much larger than needed. * * * Had the
                opening been sized to allow only the bent tubes to exit the
                work cell, this accident would not have occurred.

                Camaco had safety walks throughout the plant by members
                of their safety committee every other week. It is unfortunate
                that no one on this committee identified this large opening
                as a potential problem. The RIA Standard says:
                "Safeguarding devices [in this case, the safety fence] shall be
                designed, constructed, attached and maintained to ensure
                that personnel cannot reach over, under, around, or through
                the device undetected and reach the hazard." More simply,
                the same standard in section 11.1 says: "Barrier guards, fixed
                and interlocked, shall prevent access to a hazard." In my
No. 13AP-1002                                                                  12


           opinion, the safety committee should have identified this
           large opening as a potential problem and made the opening
           smaller. Had they done this, the accident would not have
           occurred.

           Someone designing this safety fence as well as someone in
           charge of safety at this company should have known that
           employees at some point would climb through such an
           opening as a shortcut. The safety standards for robotics and
           moving machinery accept as a predicate that workers will
           either inadvertently, or intentionally, obtain access to
           machinery that is guarded by an inadequate fixed barrier
           guard. Why? Sometimes workers try to cut corners,
           sometimes they are pressured to keeping production running
           while needing to fix a jam-up, or sometimes they think they
           can make an adjustment on-the-fly in the work cell. The
           safety standards accept this as a premise in the design of the
           machinery and safety devices. Thus, the design of this
           machinery and safety fence were a proximate cause in this
           accident.

           ***

           There is another issue regarding the design of the work cell.
           That is, the equipment that gripped the tubes was positioned
           inside the work cell such that they could not be adequately
           seen from outside the work cell. On page 102 and 103 of Mr.
           Curtis Taylor's deposition, Mr. Taylor says Mr. Albu couldn't
           have made the adjustment from outside "because you have a
           big post in your way when you're looking at it from the
           backside of the machine….it's so far away and up so high you
           can't see the die itself…and you have the second flattening
           station that are all in your line of sight to be able to see
           exactly what you had to do to lay that part down."
           Consequently weld techs needed to enter the work cell to get
           a better look in order to make any needed adjustments. Also
           Mr. Roland Sheppard stated in his deposition that weld techs
           who were positioned outside the work cell said they could
           not adequately see how the tubes were being gripped in the
           clamping devices. Consequently weld techs had to enter the
           work cell to get a closer look in order to troubleshoot and
           touch-up [their word for adjust] a pickup or drop-off point.
           They indicated they needed the power kept on in order to
           make the proper adjustment. Mr. Taylor said [page 97]
           "now…after the accident, we don't run that side. We run the
           other side where everything is easy to see, its right in front of
No. 13AP-1002                                                               13


           you up close, you know. You can adjust any problem as far as
           the robot goes, you can adjust from outside."

           Having personally seen the work cell on February 10, 2009 I
           can corroborate that the clamping devices were too far from
           the fence to be adequately viewed from outside the work cell.
           If the clamping devices would have been positioned closer to
           any portion of the fence, or the fence positioned closer to
           where the pickup and drop-off positions were, touch-up
           could have been accomplished using the pendant from
           outside the work cell. From a design standpoint, it was
           entirely feasible to reposition the clamping devices, benders,
           robot, fence and transfer mechanisms, just as done on the
           other side of this work cell. Had the work cell been so
           designed, there would have been no need to enter the work
           cell with it powered up.

           In order to adequately troubleshoot the manufacturing line
           [and hence adjust a drop-off or pickup point] a weld tech or
           other suitably trained person needed to be inside the work
           cell with the power turned on and the robot in teach mode.
           Camaco did not have a policy about entering the work cell.
           The policy they did have concerning not dismantling or
           overriding or tampering guarding [Exhibit 8] was ambiguous
           because it was interpreted by weld techs to not apply to
           troubleshooting as well as not prohibiting entering the work
           cell through the unguarded exit opening.

           In April and May you sent me the following depositions for
           my review: Stephanie Fox, William Hamby Jr., Ollie Higgins,
           Alfred Horton III, David Maysonet, Patrick Schwartz, Roland
           Sheppard, Curtis Taylor, Jonathan Wright and of course
           Robert Albu in January 2009. In June you sent me
           depositions for review of: Matthew Brown, Danny Haid,
           Kevin Greiner, Chris May, Robert Mayse, Scott McCabe, and
           Mark Swob. Although your safety expert, Mr. Rennell, will
           likely comment on safety issues discussed in these
           depositions, I noted the following points in the deposition of
           Mr. Roland Sheppard. Mr. Sheppard stated…and I'm
           paraphrasing:

           [One] The work cell did not have any sort of physical safety
           device preventing or stopping people from entering it
           through the parts exit opening which was large enough for a
           grown man to fit through it rather easily.
No. 13AP-1002                                                                   14


             [Two] The company put production numbers ahead of safety.
             They cared about production numbers and getting parts out;
             that's why their quality lagged. They make it an emphasis to
             get the equipment or the work cell back up and running as
             quickly as possible.

             [Three] Several weld techs were inside of the WT2 work cell
             while it was powered up and the company knew this.

             [Four] Dave Maysonet almost had a near miss on this line
             some time before Albu's accident.

             [Five] Maintenance supervisor, Bill Hamby, Jr. said he
             would look into trying to figure out a way for us to be able to
             be in the work cell without all of this other stuff going on.

             Mr. Taylor also detailed that several weld techs including
             himself entered the work cell through the exit opening in
             order to troubleshoot and adjust the robot pickup and drop-
             off points. He provided an accurate description of the power
             to the robot and other equipment and how the sensors sent
             signals to these devices. He indicated it was the WT guys who
             showed Camaco employees how to go into the work cell
             when necessary [page 32]. It appears that it was common
             practice at Camaco for weld techs to enter the work cell when
             the power was on in order to fix a problem that might have
             occurred. In my opinion, this clearly violates good safety
             principles in the workplace since injury was substantially
             certain to occur.

             ***

             In the WT2 work cell at Camaco it appears the robot can
             move in teach mode while the interlock barrier gate is open.
             This in itself is not a violation of RIA or OSHA. However, it is
             not known if the speed of 10 inches/second [for safety, no
             doubt] was maintained in troubleshooting mode.

(Emphasis sic.)
(b) In his October 14, 2009 report, Tarald O. Kvalseth, Ph.D., noted:
             The opening through the fence was unnecessarily large and
             could easily and foreseeably be used by an individual to enter
             the cell to perform maintenance work or troubleshooting
             instead of going through an interlocked gate. Entering
             through that opening could certainly and foreseeably be
No. 13AP-1002                                                                  15


             perceived by an individual as being more efficient than going
             through an interlocked gate, which would shut down the
             power to the equipment.

             ***

             Camaco had not provided Robert Albu with sufficient
             training for him to perform the type of maintenance and
             troubleshooting that he was doing at the time of his injury. It
             seems clear from his and other depositions that he was not
             sufficiently qualified to do this work by himself.

             ***

             The unsafe act by Robert Albu involved entering the
             enclosure through the fence opening rather than using the
             electrically interlocked gate, which would have de-energized
             the equipment. However, he apparently did it as he had
             observed others do it. He did not act contrary to any
             instructions he had been provided with. He believed that he
             needed power to the equipment in order to properly perform
             his task, which could be achieved efficiently by going through
             the fence opening. He did not act contrary to any warning
             sign informing or reminding him that this fence opening
             should not be used to enter the enclosure since none was
             provided.

(c) The November 30, 2009 report of Vernon Mangold, Jr., who stated:
             At the time that WTT designed, fabricated and installed the
             system at Camaco they did not have a thorough
             understanding of the operation and function of the Motoman
             controller. In layman's language: their recommended fault
             recovery process was incorrect and potentially lethal.

             In several of the depositions WTT personnel erroneously
             state that Mr. Albu's incident could not have happened if he
             entered the work cell via the main entrance gate. They assert
             that entering through the gate would have placed the system
             in a hold mode and the robot would be placed in teach mode
             to allow Albu to correct the type of machine fault that he
             observed at the dimple press. They have emphatically stated
             that the transfer device could not have injured Albu while he
             was standing in the danger zone of the dimple press with the
             robot teach pendant in hand and the robot in teach mode.
No. 13AP-1002                                                                16


           Simply put: Conventional robots that have been marketed
           and sold in the US since 1992 are equipped with
           sophisticated safety control devices known as teach
           pendants. Modern teach pendants are equipped with a mid-
           position enable switch that must be properly depressed to
           cause the robot to move exclusively by means of teach
           pendant control. The robot is restricted in its movement so
           that it cannot travel any faster than what is described as slow
           speed during teach mode. This control feature is useful but is
           specific to the robot only.

           It can be proven that the robot did not strike anyone.
           However, the transfer device that did strike Mr. Albu was, at
           the time of the incident, capable of moving at full speed
           while the robot is in tech mode. How is this possible? Robot
           control interfaces have a factory installed feature that allows
           a person to, in the parlance of the industry, "Force an Output
           On" from the teach pendant with the robot in the teach
           mode.

           It is incorrect to assert that Albu would have been safe with
           the robot in teach mode. WTT designed and built a PLC
           control system that allowed for a custom robotic device, in
           this case the overhead transfer mechanism that struck Albu,
           and a vertical hydraulic dimple press, to operate
           independently of the robot machine control.

           ***

           Emergency stop circuit was improperly and defectively
           designed because the robot teach pendant emergency-stop is
           not designed to emergency-stop all equipment within work
           cell that can produce safety hazards to personnel. WTT failed
           to provide a proper emergency stop control scheme
           integrating emergency stop controls in a coherent electrical
           design that complies with ANSI single point of control
           requirements. Thus, the functioning of the robot teach
           pendant emergency stop control and the interaction of the
           control feature with other capital equipment system
           elements present in the integrated system was not properly
           designed. In the event that the emergency-stop circuit had
           been properly designed, then the use of the e-stop control on
           the teach pendant could have prevented Mr. Albu's incident
           from occurring. The risks of this emergency stop circuit
           design outweigh any conceivable benefit.
No. 13AP-1002                                                                        17


              ***

              At the time WTT designed, fabricated and installed this
              industrial robot system at Camaco they (WTT) did not have a
              thorough understanding of the operation and function of the
              Motorman controller. WTT's recommended fault recovery
              process was incorrect, hazardous, defective and potentially
              lethal. The transfer device that did strike Mr. Albu was
              capable of moving at full speed even if the robot was in teach
              mode and even if Mr. Albu entered the work cell through the
              interlocked gate. As a result, it is incorrect to claim that Mr.
              Albu would have been safe with the robot in teach mode
              because the program logic control (PLC) control [sic] system
              that WTT designed and built allowed for the subject
              overhead transfer mechanism and the vertical hydraulic
              dimple press to operate independently of the robot machine
              control.

       {¶ 29} 8. Claimant's application was heard before a staff hearing officer ("SHO")
on December 19, 2012.      The SHO determined that claimant was not entitled to an
additional award for a VSSR solely because he circumvented the machine's safety
features. Specifically, the SHO stated:
              The Staff Hearing Officer finds that, but for Mr. Albu's
              intentional act in circumventing the safety features (limit
              switch equipped man doors) protecting the cell, the Wayne
              Trail machine would not have been energized at the time
              during which Mr. Albu was within the cell and that,
              consequently, his injury would not have taken place. The
              question of whether or not head protection was required or
              whether or not there was a violation of O.A.C. 4123:1-5-17(G)
              is not pertinent in the present scenario as there would have
              been no potential for a head injury to occur, in the manner
              sustained by Mr. Albu, had the personnel doors been used by
              Mr. Albu and the cell de-energized.

              For all the foregoing reasons, the IC-8 application is denied.
              All evidence on file and at hearing, including the 12/18/2012
              report of Dr. Vargo, the 12/17/2008 deposition of Robert
              Albu, the 04/16/2009 deposition of Roland Sheppard, the
              04/15/2009 deposition of Jonathan V. Wright and the
              04/15/2009 deposition of Alfred F. Horton, was reviewed
              and considered.

       {¶ 30} 9. Claimant filed a motion for rehearing.
No. 13AP-1002                                                                      18


       {¶ 31} 10. In an order mailed March 20, 2013, an SHO granted claimant's motion,
stating:
             It is the order of the Industrial Commission that the Motion
             for Rehearing be granted for the reason that the Injured
             Worker has demonstrated that the order issued 01/26/2013
             was bas[ed] on a clear mistake of law in accordance with
             Ohio Administrative Code 4121-3-20(E)(1)(b).

             The Injured Worker's counsel sites [sic] to evidence in the
             rehearing request that indicates the Injured Worker had to
             be inside the cell with the power to the machine on in order
             to trouble shoot and fix the Motoman that was not working.
             He also cites evidence indicating the Motoman and the
             Wayne Trail machine were interconnected power wise and
             that the power could not be turned on or off to each
             separately. The Staff Hearing Order fails to address these
             issues and fails to cite any evidence to indicate the Injured
             Worker did not need to be inside the cell with the power on
             to the Motoman, and thus also to the Wayne Trail machine,
             in order to trouble shoot and fix the Motoman. The
             Employer's rebuttal memo to the rehearing request fails to
             cite any evidence that contradicts what is noted by the
             Injured Worker's counsel.

             If the evidence sited [sic] by the Injured Worker's counsel is
             correct, then the intentional circumvention of the doors that
             automatically shut off the power is immaterial as the power
             would have to have been turned back on once the Injured
             Worker was inside the cell so he could perform the required
             trouble shooting even if he had used the doors. The
             intentional circumvention of the safety feature is only a bar
             to an award if the injury would not have occurred had the
             circumvention not occurred. In this case the order fails to
             explain why the Injured Worker's argument is not correct
             that the injury would have occurred despite the
             circumvention of the safety feature of the doors since the
             power had to be on once the Injured Worker was in the cell.
             Since the Staff Hearing Order fails to address this issue and
             site [sic] evidence indicating the power did not need to be
             turned on once the Injured Worker was in the cell whether
             he used the doors to enter or not, or that the Wayne Trail
             could be turned off without the Motoman being turned off, it
             is found the order is not legally sufficient pursuant to [State
             ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481
             (1983)].
No. 13AP-1002                                                                          19



             Further, since the order found no violation solely because of
             the Injured Worker's circumvention of the safety feature
             associated with the doors, the order does not address
             whether head protection would have been required by the
             rule once the Injured Worker was inside the cell with the
             power back on if such was in fact required to perform the
             trouble shooting.

(Emphasis added.)
      {¶ 32} 11. The matter was reheard before a second SHO on June 26, 2013. The
SHO concluded that claimant was entitled to an additional award for a VSSR, stating:
             It is the order of the Staff Hearing Officer that the Injured
             Worker was employed on the date of injury noted above, by
             the Employer as a weld technician; that the Injured Worker
             sustained an injury in the course of and arising out of
             employment when he was struck in the head by a transfer
             arm from a Wayne Trail bending machine and then struck
             his head on a pipe.

             At the time of the injury the Injured Worker had been
             assigned to correct a malfunction in a fenced in area that
             contained a Motoman robot and the Wayne Trail bending
             machine. Under normal circumstances the robot transferred
             pipes to the bending machine where they would be formed
             into frames for automobile seating. On the day in question
             the transfer process had malfunctioned and the bending
             machine was not accepting the transfer of a pipe. The
             Injured Worker was called in to correct the situation. He
             stated that he needed to enter the enclosure to make the
             repair as he could not see the area of the problem from
             outside the enclosure.

             The fenced in area was designed so that when a person
             entered the enclosure through a door power was cut off to
             both the robot and the bending machine. At the time of the
             injury the Injured Worker did not enter the fenced in area
             through a door. He, rather, climbed into the enclosure
             through an opening that was designed to permit finished
             product to leave the enclosure. The Injured Worker testified
             that he had observed other employees enter the enclosure in
             this way prior to the date of the injury and that he did so as
             he did not want to cut off power to the bending machine as
             he did not know how to restart it. Prior to entering the
No. 13AP-1002                                                              20


           enclosure the Injured Worker picked up a hand held device
           called a teach pendant and shut off the power to the robot.
           He then slid the teach pendant under the bottom of the
           enclosure and entered the fenced in area. He does not
           remember any of the events following this until a point after
           which the injur[y] had occurred. The evidence indicates that
           the Injured Worker attempted to adjust the robot using the
           teach pendant and the transfer arm of the bending machine
           moved and struck the Injured Worker in the head. He was
           then thrown into the pipe that was in the machine.

           The Injured Worker has requested a finding that his injury
           was the result of the Employer's violation of Section 4123:1-
           5-17(G) of the Ohio Administrate Code. This section requires
           an Employer to provide an employee with suitable protective
           headgear where his work activity exposes him to potential
           hazards from falling or flying objects or where there is the
           potential of physical contact to the head from rigid objects.
           There is no evidence that the Injured Worker's employment
           presented him with potential hazards from falling or flying
           objects. The issue is whether his employment presented a
           potential hazard of contact with rigid objects.

           The Employer has asserted that the work activity presented
           no potential hazard of contact with rigid objects. It states
           that the Injured Worker bypassed a safety device when he
           failed to enter the enclosure through a door thereby shutting
           off all power. The Employer argued that, if he had entered
           through a door, the Injured Worker could have used the
           teach pendant to repair the robot by using the teach pendant
           to turn on power only to the robot and then make the repair
           when the robot was in teach mode. After the repair was
           made, the Injured Worker would have exited the enclosure
           and then turned on power to all of the machinery.

           There is no doubt that the Injured Worker bypassed a safety
           device when he entered the enclosure through means other
           than the main door. The Hearing Officer, however, finds that
           the injury would have occurred even if the Injured Worker
           had gone into the enclosure through the main door. The file
           contains a report from Vernon Mangold, an expert in the
           design and operation of robotic systems. Mr. Mangold
           indicated that it was not possible for the Injured Worker to
           enter the enclosure and then turn on power only to the robot
           by means of the teach pendant. Mr. Mangold states that the
           transfer arm of the bending machine was capable of moving
No. 13AP-1002                                                                            21


              at full speed when the robot was in teach mode. He indicated
              that even the employees of Wayne Trail who trained the
              employees of the Employer were not aware of this.

              The Hearing Officer finds that the Injured Worker's
              employer did present a potential hazard of head contact with
              rigid objects as the system did not permit power to be turned
              off to the bending machine when power to the robot was
              activated. The Employer, therefore, should have provided
              head protection to the Injured Worker. Had the Employer
              done so the injury might not have occurred or might have
              been much less serious.

              It is therefore ordered that an additional award of
              compensation be granted to the Injured Worker in the
              amount of thirty-five percent of the maximum weekly rate
              under the rule of State ex rel. Engle v. Indus. Comm. (1944),
              142 Ohio St. 425.

       {¶ 33} 12. Relator filed requests for reconsideration and rehearing and argued that
the Mangold report could not be relied on because it was contradicted by all the other
evidence submitted. Further, relator asserted that the SHO failed to explain why the
Mangold report was found to be persuasive.
       {¶ 34} 13. Relator's requests for reconsideration and rehearing were denied by
orders of the commission mailed September 5 and 26, 2013.
       {¶ 35} 14. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 36} For the reasons that follow, it is this magistrate's decision that relator has
not demonstrated that the commission abused its discretion by granting claimant an
additional award for a VSSR and this court should deny relator's request for a writ of
mandamus.
       {¶ 37} 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.
No. 13AP-1002                                                                             22


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).
       {¶ 38} In regard to an application for an additional award for a VSSR, the claimant
must establish that an applicable and specific safety requirement exists, which was in
effect at the time of the injury, that the employer failed to comply with the requirement,
and the failure to comply was the cause of the injury in question. State ex rel. Trydle v.
Indus. Comm., 32 Ohio St.2d 257 (1972).            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 award 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 tests. Trydle;
State ex rel. A-F Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); and State ex rel.
Ish v. Indus. Comm., 19 Ohio St.3d 28 (1985).
       {¶ 39} Relator raises some new arguments in this mandamus action which were
never made to the commission. The only issue challenged below was whether or not the
cited report of Mr. Mangold constituted some evidence upon which the commission could
rely to find a VSSR. Relator argued before the commission and continues to argue that
Mangold's report is contrary to the reports of Drs. Kramer and Kvalseth, as well as the
testimony of Stephanie Fox, and the commission was required to explain the reason why.
At this time, relator also contends that the Wayne Trail 2 had a design defect and because
of that defect, relator could not be held responsible for claimant's injuries.
       {¶ 40} Ohio Adm.Code 4123:1-5-17 provides, in pertinent part:
              Personal protective equipment
No. 13AP-1002                                                                           23


             ***

             (G) Head and hair protection.

             (1) Responsibility.

             (a) Employer.

             (i) Whenever employees are required to be present where the
             potential hazards to their head exists from falling or flying
             objects, or from physical contact with rigid objects, or from
             exposures where there is a risk of injury from electric shock,
             employers shall provide employees with suitable protective
             headgear.

      {¶ 41} First, to the extent that relator argues that a VSSR is inappropriate because
the Wayne Trail 2 had a latent defect, which relator did not know, relator failed to raise
this issue when the matter was still before the commission. Ordinarily reviewing courts
do not have to consider an error which the complaining party could have called, but did
not call, to the lower tribunal is attention at a time when it could have been avoided or
corrected. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997). These
principles also apply to cases reviewed in mandamus. State ex rel. Gibson v. Indus.
Comm., 39 Ohio St.3d 319, 320 (1988).
      {¶ 42} Relator asserts that it is immaterial that it did not raise this issue because
the SHO made it an issue which this court must now consider in this mandamus action.
However, the magistrate notes that relator could have raised this issue when it sought
review of the June 26, 2013 SHO order; however, relator did not. Relator asserts the SHO
made contradictory findings which negate any VSSR penalty. Relator asserts the SHO
specifically found that, because of the latent defect, relator could not have known
claimant's injuries could have occurred.     However, relator still failed to raise this
argument at a time when the commission could have considered it and the magistrate
does not find it appropriate for this court to consider the potential implications of the
SHO's statements.
      {¶ 43} Turning now to the finding of a VSSR, relator first argues that there were no
potential hazards from physical contact with rigid objects when employees were outside
the perimeter fencing. This was never an issue. The danger to employees arose because it
No. 13AP-1002                                                                           24


was impractical, if not impossible, to troubleshoot this machine from outside the
perimeter fence. There is evidence in the record indicating that the preferred way to
troubleshoot these machine was from outside the perimeter fence. As a result, when
troubleshooting was required, employees needed to enter inside the perimeter fence. The
safety-interlocked gates were designed to shut off power to both of the machines in the
event that an employee needed access. However, there is evidence that the teach pendant
did not work on the Motoman robot if the power to both machines was shut off. Further,
there was a large opening in the perimeter fence used by employees to bypass the safety-
interlocked gates to gain access to the machine. There is also evidence that relator knew
employees utilized this opening to gain access to the machine and warning signs were
posted by the opening. This information is contained within the Mangold report and is
corroborated in the other reports as well as deposition testimony from various employees.
       {¶ 44} Relator also argues that the finding of a VSSR here is improper because
claimant deliberately circumvented the machine's safety features and cites State ex rel.
Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190 (2000). This was never
disputed by any of the parties. However, the SHO relied on evidence that even if claimant
would have entered the area via the opening, the injury would have occurred. Given this
finding, relator's argument fails.
       {¶ 45} Although relator challenged the Mangold report in its motion for rehearing,
relator does not challenge that report here. Relator only argues that there cannot be a
VSSR finding when the injuries were caused by a latent defect about which relator was
unaware. As such, the magistrate finds the Mangold report does constitute some evidence
upon which the commission could rely to find that even if claimant would have entered
through the perimeter fence by way of the safety-interlocked doors, the transfer arm
would have been capable of moving at full speed when the robot was in teach mode. As
noted previously, the other arguments relator makes here, that the machine was defective,
and this was a first time accident cannot be raised, for the first time, in this mandamus
action. Relator failed to raise those arguments before the commission.
       {¶ 46} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion when it found that relator had
No. 13AP-1002                                                                       25


violated a specific safety requirement in making that award to claimant, and this court
should deny relator's request for mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA BROOKS




                            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).
