[Cite as State ex rel. Strawser v. Indus. Comm., 2023-Ohio-4327.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Robert Strawser, : 

Relator, :

v. : No. 22AP-330

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

 

Respondents. :

D E C I S I O N

Rendered on November 30, 2023

On brief: Knisley Law Offices, Kurt A. Knisley, and Daniel S. 

Knisley, for relator. 

On brief: Dave Yost, Attorney General, and Andrew J. 

Alatis, for respondent Industrial Commission of Ohio. 

On brief: Vorys, Sater, Seymour and Pease LLP, Corrine S. 

Carman, and Alexandra T. Kubala, for respondent Jay 

Industries, Inc.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE’S DECISION

EDELSTEIN, J.

{¶ 1} This original action was brought by relator, Robert Strawser, for a writ of 

mandamus compelling respondent, Industrial Commission of Ohio (“commission”), to 

vacate its March 22, 2022 decision and grant an additional award in his workers’

compensation claim against respondent and former employer, Jay Industries, Inc. (“Jay 

Industries”), for a violation of a specific safety requirement (“VSSR”).

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

this matter was referred to a court magistrate. On June 29, 2023, the magistrate issued a 
No. 22AP-330 2

decision containing findings of fact and conclusions of law, which is appended hereto. Mr. 

Strawser timely filed objections to the magistrate’s decision and both the commission and 

the employer filed memoranda in opposition. Accordingly, we must independently review 

the magistrate’s decision to ascertain whether “the magistrate has properly determined the 

factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).

I. Background

{¶ 3} Because Mr. Strawser objects to the magistrate’s findings of fact in addition 

to his conclusions of law, we begin our discussion with a review of the record.

{¶ 4} Mr. Strawser began working as a welder for Jay Industries on October 8, 

2018—a job that primarily consisted of assembling grills for tractors. (Oct. 10, 2022 

Stipulation of Evidence at 14.) According to Dannie May, the operations manager at Jay 

Industries, new employees were trained for different jobs within the facility by working with 

an experienced employee. (Id. at 92.) Training on the hydraulic brake press (“the press”), 

for example, required 40 hours of training—time tracked by the company. (Id.) Mr. 

Strawser testified that, prior to the accident, he had been told by his line manager, Dustin 

Postell, that he needed to learn how to run the press located in the grill assembly area in 

order to press his own parts and that any time he was finished for the day, he should “take 

that time to learn how to run the press.” (Id. at 33.) Mr. May did not personally oversee 

this training, but left it to individual supervisors like Mr. Postell. (Id. at 93.) Mr. Postell 

himself had already trained Mr. Strawser on the press on one occasion, which Mr. Strawser 

described as “just hands-on, shown how to do it.” (Id. at 35.) During that training, the 

press was set up in its two-person configuration, and Mr. Postell fed the parts into the 

machine while Mr. Strawser operated the controls. (Id. at 35-36.) Mr. Strawser’s coworker, Wallace Rhein, testified that he was trained the same way on the press when he was 

a new employee. (Id. at 70.) 

{¶ 5} On November 6, 2018, Mr. Strawser was formally assigned to weld in the grill 

assembly area. (Id. at 98.) Once he finished his assigned tasks, he approached Mr. Rhein,

who was formally assigned to the press that day, and asked whether he could train with him 

for the remainder of his shift. (Id. at 14.) Mr. Strawser testified that on the day of the 

accident, no one had instructed him to use the remainder of his shift to train on that 

particular piece of equipment. (Id. at 48.)
No. 22AP-330 3

{¶ 6} At the time he was approached by Mr. Strawser, Mr. Rhein was fabricating 

parts on the press in its one-person configuration. (Id. at 65.) The press has different 

fabrication capabilities, depending on which dies are used and how the machine is set up. 

One configuration is referred to in the record as the “one-person” operation or the “twometal part” process. (Id. at 16-17.) To use the press in this one-person configuration, the 

operator inserts pieces of steel mesh that are clamped in place on either side of the press. 

(Id. at 14, 16.) The operator who inserted the metal pieces then presses two buttons 

simultaneously on the two-hand control device to initiate the operating cycle and activate

the dies, which bend the metal pieces into the desired shape. (Id. at 14, 41.) The other 

configuration relevant to our discussion is referred to in the record as the “two-person”

operation or the “one-metal part” process. That set-up requires a second individual to hold 

a piece of metal in the press while the primary operator pushes the two-palm button control 

to activate the dies and bend the part. A second employee is needed to hold the metal in 

place because this process does not utilize a clamp. (Id. at 14, 17, 112-13.) 

{¶ 7} Mr. Postell testified that this particular press is not exclusively used as a “oneoperator machine,” but at the time of the accident, it was configured for only one operator.

(Id. at 96.) Prior to the date of the accident, Mr. Strawser’s only experience with the press

was in its two-person configuration under Mr. Postell’s training. (Id. at 112-13.) 

{¶ 8} It is uncontroverted that on the day of the accident, the press was set up in its

“one-person” configuration with two dies. (Id. at 14.) Mr. Strawser testified that Mr. Rhein 

agreed to train Mr. Strawser on the press and instructed him to insert metal pieces into the 

left side while he loaded the right. (Id. at 39.) Once the parts were in place, Mr. Rhein 

walked to the podium and pressed the two buttons to initiate the bending process. (Id. at 

40.) Mr. Rhein and Mr. Strawser completed several cycles without issue. (Id.) However, 

on a subsequent cycle, unaware that Mr. Strawser was still inserting a part, Mr. Rhein 

placed both hands on the podium buttons and activated the machine. (Id. at 15, 121.) Mr. 

Rhein engaged the emergency stop once he realized what had happened, but not before Mr. 

Strawser’s left hand was crushed in the press, resulting in the full amputation of three 

fingers and partial amputation of a fourth. (Id. at 15; June 7, 2022 Compl. at 3.)

{¶ 9} Following allowance of his workers’ compensation claim, Mr. Strawser 

applied for an additional award, alleging Jay Industries violated Ohio Adm.Code 4123:1-5-
No. 22AP-330 4

11(E) at the worksite.

1 This specific safety rule requires that hydraulic presses are

constructed or guarded “to prevent the hands or fingers of the operator from entering the 

danger zone during the operating cycle.” Ohio Adm.Code 4123:1-5-11(E). A hearing on Mr. 

Strawser’s VSSR application was held on January 24, 2022. (Compl. at 3.) On March 22, 

2022, a staff hearing officer (“SHO”) for the commission issued an order denying the 

application. 

{¶ 10} In its decision, the SHO concluded that Ohio Adm.Code 4123:1-5-11(E) “does 

not specify that the guarding is to prevent injury to all persons, just the operator.”

(Emphasis added.) (Stipulation of Evidence at 16.) Ultimately, the SHO applied the 

definition of “operator” found in Ohio Adm.Code 4123:1-5-01(B)(92)—an employee who is 

“assigned or authorized to work at the specific equipment”—and concluded that Mr. 

Strawser “was not an operator of the press” at the time of his injury. (Id.) 

{¶ 11} From the hearing testimony of Mr. Strawser, Mr. Rhein, Mr. May, and Mr. 

Postell, the SHO first concluded that Mr. Strawser was not assigned to the press on the 

day of the injury and then concluded he was not authorized to work the press as well. The 

SHO found as follows: 

As to whether he was assigned the job, the [SHO] finds the evidence 

supports the finding the Injured Worker was not given any assignment 

on the date of the injury to run the press. According to both Mr. Rhein 

and Mr. Postell, only the employee assigned to the press is permitted 

to operate/push the palm buttons. It was the testimony of Mr. Rhein 

that on the date of injury he was the only person assigned to run the 

press. This testimony is corroborated by Mr. Postell, as he stated on 

the date of injury Mr. Rhein was assigned to operate the press. 

Furthermore, there was testimony from Mr. Rhein and Mr. Postell 

that no one had assigned the Injured Worker to assist or help Mr. 

Rhein operate the press on the date of injury. The Injured Worker 

admitted during his testimony that no one instructed him that day to 

help Mr. Rhein run the press. Mr. Postell explained that if a worker 

completes his work for the day and is to help another worker, that 

worker is to check with him for an assignment and that did not take 

place on the date of injury. Given this testimony, the [SHO] concludes 

the Injured Worker was not assigned to run the press on the date of 

the injury. As the Injured Worker had not yet been trained to work the 

1 Mr. Strawser initially alleged a violation of Ohio Adm.Code 4123:1-5-11(A)(2)(b), which he voluntarily 

dismissed at the commission hearing on January 24, 2022. (Stipulation of Evidence at 15.)
No. 22AP-330 5

press for the one-person process, the [SHO] further concludes the 

Injured Worker was not yet authorized to run the press in question.

(Internal citations omitted.) (Id. at 17.)

{¶ 12} The SHO further found that the two-palm button control was one of the 

acceptable methods of guarding listed in Ohio Adm.Code 4123:1-5-11(E), and thus Jay 

Industries complied with the applicable safety regulation. (Id. at 18.) Accordingly, the 

VSSR application was denied. Mr. Strawser filed a motion for reconsideration, which the 

commission denied on May 18, 2022. (Compl. at 4.)

{¶ 13} This petition for a writ of mandamus followed. On June 29, 2023, the 

assigned magistrate issued a decision concluding the commission did not abuse its 

discretion in finding that the relevant safety requirement in Ohio Adm.Code 4123:1-5-11(E)

only applied to operators and Mr. Strawser was not an operator under the definition 

provided in Ohio Adm.Code 4123:1-5-01(B)(92). The magistrate recommended we deny 

the writ.

{¶ 14} On July 11, 2023, Mr. Strawser submitted objections to the magistrate’s 

decision. While no specific objections were identified, we surmise from the brief that Mr. 

Strawser contests the magistrate’s characterization of certain facts in the record and the 

recitation of applicable law—errors Mr. Strawser believes resulted in an erroneous 

determination that he was not an “operator” at the time of the accident. (July 11, 2023 Objs.

to Mag.’s Dec.)

II. Applicable Law 

A. Legal Standards

{¶ 15} To be entitled to a writ of mandamus, Mr. Strawser must be able to establish 

he has a clear legal right to the relief sought,the commission has a clear legal duty to provide 

such relief, and he has no adequate remedy in the ordinary course of the law. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162-63 (1967). 

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

jurisdiction of the commission and may be corrected in mandamus only upon a showing 

that the commission abused its discretion.” State ex rel. Precision Steel Servs. v. Indus. 

Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, ¶ 21. The commission abuses its discretion if 
No. 22AP-330 6

there is no evidence in the record to support its finding, whereas an order supported by 

some evidence will not be disturbed. State ex rel. Keck v. Indus. Comm., 10th Dist. No. 

20AP-314, 2022-Ohio-2782, ¶ 6. “The presence of contrary evidence is not dispositive, so 

long as the ‘some evidence’ standard has been met.” (Internal citations omitted.) State ex 

rel. Jeld-Wen, Inc. v. Indus. Comm., 10th Dist. No. 21AP-357, 2023-Ohio-2593, ¶ 6. 

{¶ 17} R.C. 4121.13 authorizes the Bureau of Workers’ Compensation to promulgate 

industry-specific safety standards. The purpose of these specific safety requirements is to 

provide “reasonable, not absolute, safety for employees.” (Emphasis sic.) State ex rel. Jeep 

Corp. v. Indus. Comm., 42 Ohio St.3d 83, 84 (1989).

{¶ 18} “To be entitled to an additional award for a VSSR, a claimant must show that 

(1) a specific safety requirement applied, (2) the employer violated that requirement, and 

(3) the employer’s violation caused the injury.” Precision Steel Servs. at ¶ 15. A VSSR award 

is a penalty against the employer. Because it is considered a penalty, “[a] specific safety 

requirement must plainly apprise an employer of its legal obligation to its employees.”

State ex rel. Sanor Sawmill, Inc. v. Indus. Comm., 101 Ohio St.3d 199, 2004-Ohio-718,

¶ 25. Furthermore, a safety standard “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.” (Internal citations omitted.) State ex rel. Cassens Corp. v. 

Indus. Comm., 10th Dist. No. 21AP-93, 2022-Ohio-2936, ¶ 7. However, “the application of 

the strict-construction rule cannot justify an illogical result or one that is contrary to the 

clear intention of the code.” State ex rel. Pennant Moldings, Inc. v. Indus. Comm., 10th 

Dist. No. 11AP-942, 2013-Ohio-3259, ¶ 16, citing State ex rel. Maghie & Savage, Inc. v. 

Nobel, 81 Ohio St.3d 328, 331 (1998). The commission’s interpretation of its own safety 

rules must be reasonable in order to have all doubts construed in favor of the employer. See 

State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d 333, 342

(1997).

B. Relevant Safety Regulations

{¶ 19} Ohio Adm.Code 4123:1-5-11(E) mandates that hydraulic presses “will be 

constructed, or will be guarded, to prevent the hands or fingers of the operator from 

entering the danger zone during the operating cycle.” “Guarded” means the press is 

covered, fenced, railed, enclosed, or otherwise shielded from accidental contact. Ohio 
No. 22AP-330 7

Adm.Code 4123:1-5-01(B)(70). The “danger zone” is defined as “the point of operation 

where a known hazard exists.” Ohio Adm.Code 4123:1-5-01(B)(34). The “point of 

operation” is the area where material is actually positioned and work is being performed. 

Ohio Adm.Code 4123:1-5-01(B)(97). The commission has set forth certain methods of 

guarding that comply with 4123:1-5-11(E)’s mandate. One such method is the use of a twohand control to activate the press. Ohio Adm.Code 4123:1-5-11(E)(3). “A two-hand control 

or tripping device is commonly composed of two separately placed buttons located outside 

the danger zone, which require continuous simultaneous depression by each hand to cycle 

the press.” State ex rel. Advanced Metal Precision Prods. v. Indus. Comm., 111 Ohio St.3d 

109, 2006-Ohio-5336, ¶ 15. 

{¶ 20} In the context of hydraulic presses, the term “operating cycle” has been 

judicially defined to encompass “all operator-activated press activity, whether intentional 

or accidental.” Advanced Metal Precision Prods. at ¶ 20. A successful VSSR applicant

must therefore be an “operator” of the machine to trigger 4123:1-5-11(E)’s protections. An 

operator is defined in statute as “any employee assigned or authorized to work at the 

specific equipment.” (Emphasis added.) Ohio Adm.Code 4123:1-5-01(B)(92). 

{¶ 21} Thus, Ohio Adm.Code 4123:1-5-11(E) requires that every hydraulic press be 

set up to prevent (1) an operator of the machine from (2) having accidental contact (3) with 

a known hazard (4) at areas where material is positioned and work is being performed (5) 

during all operator-activated press activity. 

III. Analysis 

{¶ 22} Mr. Strawser contends the commission and the magistrate erred in finding 

he was not an “operator.” (Objs. to Mag.’s Dec. at 8.) It is undisputed that Mr. Strawser 

did not have a formal assignment to work the press that day and therefore was not 

assigned to it under the statutory definition of operator; accordingly, our analysis is 

limited to whether Mr. Strawser was authorized to operate the press on the day in 

question. (See Mag.’s Dec. at 9.) Respondents asserted below that “since [Mr. Strawser] 

had not been trained on the process, he was not authorized to help run the press despite 

being generally instructed he was to learn how to do other jobs.” (Stipulation of Evidence 

at 17.)
No. 22AP-330 8

{¶ 23} Citing the testimony of Mr. Strawser, Mr. Rhein, and Mr. Postell, the SHO 

found the following facts determinative of whether Mr. Strawser was authorized to use the 

press at the time of his injury: all employees assigned to work in grill assembly were 

expected to learn how to do all of the relevant tasks, including running the press (Id. at 16);

Mr. Postell expected Mr. Strawser to learn how to press his own parts (Id.); Mr. Postell had

previously trained Mr. Strawser on that exact press when it was configured as a two-person

operation (Id. at 17); Mr. Rhein had never trained Mr. Strawser on that press before but 

had trained him with other tasks (Id. at 16); on the day of the accident, Mr. Rhein was the 

only person assigned to operate the press (Id. at 17); on the day of the accident, the press 

was configured as a one-person operation (Id.); when the press is set up in that 

configuration, it is always a one person job (Id.); and Mr. Strawser had not been trained on 

the press in the one-person configuration (Id. at 16).

{¶ 24} From this evidence, the SHO reasoned, “As the Injured Worker had not yet 

been trained to work the press for the one-person process, * * * the Injured Worker was not 

yet authorized to run the press in question.” (Id. at 17.) The magistrate agreed with this 

analysis: “While relator may have been actively involved in the machine’s operation at the 

time of the injury, this alone is not sufficient to satisfy the definition of operator in Ohio 

Adm.Code 4123: 1-5-01(B)(92) as such active involvement is not determinative of whether 

relator was assigned or authorized to work at the press.” (Mag.’s Dec. at 9.) Stated 

otherwise, both the SHO and the magistrate concluded that Mr. Strawser could not have 

been assigned or authorized to operate the press when the accident took place.

{¶ 25} Neither “assigned” nor “authorized” is defined in Ohio Adm.Code 4123:1-5-

01. Because the commission’s specific safety rules have the effect of legislative enactments, 

we apply the ordinary rules of statutory construction and construe undefined words in 

accordance with their plain meaning. State ex rel. Byington Builders, Ltd. v. Indus. 

Comm., 156 Ohio St.3d 35, 2018-Ohio-5086, ¶ 23, quoting State ex rel. Parks v. Indus. 

Comm., 85 Ohio St.3d 22, 25 (1999). In addition, we must give effect to both “assigned” 

and “authorized” in the provided definition of operator. See Wiltshire Capital Partners v. 

Reflections II, Inc., 10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 19 (“When interpreting a 

statute, a court must give effect to every word and phrase in the statute.”). Therefore, we 
No. 22AP-330 9

consider “assigned” and “authorized” to be distinct terms that must each be defined by 

their ordinary meaning. 

{¶ 26} That Mr. Strawser did not receive a specific assignment from Mr. Postell to 

work the press on the day he was injured is not “some evidence” that Mr. Strawser was not 

authorized to operate the press. Instead, it is “some evidence” that Mr. Strawser was not 

assigned to that particular press on the day of the injury, a point not contested by any of 

the parties. 

{¶ 27} With respect to Mr. Strawser’s authorization to run the press on the date of 

his injury, the SHO stated, “As the Injured Worker had not yet been trained to work the 

press for the one-person process, the [SHO] further concludes the Injured Worker was not 

yet authorized to run the press in question.” (Stipulation of Evidence at 17.) 

{¶ 28} The record provides some evidence to support that conclusion. On the day 

of the accident, Mr. Rhein was assigned to the press—not Mr. Strawser. And at that time, 

the press was set up in its one-person configuration so that only one person could operate 

the machine. Because of this, we agree with the outcome reached by the SHO and this

court’s magistrate. The record contains evidence that only one operator may operate the 

press when it is set up in the one-person configuration. Although Mr. Rhein testified it was 

not uncommon for other employees to informally assist him when he used the press in its

one-person configuration, the record also contains Mr. Postell’s testimony that “[t]hose 

particular dies have always been a one-person job. Always.” (Id. at 95.) Mr. Postell

instructed Mr. Strawser to learn how to operate the press and trained Mr. Strawser in the 

two-person configuration, but he never instructed Mr. Strawser to learn how to operate the 

press “as a two-person operation when it’s [configured for] a one-person operation.” (Id.

at 101.)

{¶ 29} On the day of Mr. Strawser’s injury, Mr. Rhein had been operating the press 

in its one-person configuration by loading the parts on the left and right sides of the press

and then returning to the podium to activate the two-palm control. (Id. at 79-81.) When

Mr. Strawser joined, Mr. Rhein did not switch tasks or adjust the configuration, but instead 

instructed Mr. Strawser to load parts on one side of the machine while he loaded the other. 

(Id. at 79-81, 121.) This division of labor saved time, but it did not transform the job into a 

two-person operation.
No. 22AP-330 10

{¶ 30} Even if the steps required to operate the press in that configuration could be 

divided between two employees, and even if the press required two operators when used in 

other ways, there is some evidence in the record to support the SHO’s conclusion that Mr. 

Strawser was not authorized to operate the machine in its one-person configuration when 

Mr. Rhein was already the assigned operator. The evidence that this may have been a 

routine practice does not negate the other evidence in the record that it was an 

unauthorized one. See, e.g., Jeld-Wen, 2023-Ohio-2593 at ¶ 6 (“The presence of contrary 

evidence is not dispositive, so long as the ‘some evidence’ standard has been met.”).

Because the record supports a finding that only Mr. Rhein was assigned (and thus 

authorized) to operate the press in its one-person configuration on the day of the injury, we 

concur that Mr. Strawser could not have been an “operator” as defined by Ohio Adm.Code 

4123:1-5-01(B)(92).

{¶ 31} As there is some evidence to support the SHO’s finding that Mr. Strawser was 

not authorized to operate the press and therefore could not qualify as an operator at the 

time of his injury, we conclude the commission did not abuse its discretion in denying the 

VSSR and overrule Mr. Strawser’s objections to the magistrate’s decision.

IV. Disposition

{¶ 32} Following our independent review of the record pursuant to Civ.R. 53, we find 

the magistrate did not err in determining Mr. Strawser is not entitled to the requested writ 

of mandamus. Having overruled Mr. Strawser’s objections, we adopt the decision of the 

magistrate and deny the requested writ of mandamus. 

Objections overruled;

writ of mandamus denied.

LUPER SCHUSTER and LELAND, JJ., concur.
No. 22AP-330 11

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Robert Strawser, : 

Relator, :

v. : No. 22AP-330

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 June 29, 2023

Knisley Law Offices, Kurt A. Knisley, and Daniel S. Knisley, for 

relator. 

Dave Yost, Attorney General, and Andrew J. Alatis, for 

respondent Industrial Commission of Ohio. 

Vorys, Sater, Seymour and Pease LLP, Corrine S. Carman, 

and Alexandra T. Kubala, for respondent Jay Industries, Inc.

IN MANDAMUS 

{¶ 33} Relator Robert Strawser seeks a writ of mandamus ordering respondent 

Industrial Commission of Ohio (“commission”) to vacate its order finding that respondent 

Jay Industries, Inc. (“Jay Industries”) did not commit a violation of a specific safety 

requirement (“VSSR”).

I. Findings of Fact

{¶ 34} 1. Relator was employed by Spherion of Mid-Ohio (“Spherion”), a staffing 

agency. Spherion assigned relator to work at Jay Industries, where he was tasked as a 
No. 22AP-330 12

welder in the grille fabrication department. On November 6, 2018, four weeks and two 

days after beginning to work at Jay Industries, relator finished his assigned welding tasks 

with approximately 30 to 35 minutes remaining in his shift. Relator asked Wallace Rhein, 

a worker assigned to operate a hydraulic press brake (“press”), if relator could help Rhein 

with the press, which was used to bend parts in the grille fabrication department. Shortly 

afterward, relator sustained a serious injury to his left hand when Rhein activated the 

press while relator’s hand was inside.

{¶ 35} 2. In the first report of injury, occupational disease or death form (“FROI1”) filed with the Bureau of Workers’ Compensation (“bureau”), the incident resulting in 

relator’s injury was described as “using a press [and] a button was pushed [and] the press 

came down on his left hand, crushing it, [and] taking fingers off.” (R. 11.) 

{¶ 36} 3. Relator’s workers’ compensation claim was allowed for the following: 

complete traumatic transphalangeal amputation left third finger; complete traumatic 

transphalangeal amputation left fifth finger; partial traumatic transphalangeal 

amputation left second finger; complete traumatic transphalangeal amputation left 

fourth finger; crushing injury left hand; ankylosis at distal interphalangeal joint left 

second finger. (R. 14.)

{¶ 37} 4. Relator filed an application for additional award for violation of specific 

safety requirement in a workers’ compensation claim (“IC-8/9”). Relator listed violations 

of (1) Ohio Adm.Code 4123:1-5-11(A)(2)(b) and (2) Ohio Adm.Code 4123:1-5-11(E). (R. 

22.) 

{¶ 38} 5. The bureau’s Safety Violations Investigations Unit released a report of 

investigation dated July 23, 2020. (R. 138.) 

{¶ 39} 6. A commission staff hearing officer (“SHO”) conducted a hearing on the 

application for VSSR award on January 24, 2022 and issued an interlocutory advisement 

order pending receipt of the hearing transcript on January 28, 2022. 

{¶ 40} 7. At the hearing, relator testified that in the week prior to his injury, he had 

been instructed to learn how to run the press at which he was injured so he could press 

his own parts for the grilles, and that he was to learn how to run the press after completing 

his other tasks during the day. 
No. 22AP-330 13

{¶ 41} 8. Rhein testified at the hearing that he was the only person assigned by 

Dustin Postell, line leader at Jay Industries, to operate the press on the day of the injury. 

According to Rhein, no one from Jay Industries informed him that relator was assigned 

or authorized to help him on that day. Rhein had never helped train relator on the press 

prior to the day of the injury. Following relator’s injury, Rhein received a written warning 

for unsafely operating the press. 

{¶ 42} 9. Dannie May, operations manager at Jay Industries, testified at the 

hearing that relator was not instructed or authorized to be an operator of the press at issue 

on the day of the injury. According to May, Rhein was assigned to operate the press on 

that day. May testified that the press was equipped with a palm podium which required 

the pressing of both buttons with two hands in order to activate the press. The podium 

was located away from the danger zone. 

{¶ 43} 10. At the hearing, Postell testified that the press was equipped with a 

podium located away from the danger zone of the press and that the podium required two 

hands to activate the press. Postell testified that the press could be used as either a twoperson operation or a one-person operation depending on the job in question. According 

to Postell, the press was configured to be a one-person operation on the day of the injury. 

The particular job that was being performed on the press on the day in question did not 

require someone to hold the parts in the press while it was in operation. Postell admitted 

telling relator that he would need to learn to run the press, “but not as a two-person 

operation when it’s a one-person operation.” (R. 101.) Postell testified that relator would 

have been required to complete 40 hours of training before he could perform the singleoperator task on the press. Prior to the date of the injury, Postell had shown relator how 

the press operated in a two-person operation, but relator had not completed the training 

required to operate the press. Postell answered in the negative when asked: “[W]ere any 

of those hours training him to be a single operator on the brake press, the times that you 

worked with him before * * * his accident?” (R. 111.) 

{¶ 44} Postell stated that relator did not follow standard operating procedure by 

volunteering to help Rhein with the press. Specifically, Postell stated: “[W]hen my 

workers have downtime, they come to me and I advise them what to do. [Relator] did not 

come to me that day. He took it upon himself and walked over there and started helping 
No. 22AP-330 14

[Rhein].” (R. 107.) Postell stated that relator did not have authorization to assist with the 

press on the day of the injury. According to Postell, Rhein alone was assigned to operate 

the press and that no one else was allowed to push the buttons to activate the press. 

{¶ 45} 11. On March 26, 2022, the SHO issued an order denying relator’s 

application for VSSR award. The SHO found that relator dismissed the alleged violation 

of Ohio Adm.Code 4123:1-5-11(A)(2)(b) because such section did not exist and found 

there was no dispute that Ohio Adm.Code 4123:1-5-11(E) applied because relator was 

working on a hydraulic press when he was injured. In support of the order, the SHO made 

the following findings: (a) while there was an environment of teamwork associated with 

the grille fabrication process, relator was not an operator within the meaning of Ohio 

Adm.Code 4123:1-5-11(E) on the date of the injury; (b) relator was not given any 

assignment on the date of the injury to run the press; (c) because relator had not been 

trained to work the press for the one-person process, he was not authorized to run the 

press; (d) the two-palm button control on the press is equivalent to the two-hand control 

process detailed in Ohio Adm.Code 4123:1-5-11(E)(3); (e) on the date of the injury, Jay 

Industries complied with the requirements of Ohio Adm.Code 4123:1-5-11(E); (f) the 

proximate cause of relator’s injury was not a violation of Ohio Adm.Code 4123:1-5-11(E); 

(g) on the date of the injury, Jay Industries was in compliance with the requirements of 

Ohio Adm.Code 4123:1-5-11(E) because there was a proper guarding mechanism in place 

to protect the operator’s hands from entering the danger zone. The SHO also stated that 

“[i]t appears this was an accident caused by human error, a situation that was not 

specifically covered in the safety rule cited by [relator].” (R. 18.)

{¶ 46} 12. Relator filed a motion for rehearing with the commission on April 8, 

2022. In an order dated May 20, 2022, relator’s motion for rehearing was denied.

{¶ 47} 13. Relator filed a complaint in mandamus in the instant case on June 7, 

2022.

{¶ 48} 14. On October 10, 2022, relator filed a motion to consider supplemental 

certified record pursuant to Loc.R. 13(G). 

{¶ 49} 15. Jay Industries filed a response in opposition to relator’s motion to 

consider supplemental certified record on October 18, 2022. 
No. 22AP-330 15

II. Discussion and Conclusions of Law

{¶ 50} Relator asserts entitlement to a writ of mandamus on the basis that the 

commission erred in denying his VSSR claim. 

A. Law Applicable to Violations of Specific Safety Requirements

{¶ 51} Article II, Section 35 of the Ohio Constitution provides the commission with 

authority to determine VSSR claims, providing in pertinent part:

For the purpose of providing compensation to workmen and 

their dependents, for death, injuries or occupational disease, 

occasioned in the course of such workmen’s employment, 

laws may be passed establishing a state fund to be created by 

compulsory contribution thereto by employers, and 

administered by the state, determining the terms and 

conditions upon which payment shall be made therefrom. 

* * * Such board shall have full power and authority to hear 

and determine whether or not an injury, disease or death 

resulted because of the failure of the employer to comply with 

any specific requirement for the protection of the lives, health 

or safety of employ[e]es, enacted by the General Assembly or 

in the form of an order adopted by such board, and its decision 

shall be final.

R.C. Chapter 4121 “reflects this constitutional provision of authority and addresses VSSR 

violations.” Zarbana Industries v. Hayes, 10th Dist. No. 18AP-104, 2018-Ohio-4965, ¶ 17. 

R.C. 4121.47(A) provides that “[n]o employer shall violate a specific safety rule adopted 

by the administrator of workers’ compensation pursuant to [R.C. 4121.13] or an act of the 

general assembly to protect the lives, health, and safety of employees pursuant to [Ohio 

Constitution, Article II, Section 35].” A specific safety requirement is one that is (1) 

enacted either by the General Assembly or through an order of the Industrial 

Commission; (2) is specific, not general; and (3) is made for the protection of the lives, 

health, or safety of employees. State ex rel. Cotterman v. St. Mary’s Foundry, 46 Ohio 

St.3d 42, 44 (1989), citing State ex rel. Trydle, v. Indus. Comm., 32 Ohio St.2d 257 (1972), 

paragraph one of the syllabus.

{¶ 52} “A ‘specific requirement’ is more than a general course of conduct or general 

duty or obligation flowing from the employer-employee relationship; rather, it ‘embraces 

such lawful, specific and definite requirements or standards of conduct * * * [that] are of 

a character plainly to apprise an employer of his legal obligation toward his employees.’ ”
No. 22AP-330 16

State ex rel. Precision Steel Servs. v. Indus. Comm. of Ohio, 145 Ohio St.3d 76, 2015-

Ohio-4798, ¶ 17, quoting State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257, 

paragraph one of the syllabus. Specific safety requirements “must ‘forewarn the employer 

and establish a standard which [the employer] may follow.’ ” State ex rel. G & S Metal 

Prods. v. Moore, 79 Ohio St.3d 471, 476 (1997), quoting State ex rel. Howard Eng. & Mfg. 

Co. v. Indus. Comm., 148 Ohio St. 165 (1947), paragraph one of the syllabus. “[S]pecific 

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. of Ohio, 156 Ohio St.3d 35, 2018-Ohio-5086, ¶ 40, quoting 

Cotterman at 47, quoting State ex rel. U.S. Steel Corp. v. Cook, 10 Ohio App.3d 183, 186 

(10th Dist.1983). Thus, a “VSSR award is intended to penalize employers for failing to 

comply with [specific safety requirements], and only those acts within the employer’s 

control should serve as the basis for establishing a VSSR.” State ex rel. Ohio 

Paperboard v. Indus. Comm. of Ohio, 152 Ohio St.3d 155, 2017-Ohio-9233, ¶ 20.

{¶ 53} “An award for a VSSR is ‘a new, separate, and distinct award’ over and above 

standard workers’ compensation benefits. It is not covered by an employer’s workers’

compensation premium.” State ex rel. Precision Steel Servs. v. Indus. Comm. of Ohio, 145 

Ohio St.3d 76, 2015-Ohio-4798, ¶ 15, quoting State ex rel. Newman v. Indus. Comm., 77 

Ohio St.3d 271, 272 (1997). In order to prove a VSSR claim, a claimant must establish that 

(1) an applicable and specific safety requirement was in effect at the time the injury 

occurred, (2) the employer failed to comply with the requirement, and (3) the failure to 

comply was the proximate cause of the injury in question. State ex rel. Scott v. Indus. 

Comm. of Ohio, 136 Ohio St.3d 92, 2013-Ohio-2445, ¶ 11.

{¶ 54} “Because a VSSR award is a penalty, a specific safety requirement must be 

strictly construed and all reasonable doubts concerning the interpretation must be 

resolved in favor of the employer.” State ex rel. 31, Inc. v. Indus. Comm., 152 Ohio St.3d 

350, 2017-Ohio-9112, ¶ 21, citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 

172 (1989). However, “the strict-construction rule does not apply in resolving factual 

disputes,” and such rule “permits neither the commission nor a reviewing court to 

construe the evidence of a VSSR strictly in the employer’s favor.” (Emphasis sic.) State ex 

rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 70.
No. 22AP-330 17

B. Requirements for Mandamus

{¶ 55} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, a relator must establish a clear legal right to the 

requested relief, that the commission has a clear legal duty to provide such relief, and the 

lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire 

Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v. 

Indus. Comm., 11 Ohio St.2d 141 (1967). In order to prevail in a mandamus action seeking 

to vacate a factual determination of the commission in granting or denying a VSSR award, 

the relator must demonstrate that the commission’s decision was an abuse of discretion. 

State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-

Ohio-4525, ¶ 13. Where the commission’s factual determination is supported by some 

evidence, it has not abused its discretion and this court must uphold the decision. State 

ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-Ohio-3341, ¶ 44, citing State 

ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996).

{¶ 56} The commission is “exclusively responsible for assessing the weight and 

credibility of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-

Ohio-6036, ¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). 

Where the commission’s decision is supported by some evidence, the presence of contrary 

evidence in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d 

354, 356 (1996), citing Burley.

C. Application

{¶ 57} Ohio Adm.Code Chapter 4123:1-5 sets forth specific safety requirements 

relating to workshop and factory safety. See Ohio Adm.Code 4123:1-5-01(A). In his 

application for additional award for VSSR, relator alleged a violation of Ohio Adm.Code 

4123:1-5-11(E),2 which provides as follows: 

Hydraulic or pneumatic presses.

Every hydraulic or pneumatic (air-powered) press shall be 

constructed, or shall be guarded, to prevent the hands or 

2

It is undisputed that relator’s initial allegation of a violation of Ohio Adm.Code 4123:1-5-11(A)(2)(b) is 

not at issue in the present matter because relator dismissed that alleged violation at the January 24, 2022 

hearing. (R. 116.)
No. 22AP-330 18

fingers of the operator from entering the danger zone during 

the operating cycle. Acceptable methods of guarding are:

(1) “Fixed barrier guard” - an enclosure to prevent hands or 

fingers from entering the danger zone;

(2) “Gate guard” - a movable gate operated with a tripping 

device to interpose a barrier between the operator and the 

danger zone and to remain closed until the down stroke has 

been completed;

(3) “Two-hand control” - an actuating device which requires 

the simultaneous use of both hands outside the danger zone 

during the entire closing cycle of the press;

(4) Pull guard - attached to hands or wrists and activated by 

closing of press so that movement of the ram will pull the 

operator’s hands from the danger zone during the operating 

cycle;

(5) Restraint or hold-back guard - with attachments to the 

hands or wrists of the operator to prevent hands or fingers 

entering the danger zone during the operating cycle;

(6) Other practices, means or methods which will provide 

safeguards, preventing the hands or fingers of the operator 

from entering the danger zone during the operating cycle and 

which are equivalent in result to one of the types specified 

above.

The term “operator” is defined in Ohio Adm.Code 4123:1-5-01(B)(92) as “any employee 

assigned or authorized to work at the specific equipment.”

{¶ 58} Relator asserts the commission abused its discretion in denying his 

application for VSSR award for two reasons. First, relator asserts the commission erred 

in determining that relator failed to meet the definition of operator. Specifically, relator 

contends the commission’s construction of the term “operator” is overly narrow, arguing 

that the Supreme Court of Ohio in State ex rel. Scott Fetzer Co. v. Indus. Comm. of Ohio, 

81 Ohio St.3d 462 (1998), has construed the term more broadly “to include any individual 

‘actively involved in the machine’s operation.’ ” (Relator’s Brief at 8, quoting Fetzer at 

466.) 

{¶ 59} In Fetzer, the court found that the employer “assigned its employee, [the] 

claimant * * * to its number 38 die cast machine.” Id. at 462. The employer argued that 

the claimant was not entitled to the protection of the specific safety requirement at issue 
No. 22AP-330 19

because the claimant “was the ‘tender,’ not the ‘operator’ of the machine.” Id. at 466. The 

court concluded that this contention failed because “[r]egardless of what [the employer] 

chose to call claimant, he was actively involved in the machine’s operation. Claimant 

started, inspected, and cleaned the die. He operated the linkage mechanism and set die 

heights. He oiled the die and checked for defective parts. He was responsible for lodged 

parts and correcting malfunctions. He was not, therefore, a casual observer with no 

responsibility for or participation in the machine’s function.” Id.

{¶ 60} Relator also cites to State ex rel. Gerstenslager Co. v. Wilson, 10th Dist. 

No. 06AP-512, 2007-Ohio-2657, arguing that this court has previously qualified 

claimants as operators when they sustain injuries in the course of training on a press. In 

Gerstenslager, the assigned magistrate noted the commission’s finding that the claimant 

was “assigned and authorized” by the claimant’s supervisor to train another employee on 

the specific equipment at issue. Id. at ¶ 14. The court granted a writ of mandamus because

the SHO failed to set forth a brief explanation supported by some evidence to support a 

finding that the injury occurred during the operating cycle.

{¶ 61} In both Fetzer and Gerstenslager, the claimant was explicitly found to be 

assigned to the equipment at issue. The courts in those cases did not consider a dispute 

as to whether the claimant was assigned or authorized within the meaning of Ohio 

Adm.Code 4123:1-5-01(B)(92). Thus, those cases differ from the present matter in which 

the parties dispute whether relator was assigned or authorized to work at the press. While 

relator may have been actively involved in the machine’s operation at the time of the 

injury, this alone is not sufficient to satisfy the definition of operator in Ohio Adm.Code 

4123:1-5-01(B)(92) as such active involvement is not determinative of whether relator was 

assigned or authorized to work at the press. Thus, Fetzer and Gerstenslager are not 

determinative of the question presented in this matter. 

{¶ 62} Here, the record reflects testimony supporting a finding that relator was not 

assigned or authorized to work at the press in question. Rhein stated at the hearing that 

he was the only person assigned by Postell to operate the press on the day of the injury. 

May stated relator was not instructed or authorized to be an operator of the press on the 

day of the injury. Postell stated that relator did not have authorization to assist with the 

press on the day of the injury. Both May and Postell testified that only Rhein was assigned 
No. 22AP-330 20

to operate the press on that day. Furthermore, Postell testified that relator was required 

to check with Postell for assignment when relator had completed his previously assigned 

task. There is no dispute that relator did not receive a specific instruction to work on the 

press on the day of the injury. Postell also testified that relator would have been required 

to complete 40 hours of training before he could perform the single-operator task on the 

press and stated that relator had not completed such training. 

{¶ 63} Because some evidence supports the commission’s finding that relator was 

not assigned or authorized to work at the press on the day of the injury, the commission 

did not abuse its discretion in determining that relator was not an operator under Ohio 

Adm.Code 4123:1-5-01(B)(92). As relator was not an operator of the press at the time of 

the injury, he cannot establish that any failure to comply with the specific safety 

requirement in Ohio Adm.Code 4123:1-5-11(E) was the proximate cause of his injury since 

such provision only applies “to prevent the hands or fingers of the operator from entering 

the danger zone during the operating cycle.” (Emphasis added.) Ohio Adm.Code 4123:1-

5-11(E). As a result, relator cannot establish the commission erred in denying his VSSR 

claim, and, therefore, cannot demonstrate entitlement to a writ of mandamus.

{¶ 64} Second, relator asserts the commission abused its discretion by finding Jay 

Industries complied with the specific safety requirement in Ohio Adm.Code 4123:1-5-

11(E). With regard to the specific safety requirement, the SHO made the following 

findings:

Ohio Adm.Code 4123:1-5-11(E) outlines six acceptable 

methods of guarding. There is no dispute the press in question 

was equipped with a two-palm button control on a 

podium/pedestal. The [SHO] finds that this mechanism for 

activating the press is equivalent to the two-hand control 

process outlined in subsection (3), since by utilizing this freestanding podium/pedestal set-up to the side of the press 

requires simultaneous use of both hands to activate the press 

and is located outside the danger zone during the entire 

closing cycle of the press. Therefore on the date of the injury, 

the [SHO] finds [Jay Industries] complied with the 

requirements of Ohio Adm.Code 4123:1-5-11(E). 

(R. 17-18.) 
No. 22AP-330 21

{¶ 65} Relator does not dispute that the press at issue in this case was equipped 

with a two-palm button control located on a podium outside the danger zone. Relator 

argues, however, that this method of guarding should only be considered acceptable 

where the press is used by a single operator, because the method of guarding would not 

be effective in preventing injury to a second operator. Therefore, relator argues Ohio 

Adm.Code 4123:1-5-11(E)(3) should not apply in this case where there is evidence that the 

press was used as a two-person operation. Having found the commission did not abuse 

its discretion in finding relator was not an operator under Ohio Adm.Code 4123:1-5-

01(B)(92) and, therefore, that the injury was not the proximate result of a violation of 

Ohio Adm.Code 4123:1-5-11(E), it is unnecessary to consider whether Jay Industries 

complied with the method of guarding provided in Ohio Adm.Code 4123:1-5-11(E)(3).

{¶ 66} Finally, on October 10, 2022, relator filed a motion to consider 

supplemental certified record pursuant to Loc.R. 13(G). In the motion, relator requests 

the court consider a “LazerSafe Packet of Information,” which “consist[s] of the industry 

accepted [Occupational Safety and Health Administration] requirements relating to the 

general standards for all machinery and machine guarding.” (Relator’s Mot. to Supp. at 

1-2.) Relator states that these requirements are relevant to whether Jay Industries 

violated a specific safety requirement. Relator asserts the supplementary materials were 

presented before the commission at the January 24, 2022 hearing and were available for 

review by the commission in reaching its determination. Upon review, the materials 

attached to relator’s October 10, 2022 motion to supplement are not relevant to the 

question of whether the commission erred in finding relator was not an operator under 

Ohio Adm.Code 4123:1-5-01(B)(92). As such, it is not necessary to consider such 

materials in resolving this mandamus action and, therefore, relator’s October 10, 2022 

motion to supplement is rendered moot.

D. Conclusion

{¶ 67} Accordingly, it is the decision and recommendation of the magistrate that 

the requested writ of mandamus should be denied. Relator’s October 10, 2022 motion to 

supplement is rendered moot.
No. 22AP-330 22

/S/ MAGISTRATE 

 JOSEPH E. WENGER IV

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). A party may file written objections to the 

magistrate’s decision within fourteen days of the filing of the 

decision.