[Cite as State ex rel. Target Auto Repair Minutemen Select, Inc. v. Morales, 2020-Ohio-83.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Target Auto Repair                        :
Minutemen Select, Inc.,
                                                        :
                 Relator,
                                                        :                  No. 18AP-716
v.
                                                        :           (REGULAR CALENDAR)
Josue S. Morales et al.,
                                                        :
                 Respondents.
                                                        :



                                          D E C I S I O N

                                    Rendered on January 14, 2020


                 Lewis Brisbois Bisgaard & Smith, LLP, Joseph Fiorello, and
                 John R. Christie, for relator.

                 Dave Yost, Attorney General, and Eric J. Tarbox, for
                 respondent Industrial Commission of Ohio.

                                             IN MANDAMUS
SADLER, P.J.
        {¶ 1} Relator, Target Auto Repair Minutemen Select, Inc. ("Target"), has filed this
original action requesting this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order which granted an award
of compensation for the violation of a specific safety requirement ("VSSR") to Josue S.
Morales and ordering the commission to deny the award.
        {¶ 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 considered the action on its merits and issued
a decision, including findings of fact and conclusions of law, which is appended hereto. The
magistrate concluded Target did not demonstrate that the commission abused its
discretion when it determined Morales had met his burden of proving the VSSR as asserted.
No. 18AP-716                                                                                            2


Accordingly, the magistrate recommended this court deny Target's request for a writ of
mandamus.
        {¶ 3} On May 29, 2019, Target timely filed the following objections to the
magistrate's decision:1
                [1.] Any alleged violation concerning the grinder could not
                have proximately caused Morales' injury; therefore, the
                Magistrate erred by not dismissing Ohio Admin. Code Sections
                4123:1-5-07 and 4123:1-5-12 as potential support for Morales'
                VSSR claim.

                [2.] The Magistrate erred in failing to recognize the second
                Staff Hearing Officer placed the burden of proof on Target as
                opposed to Morales.

                [3.] The Magistrate failed to recognize the Commission
                conflated the Ohio Administrative Code Sections at issue in
                reaching its improper VSSR determination.

                [4.] The Magistrate erred in not determining that the VSSR
                must be denied as Morales' failure to use the proper protective
                equipment, which the evidence demonstrates was available,
                precludes the granting of a VSSR.

        {¶ 4} In Target's first objection, Target contends the violation of Ohio Adm.Code
4123:1-5-07, concerning safety guards on hand-held equipment, and Ohio Adm.Code
4123:1-5-12, regarding the employer's responsibility for instructing employees in the safe
use of abrasive grinding equipment, could not have been the proximate cause of Morales'
injury given the undisputed evidence that the Morales would not have suffered the injury
had he chosen to wear the appropriate grinding/cutting mask. We disagree.
        {¶ 5} The definition of and principles governing the determination of proximate
cause in the field of torts are applicable to considerations of proximate cause in the context
of the Workers' Compensation Fund. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585,
587 (1991), citing Oswald v. Connor, 16 Ohio St.3d 38, 42 (1985), citing Aiken v. Indus.
Comm., 143 Ohio St. 113 (1944), syllabus. It is generally understood that " 'where an
original act is wrongful or negligent and in a natural and continuous sequence produces a
result which would not have taken place without the act, proximate cause is established,


1On November 7, 2019, this court granted Target's October 2, 2019 motion for relief from judgment, vacated
our August 20, 2019 memorandum decision judgment entry, and reinstated this case to the active docket.
No. 18AP-716                                                                                3


and the fact that some other act unites with the original act to cause injury does not relieve
the initial offender from liability.' " Strother v. Hutchinson, 67 Ohio St.2d 282, 287 (1981),
quoting Clinger v. Duncan, 166 Ohio St. 217, 222 (1957). Additionally, "when two factors
combine to produce damage or illness, each is a proximate cause." Norris v. Babcock &
Wilcox Co., 48 Ohio App.3d 66, 67 (9th Dist.1988). See also Murphy at 588. Proximate
cause is an issue for the trier of fact. Strother at 288.
       {¶ 6} On this record, there is evidence to support the conclusion that had Target
not violated Ohio Adm.Code 4123:1-5-07 and 4123:1-5-12 by removing the guard from the
grinder, Morales would not have sustained his injury. In other words, the evidence shows
that Target's violation of the specific safety requirements pertaining to guards on hand-held
power tools, in a natural and continuous sequence, produced a result which would not have
occurred if the guard had not been removed from the grinder.
       {¶ 7} To the extent that Target claims that Morales' own negligence broke the chain
of causation, the magistrate reached the following conclusion:
               Ohio's workers' compensation system is a no fault system and,
               more specifically, in VSSR proceedings, the injured worker's
               negligence is only a defense where the employer has first
               complied with relevant safety requirements. State ex rel.
               Internatl. Truck & Engine Corp. v. Indus. Comm., 10th Dist.
               No. 07AP-547, 2008-Ohio-2953. To that extent, there is
               evidence in the record on which the second SHO relied that
               the power grinder was originally equipped with a guard. At
               some point in time, that guard was removed and Target knew
               that it was removed. As such, Target was not in compliance
               with the specific safety requirements at the time that Target
               alleges Morales improperly used the grinder at issue.
(Mag.'s Decision at ¶ 39.)
       {¶ 8} We agree with the magistrate's conclusion that Morales' alleged misuse of the
grinder did not impact the causation analysis in this case. An employee's negligence in
failing to protect himself from injury due to an employer's VSSR will never bar recovery
because specific safety requirements are " ' "intended to protect employees against their
own negligence and folly as well as to provide them a safe place to work." ' " State ex rel.
Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35, 2018-Ohio-5086, ¶ 40,
quoting State ex rel. Cotterman v. St. Mary's Foundry, 46 Ohio St.3d 42, 47 (1989), quoting
State ex rel. U.S. Steel Corp v. Cook, 10 Ohio App.3d 183, 186 (10th Dist. 1983). It is only
No. 18AP-716                                                                                4


the unilateral negligence of the injured employee that impacts the causation analysis.
Byington at ¶ 40, citing State ex rel. Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio
St.3d 190, 193 (2000). Thus, Morales' alleged negligence in failing to wear the appropriate
mask did not relieve Target from liability for the violation of Ohio Adm.Code 4123:1-5-07
and 4123:1-5-12. Moreover, as will be discussed in connection with Target's second and
fourth objections, there is evidence in the record to support the commission's
determination that Target did not provide Morales with the proper safety equipment on the
date of the injury.
       {¶ 9} For the foregoing reasons, Target's first objection is overruled.
       {¶ 10} In Target's second and fourth objections, Target argues that the commission
failed to credit Target's evidence that appropriate grinding/cutting masks were provided by
Target and available to Morales on the date of the industrial accident. Accordingly, Target
argues the magistrate erred in failing to find an abuse of discretion by the commission in
ruling that Target violated Ohio Adm.Code 4123:1-5-17. Contrary to Target's contention,
the commission did not shift the burden to Target to disprove a violation. Rather, the
commission simply chose to believe Morales' statement that the appropriate
grinding/cutting masks were not available on the date he sustained his injury and
disbelieve Target's evidence that appropriate masks were available to Morales on that date.
The commission is the "exclusive evaluator of weight and credibility." State ex rel. LTV
Steel Co. v. Indus. Comm., 88 Ohio St.3d 284, 287 (2000); State ex rel. Athey v. Indus.
Comm., 89 Ohio St.3d 473, 475 (2000). For an appellate court "[t]o * * * assess the
credibility of the evidence would place the court 'in the role of a "super commission," a role
never envisioned by either the Ohio Constitution or the General Assembly.' " State ex rel.
Consolidation Coal Co. v. Indus. Comm, 78 Ohio St.3d 176, 177 (1997), quoting State ex rel.
Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987).
       {¶ 11} For the foregoing reasons, Target's second and fourth objections are
overruled.
       {¶ 12} In Target's third objection, Target argues that the commission erroneously
determined that a violation of Ohio Adm.Code 4123:1-5-17 may be predicated on the
employer's failure to correct an employee when the employee is found to be improperly
using protective equipment. More particularly, Target finds fault with the following
alternative finding by the commission's staff hearing officer ("SHO"):
No. 18AP-716                                                                               5


               The Hearing Officer does not find the testimony presented by
               the Employer persuasive that they never saw the Injured
               Worker improperly using the protective equipment, and if
               they did, they corrected him and provided him with the proper
               protection equipment.
(Feb. 9, 2018 SHO Order at 6.)
       {¶ 13} Target argues that, unlike Ohio Adm.Code 4123:1-5-12(C)(1), which places
the burden on the employer to "verbally and through demonstration instruct the employee
in the safe operation and maintenance of abrasive grinding and cutting and polishing
equipment," Ohio Adm.Code 4123:1-5-17(D)(1) states: "It shall be the responsibility of the
employee to use the eye protection provided by the employer." Target claims that the
commission's order placed a burden on Target that is not justified in the language of Ohio
Adm.Code 4123:1-5-17(D)(1).
       {¶ 14} Our review of Target's merit brief and reply brief in this case reveals Target
did not make this particular argument in proceedings before the magistrate. Consequently,
the argument has been waived. State ex rel. Maglis v. Indus. Comm., 10th Dist. No. 15AP-
648, 2016-Ohio-4644, ¶ 10, citing State ex rel. German v. Provider Servs. Holdings, LLC,
10th Dist. No. 13AP-149, 2014-Ohio-3336, ¶ 18. Moreover, even if we were to agree with
Target on this issue, it is of no consequence to the outcome of the case given our conclusion
that the evidence supports the commission's determination that the proper safety masks
were not made available to Morales on the date of the industrial accident. Accordingly,
Target's third objection is overruled.
       {¶ 15} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of Target's objections, we overrule
the objections, and find that the magistrate made no error of fact or law. We adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
therein, as supplemented by our own conclusions of law discussed in this decision. In
accordance with the magistrate's decision, we deny the writ of mandamus.
                                                                      Objections overruled;
                                                                 writ of mandamus denied.
                       BRUNNER and BEATTY BLUNT, JJ., concur.
                                  ________________
No. 18AP-716                                                                             6


                                       APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Target Auto Repair         :
Minutemen Select, Inc.,
                                             :
               Relator,
                                             :
v.                                                                No. 18AP-716
                                             :
Josue S. Morales et al.,                                     (REGULAR CALENDAR)
                                             :
               Respondents.
                                             :


                           MAGISTRATE'S DECISION

                                Rendered on May 14, 2019


               Lewis Brisbois Bisgaard & Smith, and John R. Christie, for
               relator.

               Dave Yost, Attorney General, and Eric J. Tarbox, for
               respondent Industrial Commission of Ohio.


                                       IN MANDAMUS

       {¶ 16} Relator, Target Auto Repair Minutemen Select, Inc. ("Target"), has filed this
original action requesting this court issue a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order which granted an award
of compensation for the violation of a specific safety requirement ("VSSR") to Josue S.
Morales, and ordering the commission to deny the award.
Findings of Fact:
       {¶ 17} 1. Morales sustained a work-related injury on February 27, 2014, and his
workers' compensation claim was allowed for the following conditions:
No. 18AP-716                                                                           7


               Left eye contusion; left eyelid laceration; facial laceration;
               macular hole left eye; forehead laceration; total loss of vision
               left eye.

       {¶ 18} 2. Morales' injury occurred when a grinding disk shattered, broke the face
shield he was wearing, and injured his face and left eye.
       {¶ 19} 3. On October 9, 2015, Morales filed an application for an additional award
for VSSR citing various provisions of the Ohio Administrative Code.
       {¶ 20} 4. The Ohio Bureau of Workers' Compensation's ("BWC") safety violations
investigation unit conducted an investigation. The investigators took a statement from
Morales which included the following:
               [Three] I was a fully trained employee at the time of my injury.
               I was also provided on the job training on how to operate the
               grinder involved in my injury.

               [Four] At the time of my injury I was only required to wear a
               welding mask. The welding mask that I was wearing was
               defective. The plastic on the face of the mask was held together
               by tape because the original plastic that came with the mask
               broke and was thicker. The company did not want to buy a
               new welding mask and that is why I was required to wear this
               defective welding mask that was held together by tape. There
               was at least one other welding mask as well but that mask was
               in worse condition than the mask involved in my injury. I was
               not required to wear or provided any other type of personal
               protective equipment.

               [Five] On the day of my injury I began my work shift at 9:00
               a.m. and my injury occurred at about 11:00 a.m. I was using
               the grinder to cut the right quarter panel underneath the car.
               As I was doing this the blade broke off the grinder and went
               directly through my modified welding mask and a piece of the
               blade cut open my left eye.

               [Six] The grinder involved in the injury originally came with a
               safety guard; however, the company was buying blades that
               were not the correct size and the safety guard would not fit.
               The grinder was not equipped with the safety guard at the time
               of my injury.

               [Seven] The welding mask was originally equipped with a
               thick piece of plastic and it had a light inside in order to see
               what I was welding through the mask. When the original
               plastic broke and was replaced with a flimsy piece of plastic
No. 18AP-716                                                                      8


               kept together by tape, the light on the mask was also removed
               because it did not work without the original frame and plastic.

               [Eight] There were many problems with the grinder prior to
               my injury. I would tell them they were buying the wrong
               blades and they refused to buy the correct ones because they
               preferred to buy the cheaper ones in bulk. One or two blades
               would break every time the grinder was used. The other
               employees also complained about the blades on the grinder.

               [Nine] The owner Don Pack [sic] would work with us as well
               and use the same grinder. On one occasion the blade broke on
               him as well and cut his leg.

      {¶ 21} 5. A statement was also taken from Donald Pak, an owner of Target. His
statement provides in relevant part:
               [Three] When I hired Josue I trained him on how to use the
               tools correctly because it could be dangerous if used
               incorrectly. Josue was hired with experience, but the way he
               used the tools in Puerto Rico was not always correct. So I had
               to ensure he knew the right away to use the tools for his own
               safety.

               [Four] I always made it a point to enforce safety practices;
               such as wearing the proper equipment while performing your
               job. I have caught Josue working without a mask or even the
               proper mask and I always made it a point to tell him he needed
               to wear it. Target Auto Body always has the proper equipment
               available to the workers. The personal protective equipment
               supplied by Target Auto Body is grinding/cutting masks,
               sandblasting masks and face shields.

               [Five] On the day of Joshua's [sic] injury there were multiple
               grinding/cutting masks available to be used. On 2/7/2014
               which was prior to Josue's injury, there were two new masks
               purchased for cutting and grinding. On the day of his injury I
               was in the office but I was not near Josue. I heard Joshua [sic]
               was wearing a sandblasting mask, which was the wrong mask
               to wear while he was using the cutting wheel. He should have
               been wearing a cutting mask.

               [Six] The blades that we use with the cutting wheel are the
               proper size blades; the workers put the blades on the cutting
               wheels themselves. If you use the cutting wheel on the wrong
               speed it will not function properly and can cause the blade to
               heat up and explode.
No. 18AP-716                                                                       9


               [Seven] This cutting wheel involved in Josue's injury
               originally came with a safety shield/guard but it was removed
               for easier maneuvering.

               [Eight] The grinder/cutting wheel involved in Joshua's [sic]
               injury is still in working condition. It has never been taken out
               of service and we use it daily.

      {¶ 22} 6. A statement was also taken from one of Morales' co-workers, David M.
Rockow. That statement provides in relevant part:
               [Three] The owner Jordan Kaminsky makes it a point to
               enforce safety practices on a daily basis. We are supposed to
               wear all the proper equipment to perform our job duties. If
               there is anything new that is needed Jordan makes sure that
               we have it. We always had available the following items:
               grinding/cutting masks, sandblasting masks, face shields,
               safety goggles and safety work gloves.

               [Four] On the day of Joshua's [sic] injury there were two
               grinding/cutting masks available to be used. They were newly
               purchased and in proper condition. On the day of his injury
               Joshua [sic] was wearing a sandblasting mask/hood which
               was the wrong mask to wear while he was using the cutting
               wheel (grinder). I came in after Joshua's [sic] injury occurred
               and I was told he had suffered an injury to his eye because the
               cutting wheel exploded.

               [Five] I used to see Joshua [sic] work with the grinder/cutting
               wheel without wearing any type of masks. I was even close to
               him one day when he was under a car using the cutting wheel
               and the blade broke. He was not wearing a mask and I was
               surprised he did not get hurt at that time.

               [Six] The blades that we use with the grinder/cutting wheel
               are the proper blades and they are a perfect fit. If you use the
               tool properly and not press it too hard it will work just fine.

               [Seven] The grinder/cutting wheel involved in Joshua's [sic]
               injury is also referred to as an open-end free cutting wheel.
               This means it is used without the safety shield/guard for
               easier access to damaged areas. You need to always wear your
               grinder/cutting mask. This tool did originally come with a
               safety shield/guard but it was removed.
No. 18AP-716                                                                              10


               [Eight] The grinder/cutting wheel involved in Joshua's [sic]
               injury is still in working condition. It has never been taken out
               of service and we use it daily.

       {¶ 23} 7. Morales' application was heard before a staff hearing officer ("SHO") on
July 26, 2016 and was denied. The SHO first discussed Ohio Adm.Code 4123:1-5-07(C) and
(E), which applied to hand-held portable power tools. Subsection (C) requires that,
whether furnished by the employee or the employer, hand-held portable power tools must
be maintained in a safe condition, free of worn or defective parts. Subsection (E) applies to
power grinders and discusses the manner in which safety guards are to be used to protect
the worker.
       {¶ 24} In finding that Morales did not meet his burden of proof, the SHO made the
following relevant findings: the grinder had never been taken out of service and was still in
use; because there was no model number, serial number, or other information available
regarding the grinder at issue, it could not be determined which specific blade or cutting
wheel was to be used with the grinder; Morales was fully trained in the use of the grinder;
it was not uncommon for a blade to break; and Morales was incorrectly using the grinder
underneath a vehicle when the blade broke, and the presence of a guard would not have
prevented his injury.     As such, the SHO found there was insufficient evidence to
substantiate the alleged violation of Ohio Adm.Code 4123:1-5-07(C) and (E).
       {¶ 25} The SHO then addressed the applicability of Ohio Adm.Code 4123:1-5-12 et
seq, which describes the requirements for grinding and cutting tools. Finding there was no
documentation to identify the model number, serial number, or other information
regarding the grinder, the evidence was insufficient to substantiate the alleged violation.
       {¶ 26} The SHO then addressed the applicability of Ohio Adm.Code 4123:1-5-17,
which covers personal protective equipment including the types of eye protection and face
shields which are to be used when employees are performing various tasks. The SHO made
the following relevant findings: it was undisputed that Morales was not wearing the correct
mask when he was injured; Target acknowledged that a grinding mask had recently been
repaired with a thinner plastic visor; grinding masks with the hard clear plastic visor were
available at the time of Morales' injury but he chose not to wear one; and Morales was fully
trained but failed to wear the available protective gear on a frequent basis. The SHO
concluded Target had demonstrated that the appropriate personal protective equipment
No. 18AP-716                                                                                        11


was available, that Morales was fully trained and given prior direction on the use of the
grinder as well as protective gear, and there was no duty of constant surveillance by Target
to ensure that employees were using the provided safety equipment. Based on the above,
the SHO concluded that Morales failed to demonstrate the existence of a VSSR.
       {¶ 27} 8. Morales filed a request for rehearing asserting two separate grounds: (1) it
was improper for the SHO to conclude that Morales was improperly using the grinder in a
manner in which the presence of a guard would not have prevented an injury, and (2)
evidence established that the grinder had originally come with a guard which the employer
was aware had been removed.
       {¶ 28} 9. The matter was reheard before a second SHO on July 10, 2017.2 Upon
rehearing, the second SHO granted the VSSR application. The SHO noted that it was
undisputed that Morales sustained an injury in the course and scope of his employment
when the wheel of the grinder he was operating without a safety guard broke loose,
penetrated the face guard, and lacerated Morales' left eye. The SHO first discussed Ohio
Adm.Code 4123:1-5-07(C) and (E), which pertain to hand tools such as the grinder at issue.
The SHO order provides:
               First, the Injured Worker alleges a safety violation under
               4123:1-5-07(C) and (E) Hand tools, hand-held portable
               powered tools, other hand-held equipment and portable
               safety containers. Which provides:

               "(C) General equipment.

               All hand tools and hand-held portable powered tools and
               other hand-held equipment whether furnished by the
               employee or employer shall be maintained in a safe condition,
               free of worn or defective parts.

               (E) Power grinders.

               Safety guards used on right angle head or vertical portable
               grinders shall have a maximum exposure angle of one
               hundred eighty degrees, and be located [so] as to be between
               the operator and wheel during use. The top half of the wheel
               shall be enclosed at all times."


2 Following the initial order, two corrected orders were subsequently issued. The first corrected some
clerical errors and omitted language concerning a right to a rehearing. The second correctly identified
relator, Target Auto Repair Minutemen Select, Inc., as the on-site employer of Morales.
No. 18AP-716                                                                       12


               On the date of injury, the Injured Worker was working with a
               hand-held pneumatic power grinder/cutting wheel. Through
               the testimony, it was established that the grinder the Injured
               Worker was using on the date of injury was not that of the
               Injured Worker's but of the shop or owned by the supervisor,
               Don Pak. The grinder was placed in service for at least the five
               years of the Injured Worker's employment and available for
               use. The Injured Worker alleges that he did not supply his own
               grinder, but would use the grinders provided at the work
               place. Further, the grinding wheels purchased and supplied by
               the Employer were not always the correct size, since the
               oversized wheels were cheaper, and their large size prevented
               the use of a guard over the grinding wheel in violation of Ohio
               Admin. Code 4123:1-5-07. Further, the Injured Worker
               asserts that since the blade was too large for the particular
               grinder, it was the cause of the blade to break loose, or explode
               from the grinder and cause the injury. The testimony
               describes the act of when a blade breaks up from a grinder as
               more of an exploding action versus a crumbling action.

               The parties did agree that the grinder in question had a
               removable guard which was not in place at the time of the
               injury. The guard was on the grinder when originally
               purchased, but removed by Don Pak immediately after
               purchase. Further, it is not disputed that it is not uncommon
               for a blade to break while using the power grinder for cutting
               steel. There is no dispute that the Injured Worker was fully
               trained on the proper use of the grinder, but employees
               routinely do not use the guards as the guard inhibits the use
               of the grinder while performing body work. The Employer
               asserts that the Injured Worker's improper use of the grinder
               and the use of the incorrect size of blade is what caused the
               blade to break and come loose from the grinder, hitting the
               Injured Worker in the face.

               The Employer, Mr. Kaminoky, asserts that his business
               provides the building and heavy equipment, such as the lifts
               for cars, but does not provide the small hand tools necessary
               to work on cars. Employees are to provide their own hand
               tools, but he supplies blades and face masks for the shop. He
               testified that the correct size cutting wheels are always
               available for use and that the employees are responsible for
               choosing and placing the correct size blade on the type of
               grinder in use. The Employer asserts that the Injured Worker
               chose the incorrect size blade. Further, if at any time, there is
               a lack of supplies, the supervisor is notified and there is an
               open account to purchase supplies from their vendor. In fact,
No. 18AP-716                                                                            13


               any employee can go directly to the vendor and obtain
               supplies at no cost.

               The Hearing Officer finds sufficient evidence to substantiate
               the alleged violation under Ohio Admin. Code 4123:1-5-07(C)
               and (E). The Employer may not supply the hand tools used by
               the employees to work on cars or have control of the small
               hand tools each employee chooses to use as their personal
               preference to work on cars. However, whether or not the hand
               held power tool is supplied by the employer or employee, it
               "shall be maintained in a safe condition." There is no evidence
               that the Employer ensured that its employees used equipment
               in accordance with the safety regulation. There is no proof
               that the Injured Worker was disciplined or reprimanded for
               his lack of use to use a safety guard while grinding or that he
               was reprimanded or disciplined if he failed to use the correct
               grinding wheel on the grinder.

       {¶ 29} Thereafter, the SHO discussed the applicability of Ohio Adm.Code 4123:1-5-
12 et seq and found that, based on the same factual findings made with regard to Ohio
Adm.Code 4123:1-5-07(C) and (E), there was a lack of proof that Morales was disciplined
or reprimanded for his lack of the use of a safety guard or if he failed to use the correct
grinding wheel on the grinder. Specifically, the SHO order provides:
               Ohio Admin. Code 4123:1-5-12 (et seq) Abrasive grinding and
               cutting, polishing and wire buffing equipment is incorporated
               herein as if fully rewritten as contained within the electronic
               claim file and imaged on 09/30/2016 due to the length of the
               regulation and diagrams. Under 4123:1-5-12(C)(1), "the
               employer shall verbally and through demonstration instruct
               the employee in the safe operation and maintenance of
               abrasive grinding and cutting and polishing equipment."

               Further, (D) (1) (a) machine guarding. "Abrasive wheels shall
               be used only on machines provided with safety guards." Some
               exceptions do apply, but the Hearing Officer finds that none
               of the exceptions apply in this case.

               The Hearing Officer finds that given the detailed
               requirements for grinding and cutting tools, and the findings
               above, there is sufficient evidence to establish a violation.

       {¶ 30} Thereafter, the SHO discussed the applicability of Ohio Adm.Code 4123:1-5-
17, personal protective equipment. The SHO order provides, in relevant part:
               (C) Specific requirements of general application.
No. 18AP-716                                                                      14


               (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.

               (D) Eye and face protection.

               (1) Responsibility.

               The employer shall provide eye protection for all employees
               engaged in the operations listed in paragraph (D)(2) of this
               rule and exposed to an eye hazard. Eye protection shall also
               be provided for any other employees in the immediate area
               and who are exposed to the hazards of the operations listed. It
               shall be the responsibility of the employee to use the eye
               protection provided by the employer (see appendix to this rule
               for eye and face protector selection guide).

               (2) Operations requiring eye protection.

               (a) Eye protection shall be provided to employees performing
               the following operations:

               (i) When using hand tools or mechanical equipment to cut,
               chip, drill, clean, buff, grind, polish, shape, or surface
               masonry, brick, concrete, plaster, stone, plastics, or other
               hardened substances. This also covers demolition work where
               the material listed are part of the operation;

               ***

               (ix) Metal and plastic chipping, cutting, cleaning, grinding,
               conditioning, or machining where there is danger of flying
               particles;

               ***

               (3) Face shields.

               (a) Face shields may be provided in lieu of other forms of eye
               protection if they provide the required protection against the
               particular hazards for which they are designed.
No. 18AP-716                                                                     15


               ***

               (4) Material requirements for eye protection shall meet ANSI
               Z87.1 - 1968.

               (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.

               Where required, head protection shall meet the requirements
               of ANSI Z89.1 - 1969.

               (ii) When head protection is required employers shall provide
               accessories designed for use with the headgear.

               (iii) Damaged parts of protective headgear shall be replaced.
               Protective helmets and bump caps or parts thereof and hair
               enclosures shall be sanitized before reissue.

               The Injured Worker asserts that he was not provided with the
               required protective gear, specifically a proper face mask for
               the grinding aspects of the job he was performing at the time
               of the injury. The Hearing Officer finds this in violation with
               the above cited safety regulation.

               It is undisputed that the mask the Injured Worker was
               wearing at the time of the accident was not the correct mask
               to use when grinding, but was the mask made for use while
               sandblasting. The mask for sandblasting was an altered
               grinding mask modified with a thinner plastic and taped
               together. The Injured Worker asserts that the sand blasting
               mask was the only mask available at that time of the injury
               and that the Employer did not have the more durable mask
               which contains a plastic shield which would have prevented
               the injury.

               The Employer submitted evidence that the appropriate
               personal protective equipment was ordered on February 7,
No. 18AP-716                                                                     16


               2014 before the date of injury in this claim. However, the
               Hearing Officer finds insufficient evidence that proper masks
               were actually available to employees for use at the time of the
               injury. The Hearing Officer notes that in the Bureau of
               Workers' Compensation Safety Violation Investigative
               Report, appropriate grinding masks were ordered, but there
               is a lack of evidence of receipt of those masks and that they
               were available to employees for use at the time of the Injured
               Worker's injury.

               A violation of a specific safety requirement is an employer
               penalty and must be strictly construed in favor of the
               employer when determining whether a specific code section
               has been violated. State ex rel. Burton vs. Indus. Comm., 46
               Ohio St.3d 170, 545 N.E. 2d 1216 (1989). Further, should a
               violation be found, the violation or non-compliance must be
               the cause of the injury.

               In this case, the Hearing Officer finds that the Injured Worker
               has established sufficient evidence that a violation of the
               above cited code sections and/or the Employer's non-
               compliance caused the injury sustained in this claim.

               The Hearing Officer finds that the Employer has an obligation
               to maintain the equipment in a safe condition. Further, the
               "employer shall verbally and through demonstration instruct
               the employee in the safe operation and maintenance" of the
               equipment.

               The Hearing Officer does not find the testimony presented by
               the Employer persuasive that they never saw the Injured
               Worker improperly using the protective equipment, and if
               they did, they corrected him and provided him with the proper
               protection equipment.

               Therefore, the Hearing Officer finds that there is sufficient
               evidence to establish that the Employer violated Ohio Admin.
               Code 4123:1-5-07(C), (E); Ohio Admin. Code 4123:1-5-12, et
               seq./ and/or Ohio Admin. Code 4123:1-5-17(C)(1), (D)(1)-(4),
               (G)(1)[(a)](i)-(iii). Thus, the IC-8 Application filed on
               10/09/2015 is granted.

               It is the order of the Staff Hearing Officer that the on-
               site/customer Employer, Target Auto Body, is granted a
               period of 30 days from the mailing of this order to correct the
               violations found here.
No. 18AP-716                                                                                17


       {¶ 31} 10. Target's request for reconsideration was denied by order of the
commission mailed March 28, 2018.
       {¶ 32} 11. Thereafter, Target filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 33} For the reasons that follow, it is this magistrate's decision that Target has not
demonstrated that the commission abused its discretion when it determined that Morales
had met his burden of proving the VSSR as asserted.
       {¶ 34} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 35} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel. Elliott
v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record contains
some evidence to support the commission's findings, there has been no abuse of discretion
and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio
St.3d 56 (1987). Furthermore, questions of credibility and the weight to be given evidence
are clearly within the discretion of the commission as fact finder. State ex rel. Teece v.
Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 36} In order to establish a VSSR claim, the claimant must prove that: (1) an
applicable and specific safety requirement was in effect at the time of the injury, (2) the
employer failed to comply with the requirement, and (3) the failure to comply was the
proximate cause of claimant's injuries. State ex rel. Scott v. Indus. Comm., 136 Ohio St.3d
92, 2013-Ohio-2445.     Factual questions concerning proof rest exclusively within the
discretion of the commission and the interpretation of specific safety requirements is within
the final jurisdiction of the commission. Id.
No. 18AP-716                                                                             18


       {¶ 37} It is well settled that a VSSR award is deemed a penalty to the employer
subject to the rules of strict construction with all reasonable doubts concerning the
applicability of the safety requirement construed in favor of the employer. State ex rel.
Sunesis Constr. v. Indus. Comm., 10th Dist. No. 09AP-423, 2010-Ohio-4434. However, in
mandamus, the factual determinations of the commission in a VSSR claim are reviewed by
the court only for an abuse of discretion. Id.
       {¶ 38} In reviewing Target's brief, Target focuses on the differences in the factual
findings made by the first SHO and the factual findings made by the second SHO. Target
focuses on the evidence that Morales was fully trained in the manner in which to utilize the
equipment and that he chose to use a mask that was inappropriate.
       {¶ 39} As noted in the findings of fact, the evidence was conflicting. However,
despite this, it is clear the first SHO determined that Morales was responsible for causing
his own injuries.    As Morales argued in his motion for rehearing, Ohio's workers'
compensation system is a no fault system and, more specifically, in VSSR proceedings, the
injured worker's negligence is only a defense where the employer has first complied with
relevant safety requirements. State ex rel. Internatl. Truck & Engine Corp. v. Indus.
Comm., 10th Dist. No. 07AP-547, 2008-Ohio-2953. To that extent, there is evidence in the
record on which the second SHO relied that the power grinder was originally equipped with
a guard. At some point in time, that guard was removed and Target knew that it was
removed. As such, Target was not in compliance with the specific safety requirements at
the time that Target alleges Morales improperly used the grinder at issue. Further, the
second SHO found that Target provided evidence that new grinding masks had been
ordered but no evidence those masks had been received and made available to employees.
Failure to provide appropriate grinding masks constitutes a VSSR. Again, the SHO found
Target was likewise in compliance with this safety requirement as well.
       {¶ 40} Credibility and the weight to be given evidence clearly are within the
discretion of the commission as the fact finder. Teece. Furthermore, it is immaterial
whether other evidence, even if greater in quantity and/or quality supports a conclusion
which is contrary to the commission's. State ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio
St.3d 373 (1996).
       {¶ 41} As stated at the outset, Target's mandamus case is based exclusively on the
interpretation of the facts. There was conflicting evidence in the record; however, the
No. 18AP-716                                                                              19


second SHO specifically identified the evidence relied on, and provided a brief explanation
for the findings. Inasmuch as it cannot be said that the SHO misapplied the law in this case,
Target cannot demonstrate that the commission abused its discretion when it determined
that Morales did present sufficient evidence to satisfy a finding of a VSSR.
       {¶ 42} Based on the foregoing, it is this magistrate's decision that this court should
deny Target's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA


                               NOTICE TO THE PARTIES

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