[Cite as State ex rel. Amanda Bent Bolt Co. v. Indus. Comm., 2015-Ohio-3487.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Amanda Bent Bolt Company, : 

 

 Relator, : 

 

v. : No. 14AP-295 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Gregory J. Youtsey, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on August 27, 2015 

 

Hahn Loeser & Parks LLP, and Douglas J. Suter, for relator. 

Michael DeWine, Attorney General, and Eric J. Tarbox, for 

respondent Industrial Commission of Ohio. 

Reminger Co., L.P.A., and Kevin R. Sanislo, for respondent 

Gregory J. Youtsey. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, Amanda Bent Bolt Company, commenced this original action in 

mandamus seeking an order compelling respondent, Industrial Commission of Ohio 

("commission"), to vacate its October 8, 2013 order granting the application of 

respondent, Gregory J. Youtsey ("claimant") for an additional award for violation of a 

specific safety requirement ("VSSR"), and to enter an order denying the VSSR application. 
No. 14AP-295 2 

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

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

of fact and conclusions of law, which is appended hereto. The magistrate found that: (1) 

Ohio Adm.Code 4123:1-5-11(E) plainly apprised relator of its duty to properly adjust the 

pull guard prior to the claimant's operation of the press so that his hands were prevented 

from reaching the danger zone during the press operating cycle; and (2) the commission 

did not abuse its discretion in finding that the unilateral negligence defense did not apply 

to absolve relator from VSSR liability. Therefore, the magistrate has recommended that 

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

{¶ 3} Relator has filed objections the magistrate's decision. In its first objection, 

relator contends that Ohio Adm.Code 4123:1-5-11(E)(4) and (5) are not specific enough to 

plainly apprise an employer of its legal obligation to protect its employees from a known 

hazard. We disagree. 

{¶ 4} As noted by the magistrate, Ohio Adm.Code 4123:1-5-11(E)(4) states that 

every hydraulic or pneumatic press "shall be guarded, to prevent the hands or fingers of 

the operator from entering the danger zone during the operating cycle." The rule further 

states that "movement of the ram will pull the operator's hands from the danger zone 

during the operating cycle." The rule plainly apprised relator that the pull guard it 

provided for the press must pull the operator's hands from the danger zone during the 

operating cycle. This included the duty to properly adjust the pull guard prior to the 

claimant's operation of the press so that the operator's hands are pulled from the danger 

zone during the operating cycle. Here, the pull guard did not pull the claimant's hands 

from the danger zone during the operating cycle because the pull guard was not properly 

adjusted. The commission did not abuse its discretion in interpreting its rule and in 

granting the claimant's VSSR application under these circumstances. Therefore, we 

overrule relator's first objection. 

{¶ 5} In its second objection, relator contends that the magistrate erred by 

rejecting its affirmative defense of unforeseeable employee misconduct. Again, we 

disagree. 

{¶ 6} It is well-settled that a claimant's alleged negligence is a defense only when 

the employer has first complied with the relevant safety requirements and the claimant 
No. 14AP-295 3 

deliberately renders an otherwise complying device noncompliant. State ex rel. Coffman 

v. Indus. Comm., 109 Ohio St.3d 298, 2006-Ohio-2421, ¶ 13; State ex rel. R.E.H. Co. v. 

Indus. Comm., 79 Ohio St.3d 352, 355 (1997). We agree with the magistrate's reasoning 

that because relator failed to properly adjust the pull guard prior to the claimant's 

operation of the press, the safety device was not complying, and the commission did not 

abuse its discretion when it rejected relator's unilateral negligence defense to the VSSR 

violation. Therefore, we overrule relator's second objection. 

{¶ 7} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law. Therefore, we adopt 

the magistrate's decision as our own, including the findings of fact and conclusions of law 

contained therein. In accordance with the magistrate's decision, we deny relator's request 

for a writ of mandamus. 

Objections overruled; writ of mandamus denied.

BROWN, P.J., and BRUNNER, J., concur. 

 

 
No. 14AP-295 4 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[State ex rel.] Amanda Bent Bolt Company, : 

 

 Relator, : 

 

v. : No. 14AP-295 

Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Gregory J. Youtsey, 

 : 

 Respondents. 

 : 

 

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

Rendered on January 29, 2015

 

Hahn Loeser & Parks LLP, and Douglas J. Suter, for relator. 

Michael DeWine, Attorney General, and Eric J. Tarbox, for 

respondent Industrial Commission of Ohio. 

Reminger Co., L.P.A., and Kevin R. Sanislo, for respondent 

Gregory J. Youtsey. 

 

IN MANDAMUS 

{¶ 8} In this original action, relator, Amanda Bent Bolt Company ("relator" or 

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

Ohio ("commission") to vacate the October 8, 2013 order of its staff hearing officer 

("SHO") that granted the application of respondent Gregory J. Youtsey ("Youtsey") for an 

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

order denying the VSSR application. 
No. 14AP-295 5 

Findings of Fact: 

{¶ 9} 1. On March 20, 2012, while operating a pneumatic press, Youtsey was 

injured in the course of and arising out of his employment with Amanda. His left hand 

was crushed and portions of two fingers were traumatically amputated. 

{¶ 10} 2. In Youtsey's brief filed in this action, he presents his statement of facts. 

See Loc.R. 13(J)(3), regarding briefs filed in an original action. Without adopting all of 

Youtsey's factual assertions as true, the magistrate, nevertheless, finds Youtsey's version 

of the facts relating to the injury and Amanda's subsequent investigation to be useful to an 

understanding of this action: 

Youtsey * * * was operating a four-hundred ton Toledo 

Press/Minster Clutch knuckle-press machine when he was 

injured on March 20, 2012. * * * On [that] day * * * Youtsey 

arrived at work and began to review his assignment for the 

day and then paged for a safety set for press 400. * * * Chuck 

Hurst is a setup man for [Amanda], which means he is 

responsible for setting the safeties on the machines. * * * The 

only individuals who are [allowed] to set the safeties * * * are 

the safety setup persons. * * * Chuck Hurst adjusted the 

hand pull-guards for Youtsey on Machine No. 400 by jogging 

the ram/arm down to make sure his hands were not in the 

pinch point. * * * Youtsey noticed that his left guard had too 

much slack [so] he brought it to Hurst's attention. * * * Hurst 

instructed Youtsey to run the machine through the quality 

control check and to inform him if the safeties still did not 

seem right. * * * After the quality check, Youtsey still felt that 

his guards were improperly adjusted, so he again paged 

Hurst back to the press. * * * Hurst again jogged the machine 

in an attempt to get the guards in place. * * * Hurst informed 

Youtsey that if he still felt uncomfortable that he could have 

the foreman, Bruce Losey, come and check on the safety 

guard later, but [Losey] was "really busy" at the time. * * * 

After running the press for approximately three hours and 

fifteen minutes, Youtsey's left hand was [injured] under the 

ram in the danger zone. * * * The hand that was crushed, the 

left, was crushed by the same guard Youtsey told Hurst was 

too loose. 

Machine No. 400 was only equipped with safety straps 

attached to the operator's wrists, and the machine via cables. 

* * * Once the press was activated, the arm/ram would go 

down and the safeties, when properly adjusted, were 
No. 14AP-295 6 

supposed to pull the operator's hands out of the danger zone. 

* * * The only safety device on Machine No. 400 on 

March 20, 2012, to prevent Youtsey's hands from being in 

the pinch point was the hand pull-back device. * * * 

After the injury, Ms. Putterbaugh, the Employer's Human 

Resource Manager, completed her own investigation of the 

industrial injury. * * * During her investigation, Ms. 

Putterbaugh had Mr. Hurst setup the safety pull-guard on 

machine No. 400 for her. * * * Again, Hurst failed to 

properly set up the safety guard, as Ms. Putterbaugh could 

reach the pinch point area with her left hand. * * * As a result 

of the accident, Mr. Hurst, the safety setup man, was 

disciplined by [Amanda] for failing to setup the safety pullguards correctly resulting in an injury to a press operator. * * 

* Mr. Losey, the foreman also did his own inspection and 

concluded that the safety pull-guard was not properly 

adjusted to fit Youtsey. 

(Relator's brief, 3-6.) (Emphasis sic.) 

{¶ 11} 3. On October 17, 2012, Youtsey filed a VSSR application. 

{¶ 12} 4. The VSSR application prompted an investigation by the Safety Violations 

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

{¶ 13} 5. On January 3, 2013, the SVIU special investigator conducted an on-site 

investigation at the Amanda plant where the injury occurred. The special investigator met 

with Amanda's counsel and Ms. Polly Putterbaugh, who is Amanda's human resource 

manager. 

{¶ 14} 6. On January 8, 2013, the SVIU special investigator issued his report of 

investigation. In his report, the special investigator presented the factual scenario that 

Amanda had presented to him at the January 3, 2013 on-site meeting: 

[Three] The employer states that the claimant was hired on 

October 12, 2011 as a machine press operator. Claimant's job 

duties included operating various presses and metal bending 

machines within the plant. He also measured completed 

work pieces to verify conformance to specifications, by 

utilizing gauges, calipers, templates, and/or rulers. He also 

reviewed work orders, blueprints and production schedules 

to determine specifications, such as which materials to be 

used, locations of cutting lines, and dimensions and 

tolerances. The claimant also performed other job tasks as 

directed by his supervisor. 
No. 14AP-295 7 

[Four] The employer stated that the training the claimant 

received included a new hire orientation where the claimant 

received in-class training/programs covering company 

policies & procedures, and work safety/plant operations with 

the human resources manager. Employer states that all new 

personnel received a two week hands-on and on-the-job 

training period. Employer also states that advance machine 

operation is provided to those assigned those duties. The 

claimant was assigned to a machine operator/training and 

provided instruction on the various machine operations 

within the plant. The employer reported that during the 

machine operation job training, personal safety is stressed. 

[Five] The employer further states that safety meetings are 

held once per month. The meetings stress work related 

safety, machine and equipment awareness and skills 

operation along with standard policies and procedures. 

[Six] The employer states that on March 20, 2012 the date of 

the claimant's injury, the claimant was assigned as a press 

operator to machine press #400. Claimant reviewed his 

production instructions and contacted Charles [Hurst] the 

machine set-up person. After completing the set-up of press 

#400, the claimant attached the required safety pullbacks to 

each of his wrists and proceeded operation of the press and 

production of parts. During the press operation the claimant 

ran some test parts for quality check purposes. The employer 

states that the claimant had Mr. [Hurst] recheck the pullback 

set-up on press machine #400. 

[Seven] Per the employer, once the pullbacks were examined 

by [Hurst] the claimant resumed operating #400 press for 

approximately two (2) hours and 45 minutes. Employer 

states that the claimant took a 15 minute break and then 

resumed running parts. Employer states that sometime after 

his return from break, the claimant sustained an injury to his 

left hand. The shift foreman was notified by the claimant 

regarding his injury and a call to 911 was made. 

[Eight] The employer states that during its investigation, 

tests were conducted on the 400 Ton Toledo Press/Minster 

Clutch #664 Knuckle Press machine and no faults were 

found with any of the machine's operation or parts. 

However, the employer reports they did identify that the setup operator failed to properly set the pullback devices in a 

manner which would operate as designed. Furthermore, the 

employer points out that the claimant failed to properly 
No. 14AP-295 8 

communicate with the shift foreman when he discovered that 

his wrist pullback safety system was not set properly. 

Employer also states that all personnel are trained to notify 

their foreman if there are any problems which arise during 

the shift especially in matters involving safety. 

(Emphasis sic.) 

{¶ 15} 7. During his investigation, the SVIU special investigator obtained an 

affidavit from Youtsey executed December 20, 2012, the affidavit states in part: 

[Four] On March 20, 2012 the date of my injury I had 

reported to my 3:30 pm to 12:00 am shift at the Amanda 

Bent Bolt Company. I reported to machine press #400 

w[h]ere I was assigned for the shift. I took a few minutes to 

review my work instructions after which I went to the phone 

and paged that I needed a safety set at machine press #400, 

hung up the phone and returned to the press. 

[Five] A few moments later set up guy Chuck [Hurst] came 

over to the press and did the set up. After he completed that I 

put on a set of safety straps on my wrist and waited on 

[Hurst]'s instructions. [Hurst] ran the ram up and down 

then started checking the pinch points. [Hurst] said ok, and 

told me to reach in so he could see. I then clipped my safety 

cable leading from the press on my safety straps located on 

my wrist and began to reach in as I was instructed by 

[Hurst]. 

[Six] I pulled my arms out and began to step back as [Hurst] 

jogged the ram down some more. Again [Hurst] told me to 

reach in so he could see my reach. I reached in again and 

[Hurst] told me "ok you're good." I then grabbed my scan 

sheet and scanned onto production. I walked back to press 

#400 to run the first 5 parts on the day so I could compare 

them to my blue part and gauge them. 

[Seven] I noticed that my left safety cable felt loose 

compared to my right when I was clipping my cables on my 

wrist restraints. I then began to run first 5 parts and I didn't 

like how the safety cables felt so I unclipped them and went 

back to page [Hurst] to come back and double check my 

safeties. After a few minutes [Hurst] returned and I clipped 

the safety cables back on my wrist and waited for 

instructions. [Hurst] ask[ed] what was wrong and I 

explained that the left safety cable felt loose. [Hurst] then 
No. 14AP-295 9 

jogged the ram up and down and instructed me to stand 

back. 

[Eight] [Hurst] then stopped it at a certain point and told me 

to reach in, I reached in while he was there and then 

instructed me to stand back, and he then began jogging the 

ram down again where he stopped it again. [Hurst] told me 

to reach in again while he examined it. [Hurst] told me to 

run it and that I was fine and he assured me I couldn't get my 

hands in the die. So I started running the press on 

production like I normally would. 

[Nine] I ran the press for approximately 2 hours 45 minutes. 

I then took a 15 minute break at 6:15 pm and finished 6:30 

pm where I returned to press #400 [and] clipped on my 

safety equipment. I then began to run parts continuously for 

1/2 hours. When I reached in to get a part out of the die [is] 

when [the] ram stopped with my left hand. 

[Ten] I was looking down at my right hand to grab a part out 

of my tray in front of me when I noticed pressure on my left 

hand and [that] was when I noticed that the press rolled over 

and smashed my left hand and fingers. 

{¶ 16} 8. On October 8, 2013, the VSSR application was heard by an SHO. The 

hearing was recorded and transcribed for the record. Following the hearing, the SHO 

issued an order finding that relator had violated the specific safety rule set forth at Ohio 

Adm.Code 4123:1-5-11(E) and that relator's violation of the rule was the proximate cause 

of the injury. 

{¶ 17} 9. The October 8, 2013 order of the SHO explains: 

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

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

the Employer as a pneumatic press operator; that the Injured 

Worker sustained an injury in the course of and arising out 

of employment when the Injured Worker was operating a 

pneumatic press (machine #400) on 03/20/2012. 

The pneumatic press was the 400 Ton Toledo Press/Minster 

Clutch #664 Knuckle Press machine. This machine was 

purchased on 09/26/1989 according to the purchase invoice. 

* * * 

The Injured Worker was assigned to work on press #400 on 

the day of injury. After reading his job instructions, the 
No. 14AP-295 10 

Injured Worker paged a safety setup person to press #400 to 

set up his safety pull-guards on the machine. The safety 

setup person, Chuck [Hurst], came to the machine and 

checked the pinch points of the machine with the Injured 

Worker's reach with both arms into the machine. 

The safety guard for this press machine [was] pull-guards. 

The pull-guard consists of safety straps, which are attached 

to the Injured Worker's wrists, and two cables which are 

connected to the ram of the machine, and travel above the 

machine, and around the back of the Injured Worker and 

attach onto both wrist safety straps. 

The safety setup of the pull-guards which consist of safety 

cables can only be performed by the safety setup person per 

the Injured Worker's testimony at hearing. The safety setup 

person is to check the ram pinch points with the distance of 

the operator's hands when the ram engages and comes down. 

The setup person is to assure the operator's hands and 

fingers do not enter the danger zone, which are the pinch 

points caused by the ram coming down and making contact. 

The danger zone is the point of operation where a known 

hazard exists. In this particular case, the danger zones are 

the location of the pinch points, where the ram makes 

contact with another material. 

Mr. [Hurst] set up press #400 on 03/20/2012 and 

instructed the Injured Worker that he was set to operate the 

machine. The Injured Worker felt the left safety cable was 

loose compared to the right hand and wrist cable. 

The Injured Worker testified at hearing that he informed Mr. 

[Hurst] that his left side did not feel right as the left cable 

had more slack. Mr. [Hurst] told the Injured Worker to run 

his first five parts, which are quality control parts. After the 

Injured Worker ran the five parts, he paged Mr. [Hurst] to 

check the safety cables which pull his arms out of the press. 

Mr. [Hurst] rechecked the machine and indicated that the 

Injured Worker's safeties (as they are referred as) were good. 

Mr. [Hurst] told the Injured Worker to run the press. Mr. 

[Hurst] also told the Injured Worker that "Bruce" (Losey) the 

Injured Worker's foreman was really busy at that time per 

the Injured Worker's testimony at hearing. 

After running the press for approximately 3 hours and 15 

minutes [sic], the Injured Worker's left hand was caught 
No. 14AP-295 11 

under the ram in the danger zone. The Injured Worker 

severed two finger tips on his left hand, sustained a crush 

injury to his left hand, and significant injuries to three 

fingers on his left hand. The Injured Worker alleges a 

violation of specific safety rule O.A.C. 4123:1-5-11(E) due to 

the Employer's failure to prevent a pneumatic press 

operator's hand or fingers from entering the danger zone 

during the operating cycle. 

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

Injured Worker's injury was the result of the left safety pullguard/hold-back guard was not properly and correctly set up 

on press #400. The improper setup of the left pullguard/hold-back guard rendered this guard (which was 

designed to prevent the Injured Worker's left hand from 

entering the danger zone during the operating cycle of the 

press) ineffective. The Staff Hearing Officer finds the left 

safety pull-guard, also known as a hold-back guard, was not 

effective as it was not properly setup by Mr. [Hurst] when he 

performed the initial setup of the safety guard apparatus for 

the Injured Worker at the commencement of the Injured 

Worker's work shift on 03/20/2012. 

It was undisputed by both parties at the hearing that the 

Injured Worker's left hand safety pull-guard was not 

properly set up to prevent the Injured Worker's left hand 

from meeting the pinch points during the press operating 

cycle. 

Following the injury, Ms. Putterbaugh, the Employer's 

Human Resource Manager, completed her own investigation 

of the 03/20/2012 industrial injury. Ms. Putterbaugh, a 

former press operator on machine #400, had Mr. [Hurst] 

setup the safety pull-guard (hold-back guard) on machine 

#400 for her. Mr. [Hurst] did not properly setup Ms. 

Putterbaugh's left safety pull-guard on machine #400 as Ms. 

Putterbaugh could reach the pinch point area with her left 

hand per Ms. Putterbaugh's testimony at hearing. The left 

pull-guard did not prevent Ms. Putterbaugh's left hand and 

fingers from entering the danger zone per Ms. Putterbaugh's 

testimony at hearing. 

Mr. [Hurst], the safety setup person for the Employer, was 

disciplined by the Employer for failing to setup the safety 

pull-backs correctly and resulting in an injury to a press 

operator on 03/20/2012. * * * 
No. 14AP-295 12 

Mr. Losey, the Injured Worker's foreman, also performed a 

post-injury investigation of the safety pull-guards. He 

concluded that the safety pull-guard was not properly setup 

per Mr. Losey's written statement. * * * 

Both Ms. Putterbaugh and Mr. Losey concluded that the 

safety devices were NOT properly adjusted per the 

Employer's Accident Analysis Report completed on 

03/21/2012. 

At hearing, the Employer acknowledged that the safety pullguards for the Injured Worker were not properly set on 

03/20/2012, per Ms. Putterbaugh's testimony at hearing * * 

*. 

Based on testimony at hearing from the Injured Worker and 

Ms. Putterbaugh and based upon the SVIU Exhibits 

enumerated herein, the Staff Hearing Officer finds there was 

not a guard in place at the time of the 03/20/2012 industrial 

injury to prevent the Injured Worker's hand or fingers from 

entering the danger zone during the operating cycle as 

required by O.A.C. 4123:1-5-11(E) the Code of Specific 

Requirements of the Industrial Commission relating to 

guarding of pneumatic presses to prevent the hands or 

fingers of the operator from entering the danger zone during 

the operating cycle. 

* * * 

The Staff Hearing Officer finds the Injured Worker's 

industrial injury was due to the fact that the left safety pullguard was not properly setup and adjusted in order to 

prevent his left hand and fingers from entering the danger 

zone. Since the left safety pull-guard was not properly setup, 

the pull-guard was rendered ineffective. 

The Staff Hearing Officer does not find the Injured Worker's 

failure to report his safety concern to his foreman, Mr. Losey, 

was the proximate cause of the industrial injury. The 

Employer argued that employees were instructed at 

numerous monthly safety meetings to report any safety 

concerns to their foreman immediately. The Employer 

alleged that the Injured Worker's failure to report his safety 

concern was the proximate cause of the Injured Worker's 

injury. The Employer alleges the Injured Worker's 

unforeseen misconduct (failure to report his safety concerns 

to his foreman) was the proximate cause of the injury. 
No. 14AP-295 13 

The Staff Hearing Officer finds the left safety pull-guard was 

improperly setup and that the improper setup of the left pullguard rendered the guard ineffective in preventing the 

Injured Worker's left hand and fingers from entering the 

danger zone. The Hearing Officer does not find the Injured 

Worker's failure to report his concern about the left safety 

guard to Mr. Losey (his foreman) was the proximate cause of 

the Injured Worker's industrial injury. 

The Staff Hearing Officer relies on [State ex rel. Rockwell 

Internatl. v. Indus. Comm., 10th Dist. No. 79AP-720 

(June 3, 1980)] and State ex rel. Coffman v. Indus. Comm.

(2006) 109 Ohio St.3d 298. 

Per the Rockwell case, the Court found the employee's injury 

was the proximate result of the pull-back guards not being 

properly adjusted by the Employer so as to prevent the 

employee's hands or fingers from entering the danger zone 

during a punch press operation. The employee was wearing 

the pull-guard safety at the time of the injury but they were 

not adjusted to keep fingertips from the danger area. The 

Court held that the safety device had not failed but rather it 

was not properly adjusted to the employee's hands and arms 

as required by the specific safety requirement. 

In this claim, there was no mechanical failure. The industrial 

injury was proximately related to the improper adjustment 

and setup of the left safety pull-guard. The Employer's postinjury investigation found no mechanical failure and 

concluded that the Injured Worker's injury was due to 

improper setup of the left pull-guard. 

Furthermore, the Staff Hearing Officer finds an employee's 

unilateral negligence would bar a finding of a violation of a 

specific safety requirement only if the Employer first 

complied with the applicable specific safety requirement per 

the Coffman case. The Staff Hearing Officer finds the 

Employer had NOT complied with O.A.C. 4123:1-5-11(E) to 

begin with. The Employer did not initially setup the Injured 

Worker's left safety pull-guard to comply with the specific 

safety requirement of O.A.C. 4123:1-5-11(E) as the Injured 

Worker's left hand and fingers were not guarded from 

entering the danger zone. Per the Coffman case, the 

Employer had not initially complied with the specific safety 

requirement. Therefore, the Injured Worker's failure to 

report his concern to his foreman was inconsequential. 
No. 14AP-295 14 

The Staff Hearing Officer notes two prior industrial injuries 

were sustained on this pneumatic press. Two other 

employee's had injuries to fingers and hands due to failure to 

properly protect employee's fingers from the danger zone. 

It is therefore ordered that an additional award of 

compensation be granted to the Injured Worker in the 

amount of 50 percent of the maximum weekly rate under the 

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

St. 425. 

(Emphasis sic.) 

{¶ 18} 10. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-20(E). 

{¶ 19} 11. On April 3, 2014, another SHO mailed an order denying rehearing. The 

SHO's order explains: 

It is hereby ordered that the Motion for Rehearing filed 

02/28/2014 be denied. The Employer has not submitted any 

new and relevant evidence nor shown that the order of 

10/08/2013 was based on an obvious mistake of fact or on a 

clear mistake of law. 

Particularly, a mistake of law has not been shown in the 

Hearing Officer's declining to find that alleged "unilateral 

negligence" was the proximate cause of this injury. 

As the requirements of OAC 4121-3-20(E)(1)(a) or (b) have 

not been met, the request for a VSSR re-hearing must be 

denied. 

{¶ 20} 12. On April 10, 2014, relator, Amanda Bent Bolt Company, filed this 

mandamus action. 

Conclusions of Law: 

{¶ 21} Two issues are presented: (1) did Ohio Adm.Code 4123:1-5-11(E) plainly 

apprise relator that it not only had a duty to provide Youtsey with a functional pull-guard 

absent any defects, but also had the duty to properly adjust the pull-guard prior to 

Youtsey's running of the press so that his hands were prevented from reaching the danger 

zone during the press' operating cycle, and (2) did the commission abuse its discretion in 

finding that the unilateral negligence defense was not applicable to absolve relator from 

VSSR liability. 
No. 14AP-295 15 

{¶ 22} The magistrate finds: (1) Ohio Adm.Code 4123:1-5-11(E) did plainly apprise 

relator that its duty to Youtsey included the proper adjustment of the pull-guard prior to 

Youtsey's running the press so that his hands were prevented from reaching the danger 

zone during the press' operating cycle, and (2) the commission did not abuse its discretion 

in finding that the unilateral negligence defense was not applicable to absolve relator from 

VSSR liability. 

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

request for a writ of mandamus, as more fully explained below. 

The Safety Rule at Issue 

{¶ 24} Ohio Adm.Code 4123:1-5 sets forth specific safety rules applicable to 

"Workshop and Factory Safety." 

{¶ 25} Ohio Adm.Code 4123:1-5-11 is captioned "Forging machines, other power 

machines and machine tools, hydraulic and pneumatic presses, and power press brakes." 

{¶ 26} Thereunder, Ohio Adm.Code 4123:1-5-11(E) is captioned "Hydraulic or 

pneumatic presses." 

{¶ 27} Thereunder, Ohio Adm.Code 4123:1-5-11(E) provides: 

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

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

fingers of the operator from entering the danger zone during 

the operating cycle. Acceptable methods of guarding are: 

* * * 

(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. 

{¶ 28} The specific safety rule at issue here is the "pull-guard" method of guarding 

as set forth at Ohio Adm.Code 4123:1-5-11(E)(4). 

{¶ 29} It can be further noted that Ohio Adm.Code 4123:1-5-01(B) sets forth at 

least two definitions applicable here: 

(34) "Danger zone": the point of operation where a known 

hazard exists. 

* * * 
No. 14AP-295 16 

(70) "Guarded": means that the object is covered, fenced, 

railed, enclosed, or otherwise shielded from accidental 

contact. 

Basic VSSR Law 

{¶ 30} 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). 

{¶ 31} 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). 

{¶ 32} 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). 

{¶ 33} 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). 

{¶ 34} 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). 

{¶ 35} 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 
No. 14AP-295 17 

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. 

First Issue

{¶ 36} In State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972), 

paragraph one of the syllabus states: 

The term, 'specific requirement,' as used in Section 35, 

Article II of the Constitution of Ohio, does not comprehend a 

general course of conduct or general duties or obligations 

flowing from the relation of employer and employee, but 

embraces such lawful, specific and definite requirements or 

standards of conduct as are prescribed by statute or by 

orders of the Industrial Commission, and which are of a 

character plainly to apprise an employer of his legal 

obligation toward his employees. 

{¶ 37} In State ex rel. Rockwell Internatl. v. Indus. Comm., 10th Dist. No. 79AP720 (June 3, 1980), a case extensively discussed in the SHO's order of October 8, 2013, 

this court had occasion to apply Trydle when it determined that the commission had not 

abused its discretion in issuing a VSSR award. 

{¶ 38} The commission had determined that the employer had failed to properly 

adjust the pull-back guards before the claimant began working on the press and that this 

failure was the direct and proximate cause of the injury. The commission in Rockwell

addressed the rule found at former Bulletin-IC-5-08.03(D). 

{¶ 39} Unlike the specific safety rule at issue here, in Rockwell, the rule's language 

stated that pull-guards shall not be used unless adjusted to keep the finger tips of the 

operator from the pinch point. 

{¶ 40} Here, relator asserts that "[t]he 'adjustment' provisions of the old safety 

regulation were not incorporated into O.A.C. 4123-1-5-11(E)." (Relator's brief, 5.) 

{¶ 41} Based upon that assertion and this court's decision in Rockwell, relator 

concludes that Ohio Adm.Code 4123-1-5-11(E) cannot be interpreted to require relator to 

correctly adjust the pull-guard prior to Youtsey's running of the press because, to do so, 

would violate the well-settled principle as set forth in Trydle that the safety rule must 

plainly apprise an employer of its legal obligation toward its employees. Thus, relator 

endeavors to place the duty to adjust the pull-guards squarely on Youtsey. As relator here 
No. 14AP-295 18 

puts it, "employee Youtsey failed to ensure that the fully functional safety pull-backs on 

Press #400 were adjusted properly before he operated the Press * * *." (Relator's brief, 

19.) The magistrate disagrees with relator's argument. 

{¶ 42} Contrary to relator's suggestion here, that Ohio Adm.Code 4123-1-5-

11(E)(4) does not contain language similar to that found at former Bulletin-IC-5-

08.03(D), that specifically requires "adjustment" of the pull-guards, does not 

automatically compel the conclusion that Ohio Adm.Code 4123-1-5-11(E)(4) fails to 

require pull-guard adjustment by the employer. 

{¶ 43} Again, Ohio Adm.Code 4123-1-5-11(E)(4) provides: 

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

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

fingers of the operator from entering the danger zone during 

the operating cycle. Acceptable methods of guarding are: 

* * * 

(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. 

{¶ 44} In the magistrate's view, employer adjusted pull-guards are mandated when 

the safety rule at issue states that every hydraulic or pneumatic press "shall be guarded to 

prevent the hands or fingers of the operator from entering the danger zone during the 

operating cycle" and when the rule further states that "movement of the ram will pull the 

operator's hands from the danger zone during the operating cycle." (Emphasis added.) 

That the word "adjustment" is absent from Ohio Adm.Code 4123-1-5-11(E)(4) is of no 

consequence. The rule at issue plainly apprises the employer that the pull-guards 

provided by the employer shall be guarded in a manner that will pull the operator's hands 

from the danger zone during the operating cycle. 

{¶ 45} Based on the above analysis, the magistrate concludes that the SHO's order 

of October 8, 2013 does not misapply the Rockwell case. Moreover, contrary to relator's 

position here, Ohio Adm.Code 4123-1-5-11(E)(4) did plainly apprise relator that it had the 

duty to properly adjust the pull-guard prior to Youtsey's running of the press. 

 
No. 14AP-295 19 

Second Issue

{¶ 46} As earlier noted, the second issue is whether the commission abused its 

discretion in finding that the unilateral negligence defense was not applicable to absolve 

relator from VSSR liability. 

{¶ 47} Relator's argument for the unilateral negligence defense is undermined by 

its failure to recognize that Ohio Adm.Code 4123:1-5-11(E) placed a duty on relator to 

properly adjust the pull-guard prior to Youtsey's running of the press. Thus, relator 

refuses to take responsibility for Hurst's undisputed failure to properly adjust the pullguard. 

{¶ 48} To reiterate the key VSSR principle involved here, a claimant's alleged 

negligence is a defense only where the employer has first complied with relevant safety 

requirements. Hirschvogel. A claimant's negligence bars a VSSR award only where the 

claimant deliberately renders an otherwise complying device non-compliant. R.E.H. 

{¶ 49} It is largely undisputed that Hurst, an Amanda employee assigned by 

Amanda to perform the safety setup, failed to properly adjust the pull-guard prior to 

Youtsey's running of the press. In fact, Amanda disciplined Hurst for his failure to 

properly adjust Youtsey's safeties. 

{¶ 50} Because the pull-guard was never properly adjusted prior to Youtsey's 

running of the press, relator cannot argue here that it complied with the safety rule at 

issue. That is, while the pull-guard itself was not defective, it was never made effective as 

a guard due to the failure of Hurst to properly adjust the pull-guard. 

{¶ 51} Given the above analysis, all of relator's endeavors to show negligence on 

the part of Youtsey are indeed inconsequential. Even if it can be said that Youtsey was 

negligent by his failure to report his concern to his supervisor Mr. Losey, the negligence 

does not bar a VSSR award. 

{¶ 52} In short, the commission did not abuse its discretion when it rejected 

relator's unilateral negligence defense. 

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

request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 14AP-295 20 

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).