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

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State of Ohio ex rel.] : 

Armstrong Steel Erectors, Inc., 

 : 

 Relator, 

 : No. 13AP-190 

v. 

 : (REGULAR CALENDAR) 

Industrial Commission of Ohio 

and Frank P. Seidita, : 

 Respondents. : 

 

D E C I S I O N 

Rendered on June 17, 2014 

 

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

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio. 

Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro,

and Robert J. Foley, for respondent Frank P. Seidita. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

SADLER, P.J. 

{¶ 1} In this original action, relator, Armstrong Steel Erectors, Inc., requests a 

writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to 

vacate its order granting the application of respondent Frank P. Seidita ("claimant") for 

an additional award for violation of a specific safety requirement ("VSSR") and to enter an 

order denying the application. 
No. 13AP-190 2 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, this matter was referred to a magistrate who issued a decision, including findings 

of fact and conclusions of law, which is appended hereto. The magistrate concluded that 

the commission did not abuse its discretion in granting claimant's application for an 

additional award for VSSR. Accordingly, the magistrate recommended that this court 

deny the request for a writ of mandamus. 

I. RELATOR'S OBJECTIONS 

{¶ 3} Relator presents the following objections to the magistrate's decision: 

[I.] The Magistrate's conclusion that the use of personal fall 

protection equipment was impractical is not supported by the 

record. In fact, the record evidence reflects Seidita's own 

arguments that safety belts and lanyards were required. 

[II.] The Magistrate's failure to find unilateral negligence 

because Seidita did not "tie-off" constitutes an abuse of 

discretion as it authorizes employees to completely disregard 

the employer's stated safety rules and personal protection 

measures. 

[III.] The Magistrate's decision that Armstrong Steel violated 

OAC 4123:1-3-03(L)(3) must be overturned because 

Armstrong neither installed, owned, controlled nor was 

responsible for maintaining the chain link fencing that was 

involved in Claimant's injury. 

II. DISCUSSION 

 A. First and Second Objections 

{¶ 4} In its first objection, relator contends that the record does not support the 

conclusion that the use of personal fall equipment was impractical. In its second 

objection, relator contends that claimant was unilaterally negligent in failing to utilize 

personal fall protection equipment. 

{¶ 5} The arguments raised in relator's first and second objections are nearly 

identical to those raised and addressed by the magistrate. In addressing these issues, the 

magistrate concluded that the commission did not abuse its discretion in determining, at 

the time of claimant's injury, the use of personal fall protection equipment was 

impractical and that relator did not comply with the applicable safety requirements as 
No. 13AP-190 3 

defined by Ohio Adm.Code 4123:1-3-03(L)(3). The magistrate also found the commission 

did not abuse its discretion when it did not find, due to its previous determination that 

relator had not complied with the safety requirements at issue, that claimant was 

unilaterally negligent in failing to wear personal fall protection at the time of his injury. 

While relator continues to challenge these conclusions, for the reasons stated in the 

magistrate's decision, we reject relator's contentions and find no merit to relator's 

objections. 

{¶ 6} Accordingly, relator's first and second objections to the magistrate's 

decision are overruled. 

B. Third Objection 

{¶ 7} In its final objection, relator contends for the first time that, because it 

neither installed, owned, controlled, nor was responsible for maintaining the safety net 

involved in claimant's injuries, it cannot be held responsible for violating Ohio Adm.Code 

4123:1-3-03(L)(3). Our review of the record reveals that relator did not raise this issue at 

the administrative level. Rather, the issue before the commission was specifically whether 

the safety net met the applicable safety standards. 

{¶ 8} It is well-settled law that issues not raised administratively cannot be raised 

in a mandamus action. State ex rel. Burns Internatl. v. Smith, 10th Dist. No. 05AP-488, 

2006-Ohio-6731, ¶ 3, citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 

(1997). As stated in Burns Internatl., a failure to pursue this issue administratively "bars 

this court from addressing it de novo in this action." Id. at ¶ 3. Thus, because we find 

relator failed to raise this argument at the administrative level, relator is precluded from 

raising it here. 

{¶ 9} Accordingly, relator's third objection to the magistrate's decision is 

overruled. 

III. CONCLUSION 

{¶ 10} Upon review of the magistrate's decision, an independent review of the 

record, and due consideration of relator's objections, we find the magistrate has properly 

determined the pertinent facts and applied the appropriate law. We, therefore, overrule 

relator's three objections to the magistrate's decision and adopt the magistrate's decision 
No. 13AP-190 4 

as our own, including the findings of fact and conclusion of law contained therein. 

Accordingly, the requested writ of mandamus is hereby denied. 

Objections overruled; 

writ of mandamus denied.

BROWN and CONNOR, JJ., concur. 

_____________________________ 
No. 13AP-190 5 

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State of Ohio ex rel.] : 

Armstrong Steel Erectors, Inc., No. 13AP-190 

 : 

 Relator, (REGULAR CALENDAR) 

 : 

v. 

 : 

Industrial Commission of Ohio 

and Frank P. Seidita, : 

 

 Respondents. : 

 

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

Rendered on January 13, 2014 

 

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

Michael DeWine, Attorney General, and Kevin J. Reis, for 

respondent Industrial Commission of Ohio. 

Heller, Maas, Moro & Magill Co., L.P.A., Joseph A. Moro 

and Robert J. Foley, for respondent Frank P. Seidita. 

 

IN MANDAMUS 

{¶ 11} In this original action, relator, Armstrong Steel Erectors, Inc. ("relator" or 

"Armstrong"), requests a writ of mandamus ordering respondent Industrial Commission 

of Ohio ("commission") to vacate its order granting the application of respondent 

Frank P. Seidita for an additional award for violation of a specific safety requirement 

("VSSR") and to enter an order denying the application. 
No. 13AP-190 6 

Findings of Fact: 

{¶ 12} 1. On April 23, 2009, Frank P. Seidita ("claimant") fell from a concrete 

bridge pier while employed by relator as an iron worker. The bridge runs U.S. Route 62 

over Andrews Avenue in Youngstown, Ohio. 

{¶ 13} A chain link fence had been installed aside the pier top on which claimant 

was working. However, there was a gap of six inches to one foot between the chain link 

fencing and the outermost edge of the work surface. 

{¶ 14} At the time of his fall, claimant was not wearing personal fall protection, 

i.e., personal protective equipment, even though that protection was readily available at 

the job site. As he was using a two-by-four to pry up a bearing pad he was about to weld, 

claimant lost his balance and fell through the gap to the ground below, a distance of over 

25 feet. As a result of the fall, claimant sustained multiple fractures and other injuries. 

{¶ 15} 2. On April 21, 2011, claimant filed an application for a VSSR award. 

{¶ 16} 3. The VSSR application prompted an investigation by the Safety 

Violations Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation 

("bureau"). 

{¶ 17} 4. On July 26, 2011, the SVIU investigator visited Armstrong's 

headquarters at Newark, Ohio. During the visit, the investigator met Armstrong's 

president, Diane Bednar. The investigator obtained company documents regarding the 

industrial accident. 

{¶ 18} 5. Following a July 27, 2011 telephone interview, the SVIU investigator 

obtained an affidavit from claimant executed July 28, 2011: 

[Two] I began working at Armstrong Steel Erectors 

Incorporated approximately three weeks prior to my injury 

as an iron worker; this was my position at the time of my 

injury. My job duties consisted of steel construction, welding, 

and refurbishing bridges. 

[Three] I was not provided with any training from Armstrong 

Steel. I had completed an apprenticeship in 1994. I had also 

had completed the [OSHA] 10 hour course prior to working 

for Armstrong Steel Erectors. I believe Armstrong Steel 

conducted tool box talks or safety meetings at the beginning 

of the day; this was two years ago and I do not remember the 

issues discussed. Normally the talks consist of getting 
No. 13AP-190 7 

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

equipment. 

[Four] At the time of my injury I was required to wear a 

welding hood, safety glasses, hard hat, leather welding 

gloves, and work boots. I was wearing these items at the time 

of my injury. 

[Five] My injury occurred at on the US62 (Madison Freeway) 

bridge over Andrews Avenue. We were raising the bridge to 

install new bearing pads. I was under the bridge on a deck 

welding bearing pads in place. I was prying a bearing pad in 

order to weld the pad. I was using a two by four to pry the 

pad, the wood broke, I lost my balance, and fell. 

[Six] The bridge pier had a safety net under it. There was a 

one foot gap between the safety net and the bridge pier and I 

fell through this gap. I do not know when the safety net was 

installed; it had been installed prior to me starting the job. 

* * * 

[Eight] At the time of my injury I was kneeling on the bridge 

pier. The bridge pier was approximately twenty-five feet wide 

and approximately three to four feet long. The bridge pier 

was approximately twenty-five feet six inches from the 

ground. I [fell] approximately twenty-five feet six inches 

landing on the concrete ground. 

[Nine] The company provided safety harnesses, lifelines, and 

lanyards. Armstrong Steel Erectors only required employees 

to wear the fall protection when in an aerial lift. Since the 

safety net was installed Armstrong Steel Erectors did not 

require employees to wear the fall protection when on the 

bridge, pier, or decking. I was not required to wear fall 

protection at the time of my injury because of the safety net. 

At the time of my injury I was not wearing a safety harness. 

[Ten] I had worn fall protection on this job whenever I was 

on the aerial lift. Prior to my injury I had been in the aerial 

lift approximately the day prior to my injury. 

[Eleven] At the time of my injury there was not any place to 

tie off to had I chosen to wear fall protection. There was not 

any tie off cable and I could not have tied off to any steel at 
No. 13AP-190 8 

the time of my injury. The X braces we normally use to tie off 

to had not yet been installed. 

[Twelve] There was not any guard rail or toe board in the 

area where my injury occurred. 

{¶ 19} 6. On November 7, 2011, at Armstrong's request, Craig S. Brue executed 

an affidavit, stating: 

[One] I am a journeyman ironworker by trade and have been 

a member of the International Association of Ironworkers, 

Local 207, for the past eight years. Currently, I am jobsite 

foreman with Armstrong Steel Erectors ("Armstrong Steel") 

and am responsible for supervising its crews on road and 

bridge construction projects. As a journeyman ironworker, I 

have participated in job safety training programs, including 

the OSHA ten hour and the OSHA thirty hour competent 

person courses. I have participated in these safety training 

courses not only through my employment with Armstrong 

Steel, but also through my membership with Union Local 

207. These safety programs cover OSHA's Subpart R. 

Subpart R covers safety requirements to protect ironworkers 

while performing steel erection activities. 

[Two] Armstrong Steel has a written safety handbook that is 

maintained at our jobsites. In addition, Armstrong has a 

complete set of safety rules requiring proper safety practices 

required by OSHA standards for us to follow while 

performing steel erection work. One of my responsibilities as 

the jobsite foreman is to ensure that Armstrong Steel's safety 

program is carried out. As such, I discuss the Company's 

safety program beginning with our new hires and I continue 

discussing safety practices with my crew on a daily basis. 

One of Armstrong's safety rules requires the use of fall 

protection equipment. This rule requires us to be tied off 

with the use of a body harness and lanyard whenever work is 

being performed at a height of six feet or more. This is our 

100% tie off rule. 

[Three] Another part of Armstrong's safety program includes 

a weekly toolbox safety talk. Typically, I conduct the weekly 

employee safety talks on Monday mornings. Our talks cover 

safety topics including fall protection requirements, traffic 

hazards, slipping and tripping hazards, and the proper use of 

personal protective equipment. I held our weekly toolbox 

safety talks on our ODOT bridge project where Frank Seidita 
No. 13AP-190 9 

was hurt. During those safety talks, I covered our safety rules 

regarding fall protection and the 100% tie-off rule. In 

addition, every day, I reminded my crew to use their fall 

protection equipment and to make sure they are always tiedoff while working on the steel. 

[Four] To monitor our safety program, Armstrong Steel has 

engaged a safety consultant who performs random field 

safety audits. The safety audits occur on a periodic basis at 

each of our jobsites. If a problem is identified, the safety 

consultant informs me and our structural steel manager, 

Russ Duskey, of the problem and we immediately address 

the problem or, if an issue cannot be taken care of 

immediately, I am required to clear the area or shut down 

operations. 

[Five] We also enforce our safety rules with a disciplinary 

program that includes verbal and written reprimands, and if 

one of our journeymen fails to follow the Company's' [sic] 

safety rules, it could result in his or her suspension or 

termination. As the jobsite foreman, I have the authority to 

verbally warn my crew for any failure to follow our safety 

rules. I also remind the guys on a daily basis that they need 

to be tied off while working on the steel. I also conduct a prework safety check, which includes checking on my crew's fall 

protection equipment and making sure that they are wearing 

their full body harnesses properly. I inspect my crew's fall 

protection equipment to make sure it is in satisfactory 

condition and meets safety standards for strength and 

durability. 

[Six] In this case, we were working as a subcontractor for 

A.P. O'Horo Company on an ODOT bridge project at U.S. 

Route 62 over Andrews Avenue in Youngstown, Ohio. The 

scope of our work included removing portions of the bridge, 

X-frames, bearings, and expansion joints. We also replaced 

X-frames, bearings, and expansion joints. For our project, 

Armstrong Steel furnished fall protection equipment for its 

workers. The fall protection equipment included safety 

harnesses, retractable lanyards, and bridge clamps for 

anchorage. I also hauled fall protection equipment in my 

utility truck. That equipment was also available for use by 

our crew. 

[Seven] Our work on the project began the end of March, 

2009. Frank Seidita was a part of our crew and he began 
No. 13AP-190 10 

working at the project on April 7, 2009. At that time, I went 

through the new employee matters with Frank Seidita and 

observed his fall protection equipment to make sure it was 

adequate. 

[Eight] Even though Armstrong Steel provides the necessary 

fall protection equipment, my crew owns and uses their own 

fall protection equipment. As noted, Frank Seidita had his 

own safety harness and lanyard and his safety harness was 

made to hook up to two safety lanyards. His safety harness 

enabled Mr. Seidita to comply with the Company's 100% tieoff rule when working on the steel. 

[Nine] Mr. Frank Seidita was also a member of the 

Ironworkers' Local Union 207 and he has participated in the 

OSHA ten hours safety training courses. I also believe he has 

taken the OSHA 30 hour safety training course. Like me, Mr. 

Seidita, through his membership with Local Union 207, he 

has received safety training covering the OSHA standards, 

Subpart R for steel erection work, and, in particular, 

regarding OSHA's fall protection rules. In addition, I have 

worked with Mr. Seidita and have observed him following 

Armstrong's fall protection rules. Armstrong's fall safety 

rules require 100% tie-off while working on the steel six feet 

above ground or, if connecting, when they are more than two 

stories or thirty feet above ground. We are also required to 

be tied off while working in an aerial lift. I also reminded my 

crew on a daily basis to follow the 100% tie-off rule. 

[Ten] In April, 2009, Frank Seidita was part of my work crew 

on the U.S. 62 ODOT bridge project over Andrews Avenue in 

Youngstown, Ohio. Mr. Seidita was well aware of 

Armstrong's fall protection rule and I made him aware of this 

protection policy during his safety orientation when he 

arrived on the jobsite. As I recall, I gave Mr. Seidita a copy of 

the Armstrong safety rules which identify the need to use fall 

protection equipment and to be tied-off 100% of the time. 

For this project, Mr. Seidita was required to wear his fall 

protection equipment, a welding hood, safety glasses, a hard 

hat, welding gloves, and work boots. Prior to his fall, I also 

conducted Armstrong's weekly toolbox safety talks and 

covered a variety of safety topics, which included our fall 

protection requirements and the need for 100% tie-off. 

[Eleven] On April 23, 2009, Mr. Seidita was directed to weld 

bearing pads in place. This required him to work off of a 
No. 13AP-190 11 

concrete bridge pier, which was approximately three feet 

wide and twenty-five feet long. Frank Seidita told me that he 

was using a two by four to pry up a bearing when the board 

broke causing him to lose his balance and fall between the 

safety net and the bridge pier. Mr. Seidita was not tied off at 

the time of his fall. This clearly was a violation of 

Armstrong's 100% fall protection tie-off rule. 

[Twelve] At the time of his fall, Mr. Seidita was working 

alone and he could not be seen by me or the rest of my crew. 

We were installing expansion joints on the bridge decking 

above Mr. Seidita. I had no idea Mr. Seidita was violating our 

safety rules and his training by working without being tiedoff. Had I observed Mr. Seidita performing any work at a 

height of more than six feet above ground and not being tiedoff, I would have immediately instructed him to stop what he 

was doing and tie-off. Put simply, Mr. Seidita failed to follow 

our 100% tie-off rule on that jobsite and had he ever 

returned to work following his injury, he would have been 

disciplined. Also, if Mr. Seidita would have followed our 

safety rules and tied-off, he would not have fallen to the 

ground. 

[Thirteen] I have reviewed Mr. Seidita's Affidavit and submit 

that it contains several misstatements. First, Seidita states 

that Armstrong Steel only requires employees to wear fall 

protection when they are in an aerial lift. That is clearly 

wrong. To the contrary, our 100% tie-off rule applies not 

only while in an aerial lift, but also whenever they are 

working at a height of more than six feet above ground or, if 

connecting, when they are more than two stories or 30 feet 

above a lower level. Mr. Seidita was not engaged in any 

connecting work at the time of his accident. 

[Fourteen] On this project, there also was a safety net 

installed. The safety net was installed by American Bridge 

Painters, another contractor on the project. Our 100% tie-off 

rule also applies even when there is a safety net. 

[Fifteen] I am also unclear as to what Mr. Seidita meant in 

his Affidavit that he was not required to wear fall protection 

equipment because there was a safety net. That is wrong. Mr. 

Seidita and the other members of our work crew were always 

required to wear their fall protection equipment whether 

they were working in the aerial lift, on sections of the bridge 

and regardless as to the safety net. Honestly, Mr. Seidita, for 
No. 13AP-190 12 

reasons only known to himself, failed to tie-off. Had Mr. 

Seidita tied-off, he would not have fallen to the ground. 

[Sixteen] I also submit that Mr. Seidita had ample 

opportunity to tie-off while performing the bearing 

installations. Mr. Seidita could have tied-off onto sections of 

the steel or he could have attached bridge clamps to the steel 

and then tie[d]-off on the bridge clamp. On this project, our 

crew had bridge clamps available for use. The clamps were 

stored in our mechanic truck and I even have bridge clamps 

and other fall protection equipment in the utility truck I 

drove to the project. 

[Seventeen] I also note that Mr. Seidita was not working 

anywhere near what could be characterized as a floor 

opening or floor hole. Rather, he was working off a concrete 

bridge pier measuring three to four feet in width and twentyfive feet in length. The bridge pier was constructed of 

concrete and rose to a height running from twenty-five feet 

to fifteen feet. Obviously, there existed no opening whether it 

be floor, roof or wall in existence in which in [sic] any person 

or material could fall through. 

[Eighteen] I also note that the steel safety netting was not a 

working or walking surface. The safety net was simply 

another fall protection measure. It was not temporary 

flooring, a platform, runway, nor any type of walking or 

working surface. Likewise, I was unaware of any hole or 

opening in the safety net. As to the slight gap between the 

safety net and the pier, I submit that this was not an opening 

in any walking or working space of any floor, wall or roof. 

{¶ 20} 7. On November 18, 2011, at Armstrong's request, Diane Bednar executed 

an affidavit, stating: 

[One] I am President of Armstrong Steel Erectors, Inc., and I 

am familiar with the workers' compensation claim and VSSR 

application of Frank P. Seidita. I am also familiar with the 

nature and scope of our work on the ODOT Bridge Project at 

U.S. Route 62 over Andrews Avenue in Youngstown, Ohio, 

where Mr. Seidita was injured. 

[Two] We staffed that project with union ironworkers who 

were previously schooled in techniques and procedures 

associated steel erection operations and safety. Through the 

apprenticeship and the training programs sponsored by the 
No. 13AP-190 13 

Union Locals, our ironworkers possessed the knowledge and 

understanding in the use, care, and maintenance of personal 

protective equipment, including fall protection. I submit that 

our ironworkers possess this knowledge and competency at 

the time they step on our job project. 

[Three] It is also part of Armstrong Steel's safety program to 

provide ongoing training, supervision, and oversight 

covering the safety requirements associated with the 

performance of steel erection activities in accordance with 

OSHA's Subpart R. 

[Four] Craig S. Brue, our jobsite foreman on the ODOT 

project, and the rest of the ironworkers on that project, 

including Frank D. [sic] Seidita, have participated in safety 

training courses, including, at a minimum, the OSHA 10 

hours course and, the OSHA 30 hour competent person 

course. Additionally, Mr. Brue held weekly toolbox safety 

talks which covered a variety of safety topics including fall 

protection requirements, traffic hazards, slipping and 

tripping hazards, and the proper use of personal protective 

equipment. These weekly toolbox safety talks occurred 

throughout the course of Mr. Seidita's work on that project. 

[Five] I reviewed Mr. Seidita's Affidavit and wish to set the 

record straight with respect to several statements. I will 

address these statement in the order made by Mr. Seidita. 

[Six] First, American Bridge Painters installed a safety net in 

accordance with their obligations on this project. The safety 

net was a fall protection measure, as well as, a means of 

catching debris before it would fall to the ground. Even with 

a safety net, our safety program requires our workers to use 

their fall protection equipment and to be tied-off whenever 

they are working six feet above ground or, if performing 

connecting operations, when they are more than two stories 

or thirty feet above ground. If any of our ironworkers are 

engaged in those activities and not tied-off, they would be in 

violation of our 100% tie-off rule and subject to discipline. I 

submit that this duty applies whether or not a safety net has 

been installed. 

[Seven] On the project where Mr. Seidita worked, as with all 

of our other projects, Armstrong Steel provided all the 

requisite fall protection equipment, including safety 

harnesses, retractable lanyards, and bridge clamps for 
No. 13AP-190 14 

anchorage. All of this equipment was on the job site and 

readily available to all ironworkers. 

[Eight] I am also familiar with the job activities that Mr. 

Seidita was performing on the concrete bridge pier at the 

time of his accident. In the performance of those activities, I 

submit that Mr. Seidita had options within which to properly 

use his fall protection equipment. Specifically, Mr. Seidita 

could have used a choker to wrap around the steel work of 

the bridge and hook to his lanyard or he could have used a 

bridge clamp and then be connected to the clamp. Mr. 

Seidita, however, for reasons only known to himself, failed to 

tie-off as required by our safety rules, and his reciprocal 

obligation under Ohio's specific safety requirements. Given 

Mr. Seidita's action, I submit that he would have been 

disciplined for this failure to follow our safety rules had he 

ever returned to work following his accident. 

[Nine] I also note that it is a misstatement on the part of 

Seidita to state that Armstrong Steel only requires employees 

to wear fall protection equipment when in an aerial lift. As 

repeatedly noted above, this is incorrect and goes against our 

safety rules. I have attached a copy of our written safety 

rules. 

[Ten] Finally, I submit that Mr. Seidita was working on a 

concrete bridge pier that did not constitute what could be 

characterized as a floor, roof, or wall opening that was 

required to be guarded or covered. Nor could the space 

between the bridge pier and the safety net be considered an 

opening in a floor, roof or wall. 

{¶ 21} 8. On June 5, 2012, at claimant's request, Adam Shields executed an 

affidavit, stating: 

My name is Adam Shields. I worked for Armstrong Steel 

Erectors on or around April 23, 2009. I am a journeyman 

iron worker and a member of the International Association 

of Ironworkers, Local 207. 

I worked on the ODOT bridge project at U.S. Route 62 over 

Andrews Avenue in Youngstown, Ohio. On this job, safety 

fencing was used as fall protection. Static lines were not used 

on this job unless we were over railroad tracks where the 

fencing was never erected. The static lines are used for iron 

workers to tie off to while walking the iron. There were no 
No. 13AP-190 15 

static lines in the area where Mr. Seidita fell. I remember on 

this job, we relied on the safety fencing as our primary fall 

protection. 

{¶ 22} 9. On September 12, 2012, a staff hearing officer ("SHO") heard the VSSR 

application. The hearing was recorded and transcribed for the record. 

{¶ 23} 10. At the September 12, 2012 hearing, early on, claimant tells the hearing 

officer how the accident occurred: 

HEARING OFFICER: For my benefit, would you define for 

me what a bridge pier is? 

THE CLAIMANT: Okay. 

HEARING OFFICER: I think I know what you're talking 

about, but I want to hear it from you so I make sure that -- 

THE CLAIMANT: Well, it's the concrete part that holds up 

the bridge, the steel part of a bridge. It's just, you know, it's 

on either side of the freeway or the whatever, road or 

whatever. 

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

across the top? 

THE CLAIMANT: Yeah, so the beams could go across the top 

of these piers. 

HEARING OFFICER: Uh-huh. 

THE CLAIMANT: They support the whole structure. 

HEARING OFFICER: Okay. 

A. I was working on top of one of those. And there's a fence 

or netting underneath us. And I was welding some bearing 

plates which the bridge bears on, the weight, okay, it takes 

the load of the bridge; I was welding some up, and I was 

prying on one to get it up against the steel so I could weld it. 

And there was tight steel to work with, and what I was prying 

with was a two-by-four. The two-by-four broke and it 

snapped, and I slipped off of it. And my foot went straight 

down through the -- the -- my work area, which is the fence I 

was working -- that was, you know, going underneath the 

bridge. 
No. 13AP-190 16 

HEARING OFFICER: Uh-huh. 

A. And I went through the hole and I just couldn't hold my 

weight up, and I completely went through the fence. There 

was a gap in there for whatever reason. 

Q. (BY MR. MORO) Were you using any other personal 

protective equipment, and specifically I'm talking about a 

safety belt and a lanyard? 

A. No, I was not. 

(Tr. 197-99.) 

{¶ 24} During direct examination by his counsel, claimant testified: 

A. Where I was working, I was underneath the bridge, the 

deck over my head and the fence underneath me. And the 

whole time you're on this, you're working on your hands and 

knees and you never stand straight up. So you're always 

crawling or on your knees doing the work performed, so, in 

my situation. The people around me, there really wasn't any 

work that was being performed right on either side of me. I 

was by myself. 

* * * 

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

lanyard? 

A. When? 

Q. When you were on the net? 

A. No. 

(Tr. 201-03.) 

{¶ 25} During claimant's cross-examination by Armstrong's counsel, the 

following exchange was recorded: 

Q. Okay. And your affidavit indicates that on this job site 

where you were hurt, Armstrong Steel provided safety 

harnesses, lanyards, clamps to tie off on, lifelines? 

A. They provided everything. I was -- you know, they would 

provide a welding hood if you needed one, which is 
No. 13AP-190 17 

protective equipment. They had harnesses laying in the back 

of a truck somewhere, yes. I did use my own personal 

harness on that job when I was -- when I was told to or I 

knew I had to, working in the aerial lifts, 'cause I had been in 

the aerial lifts previously on that job. 

Q. Okay. 

A. This one didn't require it, so I didn't. I gathered, again, in 

the morning when I got to work, I gathered the tools that I 

needed for that particular job and went for it. A harness was 

not one of the safety things because there was no fear of 

falling. 

* * * 

Q. Okay. Now, you report, and let's go back to, at first you 

were telling the Hearing Officer you were working on the 

fencing, on the net; correct? 

A. Yes, I may have said that. 

Q. But what you did say originally under oath, and that is, at 

the time of your injury you were kneeling on the concrete 

pier; correct? 

A. Yes. 

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

A. Kneeling on the pier. 

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

A. And, yes. 

Q. Okay. And that concrete pier you indicate was about 25 

feet wide or long and either 3 or 4 feet wide or long, whatever 

you want to -- 

A. Yes. 

* * * 

Q. Okay. And apparently your attorney wants or you might 

have thought you now need to say you were working on the 
No. 13AP-190 18 

fencing and saying there was a hole in the fencing; is that 

what your understanding is today? 

A. I guess I didn't mention the complete description of, good 

enough, of the job; but the fence went up to the pier. The 

fencing or the netting or -- it's -- the fencing went up to the 

pier. 

* * * 

A. And I was welding. When the two-by-four that I was 

prying with snapped, my foot went off of the pier and onto 

the fencing, and it went through whatever gap was there 

and -- 

* * * 

A. So I -- I was -- sometimes I was on the fencing, sometimes 

on the pier. To get to the pier, I was crawling on the fencing. 

And to get off of the pier, I would crawl back off the fencing. 

(Tr. 222-26.) 

{¶ 26} At the hearing, Russell Duskey testified on direct examination by 

Armstrong's counsel. The following exchange occurred: 

Q. Was it Armstrong Steel's obligation under your contract 

with the general contractor, A.P. O'Horo, to put up the 

fencing? 

A. No, it wasn't. 

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

A. Debris net primarily. 

Q. And was the fencing the only fall protection in place on 

this project for Armstrong Steel workers? 

A. Their individual fall protection was in place. 

(Tr. 231.) 

{¶ 27} At the hearing, Diane Bednar testified on direct examination by 

Armstrong's counsel: 
No. 13AP-190 19 

Q. Okay. And after you learned about Mr. Seidita's accident, 

first of all, does Armstrong have a disciplinary policy in 

which, if someone violates a safety rule, they're disciplined? 

A. We have a disciplinary policy. It's three steps; verbal, 

written, dismissal. Craig Brue would be implementing that, 

so he would have issued the verbal warnings as well as any 

other reprimands. 

Q. And in this case, Mr. Seidita, if he would have come back 

to work at Armstrong Steel, would he have been disciplined 

for his actions? 

A. He would have received a reprimand, yes. 

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

A. Not being tied off. 

Q. Okay. And on this project, this fencing that they keep 

referring to as the safety fencing, was that the primary means 

of fall protection for Armstrong? 

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

Q. And the other means is? 

A. 100-percent tie off. 

(Tr. 243-44.) 

{¶ 28} At the hearing, claimant testified on redirect examination by his counsel: 

Q. Frank, you've heard the testimony and so forth. Is it fair to 

say that the employer allowed you to rely on the netting and 

fencing as fall protection? 

A. Yes. 

Q. And did you see other Armstrong employees at any time 

during your course of working on this job moving along on 

this fencing or walking along this fencing -- 

A. Absolutely. 

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

A. Yes. 

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

stuff? 

A. Well, just, you know, specifically, Craig Brue, the foreman 

on the job, to -- to like come up, instead of getting on an 

aerial lift or if there wasn't an aerial lift there, he came 

actually to the end of the bridge and crawled out on the fence 

just like I did to -- to come and show me what we were 

talking about. You know what I mean? He was my foreman; 

he showed me what to do. He wasn't in a harness when he 

came and crawled out on the fence. He didn't have a harness 

to throw on or there wasn't a lift available. He ran up to the 

abutment or wherever, the beginning of the bridge, got on 

the fence, crawled out there, and showed me what I was 

talking about. 

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

lanyard on? 

A. Absolutely not[.] 

* * * 

Q. When you were up there with Craig Brue and when he 

would see you up there, did he direct you to tie off when you 

were on this net? 

A. Absolutely not. It was never a -- and I talked to him. I 

mean, 25 feet is about what I fell, just over 25 feet, and I 

talked to him on the -- on the ground. Or whoever else is on 

the ground, you talk, you communicate. Nobody's ever -- if 

people are -- you know, this is, and you understand, falling 

off -- tying off is a big deal in our business. 

* * * 

A. And each job, you know what I mean, if they would have 

said, you have to have your harness on when you're up on 

that safety net, then we would put our harness on. We 

actually had discussions and they said, when you're up on 

the fence you don't need your harness; that fence is there for 

fall protection. 

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

{¶ 29} 11. Following a September 12, 2012 hearing, the SHO issued an order 

granting the VSSR application. The SHO's order explains: 

[R]egulations 4123:1-3-03(C) (1) and 4123:1-3-03(J) (1-6) 

regarding personal protective equipment, safety belts, 

harness lifelines and lanyards were not required in this case 

as the regulations provide that safety nets may be used in 

lieu of lifelines and safety belts or harnesses. The Staff 

Hearing Officer relies upon Regulation 4123:1-3-03 (J) (7) 

and the undisputed testimony at hearing by the Injured 

Worker himself, stating that his work area on the date of 

injury was protected by safety netting. 

The Staff Hearing Officer finds that a V.S.S.R. award is 

deemed a penalty to the employer and therefore, is subject to 

a rule of strict construction with all reasonable doubts 

concerning the interpretation of the claim to be construed in 

favor of the employer. State ex rel. Burton v. Indus. Comm. 

(1989), 46 Ohio St.3d 170, State ex rel. Cincinnati Drum 

Service Inc. v. Indus. Comm. (1990), 52 Ohio St.3d 135. In 

other words, Specific Safety Requirements, being the basis 

for penalizing noncomplying employers, are to be construed, 

where reasonable, against applicability to the employer. 

State ex rel. G & S Metal Products, Inc. v. Moore (1997) 79 

Ohio St.3d 471. 

That being said and acknowledging the multiple denials 

specified above, the Staff Hearing Officer finds that the 

Injured Worker has demonstrated by a preponderance of the 

evidence that Specific Safety Regulations 4123:1-3-03 (L) (1) 

(3) do apply to the facts at hand. 

These regulations provide as follows: 

(L) Safety nets. 

(1) Safety nets shall be provided when workplaces are more 

than twenty-five feet above the ground, water, or other 

surface where the use of ladders, scaffolds, catch platforms, 

temporary floors, safety lines or safety belts or harnesses is 

impractical. 

(3) Safety nets shall extend outward from the outermost 

projection of the work surface in accordance with the 

following table to this rule and shall be installed as close 

under the work surface as practical but in no case more than 
No. 13AP-190 22 

thirty feet below such work surface with the exception of 

bridge construction where only one level of nets is required. 

Nets shall be hung with sufficient clearance to prevent 

employee's contact with the surfaces or structures below. 

Such clearance shall be determined by impact load testing. 

The Staff Hearing Officer finds that 4123:1-3-03 (J) (7) 

permitted the employer [of] record to substitute the use of a 

safety net in place of personal safety equipment. 

Regulations 4123:1-3-03 (L) (1) and (L) (3) provide the 

duties imposed upon an employer for using a safety net. 

The Injured Worker testified at hearing that his work area 

was merely a crawl space between the top of the bridge piers 

and the bottom of the bridge roadway section. While this 

crawl space area was said to be 25' wide by the Injured 

Worker, he also said it was at 3' to 4' long and 25' 6" high. 

Given the Injured Worker's testimony as reflected in the 

hearing transcription regarding his description of attempting 

to weld plates together in this crawl space area that often 

required him to actually roll out onto the safety netting, the 

Staff Hearing Officer concludes that the use of personal 

protective equipment as described earlier, would be deemed 

to be impracticable [sic], as required by 4123:1-3-03 (L) (1). 

Regulation 4123:1-3-03 (L) (3) provides in relevant part, that 

"safety nets shall be installed as close under the work surface 

as practical ... with the exception of bridge construction 

where only one level of nets is required. Nets shall be hung 

with sufficient clearance to prevent employees contact with 

the [surfaces] or structures below." 

It is the finding of the Staff Hearing Officer that the Injured 

Worker was employed on the date of injury noted above, by 

the employer as an Iron Worker, and that the Injured 

Worker sustained an injury in the course of and arising out 

of employment when while attempting to weld on a bridge 

pier in a squatting position, the Injured Worker shifted his 

body to weld in a hard to reach area and in doing so, his foot 

slipped off the edge of the pier and thru the gap between the 

pier and safety netting, resulting in the Injured [W]orker 

falling approximately 25 1/2 feet to the ground below. 
No. 13AP-190 23 

It is further the finding of the Staff [H]earing Officer that the 

Injured [W]orker's injury was the direct proximate result of 

stepping off the bridge pier into a gap area between the net 

and pier which was between six inches and one foot wide, 

which resulted in his entire body falling through the gap 

area, over 25 feet below. This gap area is found to violate 

Specific Safety Regulations 4123:1-3-03 (L) (1) and 4123:1-3-

03 (L) (3), of the Code of Specific Requirements of the 

Industrial Commission relating to Construction. 

The Staff Hearing Officer finds that the Injured Worker 

testified that the netting was similar to a chain link fence and 

was initially installed to abutt the top of the bridge pier. The 

Injured Worker also stated that the netting was installed 

prior to his employment on this job, so he didn't know who 

had installed the netting. The representatives of the 

employer testified that another subcontractor on the job had 

actually installed the netting. 

It is therefore ordered that an additional award of 

compensation be granted to the Injured Worker in the 

amount of fifteen (15) percent of the maximum weekly rate 

under rule of State ex rel. Engle v. Industrial Commission, 

142 Ohio St. 425. 

{¶ 30} 12. On November 19, 2012, relator and claimant each moved for rehearing 

pursuant to Ohio Adm.Code 4121-3-20(E). 

{¶ 31} 13. On January 9, 2013, another SHO mailed an order denying the 

motions for rehearing. The SHO's order explains: 

It is hereby ordered that the Motions for Rehearing filed by 

the Injured Worker and by the Employer on 11/19/2012 be 

denied. Neither the Injured Worker nor the Employer has 

submitted any new and relevant evidence nor shown that the 

order of 09/12/2012 was based on an obvious mistake of fact 

or on a clear mistake of law. 

Specifically, counsel for the Injured Worker alleged that 

other sections were violated and that the evidence would 

have supported a higher percentage than 15% but there was 

no further explanation or basis given. 

Regarding the Employer's request for re-hearing, there was 

some testimony at the hearing which led the Staff Hearing 

Officer to the conclusion that use of standard lifelines and 
No. 13AP-190 24 

lanyards was impractical, thus requiring use of a safety net. 

The safety net or debris net under the Injured Worker clearly 

was not sufficient to prevent his fall. Even if use of the 

lifelines and lanyards was "practical," there was conflicting 

evidence and testimony as to whether or not their use was 

enforced 100 percent of the time at this job site by this 

Employer. 

As it is found that neither party has met the requirements of 

Ohio Admin. Code 4121-3-20(E) (1) (a) and (b), the requests 

for a VSSR re-hearing are denied. 

{¶ 32} 14. On March 6, 2013, relator, Armstrong Steel Erectors, Inc., filed this 

mandamus action. 

Conclusions of Law: 

{¶ 33} Three issues are presented: (1) whether the commission abused its 

discretion in determining that the use of personal fall protection was "impractical" 

within the meaning of the pertinent safety rule for working on the concrete pier at the 

time of injury, (2) whether the commission abused its discretion by not finding that 

claimant was unilaterally negligent in failing to wear personal fall protection at the time 

of his injury, (3) whether the specific safety rule, Ohio Adm.Code 4123:1-3-03(L)(3), 

prohibits the gap between the outermost projection of the work surface atop the 

concrete pier and the chain link fence (safety net)—the gap that claimant fell through at 

the time of his injury. 

{¶ 34} The magistrate finds: (1) the commission did not abuse its discretion in 

determining that the use of personal fall protection was "impractical" within the 

meaning of the pertinent safety rule for working on the concrete pier at the time of 

injury, (2) the commission did not abuse its discretion in failing to find that claimant 

was unilaterally negligent in failing to wear personal fall protection at the time of his 

injury, and (3) the specific safety rule, Ohio Adm.Code 4123:1-3-03(L)(3), did prohibit 

the gap between the outermost projection of the work surface atop the concrete pier and 

the chain link fence (safety net)—the gap that claimant fell through at the time of his 

injury. 

{¶ 35} Accordingly, it is the magistrate's decision that this court deny relator's 

request for a writ of mandamus, as more fully explained below. 
No. 13AP-190 25 

Basic VSSR Law 

{¶ 36} It is well-settled that a VSSR award is deemed a penalty to the employer 

subject to the rule of strict construction with all reasonable doubts concerning the 

interpretation of the safety standard to be construed against the applicability of the 

standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354 

(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989). 

{¶ 37} It is also firmly established that the determination of disputed factual 

situations as well as the interpretation of a specific safety requirement is within the final 

jurisdiction of the commission, and subject to correction in mandamus only upon a 

showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 

1 (1984); State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47 (1956); 

State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).

{¶ 38} Of course, the commission's authority to interpret its own safety rules is 

not unlimited. Strict construction does require that the commission's interpretation be 

reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d 

333, 342 (1997). The commission may not effectively rewrite its own safety rules when 

it interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996). 

{¶ 39} Specific safety requirements are intended to protect employees against 

their own negligence and folly as well as provide them a safe place to work. State ex rel. 

Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 47 (1989). 

{¶ 40} The unilateral negligence defense to VSSR liability derives from State ex 

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

employer was exonerated from VSSR liability because an employee had removed part of 

a scaffold that had been required by a specific safety requirement. State ex rel. Quality 

Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000).

{¶ 41} However, a claimant's alleged negligence is a defense only where the 

employer has first complied with relevant safety requirements. State ex rel. 

Hirschvogel, Inc. v. Miller, 86 Ohio St.3d 215, 218 (1999). A claimant's negligence bars 

a VSSR award only where the claimant deliberately renders an otherwise complying 

device noncompliant. State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352, 355, 

(1997); Martin Painting at 339.
No. 13AP-190 26 

Applicable Commission Safety Rules 

{¶ 42} Ohio Adm.Code Chapter 4123:1-3 sets forth the commission's safety rules 

regarding "Construction Safety." 

{¶ 43} Ohio Adm.Code 4123:1-3-03 is captioned "Personal protective 

equipment." 

{¶ 44} Ohio Adm.Code 4123:1-3-03(A) is captioned "Scope." The first paragraph 

thereunder provides: 

The requirements of this rule relate to the personal 

protective equipment listed immediately below, as required 

for employees on operations described in this rule in which 

there is a known hazard, recognized as injurious to the 

health or safety of the employee. 

{¶ 45} Ohio Adm.Code 4123:1-3-03(B) sets forth definitions. Thereunder, the 

code provides: 

(2) "Lanyard" means a flexible line of rope, wire rope, or 

strap which generally has a connector at each end for 

connecting the body belt or body harness to a life line or 

anchorage. 

(3) "Vertical Lifeline" means a rope, suitable for supporting 

one person, to which a lanyard or safety belt (or harness) is 

attached. 

{¶ 46} Ohio Adm.Code 4123:1-3-03(C) is captioned "Specific requirements of 

general application." Thereunder, the code provides: 

(1) Personal protective equipment furnished by the employer 

shall be issued to the employee in sanitary and proper 

condition so that it will effectively protect against the hazard 

involved. 

(2) Where employees provide their own protective 

equipment, such equipment shall give equal or greater 

protection than that furnished by the employer. 

{¶ 47} Ohio Adm.Code 4123:1-3-03(J) is captioned "Safety belts, harness lifelines 

and lanyards." Thereunder, the code provides: 

Lifelines, safety belts or harnesses and lanyards shall be 

provided by the employer, and it shall be the responsibility of 
No. 13AP-190 27 

the employee to wear such equipment when exposed to 

hazards of falling where the operation being performed is 

more than six feet above ground or above a floor or platform 

* * *. Lifelines and safety belts or harnesses shall be securely 

fastened to the structure and shall sustain a static load of no 

less than three thousand pounds. 

{¶ 48} Ohio Adm.Code 4123:1-3-03(J)(7) provides: 

Safety nets may be used in lieu of lifelines and safety belts or 

harnesses. 

{¶ 49} Ohio Adm.Code 4123:1-3-03(L) is captioned "Safety nets." Thereunder, 

the code provides: 

(1) Safety nets shall be provided when workplaces are more 

than twenty-five feet above the ground, water, or other 

surface where the use of ladders, scaffolds, catch platforms, 

temporary floors, safety lines or safety belts or harnesses is 

impractical. 

* * * 

(3) Safety nets shall extend outward from the outermost 

projection of the work surface in accordance with the 

following table to this rule and shall be installed as close 

under the work surface as practical but in no case more than 

thirty feet below such work surface with the exception of 

bridge construction where only one level of nets is required. 

Nets shall be hung with sufficient clearance to prevent 

employee's contact with the surfaces or structures below. 

First Issue 

{¶ 50} The commission determined that the safety rules required that safety nets 

be provided when the use of personal fall protection and other listed safety devices are 

"impractical." 

{¶ 51} Here, the commission, through its SHO, determined that the use of 

personal fall protection was "impractical" and that relator was relying on the chain link 

fence as a safety net. 

{¶ 52} According to relator, there exists no evidence that use of personal fall 

protection was impractical. On the other hand, respondents contend that the 

commission relied upon some evidence showing that the use of personal fall protection 
No. 13AP-190 28 

was "impractical" at the time of the accident. The magistrate agrees with respondents 

and finds no abuse of discretion. 

{¶ 53} In the SHO's order of September 12, 2012, the SHO identifies specifically 

the evidence relied upon to support the finding that the use of personal fall protection 

was impractical. The SHO finds that claimant was required to weld in a "crawl space 

between the top of the bridge piers and the bottom of the bridge roadway section." 

Further, the SHO found that relator's job on the date of the accident "often required him 

to actually roll out onto the safety netting." The SHO also refers to the work site as a 

"hard to reach area." Moreover, claimant was required to work in a "squatting position" 

while on the pier. 

{¶ 54} As earlier noted, during his direct examination by his counsel at the 

September 12, 2012 hearing, claimant testified: 

Where I was working, I was underneath the bridge, the deck 

over my head and the fence underneath me. And the whole 

time you're on this, you're working on your hands and knees 

and you never stand straight up. So you're always crawling or 

on your knees doing the work performed, so, in my situation. 

The people around me, there really wasn't any work that was 

being performed right on either side of me. I was by myself. 

{¶ 55} Clearly, claimant's hearing testimony provided some evidence to support 

the commission's finding that use of personal fall protection was impractical on the date 

of injury. 

{¶ 56} Here, relator seems to suggest that the use of personal fall protection 

cannot be found impractical because means were available for claimant to "tie-off." 

Relator points to Mr. Duskey's hearing testimony that heavy duty C-clamps could have 

been used as "anchor points." (Relator's reply brief, 4.) 

{¶ 57} Relator's argument or suggestion misses the point. The issue before the 

commission in determining whether use of personal protective equipment was 

impractical was not whether claimant could have actually tied-off and used his personal 

fall protection. Relator is incorrectly arguing what was possible, not what was practical. 

Clearly, the availability of heavy duty C-clamps does not disprove that use of personal 

fall protection was impractical. 
No. 13AP-190 29 

{¶ 58} In short, the commission did not abuse its discretion in determining that 

claimant's use of personal fall protection was impractical on the date of injury. 

Second Issue 

{¶ 59} The second issue, as earlier noted, is whether the commission abused its 

discretion by not finding claimant unilaterally negligent in failing to "tie-off" using 

personal fall protection at the time of injury. 

{¶ 60} The commission's determination that use of personal fall protection was 

"impractical" while claimant worked on the concrete pier at the time of the injury, in 

effect, determines the question of whether claimant can be unilaterally negligent in his 

failure to "tie-off" using personal fall protection. Clearly, under the pertinent safety 

rules, where it is impractical for the employee to use personal fall protection and the 

other safety devices listed at Ohio Adm.Code 4123:1-3-03(L)(1), the employee may rely 

upon an employer-provided safety net for his protection. Contrary to what may be 

suggested by relator, the safety rules at issue do not require the employee to use 

personal fall protection when the use of personal fall protection is impractical and he 

believes that a safety net has been provided for his safety. 

{¶ 61} Moreover, the unilateral negligence defense is available only if the 

employer first complies with the applicable safety requirement. Hirschvogel; State ex 

rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125, ¶ 16. 

Here, as the commission held, relator did not first comply with the applicable safety 

requirement. That is, relator failed to satisfy the safety rule pertaining to safety nets, 

under circumstances where use of personal fall protection is impractical. 

{¶ 62} However, relator argues that it did first comply with the applicable safety 

requirement when it undisputedly provided personal fall protection that claimant failed 

to use. (Relator's reply brief, 6.) Relator's argument is flawed because Ohio Adm.Code 

4123:1-3-03(J)(1) requiring the employer to provide personal fall protection is not the 

applicable safety requirement regarding the unilateral negligence defense. The reason 

that Ohio Adm.Code 4123:1-3-03(J)(1) is not the applicable safety rule is because the 

use of personal fall protection was found to be impractical by the commission. 
No. 13AP-190 30 

{¶ 63} Given the above analysis, the magistrate concludes that the commission 

did not abuse its discretion by not finding claimant unilaterally negligent in failing to 

"tie-off" using personal fall protection at the time of his injury. 

Third Issue 

{¶ 64} The third issue is whether the specific safety rule, Ohio Adm.Code 4123:1-

3-03(L)(3), prohibits the gap between the outermost projection of the work surface atop 

the concrete pier and the chain link fence (safety net)—the gap that claimant fell 

through at the time of the accident. This gap was found by the commission to measure 

between six inches and one foot. Relator, in effect, argues that the safety rule does not 

specifically prohibit the gap through which claimant fell. According to relator, the 

commission failed to identify any language in the rule that prohibits the gap, and that, in 

the absence of such language, the finding of a safety violation "imposes additional 

regulatory burdens on Armstrong Steel without notice and in contravention of strict 

construction against the applicability of specific safety requirements." (Relator's brief, 

25.) 

{¶ 65} Again, Ohio Adm.Code 4123:1-3-03(L)(3) states in part: 

Safety nets shall extend outward from the outermost 

projection of the work surface in accordance with the 

following table to this rule and shall be installed as close 

under the work surface as practical but in no case more than 

thirty feet below such work surface with the exception of 

bridge construction where only one level of nets is required. 

Nets shall be hung with sufficient clearance to prevent 

employee's contact with the surfaces or structures below. 

(Emphasis added.) 

{¶ 66} The following "Table" follows the above-quoted rule: 

Vertical distance from working level to 

horizontal plane of net 

Minimum required 

horizontal distance 

of outer edge of net 

from the edge of 

the working 

surface. 

Up to five feet Eight feet

More than five feet up to ten feet Ten feet
No. 13AP-190 31 

More than ten feet Thirteen feet 

{¶ 67} Clearly, the "Table" does not address the issue regarding the gap. Clearly, 

the edge of the chain link fencing that created the gap is not the "outer edge of net" 

referred to in the table. 

{¶ 68} The word "from" in the first sentence of Ohio Adm.Code 4123:1-3-03(L)(3) 

must be given meaning. Because safety nets shall extend outward from the outermost 

projection of the work surface, a gap is not permitted. Relator's argument simply fails to 

give any effect or meaning to the word "from" in the first sentence of the rule. The rule 

need not specifically state that a gap is not allowed. 

{¶ 69} Accordingly, the magistrate concludes that the gap is prohibited by the 

safety rule. 

{¶ 70} Accordingly, for all the above reasons, it is the magistrate's decision that 

this court deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).