[Cite as State ex rel. Madison Fire Dist. v. Indus. Comm., 2020-Ohio-463.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Madison Fire District, : 

 

 Relator, : 

v. : No. 18AP-962 

 

Industrial Commission of Ohio et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on February 11, 2020 

 

On brief: Wiles Richards, and Michael P. Germano, for 

relator. 

On brief: Dave Yost, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio.

On brief: Leah P. VanderKaay, and Robert C. Ochs, for 

respondent Joseph P. Purcell. 

 

IN MANDAMUS 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Madison Fire District, filed an original action requesting that this 

court issue a writ of mandamus ordering respondent Industrial Commission of Ohio to 

vacate its order finding that Madison Fire District violated a specific safety requirement, 

and to order the commission to find no safety violation.

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law, recommending this 

court deny relator's request for a writ of mandamus. No objections have been filed to that 

decision.
No. 18AP-962 2 

{¶ 3} Finding no error of law or other defect on the face of the magistrate's decision, 

this court adopts the magistrate's decision as our own, including the findings of fact and 

conclusions of law. In accordance with the magistrate's decision, we deny relator's 

requested writ of mandamus. 

Writ of mandamus denied. 

BROWN and BRUNNER, JJ., concur. 

 
No. 18AP-962 3 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Madison Fire District, : 

 

 Relator, : 

v. : No. 18AP-962 

 

Industrial Commission of Ohio et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on September 30, 2019

 

Wiles Richards, and Michael P. Germano, for relator. 

Dave Yost, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio.

Leah P. VanderKaay, and Robert C. Ochs, for respondent 

Joseph P. Purcell. 

 

IN MANDAMUS 

{¶ 4} Relator, Madison Fire District, 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 found that relator had violated a specific safety 

requirement ("VSSR"), that violation was the proximate cause of injuries to respondent 

Joseph P. Purcell ("claimant"), and ordering the commission to find there was no VSSR. 
No. 18AP-962 4 

Findings of Fact: 

{¶ 5} 1. Claimant sustained a work-related injury on September 17, 2015 while 

exiting the cab of a fire truck in the course of his employment with relator. 

{¶ 6} 2. Claimant's workers' compensation claim has been allowed for the 

following conditions: 

Sprain right knee; right medial femoral chondral damage; 

right knee arthritis; adjustment disorder with mixed anxiety 

and depressed mood. 

{¶ 7} 3. In April 2017, claimant filed an application seeking an additional award 

for relator's alleged VSSR citing Ohio Adm.Code 4123:1-21-04(H)(4)(c) and (c)(ii), and 

(iii). Those provisions provide, in pertinent part: 

4123:1-2-04. Automotive fire apparatus. 

* * * 

(H) Vehicle components. * * * 

(4) Body. 

* * * 

(c) Steps, platforms, or secure ladders shall be provided so 

that fire fighters have access to all working and storage areas 

of the apparatus. The maximum stepping height shall not 

exceed eighteen inches with the exception of the ground to 

first step. When the ground to first step, platform, or ladder 

rung exceeds twenty-four inches, a permanently attached 

supplemental means of access/egress from the ground to 

these steps, platforms, or secure ladders shall be provided. 

The supplemental access means shall consist of step(s), 

platform(s), or ladder(s). The ground to first step height shall 

be determined with the apparatus on level ground. When the 

apparatus is supplied with stabilizers, the ground to first step 

height shall be determined with the apparatus on level ground 

and the stabilizers deployed according to the manufacturer's 

instructions. 

* * * 

(ii) All exterior surfaces designated as stepping, standing, and 

walking areas shall have a minimum average slip resistance of 
No. 18AP-962 5 

0.68 in accordance with ASTM F 1679. All interior steps shall 

provide an average minimum slip resistance of 0.52. Where 

the fuel fill is located at or near a stepping surface, the surface 

shall be constructed of an open grate-type material. 

(iii) All steps shall have a minimum area of thirty-five square 

inches and be arranged to provide at least eight inches of 

clearance between the front of the step and any obstruction. 

All ladders shall have at least eight inches of clearance 

between any rung and the body of the apparatus. 

(Emphasis sic.) 

{¶ 8} 4. The Ohio Bureau of Workers' Compensation ("BWC") investigative unit 

prepared a report dated December 6, 2017. That report indicates the step to the ground 

on engine 2124 measured 25 1/8 inches at the time of claimant's industrial injury. 

{¶ 9} 5. The Madison Fire District Ohio Emergency Services Evaluation and 

Master Plan from winter 2009 indicates the following additional comments or 

observations were made with regard to Pumper/Tanker 2124, the unit at issue here: 

Pumper/Tanker 2124 Reserve 

1995 Spartan Darley 

Seating Capacity: 6

Pump Capacity: 1,750 GPM 

Tank Capacity: 1,500 gallons

Condition: Fair

NFPA Compliant: Yes

Mileage: 32,603

Additional Comments or Observations: No problems 

noted. Equipment is neat and mounted securely. Consider 

installing steps into cab for safety. Clean unit. 

(Emphasis sic.) 

{¶ 10} 6. A hearing was held before a staff hearing officer ("SHO") on July 10, 

2018. The SHO first found that Ohio Adm.Code 4123:1-21-04(H)(4)(c)(ii) and (iii) were 

not applicable because they provided that exterior and interior surfaces should be slip 

resistant and provided for the minimum surface area of a step and neither of those were 

the proximate cause of claimant's injury. The SHO found that relator did violate Ohio 
No. 18AP-962 6 

Adm.Code 4123:1-21-4(H)(c) because the step to ground level on engine 2124 exceeded 

the maximum height requirement of 24 inches. The SHO relied on the investigative unit's 

report which measured the step to ground on engine 2124 at 25 and 1/8 inches. 

{¶ 11} At the hearing, relator argued that it had directed that engine 2124 be built 

to specification using industry standards for the manufacture of the vehicle and that it did 

not have knowledge of the existence of a specific danger regarding the engine. The SHO 

specifically pointed to the 2009 master plan which recommended the installation of steps 

into the cab for safety was enough to put relator on notice of a safety violation. 

{¶ 12} Specifically, the SHO order provides: 

The Staff Hearing Officer finds that there was a VSSR 

violation of 4123:1-21-04(H)(c) in that the step to ground level 

on engine 2124 exceeded the maximum height requirement of 

24 inches. The SVIU report dated 12/06/2017 shows that the 

step to the ground on engine 2124 measured 25-1/8 inches at 

the time of this industrial injury. 

It is further found that the Employer, subsequent to this 

industrial injury, sent engine 2124 for a modification to have 

an additional step added below the original step on engine 

2124 to reduce the height of the step to ground level to less 

than 24 inches and remediate the violation. Chief [Tod] Baker 

testified at hearing that it was his belief that the modification 

to the step was in response to this injury and to avoid anyone 

else from being injured. An invoice dated 10/30/2015 from 

Countryside Truck Services, Inc. contained within the body of 

the SVIU report evidences that a new cab step was installed 

on engine 2124. Therefore, it is the finding of the Staff Hearing 

Officer that no order requiring a correction of the violation 

found herein is appropriate for the reason that the violation 

has been corrected by the Employer and no longer exists. 

The determination of whether the Injured Worker's injury 

resulted from the Employer's failure to comply with a specific 

safety requirement is a factual determination, within the final 

jurisdiction of the Industrial Commission. The facts are that 

the Injured Worker was employed by the named Employer as 

a fire fighter focusing on Injured Worker's job duties which 

required him to enter and exit the cab of engine 2124 to 

perform some of those required job duties. Specifically, 

finding that the Employer did not meet it's [sic] obligation 

with regard to the standards for automotive apparatus for 
No. 18AP-962 7 

steps as set forth in 4123:1-21-04(H)(c) to an Injured Worker 

who was exposed to the apparatus (engine 2124) was a 

potential hazard for injury. Chief Baker testified that it was his 

belief that engine 2124 was modified to prevent the potential 

for further injury. The Staff Hearing Officer finds that the facts 

establish by a preponderance of the evidence that the 

Employers violation of 4123:1-21-04(H)(c) was the proximate 

cause of the injury sustained by Injured Worker. State ex rel. 

S&Z Tool and Die v. Indus. Comm. 84 Ohio St.3d 228is 

instructive as to what circumstances and facts establish 

causation for VSSR purposes. In S&Z claimant established 

that she was working around a foot hazard, that the employer 

was obligated to provide foot protection because of the 

potential for injury and the employer did not. The Staff 

Hearing Officer finds that the circumstances here are 

comparable. Injured Worker was required as a function of his 

job duties as a fire fighter to enter and exit the cab of engine 

2124 on the drivers side of the vehicle, that the Employer was 

obligated to have the step to the ground level of the 

automotive fire apparatus not exceed 24 inches, which, it did 

not, and Injured Worker sustained an injury. As the court 

established in S&Z these circumstances are sufficient to 

establish probable cause. 

The Employer argued that pursuant to State ex rel. Camaco, 

LLC v. Albu, 091417 OH SC 2015-0036 prohibits finding a 

VSSR in this matter. Camaco, reiterates the rule that to a 

VSSR award cannot be sustained when the Employer lacked 

knowledge of the existence of a specific danger requiring a 

safety device. 

The Staff Hearing Officer is not persuaded by the Employer's 

argument. It is acknowledged that the Employer directed 

engine 2124 be built to specification using industry standards 

for the manufacture of the vehicle. The Staff Hearing Officer 

further acknowledges that the injury suffered by Injured 

Worker is the first injury documented by the Employer with 

regard to the step height on engine 2124 in the 20 years the 

vehicle was in service. 

In 2009, the department commissioned a master plan 

evaluation by an independent third party to do a study of 

every aspect of the fire department. As a part of that study, the 

fire engines in use by the department at that time were 

evaluated. Engine 2124 was a part of that evaluation. The 

evaluation report states that the department should consider 
No. 18AP-962 8 

installing steps into cab for safety to engine 2124. The 

Employer argues that the language used in the 

recommendation that the Employer "consider" installing 

steps into cab for safety was not sufficient to make the 

Employer aware of or put the Employer on notice of a safety 

violation. 

Taking the definition of consider from Black's Law dictionary 

as: to think about, or to ponder or study and examine the Staff 

Hearing Officer finds that the recommendation to consider 

installing steps into cab for safety in the 2009 master plan 

report put the Employer on notice that there was an issue to 

consider with regard to the step on engine 2124. Yet, the 

Employer as far as the evidence presented at hearing shows, 

did nothing with this information, there is no evidence that 

the step was evaluated or inspected until after Injured 

Worker's injury. 

It is therefore ordered that an additional award of 

compensation be granted to the Injured Worker in the 

amount of 30 percent of the maximum weekly rate under the 

rule of State ex rel. Engle v. Indus. Comm. (1944), 142 Ohio 

St. 425. 

(Sic. passim.) 

{¶ 13} 7. Relator filed a motion for rehearing asserting that it did not know and 

could not have known the step was out of compliance with the safety rule and that, in the 

years the engine was in service, there was no evidence that any fire officers ever 

mentioned a problem with the step. Relator argued that it was a latent defect about which 

relator could not have known. 

{¶ 14} 8. In an order mailed October 23, 2018, relator's motion for rehearing was 

denied. 

{¶ 15} 9. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 16} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 17} 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 
No. 18AP-962 9 

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). 

{¶ 18} 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). 

{¶ 19} In order to establish a VSSR, a claimant must prove that: (1) there exists an 

applicable and specific safety requirement in effect at the time of the injury; (2) the 

employer failed to comply with the requirements; and (3) the failure to comply was the 

proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio 

St.2d 257 (1972). 

{¶ 20} The interpretation of a specific safety requirement is within the final 

jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 

(1983). Because a VSSR is a penalty, however, it must be strictly construed, and all 

reasonable doubts concerning the interpretation of the safety standard are to be 

construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 

46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer's 

failure to satisfy a specific safety requirement is a question of fact to be decided by the 

commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F 

Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); State ex rel. Ish v. Indus. 

Comm., 19 Ohio St.3d 28 (1985). Furthermore, a safety requirement must be specific 
No. 18AP-962 10 

enough to plainly apprise an employer of its legal obligations to its employees. State ex 

rel. Frank Brown & Sons v. Indus. Comm., 37 Ohio St.3d 162 (1988). 

{¶ 21} There is no dispute that the distance between the step and the ground 

exceeds the maximum limit of 24 inches and the specific safety requirement here was 

violated. Relator does not dispute this. However, relator contends this is a latent defect 

in the product itself about which relator did not, should not, and could not have known. 

{¶ 22} At the hearing, claimant testified that everyone knew the step was high; 

however, claimant also testified that no one ever measured the step and neither he, nor 

his co-workers, realized the step was higher than required by the Ohio Administrative 

Code. Further, Chief Baker testified that, he reviewed the records and did not find any 

records indicating there was a problem with the step on the engine in question. He did 

acknowledge that it was a big step but basically that it never occurred to anyone that the 

step was in violation of the Administrative Code. 

{¶ 23} In support of its argument, relator cites State ex rel. Camaco, L.L.C. v. Albu, 

151 Ohio St.3d 330, 2017-Ohio-7569, wherein the Supreme Court held: 

We further hold that an employer does not face liability for the 

violation of a specific safety requirement ("VSSR") when it 

lacked knowledge of a specific danger requiring a safety 

device. We reverse the judgment of the court of appeals and 

issue a limited writ of mandamus ordering the commission to 

determine whether Camaco knew or should have known 

about the latent defect at the time that Albu was injured. 

Id. at ¶ 3. In Camaco, the court remanded the matter to the commission to determine 

whether the employer knew or should have known about the latent defect at the time of 

the employee's injury. 

{¶ 24} Here, the commission considered relator's argument that it could not have 

known the height of the step exceeded the safety requirement and rejected that as a 

defense. The SHO noted that relator directed that engine 2124 be built to specifications 

using industry standards and acknowledged this was the first injury to an employee 

regarding the height of the step in the 20 years since the vehicle was put in service. The 

SHO looked at the 2009 Master Plan Evaluation and noted the recommendation that 

relator consider installing steps into the cab for safety and concluded this information 
No. 18AP-962 11 

was sufficient to put relator on notice that there was some issue concerning the step which 

should have been evaluated by relator. 

{¶ 25} The magistrate finds the commission did not abuse its discretion when it 

determined the information contained in the 2009 evaluation was sufficient to put relator 

on notice that the step should have been inspected. Had the step been inspected, relator 

would have known it exceeded the 24 inch requirement. The commission cited the 

evidence on which it relied and provided a brief explanation for its decision and this 

magistrate finds relator has not demonstrated the commission abused its discretion. 

{¶ 26} Based on the foregoing, it is this magistrate's decision that this court should 

deny relator'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).