[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., Slip Opinion No. 2018-Ohio-3892.]




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



                          SLIP OPINION NO. 2018-OHIO-3892
THE STATE EX REL. JACKSON TUBE SERVICE, INC., APPELLANT, v. INDUSTRIAL
                      COMMISSION OF OHIO ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., Slip
                             Opinion No. 2018-Ohio-3892.]
Workers’ compensation—To establish impossibility as an affirmative defense to an
        application for an additional award for a violation of a specific safety
        requirement, an employer must show (1) that it would have been impossible
        to comply with the specific safety requirement or that compliance would
        have precluded performance of the work and (2) that no alternative means
        of employee protection existed or were available.
   (No. 2017-0790—Submitted April 10, 2018—Decided September 27, 2018.)
      APPEAL from the Court of Appeals for Franklin County, No. 16AP-351,
                                      2017-Ohio-1573.
                               _______________________
                            SUPREME COURT OF OHIO




                            SYLLABUS BY THE COURT
To establish impossibility as an affirmative defense to an application for an
       additional award for a violation of a specific safety requirement, an
       employer must show (1) that it would have been impossible to comply with
       the specific safety requirement or that compliance would have precluded
       performance of the work and (2) that no alternative means of employee
       protection existed or were available.
                           _______________________
       O’DONNELL, J.
       {¶ 1} Jackson Tube Service, Inc., appeals from a judgment of the Tenth
District Court of Appeals denying its request to compel the Industrial Commission
to vacate its order that granted Chad Thompson’s application for an additional
award due to the violation of a specific safety requirement (“VSSR”) and to issue
an order denying the application based on the defense of impossibility.
                                  Case History
       {¶ 2} Thompson, an industrial electrician in the maintenance department of
Jackson Tube, was injured on November 18, 2009 while in the process of
reinstalling a flywheel in a cutoff machine. A crane held the suspended flywheel
in a sling as Thompson and a coworker worked beneath it, trying to move the
flywheel into position, but the sling broke, dropping the flywheel which struck
Thompson and broke both legs. His workers’ compensation claim was allowed for
bilateral femur fracture and right femoral shaft nonunion.
       {¶ 3} Thompson also filed an application for a VSSR award, alleging
violations of numerous sections of the Ohio Administrative Code related to hoisting
and haulage equipment, power-driven cranes and hoists, and cranes, hoists, and
derricks.
       {¶ 4} At a hearing on the VSSR application, Thompson testified, “It’s my
understanding that there is a fixture for that application that’s offered by the




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                               January Term, 2018




manufacturer, and that was only noted after the accident when we had gone back
and taken a look.” (Emphasis added.) However, Jackson Tube’s maintenance
supervisor, Ron Kimrey, and its manager of safety and training, David Booher, both
testified that they were not aware of an alternative way to perform the job in a
fashion that absolutely kept an individual from being under the flywheel while it
was placed back onto the cutoff machine.
       {¶ 5} A staff hearing officer granted the VSSR application, determined that
Thompson’s injury occurred when he was required to work under a suspended load
in violation of Ohio Adm.Code 4123:1-5-15(D), and rejected Jackson Tube’s
argument that it was impossible to comply with the specific safety requirement
(“SSR”). In reaching that conclusion, the hearing officer relied on Thompson’s
understanding that the manufacturer offered a fixture that could have been used to
perform the task differently. Thus, the hearing officer concluded the employer’s
violation of Ohio Adm.Code 4123:1-5-15(D) constituted a VSSR.
       {¶ 6} Jackson Tube filed a motion for rehearing under Ohio Adm.Code
4121-3-20(E)(1)(b), alleging that the order granting Thompson’s application was
based on an obvious mistake of fact or clear mistake of law. In support of its
motion, Jackson Tube offered Kimrey’s affidavit, which stated that Thermatool, the
manufacturer of the cutoff machine, verified that it “does not manufacture or
provide a device or mechanism to assist in removing or replacing the flywheel.”
Kimrey further attested that “Thermatool’s engineer, Dan Lungo, has also * * *
indicated that he is not aware of any device or mechanism designed to assist in
removing or replacing the flywheel on the Cut Off Machine used at Jackson Tube.”
And although Lungo told Kimrey that “the only way to replace the flywheel * * *
without using a crane and sling is to unbolt the machine from the floor and use
heavy machinery to tilt the machine onto a 45 degree angle,” Kimrey explained that
he had researched the availability of a device to support the machine at a 45 degree
angle and “can state that no such device exists.”




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                             SUPREME COURT OF OHIO




       {¶ 7} In denying the motion for rehearing, the hearing officer determined
that Jackson Tube did not meet the criteria for rehearing set forth in Ohio
Adm.Code 4121-3-20(E)(1) and stated that an obvious mistake of fact is not shown
merely because a hearing officer relies on evidence or testimony that is contrary to
or inconsistent with evidence presented by the opposing party.
       {¶ 8} Jackson Tube filed a complaint seeking a writ of mandamus in the
Tenth District Court of Appeals alleging that the commission had abused its
discretion when it rejected Jackson Tube’s impossibility defense and when it denied
the motion for rehearing.
       {¶ 9} A magistrate concluded that the commission did not abuse its
discretion when it determined that Jackson Tube failed to establish a clear mistake
of fact to justify rehearing or when it concluded that Thompson was entitled to an
award for a VSSR.        The magistrate noted that the commission relied on
Thompson’s testimony that Thermatool, the manufacturer of the cutoff machine,
offered a fixture that would help support the flywheel while it was being reinstalled,
and that Jackson Tube had offered no evidence to the contrary. In addition, the
magistrate determined that Kimrey’s affidavit did not conclusively prove that it was
impossible for Jackson Tube to comply with the SSR.
       {¶ 10} The court of appeals adopted the magistrate’s findings of fact and
conclusions of law and denied Jackson Tube’s request for a writ of mandamus.
       {¶ 11} Jackson Tube filed this appeal, raising the following propositions of
law for our review:


               The Court of Appeals erred when it rejected Jackson Tube’s
       “impossibility” defense.
               The Court of Appeals erred when it failed to address SHO
       Cromley’s denial of Jackson Tube’s motion for a rehearing.




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                                January Term, 2018




                             Positions of the Parties
       {¶ 12} Jackson Tube asserts that when compliance with a specific safety
requirement is impossible, an application for a VSSR award should not be granted.
In this case, it contends that there was no way to repair the cutoff machine without
requiring employees to work under the suspended flywheel and that Thompson’s
“understanding” about the existence of a fixture that allowed the flywheel to be
removed without using a crane has no basis in fact and has been wholly refuted by
contrary testimony. Jackson Tube further maintains that it is impossible to unbolt
the cutoff machine from the floor and use heavy machinery to tilt it to a 45 degree
angle because no device exists that could support the machine at that angle. Lastly,
it argues that the commission abused its discretion when it denied the motion for
rehearing, as it relied upon a mistake of fact when it granted a VSSR award.
       {¶ 13} Neither the commission nor Thompson filed an appellee’s brief.
                                       Issue
       {¶ 14} This case presents an issue of first impression: whether impossibility
is a defense to a VSSR claim.
                                  Legal Analysis
       {¶ 15} The crux of the dispute in this case arises from Ohio Adm.Code
4123:1-5-15(D), which states, “Employees shall not be required to work or pass
under suspended loads, nor shall the crane operator be required to carry a suspended
load over employees.”
       {¶ 16} To prevail on its mandamus claim seeking to have the appellate court
order the commission to vacate its VSSR award, Jackson Tube must demonstrate
that the commission’s decision to issue a VSSR award was an abuse of discretion.
See State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d
243, 2015-Ohio-4525, 41 N.E.3d 1233, ¶ 13. An abuse of discretion occurs when
the record contains no evidence to support the commission’s order. State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).




                                         5
                            SUPREME COURT OF OHIO




                  Impossibility as a Defense to Violating an SSR
       {¶ 17} In the context of VSSR awards, this court has previously considered
cases where the employer raised impossibility as a defense, but in those cases,
found the record contained some evidence that it was not impossible for the
employer to comply with the regulation at issue. See State ex rel. Mosser Constr.,
Inc. v. Indus. Comm., 61 Ohio St.3d 445, 575 N.E.2d 193 (1991) (Where removal
of a section of duct pipe left an unguarded opening in a work platform that Donald
Saam fell through and did not survive, Mosser Construction, Inc. argued
impossibility to comply with the regulation. This court held that the commission
did not abuse its discretion in granting a VSSR award and in finding that while it
would have been difficult to follow the guarding requirement, it was not
impossible); see also State ex rel. Go-Jo Industries v. Indus. Comm., 83 Ohio St.3d
529, 700 N.E.2d 1264 (1998) (Where Rodney Gist had reached into a cartoner
machine to remove a carton and the machine pulled his hand, the commission
determined that Go-Jo Industries violated the regulation to equip the machine with
means to disengage its power, and granted a VSSR award. We acknowledged that
it would be impossible to comply with the SSR if the controls had to be within easy
reach of all possible positions but concluded that there was “ ‘some evidence’
supporting the conclusion that [Gist’s] presence at the site of injury was not
abnormal, irregular, or unusual in the performance of his duties”).
       {¶ 18} Neither case, however, fully developed the concept of impossibility
as a defense to a VSSR award.
            Impossibility as a Defense to Violating an OSHA Standard
       {¶ 19} Federal courts have considered impossibility as an affirmative
defense to a charge of violating an Occupational Safety and Health Administration
(“OSHA”) standard and have held that to establish this defense, the employer must
demonstrate (1) that compliance with the standard’s requirements is impossible or
would have precluded performance of the work and (2) that no alternative means




                                         6
                                   January Term, 2018




of employee protection had been available. See Brock v. Dun-Par Engineered
Form Co., 843 F.2d 1135, 1136 (8th Cir.1988) (concluding that the employer has
the burden to establish that alternative means of compliance were not available);
Bancker Const. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994) (where the court found
the employer failed to establish that it was impossible to comply with a requirement
that employees working in trenches be protected by an adequate protection system);
A/C Elec. Co. v. Occupational Safety & Health Review Comm., 956 F.2d 530, 534
(6th Cir.1991) (acknowledging employer could raise impossibility as an affirmative
defense but concluding employer waived it under the circumstances); E&R
Erectors, Inc. v. Secy. of Labor, 107 F.3d 157, 163 (3d Cir.1997) (holding that an
employer failed to present any evidence that it was impossible to comply with
regulation requiring that fall protection be provided if the distance from the ground
is greater than 25 feet).
                            Impossibility as a Defense to VSSR
        {¶ 20} In accord with these cases, we conclude that to establish
impossibility as an affirmative defense to an application for an additional award for
a violation of a specific safety requirement, an employer must show (1) that it would
have been impossible to comply with the specific safety requirement or that
compliance would have precluded performance of the work and (2) that no
alternative means of employee protection existed or were available
        {¶ 21} In E&R Erectors, an OSHA compliance officer inspected a
construction worksite where a seven story building was being raised and witnessed
E&R Erectors employees installing large steel columns on a level of the building
that he estimated to be between 29 and 33 feet from the ground. Id. at 159-160.
After observing that temporary guardrails had been removed in the area where the
employees were working, the employees also told him that they did not use any fall
protection while installing the columns. Id. Thereafter, he determined E&R
violated federal regulations that required fall protection be provided if the distance




                                            7
                             SUPREME COURT OF OHIO




from the ground is greater than 25 feet, and OSHA subsequently issued a citation
for this violation. Id. at 160. Following a hearing before an OSHA Commission
administrative law judge, the commission rejected E&R’s argument that it had been
impossible to comply with the regulations, affirmed the citation, and issued a fine.
Id. at 160, 164.
       {¶ 22} In affirming the commission’s order, the Third Circuit Court of
Appeals stated that “E&R failed to present any evidence to the compliance officer
or the ALJ to establish that it was impossible to comply with the safety
requirements,” and it noted that E&R’s vice president had “conceded that the use
of lifelines was feasible as a means of fall protection.” Id. at 163.
       {¶ 23} Contrary to the lack of evidence of impossibility in E&R Erectors,
there is evidence in this case that compliance with Ohio Adm.Code 4123:1-5-15(D)
was impossible. In granting the VSSR award to Thompson, the commission relied
on Thompson’s understanding that an alternative means of replacing the flywheel
existed, which did not require an individual to stand under it.
       {¶ 24} However, the commission erred by relying on Thompson’s mistaken
supposition. It did not constitute some evidence upon which the commission could
rely, because Thompson’s speculation never established that Thermatool offered
such a fixture, or that one exists, and Jackson Tube presented evidence—not
supposition—that rebutted the speculative statement and established that no such
fixture existed and had never been manufactured. Jackson Tube’s employees,
Kimrey and Booher, both testified at the hearing on the VSSR application that they
were not aware of any alternative means to replace the flywheel in a fashion that
kept an individual from being under the suspended load while it was placed back
onto the cutoff machine. And Lungo, Thermatool’s engineer, indicated he is
unaware of any device to assist in replacing a flywheel on the cutoff machine.
       {¶ 25} In addition, Kimrey’s affidavit confirmed that Thermatool verified
that it had not manufactured a device or mechanism to assist in removing or




                                          8
                                 January Term, 2018




replacing the flywheel. And while Lungo told Kimrey that the flywheel could be
replaced by using heavy machinery to tilt the cutoff machine onto a 45 degree angle,
Kimrey researched the availability of such a machine and concluded that it does not
exist.
         {¶ 26} Thus, when an employer presents evidence in connection with an
application for an additional award for violation of a specific safety requirement
that establishes it would have been impossible to comply with the standard’s
requirement or that compliance would have precluded performance of the work and
that no alternative means of employee protection existed or were available, the
employer establishes the affirmative defense of impossibility of compliance.
         {¶ 27} In this case, the commission abused its discretion in granting a VSSR
award because it relied on speculative testimony regarding the existence of
alternative means of performance proved wholly nonexistent. The evidence here
demonstrates that Jackson Tube established the defense of impossibility.
         {¶ 28} The dissent’s position that “Thompson’s testimony that he believed
there was a ‘fixture’ that would have assisted in replacing the flywheel without
requiring him to work under a suspended load constitutes some evidence supporting
the commission’s order” is not well taken. (Emphasis added.) Dissenting opinion
at ¶ 32. The dissent fails to address the lack of an evidentiary basis for Thompson’s
testimony.      Thompson’s unsubstantiated belief, unsupported by personal
knowledge, does not constitute evidence of the existence of an alternative means to
replace the flywheel. See State ex rel. Cassels v. Dayton City School Dist. Bd. of
Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994) (“A witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter”). Hence, there is no evidence that it had been
possible for Jackson Tube to comply with the SSR.




                                          9
                            SUPREME COURT OF OHIO




                                   Conclusion
       {¶ 29} Because there is no evidence to support the commission’s decision
to grant an award for a VSSR, the commission abused its discretion, and therefore
we reverse the judgment of the court of appeals and grant Jackson Tube’s request
for a writ of mandamus compelling the commission to vacate its order and to issue
an order denying the VSSR application. Jackson Tube’s alternative request for a
writ of mandamus compelling a rehearing is dismissed as moot.
                                                           Judgment accordingly.
       KENNEDY, FRENCH, and FISCHER, JJ., concur.
       O’CONNOR, C.J., dissents, with an opinion joined by DEWINE and
DEGENARO, JJ.
                               _________________
       O’CONNOR, C.J., dissenting.
       {¶ 30} I respectfully dissent. The Industrial Commission did not abuse its
discretion in granting Chad Thompson’s application for an award based on the
violation of a specific safety requirement (“VSSR”) by appellant Jackson Tube
Service, Inc. (“Jackson Tube”), nor did it abuse its discretion in denying Jackson
Tube’s motion for rehearing.
       {¶ 31} It is well established that we review an order of the commission
challenged in mandamus under the abuse-of-discretion standard. State ex rel.
Consolidation Coal Co. v. Indus. Comm, 78 Ohio St.3d 176, 177, 677 N.E.2d 338
(1997). We are required to uphold the order so long as it is supported by “some
evidence.” Id. The commission is also the “exclusive evaluator of weight and
credibility.” State ex rel. LTV Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287,
725 N.E.2d 639 (2000); State ex rel. Athey v. Indus. Comm., 89 Ohio St.3d 473,
475, 733 N.E.2d 589 (2000). “To go further and assess the credibility of the
evidence would place this court ‘in the role of a “super commission,” a role never
envisioned by either the Ohio Constitution or the General Assembly.’ ”




                                       10
                                January Term, 2018




Consolidation Coal at 177, quoting State ex rel. Burley v. Coil Packing, Inc., 31
Ohio St.3d 18, 20, 508 N.E.2d 936 (1987).
       {¶ 32} With respect to the commission’s order granting the VSSR award,
the commission considered evidence from both sides concerning whether it was
impossible for Jackson Tube to comply with Ohio Adm.Code 4123:1-5-15(D),
which prohibits employers from requiring employees to work under a suspended
load. In my view, Thompson’s testimony that he believed there was a “fixture” that
would have assisted in replacing the flywheel without requiring him to work under
a suspended load constitutes some evidence supporting the commission’s order.
Indeed, Jackson Tube’s maintenance manager, Ron Kimrey, and its manager of
safety and training, David Booher, both confirmed that after Thompson was
injured, Jackson Tube made a hook that was intended to enable workers to replace
the flywheel without having to work under a suspended load. Although they
testified that the hook had not been tested, this testimony constitutes additional
evidence supporting the conclusion that compliance with the rule was not
impossible. To the extent that the evidence presented by Jackson Tube at the
hearing supported the opposite conclusion—for example, testimony by Kimrey that
he was not aware of any third-party tool or device that could assist in replacing the
flywheel without violating Ohio Adm.Code 4123:1-5-15(D)—it is not our role
under the “some evidence” standard to decide which side has more evidence or
which evidence is more credible. LTV Steel at 287; Athey at 475.
       {¶ 33} I would also find that the commission did not abuse its discretion in
denying Jackson Tube’s motion for rehearing. Rehearing can be obtained under
Ohio Adm.Code 4121-3-20(E)(1) in two circumstances: when a movant presents
new evidence or “in exceptional cases where the order was based on an obvious
mistake of fact or clear mistake of law.” Ohio Adm.Code 4121-3-20(E)(1)(a) and
(b). Jackson Tube sought rehearing based on the latter circumstance, claiming that
the commission made an “obvious mistake of fact” and a “clear mistake of law”




                                         11
                             SUPREME COURT OF OHIO




under paragraph (E)(1)(b). What stands out, however, is that Jackson Tube’s
motion and arguments are based on evidence that was not presented to the
commission at the hearing. Specifically, at the hearing, testimony from Kimrey
and Booher provided the main support for Jackson Tube’s argument that
compliance with Ohio Adm.Code 4123:1-5-15(D) was impossible. In seeking
rehearing, Jackson Tube presented more testimony from Kimrey, in the form of an
affidavit, focused entirely on providing additional support for that same argument.
        {¶ 34} Under Ohio Adm.Code 4121-3-20(E)(1)(a), new evidence can form
the basis of a motion for rehearing only if it was “not previously considered and
* * * by due diligence could not [have been] obtained * * * prior to the merit
hearing.” Jackson Tube makes no argument that the Kimrey affidavit would meet
this standard. Instead, it appears to attempt an end run around paragraph (E)(1)(a)
by casting this evidence as proof of an “obvious mistake of fact” under
paragraph (E)(1)(b). In other words, Jackson Tube could have presented all of the
evidence in the Kimrey affidavit at the hearing, but it failed to do so and is now
trying to get a second bite at the apple. The commission did not abuse its discretion
by rejecting that effort.
        {¶ 35} The majority, however, lets Jackson Tube have its second bite. It
then goes further and grants Jackson Tube the relief it seeks by applying the wrong
standard of review. Instead of considering whether there is “some evidence” to
support the commission’s two orders, the majority, addressing neither order in
particular, looks for, and identifies, “some evidence” supporting Jackson Tube’s
argument. The majority then dismisses the evidence relied on by the commission
as a “mistaken supposition.”       In particular, it casts Thompson’s testimony
concerning the “fixture” developed by Jackson Tube as “speculation,” without
acknowledging that the existence of this “fixture” was confirmed at the hearing by
both Kimrey and Booher. Majority opinion at ¶ 24. The majority then finds that




                                         12
                               January Term, 2018




Jackson Tube established the impossibility defense based on the new evidence in
the Kimrey affidavit submitted only in support of the motion for rehearing.
       {¶ 36} The majority’s analysis does not adhere to the rules we have
established governing our review of a commission order. It turns the “some
evidence” standard inside out and openly reassesses the weight and credibility of
the evidence, including evidence belatedly and improperly submitted only after
Jackson Tube suffered an adverse VSSR-award decision. Contra LTV Steel, 88
Ohio St.3d at 287, 725 N.E.2d 639 (“The commission is the exclusive evaluator of
weight and credibility, and as long as some evidence supports the commission’s
decision, reviewing courts must defer to its judgment”); Athey, 89 Ohio St.3d
at 475, 733 N.E.2d 589 (same). Overall, the majority finds that the evidence
presented in the Kimrey affidavit persuasively contradicts the evidence relied on
by the commission. Putting aside Jackson Tube’s failure to present this evidence
at the hearing, we have held numerous times that “[w]here a commission order is
adequately explained and based on some evidence, even evidence that may be
persuasively contradicted by other evidence of record, the order will not be
disturbed as manifesting an abuse of discretion.” (Emphasis added.) State ex rel.
Mobley v. Indus. Comm., 78 Ohio St.3d 579, 584, 679 N.E.2d 300 (1997); see also
State ex rel. Metz v. GTC, Inc., 142 Ohio St.3d 359, 2015-Ohio-1348, 30 N.E.3d
941, ¶ 20. The majority does not follow this clear law.
       {¶ 37} Finally, I disagree with the process used—or, more accurately, not
used—by the majority in the creation of a new rule for the impossibility defense.
The syllabus paragraph states that to establish impossibility as an affirmative
defense, an employer must show “(1) that it would have been impossible to comply
with the specific safety requirement or that compliance would have precluded
performance of the work and (2) that no alternative means of employee protection
existed or were available.” The majority adopts the rule from federal case law
concerning violations of federal workplace-safety rules. At no point was this rule




                                        13
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or federal case law proposed or considered by the parties, the commission, or the
appellate court. Jackson Tube has not asked for this rule in its brief; Thompson did
not file a brief in response; and we have not held oral argument in this case. In light
of this, it is unwise for us to announce a new rule of law in this case when there is
no need to do so.
       {¶ 38} For these reasons, I respectfully dissent.
       DEWINE and DEGENARO, JJ., concur in the foregoing opinion.
                                _________________
       Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach, and Joshua
R. Lounsbury, for appellant.
                                _________________




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