[Cite as State ex rel. Zarbana Industries, Inc. v. Hayes, 2020-Ohio-5200.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Zarbana Industries, Inc., : 

 Relator, : 

v. : No. 19AP-71 

Jeremy M. Hayes et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

D E C I S I O N 

Rendered on November 5, 2020 

 

On brief: Bugbee & Conkley, LLP, Mark S. Barnes, and 

Gregory B. Denny, for relator. 

On brief: Heller, Maas, Moro, & Magill, Co. LPA, and Patrick 

J. Moro, for respondent Jeremy Hayes. 

On brief: Dave Yost, Attorney General, and John Smart, for 

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

NELSON, J. 

{¶ 1} Jeremy Hayes "suffered severe injury to his right hand" when it was caught 

in a punch press on June 28, 2013 during his employment with Zarbana Industries, Inc. 

See May 12, 2016 staff hearing officer award for Violation of a Specific Safety Regulation 

("VSSR order") at 2. Within two years, he applied to the industrial commission for a VSSR 

award, alleging that Zarbana had violated certain safety requirements established through 

the Ohio Administrative Code. See id. (detailing claims). Some months later, the 

commission advised the parties that its preliminary, non-binding estimate was that the 

application could result in an award to Mr. Hayes ranging in value from $20,866 to 

$69,554. See Stip. at 8. A hearing then conducted on March 17, 2016 convinced a 
No. 19AP-71 2 

commission staff hearing officer that Zarbana had in fact failed to comply with a provision 

of the Ohio Administrative Code that requires a foot pedal for a punch press of this sort to 

have a front guard protecting against accidental activation. VSSR order at 10-11. Because 

the violation, like the injury, was "serious," the staff hearing officer believed that Mr. Hayes 

was due "an additional award of compensation * * * in the amount of 30 percent of the 

maximum weekly rate" (which we understand would amount to an award somewhat toward 

the middle of the estimated money range). Id. at 12. 

{¶ 2} Before the staff hearing officer had issued his VSSR order, however, Zarbana 

and Mr. Hayes proposed a settlement. See May 12, 2016 staff hearing officer order 

regarding settlement at 2 (referencing proposed settlement agreement executed April 5, 

2016 and filed with the commission April 8, 2016). The proffered settlement was for a total 

sum of $2,000. Id.; see also Complaint at ¶ 8. Using language recommended on a form 

from the commission, the proposed agreement recited in part: 

The parties now desire to make a full and complete lump sum 

settlement of the Injured Worker[']s [VSSR] application, 

subject to the approval of the Industrial Commission. * * * 

[T]his agreement shall be submitted to the Industrial 

Commission of Ohio for approval, and Employer shall not pay 

the agreed amount until this agreement shall have been 

approved by the [] Industrial Commission and made a matter 

of record in the Claim * * *. 

Magistrate's Decision at 3 (citing Stip. at 119); Complaint at ¶ 10 (noting use of "VSSR IC10" settlement form). 

{¶ 3} That language as adopted by the parties from the commission's suggested 

form is informed, in turn, by Ohio Adm.Code 4121-3-20 regarding "[a]dditional awards by 

reason of violations of specific safety requirements." Contemplating potential settlements, 

the administrative rule provides for a commission staff hearing officer to consider joint 

applications for settlement, either before or after adjudication of a VSSR application, and 

specifies: 

If the staff hearing officer finds that the settlement is 

appropriate, the staff hearing officer shall issue an order 

approving it. If the staff hearing officer does not find the 

settlement to be appropriate in its present form, the staff 

hearing officer shall schedule a hearing with notices to all 

parties and their representatives where the matter of the 
No. 19AP-71 3 

proposed settlement is to be considered. Following the 

hearing, the staff hearing officer shall issue an order either 

approving or disapproving the settlement, and the order shall 

be final. 

Ohio Adm.Code 4121-3-20(F)(1). 

{¶ 4} Here, the staff hearing officer did not approve the settlement as 

"appropriate," and on May 11, 2016 conducted a hearing "for the purpose of adjudicating 

the propriety of the Settlement of Claimed Violation of a Specific Safety Requirement." 

May 12, 2016 staff hearing officer order regarding settlement at 1. He noted that upon 

receiving the transcript of the VSSR hearing, he had "prepared a written decision 

adjudicating" Mr. Hayes's application, but then received the settlement filing "prior to 

publication of th[e] Merit Order." Id. at 1-2. Observing that the settlement agreement as 

filed "seeks to settle the Injured Worker's V.S.S.R. claim for the total sum of $2,000 (twothousand dollars)," the hearing officer disapproved it as "neither fair nor equitable" in light 

of what he had seen and determined from the merits hearing. Id. at 2. Having disapproved 

the settlement proposal, the hearing officer also issued his VSSR award. May 12, 2016 staff 

hearing officer order regarding settlement; May 12, 2016 VSSR order (mailed that day). 

{¶ 5} Zarbana requested reconsideration of the settlement disapproval, but the 

commission found that it lacked authority to exercise continuing jurisdiction over the 

matter pursuant to R.C. 4123.52. Magistrate's Decision at ¶ 18-19; Complaint at ¶ 19-20. 

After an unsuccessful attempt for declaratory judgment, see Zarbana Industries, Inc. v. 

Hayes, 10th Dist. No. 18AP-104, 2018-Ohio-4965, Zarbana filed a mandamus action asking 

us to issue a writ ordering the commission to vacate its May 12, 2016 disapproval of the 

proposed settlement, approve the proposed settlement, and consequently vacate Mr. 

Hayes's VSSR award. Magistrate's Decision at 20-21; Complaint at prayer. 

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

the court referred this matter to a magistrate. The Magistrate's Decision of April 9, 2020 

made various findings of fact consistent with the description set forth above. In its 

"Discussion and Conclusions of Law," the magistrate properly noted that to obtain a writ of 

mandamus, "a relator must show a clear legal right to the relief sought, a clear legal duty on 

the part of the respondent to provide such relief, and the lack of an adequate remedy in the 

ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967)." 
No. 19AP-71 4 

Magistrate's Decision at 4; see also, e.g., Kinsey v. Bd. of Trustees of the Police & Firemen's 

Disability & Pension Fund, 49 Ohio St.3d 224, 225 (1990). Concluding that the 

commission had authority to disapprove the proposed settlement, and that Zarbana 

therefore does not have a clear legal right to the relief it seeks and that the commission did 

not have a clear legal duty to approve the settlement, the magistrate recommended that we 

deny the writ. Id. at 4, 6. 

{¶ 7} Zarbana has filed objections to the Magistrate's Decision, and we undertake 

"an independent review as to the objected matters to ascertain [whether] the magistrate 

has properly determined the factual issues and appropriately applied the law." 

Civ.R. 53(D)(4)(d). He has. 

{¶ 8} The gravamen of Zarbana's objections is that"[t]he magistrate suggests that 

the Commission has reserved the right to overturn the will of the parties because of the 

Commission's goal to promote safety and its general authority over VSSR claims. The error 

in the magistrate's reasoning is there is nothing in Ohio Admin.Code 4121-3-20(F)(1) 

reserving such a right to the Commission." Objections at 8-9. Well, nothing perhaps but 

that provision's instruction that a joint settlement application "shall be considered by a staff 

hearing officer" who is to determine whether "the settlement is appropriate" and who, if he 

or she "does not find the settlement to be appropriate in its present form," is to "consider[]" 

the matter at a hearing and then "issue an order either approving or disapproving the 

settlement," with that order to be final. Ohio Adm.Code 4121-3-20(F)(1). Nothing except 

that. 

{¶ 9} Zarbana complains that "the magistrate fails to apply any sort of statutory 

construction to the rule, rendering a conclusory decision." Objections at 2. Translated, the 

objection seems to be that the magistrate read the plain language of the rule to mean what 

it says. Zarbana indeed concedes that " 'appropriate' means 'especially [sic] suitable or 

compatible: fitting.' " Objections at 7, quoting a Merriam-Webster's Collegiate Dictionary. 

And the commission through its staff hearing officer found in essence that the proposed 

$2,000 resolution of such a significant claim in this worker safety context was not suitable 

or fitting: it was "neither fair nor equitable." May 12, 2016 settlement disapproval order at 

2. This does not mean, as Zarbana argues, that "[t]he magistrate effectively found that 

'appropriate' is synonymous with fairness and equity," compare Objections at 8: rather, 
No. 19AP-71 5 

while the commission concluded that the lack of fairness and equity rendered the 

settlement inappropriate in this context, other considerations, too, could make a VSSR 

settlement inappropriate (as when its terms contravene the law or regulatory safety 

policies). 

{¶ 10} But, Zarbana contends—and despite the commission's constitutional and 

statutory authority to determine injury claims resulting from employer failure to observe 

specific safety requirements, see Ohio Constitution, Article II, Section 35 and 

R.C. 4121.35(B)(3)—the commission is precluded from taking "fairness or equity" or a "goal 

to promote safety" into account in evaluating whether a proposed VSSR settlement is 

"appropriate." Objections at 13, 8. Zarbana apparently reasons (at least in its briefing to 

the magistrate, although not directly in its objections) that the phrase from Ohio 

Adm.Code 4121-3-20(F)(1) triggering a hearing "[i]f the staff hearing officer does not find 

the settlement to be appropriate in its present form" constricts the scope of the 

commission's appropriateness determination to a question of whether a proposed 

settlement is appropriate 'as to form.' See Magistrate's Decision at 5 (correctly 

characterizing Relator's Brief at 21: "Zarbana proposes that the settlement agreement in 

a VSSR matter is appropriate if it is 'structurally sound,' which Zarbana proposes is 

limited to assessment of whether the agreement meets basic common-law concepts of 

contractual formation and validity"). But the administrative code provision doesn't say 

that. At all. And Zarbana acknowledges that we cannot add or subtract words from the 

rule as adopted. Objections at 13,citing Armstrong v. John R. Jurgensen Co., 136 Ohio 

St.3d 58, 2013-Ohio-2237, ¶ 12 (in reading statutes, courts "may not delete or insert 

words, but must give effect to the words the General Assembly has chosen"). 

{¶ 11} Instead, again to use Zarbana's briefing, here "each word of the rule must be 

read in context and according to its ordinary dictionary meaning." Objections at 5 (citations 

omitted); see also Magistrate's Decision at 5 ([at least absent some specialized context,] 

"words of an administrative rule are to be given their plain and ordinary meaning, as with 

basic principles of statutory construction. Frisch's Restaurants, Inc. v. Ryan, 121 Ohio 

St.3d 18, 2009-Ohio-2"; further citation omitted). The commission did not deem the 

proposed settlement "appropriate in its present form" in that, as presented, it proposed to 

liquidate Mr. Hayes's significantly more valuable claim for only $2,000. Notably, Zarbana 
No. 19AP-71 6 

does not argue that the staff hearing officer erred in finding that amount unfair and 

inequitable and out of step with the commission's view that a "potential award" regarding 

a "claim for such violation is in the range from $20,866.00 to $69,554.00." Compare 

May 12, 2016 settlement disapproval order with Objections at 6-8 (urging that commission 

lacks authority to consider fairness, equity, or safety considerations in this context); 

compare also State ex rel. Inland Div., Gen. Motors Corp. v. Collins, 34 Ohio App.3d 80, 

82 (10th Dist.1986) (purpose of VSSR statute is to penalize [and thus deter] employers who 

have "failed to comply with a specific lawful requirement"). 

{¶ 12} Zarbana's other, tangential objections also are unavailing. It deplores the 

magistrate's reference to its bootless declaratory judgment action, saying that the 

magistrate's report there is "irrelevant and immaterial"—but not that it is incorrect. See 

Objections at 3. Zarbana also asserts at page 3 of its Objections that the magistrate "omitted 

a key fact," which Zarbana reveals at page 11 to be that the staff hearing officer "had notice 

of the parties' desire to settle [but not the amount of the proffered agreement] on April 5, 

2016," days before he finished drafting his VSSR order (on the day the settlement proposal 

was submitted). Zarbana's point that this claimed omission "obscures the [staff hearing 

officer's] potential bias in rejecting the settlement," id. at 13, strikes us as itself rather 

obscure and not a basis for overruling anything. Zarbana's position that the commission 

should have exercised continuing jurisdiction to correct what Zarbana perceives as a 

"mistake of law" in its claim of "authority [under the Ohio Adm.Code] to approve or deny 

VSSR settlements based on fairness or equity," id., fails in light of the administrative code's 

grant of authority to approve or disapprove the appropriateness of a VSSR settlement. And 

Zarbana's statement that its own (joint) use of the commission's recommended form to 

apply for settlement approval as involving "merely a form" without the "weight of a law" 

does not erase its own agreement that the tendered settlement was to be "subject to the 

approval of the Industrial Commission." Compare id. at 10 with Magistrate's Decision at 

3; see also Commission's Brief at 2 ("Zarbana has failed to demonstrate it has a clear legal 

right to enforce a document that, by its own terms, is effective only upon the commission's 

agreement"). 

{¶ 13} Just as administrative bodies are not empowered to reformulate their 

regulations through "interpretation," neither are regulated entities entitled to amend the 
No. 19AP-71 7 

text of provisions duly promulgated in Ohio's Administrative Code. Even were we 

otherwise inclined, we are not at liberty to re-write Ohio Adm.Code 4121-3-20(F)(1) to 

direct that a VSSR settlement is to be submitted to the commission 'only as to form.' The 

commission's review of a VSSR settlement is to determine whether it is "appropriate in its 

present form." Here, pursuant to the processes envisioned by Ohio Adm.Code 4121-3-

20(F)(1), the commission staff hearing officer conducted a hearing and disapproved as 

inappropriate the proposal that, as then before him, contemplated a payment of $2,000 on 

what he saw as a much more significant specific safety requirement claim. Zarbana does 

not provide us with any persuasive argument for why it has a clear legal right to have that 

order set aside or why the commission has a clear legal duty to approve the proffered 

settlement. 

{¶ 14} We overrule Zarbana's objections. We adopt the magistrate's findings of fact 

and conclusions of law (apart from a mis-citation to what should be Ohio Adm.Code 4121-

3-20(F)(1) in paragraph 39 of the appended decision), and we follow his recommendation 

in denying Zarbana's requested writ. 

Objections overruled; writ of mandamus denied. 

KLATT and BEATTY BLUNT, JJ., concur. 

 
No. 19AP-71 8 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Zarbana Industries, Inc., : 

 

 Relator, : 

 

v. : No. 19AP-71 

 

Jeremy M. Hayes 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 April 29, 2020

 

Bugbee & Conkley, LLP, Mark S. Barnes, and Gregory B. 

Denny, for relator. 

Heller, Maas, Moro, & Magill, Co. LPA, and Patrick J. Moro, 

for respondent Jeremy Hayes. 

Dave Yost, Attorney General, and John Smart, for respondent 

Industrial Commission of Ohio. 

 

IN MANDAMUS 

 

{¶ 15} This original action is the culmination of administrative proceedings arising 

from a claim involving a violation of specific safety requirements ("VSSR") related to a 

workplace injury suffered by respondent, Jeremy M. Hayes, an employee of relator Zarbana 

Industries, Inc. Zarbana seeks a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate the commission's order declining to exercise 

continuing jurisdiction over the matter and, thus, declining to set aside a staff hearing 

officer's ("SHO") order that rejected an agreed VSSR settlement between the parties and 

imposed a greater VSSR award. 

Findings of Fact: 
No. 19AP-71 9 

{¶ 16} 1. Zarbana is a corporation doing business in Ohio and a compliant statefund employer. 

{¶ 17} 2. Hayes, then employed by Zarbana as a punch press operator, sustained 

severe hand injuries in the course of employment on June 28, 2013. 

{¶ 18} 3. The allowance of Hayes' claim from the resulting conditions is not in 

dispute. 

{¶ 19} 4. On or about May 27, 2015, Hayes filed a VSSR application alleging that 

Zarbana violated Ohio Administrative Code provisions governing specific safety 

requirements pertaining to the press operated by Hayes at the time of his injury. 

{¶ 20} 5. On October 29, 2015, the commission mailed the parties a "Claim Value 

At Settlement" letter explaining the typical VSSR negotiation and adjudication process. 

This communication included the commission's non-binding estimate that this VSSR 

application could result in an award ranging between $20,866 and $69,554. (Stip. at 8.) 

{¶ 21} 6. The commission's October 29, 2015 letter advised the parties that a 

"substantial percentage of violations of specific requirement(s) cases are settled by 

agreement between the parties. Whether to negotiate a settlement is a discretionary matter 

between the Injured Worker and Employer * * *." (Stip. at 9.) 

{¶ 22} 7. The October 29, 2015 letter further provided that "[i]f settlement is 

reached, it is the policy of the Industrial Commission to assist in bringing the matter to a 

rapid conclusion. Toward that goal, the Commission has developed a written Settlement 

Agreement specifically for violation of specific safety requirement (s) matters. * * * This 

form is not required by the Industrial Commission, but its use is recommended to assist in 

expediating this process." (Stip. at 9.) This prepared settlement document is the 

commission's IC-10 form. 

{¶ 23} 8. An SHO notified the parties that the commission would hold a pre-hearing 

conference pursuant to Ohio Adm.Code 4121-3-20(D)(4) on December 10, 2017. 

{¶ 24} 9. After the pre-hearing conference took place on December 10, 2017, the 

commission issued a notice summarizing the conference discussions and continuing the 

VSSR merit hearing by 90 days to allow further settlement discussions: 

The items on the pre-hearing conference checklist were 

addressed, and additional time for the parties to pursue 

settlement negotiations was requested. As a result, the hearing 
No. 19AP-71 10 

on the merits of the Injured Worker's IC-8/9 [VSSR] 

application will be scheduled for Thursday, March 17, 2017 

* * *. (Stip. at 40.) 

{¶ 25} 10. The VSSR merits hearing duly went forward on March 17, 2016. 

{¶ 26} 11. Before the SHO issued an order resulting from the VSSR merits hearing 

adjudicating the merits of the VSSR application, Zarbana filed with the commission an IC10 settlement form signed by Zarbana and Hayes and setting forth the terms of a settlement 

between the parties. The IC-10 settlement form was executed on April 5 and filed with the 

commission on April 8, 2016. (Stip. at 119.) 

{¶ 27} 12. The IC-10 settlement form contains the following language: 

The parties now desire to make a full and complete lump sum 

settlement of the Injured Workers' [VSSR] application, 

subject to the approval of the Industrial Commission. * * * 

[T]his agreement shall be submitted to the Industrial 

Commission of Ohio for approval, and Employer shall not pay 

the agreed amount until this agreement shall have been 

approved by the [] Industrial Commission and made a matter 

of record in the Claim * * *. (Stip. at 119.) 

{¶ 28} 13. Also on April 8, 2016, the SHO prepared, but did not file, an order 

resolving the merits of the VSSR application. The order concludes that Zarbana had 

violated the pertinent safety requirements and ordered a 30 percent additional award of 

compensation to Hayes. 

{¶ 29} 14. On May 11, 2016, the same SHO who had conducted the VSSR merits 

hearing conducted a hearing pursuant Ohio Adm.Code 4121-3-20(F) addressing the VSSR 

settlement agreement. (Stip. at 124-32.) 

{¶ 30} 15. At the May 11, 2016 hearing on the VSSR settlement agreement, the 

hearing officer stated as follows: 

We are here today because there was a settlement filed on 

April 20 (sic), 2016 which attempted to settle the VSSR claim. 

The difficulty with this situation is we had already had the 

hearing on the merits, and the order was actually prepared but 

not released at the time the settlement came in. And the issue 

of settlement is now set before me under the provisions of 

Administrative Code 4121[-]3-20(F), and that provision 

provides an opportunity for the parties to present argument 

in support of why the VSSR claim is being settled for the 

amount that it is being settled. (Stip. at 128.) 
No. 19AP-71 11 

{¶ 31} 16. The parties do not dispute that the settlement agreement was filed on 

April 8 not April 20, 2016 as stated by the SHO at the settlement agreement hearing. 

{¶ 32} 17. Two separate orders issued on May 12, 2016, the first reflecting the 

hearing officer's grant of an additional 30 percent VSSR award, and the second rejecting 

the VSSR settlement agreement. (Stip. at 144, 147.) 

{¶ 33} 18. Zarbana requested reconsideration of the May 12, 2016 order rejecting 

the VSSR settlement agreement. (Stip. at 146.) 

{¶ 34} 19. On September 22, 2016, the commission issued its notice that it lacked 

authority to exercise continuing jurisdiction pursuant to R.C. 4123.52 and denied Zarbana's 

reconsideration request. (Stip. at 160-64.) 

{¶ 35} 20. Zarbana sought a declaratory judgment from the Franklin County Court 

of Common Pleas to establish the commission's lack of legal authority to adjudicate a VSSR 

settlement once agreed to by the parties. The Franklin County Court of Common Pleas 

dismissed the complaint, and this court affirmed the dismissal for lack of jurisdiction. 

Zarbana Industries, Inc. v. Hayes, 10th Dist. No. 18AP-104, 2018-Ohio-4965. 

{¶ 36} 21. Zarbana filed its complaint in mandamus on February 4, 2019 seeking a 

writ setting aside both of the commission's May 12, 2016 orders. 

Discussion and Conclusions of Law: 

{¶ 37} In order for this court to issue a writ of mandamus, a relator must show a 

clear legal right to the relief sought, a clear legal duty on the part of the respondent to 

provide such relief, and the lack of an adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). The principal issue raised 

in this original action is whether the commission has the authority to disregard a settlement 

agreement signed by both parties and submitted to the commission in a VSSR matter, and 

thereafter continue with a hearing to assess the merits of the VSSR matter. The magistrate 

concludes that the commission has that authority, and that Zarbana does not have a clear 

legal right to the relief requested, and a writ must be denied. 

{¶ 38} Pursuant to the Ohio Constitution, the commission has exclusive jurisdiction 

over VSSR claims and the special statutory proceedings pertaining thereto: 

[The Industrial Commission] shall have full power and 

authority to hear and determine whether or not an injury, 
No. 19AP-71 12 

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 employees. 

Ohio Constitution, Article II, Section 35. 

{¶ 39} R.C. 4121.35 and Ohio Adm.Code 4121-3-20(A) govern VSSR proceedings 

and reflect the constitutional authority given to the commission in this respect. Ohio 

Adm.Code 4121-30-20(A)(1) clearly gives the commission's SHO discretion to approve, and 

more pertinently here disapprove, an application for settlement of a VSSR claim: 

If the staff hearing officer does not find the settlement to be 

appropriate in its present form, the staff hearing officer shall 

schedule a hearing with notices to all parties and their 

representatives where the matter of the proposed settlement 

is to be considered. Following the hearing, the staff hearing 

officer shall issue an order either approving or disapproving 

the settlement, and the order shall be final. 

{¶ 40} Zarbana asks that the commission be held to a restrictive interpretation of 

the phrase "appropriate in its present form" in Ohio Adm.Code 4121-3-20(F)(1). Zarbana 

argues that the SHO instead concluded that the submitted settlement was unfair and 

inequitable. Zarbana points out that the language of this section contrasts with that of R.C. 

4123.65, governing settlement of workers' compensation claims, pursuant to which an SHO 

will determine "whether the settlement agreement is or is not a gross miscarriage of 

justice," to be set aside if the SHO determines "that the settlement agreement is clearly 

unfair * * *." 

{¶ 41} Zarbana proposes that the settlement agreement in a VSSR matter is 

appropriate if it is "structurally sound," which Zarbana proposes is limited to assessment 

of whether the agreement meets basic common-law concepts of contractual formation and 

validity. (Relator's Brief at 21.) 

{¶ 42} The words of an administrative rule are to be given their plain and ordinary 

meaning, as with basic principles of statutory construction. Frisch's Restaurants, Inc. v. 

Ryan, 121 Ohio St.3d 18, 2009-Ohio-2; State ex rel. Richmond v. Indus. Comm., 139 Ohio 

St.3d 157, 2014-Ohio-1604, ¶ 28. The magistrate sees no reason to limit construction of the 

term "appropriate" in Ohio Adm.Code 4121-3-20(F)(1). The commission's application of 

the term in this matter is usual and customary. The SHO had grounds to find that the 
No. 19AP-71 13 

settlement was inappropriate based upon all the factors regarding the circumstances of the 

injury and pertinent safety requirements. 

{¶ 43} Moreover, the IC-10 application that was submitted in this case contains 

consistent boilerplate: 

This agreement shall be submitted to the Industrial 

Commission of Ohio for approval, and Employer shall not 

pay the agreed amount until this agreement shall have been 

approved by the [] Industrial Commission* * *. 

(Emphasis added.)(Stip. at 119.) Such a review by the commission is consistent with the 

goals of the VSSR award system, which is not only compensation for injured employees 

or their survivors, but a deterrent penalty imposed on the employer to ensure correction 

of workplace hazards. State ex rel. Inland Div., Gen. Motors Corp. v. Collins, 34 Ohio 

App.3d 80 (10th Dist. 1986). The commission could conclude that an inadequate award 

in this case would lack the desired deterrent effect. 

{¶ 44} Nor does the magistrate consider that the commission abused its discretion 

by finding that it lacked authority to exercise continuing jurisdiction. R.C. 4123.52 gives 

the commission continuing jurisdiction to reconsider a matter, but that jurisdiction is 

conditioned on specific criteria: (1) new and changed circumstances, (2) fraud, (3) clear 

mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel. 

Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998). None of those factors are present 

here, and Zarbana is not entitled to a writ compelling the commission to exercise its 

continuing jurisdiction. 

{¶ 45} In summary, Zarbana does not have a clear legal right to the relief requested, 

nor does the commission have a clear legal duty to provide it. It is the magistrate's decision 

that the requested writ will not issue. 

 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS 

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 
No. 19AP-71 14 

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).