[Cite as State ex rel. Camaco, L.L.C. v. Albu, 2014-Ohio-5330.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

State ex rel. Camaco, LLC, : 

 

 Relator, : 

 

v. : No. 13AP-1002 

 

Robert J. Albu and The Industrial : (REGULAR CALENDAR) 

Commission of Ohio, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on December 2, 2014

 

Davis & Young, Richard M. Garner and Sunny L. Horacek, 

for relator. 

Bentoff & Duber Co., LPA, and Glen Richardson, for 

respondent Robert J. Albu. 

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

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

ON OBJECTIONS TO MAGISTRATE'S DECISION 

DORRIAN, J. 

{¶ 1} Relator, Camaco, LLC ("relator"), filed this original action requesting a writ 

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

vacate its order granting a violation of a specific safety requirement ("VSSR") award 

related to a workplace injury sustained by respondent Robert J. Albu ("claimant"), and 

ordering the commission to find that there was no VSSR. 
No. 13AP-1002 2 

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

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

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

that this court deny the request for a writ of mandamus. 

{¶ 3} Relator sets forth two objections to the magistrate's decision: 

1. The Magistrate incorrectly found that Albu was entitled to 

the VSSR Award where the undisputed evidence proves that 

Albu's injuries were caused by: (a) a hidden, latent design or 

manufacturing defect in the Wayne Trail 2; and/or (b) Albu 

knowingly and unilaterally bypassing safety devices for the 

Wayne Trail 2 that would have protected him from injury. 

2. The Magistrate incorrectly found that Camaco waived the 

right to argue that Albu's injuries were caused by a hidden, 

latent design or manufacturing defect in the Wayne Trail 2. 

{¶ 4} As explained in the magistrate's decision, claimant was injured while 

correcting a malfunction in a system that used a Motoman robot to transfer pipes to a 

Wayne Trail 2 bending machine that bent the pipes to form frames for automobile seats. 

The system was contained inside a fenced area, or "cell." The cell could be accessed via 

two safety-interlocked doors that were designed to stop power to the Motoman robot and 

the Wayne Trail 2 bending machine when opened. On the day he was injured, claimant 

entered the cell to make adjustments to the Motoman robot through an opening in the 

perimeter fence that was intended to allow finished product to exit, rather than through 

the interlocked doors. In support of his VSSR claim, claimant offered a report from 

Vernon Mangold, Jr., an expert in the design and operation of robotic systems, who 

concluded that the emergency stop circuit on the system was improperly and defectively 

designed. 

{¶ 5} Following an initial order denying the VSSR claim, the commission granted 

claimant's request for rehearing, and a second staff hearing officer ("SHO") granted the 

award. The second SHO relied on the Mangold report and concluded that claimant's 

injury would have occurred even if claimant had entered the cell through the main door 

because of the defective stop circuit. The SHO further noted that "[Mangold] indicated 

that even the employees of Wayne Trail who trained the employees of the Employer were 
No. 13AP-1002 3 

not aware of this." (Second SHO Report, 2.) On review of relator's mandamus claim, the 

magistrate concluded that the Mangold report constituted some evidence on which the 

commission could rely in concluding that relator violated a safety requirement. The 

magistrate further concluded that relator waived the argument that a VSSR award was 

inappropriate because the accident resulted from a latent defect and that relator was 

unaware of the defect. 

{¶ 6} We begin with relator's second objection, in which relator asserts that the 

magistrate incorrectly concluded that it waived the right to argue that the accident 

resulted from a latent defect. Generally, reviewing courts do not "consider an error which 

the complaining party 'could have called, but did not call, to the trial court's attention at a 

time when such error could have been avoided or corrected by the trial court.' " State ex 

rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997), quoting State v. 

Williams, 51 Ohio St.2d 112, 117 (1977). This principle has been applied in cases involving 

the commission and in cases seeking mandamus relief. See Quarto Mining at 81-82; State 

ex rel. Gibson v. Indus. Comm., 39 Ohio St.3d 319, 320 (1988); State ex rel. M.T.D. 

Prods., Inc. v. Stebbins, 43 Ohio St.2d 114, 118 (1975). 

{¶ 7} In M.T.D. Prods., the claimant was injured while operating a plastic 

injection molding machine. M.T.D. Prods. at 114. The commission granted a VSSR award, 

concluding that the injury was caused by the lack of an effective guard on the machine. Id.

at 117. On appeal, the Supreme Court of Ohio concluded that the machine in question had 

a safety gate that complied with the relevant safety requirements and that the safety gate 

had not malfunctioned prior to the claimant's injury. Id. at 117-18. The Supreme Court 

held that the commission abused its discretion in granting the VSSR award because a 

single failure of the safety gate was not sufficient to find that the regulation was violated. 

Id. at 118. In reaching its decision, the Supreme Court rejected the claimant's argument 

that the employer had notice that the machine was not operating properly because the 

claimant asserted this argument for the first time on appeal. Id.

{¶ 8} The present case presents a scenario similar to M.T.D. Prods. In this case, 

after the second SHO granted the VSSR award, relator filed a motion for rehearing. In the 

memorandum in support of its motion, relator argued that the Mangold report was 

inaccurate and that the expert reports and witness testimony that relator presented 
No. 13AP-1002 4 

contradicted the Mangold report. Relator claimed that the second SHO abused her 

discretion by failing to make a credibility determination with respect to the contradictory 

expert reports. However, in its motion for rehearing, relator did not argue that the 

accident resulted from a latent defect, nor that it lacked notice or knowledge of any defect 

in the system.1 Relator could have offered this as an alternative basis for granting 

rehearing but failed to raise this issue before the commission.2 Instead, relator asserted 

the argument for the first time in this court before the magistrate. The magistrate 

properly concluded that relator waived the issue by failing to assert it in the proceedings 

before the commission. We agree and reject relator's second objection that the magistrate 

erred by concluding that relator waived the latent-defect argument. 

{¶ 9} As an alternative, relator asserts that, even if the latent-defect argument was 

waived, the commission's grant of the VSSR award constitutes plain error. In a civil 

proceeding, "plain error involves those extremely rare cases where exceptional 

circumstances require its application to prevent a manifest miscarriage of justice, and 

where the error complained of, if left uncorrected, would have a material, adverse effect 

on the character of and public confidence in, judicial proceedings." In re Moore, 10th Dist. 

No. 04AP-299, 2005-Ohio-747, ¶ 8, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 

(1997). Reviewing courts must proceed with "the utmost caution" in applying the doctrine 

of plain error in civil cases. Goldfuss at 121. We are unaware of any case in which the 

plain-error doctrine has been applied to overrule a commission decision granting a VSSR 

award, and relator fails to cite any such decision. Relator argues that it would be unjust to 

impose VSSR liability when the accident was the result of a latent defect. However, 

although relator states in its objections that the second SHO found that claimant's 

circumvention of the safety feature did not cause the accident "because there was a 

 

1 In its motion for rehearing, relator quoted portions of the second SHO's report and highlighted in 

particular the following: "Mr. Mangold indicated that it was not possible for the Injured Worker to enter the 

enclosure and then turn on power only to the robot by means of the teach pendant. Mr. Mangold states that 

the transfer arm of the bending machine was capable of moving at full speed when the robot was in teach 

mode." (Motion for Rehearing, 2.) Relator then inserted ellipses in lieu of the following sentence from the 

second SHO's report: "[Mangold] indicated that even the employees of Wayne Trail who trained the 

employees of the Employer were not aware of this." It is the latter sentence which relator now highlights on 

appeal. 

2 Relator filed a "Motion to Vacate and to Reinstate Motion for Rehearing" after the commission denied its 

motion for rehearing. Therein, relator raised only technical/procedural issues but did not raise the issue of 

latent defect. 
No. 13AP-1002 5 

hidden, latent defect in Wayne Trail 2, that neither Albu nor Camaco knew of" that 

allowed the transfer arm to continue to operate in teach mode, careful reading of the 

SHO's finding belies relator's statement. (Emphasis added.) (Objections, 7.) While the 

SHO did find that the transfer arm was capable of moving at full speed in teach mode, she 

noted that Mangold indicated that "the employees of Wayne Trail who trained the 

employees of the Employer were not aware of this." (Emphasis added.) (Second SHO 

Report, 2.) Relator argues this necessarily means that relator could not have been aware 

of it. We do not agree. Contrary to relator's assertion, the SHO did not find that relator 

was unaware of the defect.3 Furthermore, relator points us to no evidence in support of its 

argument that it was unaware. Under these circumstances, we conclude that this is not 

one of those rare cases where the plain-error doctrine must be applied to prevent a 

manifest miscarriage of justice. 

{¶ 10} Accordingly, relator's second objection to the magistrate's decision lacks 

merit and is overruled. 

{¶ 11} In relator's first objection, it argues that the magistrate erred by finding that 

claimant was entitled to the VSSR award because his injuries were caused by a latent 

defect in the system and because claimant unilaterally bypassed safety devices that would 

have protected him from injury. With respect to the first argument, that claimant's 

injuries were caused by a latent defect, as explained above, relator waived this argument 

by failing to assert it before the commission. With respect to the second argument, that 

claimant unilaterally bypassed safety devices by entering the enclosure through an exit 

chute rather than the main door, the second SHO rejected this argument. Relying on the 

Mangold report, the second SHO concluded the injury would have occurred even if 

claimant had entered through the main door. The magistrate properly concluded that the 

Mangold report constituted some evidence on which the commission could rely in 

granting the VSSR award. 

{¶ 12} Accordingly, relator's first objection to the magistrate's decision lacks merit 

and is overruled. 

 

3 Here, we note as well that there was evidence presented to the commission indicating that, prior to 

claimant's accident, another employee was nearly struck when performing a similar task and that one 

employee spoke with relator's maintenance supervisor about modifying the system to avoid the risk of 

injury. See Sheppard Depo., Stipulated Evidence at 254, 260-61. 
No. 13AP-1002 6 

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

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

properly determined the pertinent facts and applied the appropriate law. We therefore 

overrule relator's two objections to the magistrate's decision and adopt the magistrate's 

decision as our own, including the findings of fact and conclusions of law contained 

therein. Accordingly, the requested writ of mandamus is hereby denied. 

Objections overruled; writ denied.

TYACK and KLATT, JJ., concur. 

_______________ 

 
No. 13AP-1002 7 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Camaco, LLC, : 

 

 Relator, : 

 

v. : No. 13AP-1002 

 

Robert J. Albu and The Industrial : (REGULAR CALENDAR) 

Commission of Ohio, 

 : 

 Respondents. 

 : 

 

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

Rendered on May 29, 2014

 

Davis & Young, Richard M. Garner and Sunny L. Horacek, 

for relator. 

Bentoff & Duber Co., LPA, and Glen Richardson, for 

respondent Robert J. Albu. 

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

respondent Industrial Commission of Ohio. 

 

IN MANDAMUS 

 

{¶ 14} Relator, Camaco, LLC ("relator" or "Camaco"), has filed this original action 

requesting that this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to vacate its order finding that relator violated a 
No. 13AP-1002 8 

specific safety requirement ("VSSR") relative to the work-related injury sustained by 

Robert J. Albu ("claimant"), and ordering the commission to find that there was no VSSR. 

Findings of Fact: 

{¶ 15} 1. Claimant sustained a work-related injury on January 31, 2006 when he 

was struck in the head by the transfer arm of a Wayne Trail 2 bending machine and then 

struck his head on a pipe. Claimant's workers' compensation claim has been allowed for 

the following conditions: 

Open skull/other fracture-brief coma; encephalocele; 

fracture condyle process mandible-closed; contusion, face; 

cortex contusion-brief coma; ankylosis left ear ossicles; orbit 

deformity due to trauma-right; open wound face 

complicated; open wound external left ear; open wound 

scalp-complicated; traumatic brain injury; subdural 

hemorrhage; brain conditions; nonpsychotic brain 

syndrome; brief depressive reaction; conductive hear loss 

tympanic membrane, left ear; cervical syndrome. 

{¶ 16} 2. There is no real dispute by the parties concerning how claimant's injuries 

occurred. Claimant was employed as a weld technician by Camaco, which manufactures 

automotive parts. The machine in question was a Wayne Trail 2 bending machine that 

bent pipes to form frames for automobile seats. In the same area, a Motoman robot 

would transfer pipes to the bending machine to accomplish this task. The job of the weld 

tech is to alter the program on the robot (teach the robot) to adjust for a weld operation. 

{¶ 17} At the time of the accident, the Wayne Trail 2 was being operated by Ollie 

Higgins—another Camaco employee. After Higgins changed parts during production, the 

robot picked up a part and moved it to another station, but then the entire process 

abruptly halted—presumably because it did not trip the sensor for the machine to keep 

running. Claimant was called to troubleshoot the problem. 

{¶ 18} Claimant's job as a weld-tech required him to correct malfunctions 

(troubleshoot) inside a fenced area or cell that contained the Wayne Trail 2 bending 

machine and a robot called a Motoman. On the day in question, claimant was called to 

resolve a jam that had occurred inside the cell when the transfer process between the 

Motoman and the Wayne Trail 2 malfunctioned. In order to troubleshoot or diagnose the 

problem, claimant could either be inside or outside the enclosed fenced area. 
No. 13AP-1002 9 

{¶ 19} On the day of injury, claimant was not able to see the problem area from 

outside the fenced area and needed to go inside the fenced area. Claimant did not gain 

access through the interlock doors. Claimant testified that he crawled through the gap 

between the machine and the fence where the machine's discharge or exit chute delivers 

the finished part. Entering the fenced area through the exit ramp chute does not shut 

down electricity to the Wayne Trail 2 or the Motoman robot. 

{¶ 20} When claimant entered the cell with the power on, he attempted to adjust 

the Motoman robot using the teach pendant. He apparently made an adjustment and the 

transfer arm from the Wayne Trail 2 moved and struck him in the head, driving his head 

into a pipe that was in the machine. This incident resulted in serious injuries to claimant. 

{¶ 21} 3. On April 27, 2007, claimant filed an application for an additional award 

for a VSSR under Ohio Adm.Code section 4123:1-5-17(G) alleging that relator failed to 

provide suitable protective headgear where his work activity exposed his head to potential 

physical contact with rigid objects. 

{¶ 22} 4. The Ohio Bureau of Workers' Compensation Safety Violations 

Investigation Unit conducted an investigation to determine whether claimant's injury was 

caused by relator's violation of a VSSR. The March 26, 2008 report is contained in the 

stipulation of evidence; however, the investigators did not reach a conclusion, and, 

instead, stated: 

There are conflicting statements about why Robert Albu 

entered into the wire-mesh fencing area of the machine. 

Robert Albu states in his sworn affidavit he was trained by 

Roland Sheppard, an experienced Weld Tech, to climb 

through the material exit opening of the fencing in order to 

program the Motoman robot (Exhibit 1). The employer states 

Robert Albu would have not received any injuries had he 

used the Motoman Teach Pendant properly and 

programmed the Motoman robot from outside the wiremesh fencing. Also, the employer states Robert Albu would 

not have received any injuries had he not bypassed the 

machine's safety features, the man-door interlocks, and 

entered the wire-mesh fencing through the material exit 

opening in the fencing. 

(Emphasis sic.) 
No. 13AP-1002 10 

{¶ 23} 5. While acknowledging that this will be a very simplistic description of how 

these machines work, the magistrate notes these basic facts. Two machines were involved 

here: the Wayne Trail 2 is used to bend metal tubing to form seat frames for automobiles 

and it uses a Motoman robot to move bent frame tubes to different molds during the 

manufacturing process. The machines are fully automated and are surrounded by a 

perimeter fence to keep workers safe and away from the machines. There are two safetyinterlocked doors which are designed to de-energize both machines when opened. 

{¶ 24} Claimant was employed by relator as a weld tech trainee and his duties 

included troubleshooting robotic problems with some of the automated machines used by 

relator including the Wayne Trail 2 and its Motoman robot. Employees such as claimant 

used a "teach pendant" to re-program the Motoman robot. The teach pendant is 

supposed to control the Motoman robot at a slow speed while the Wayne Trail 2 is deenergized. 

{¶ 25} 6. At the hearings before the commission, relator's argument focused on the 

fact that it was undisputed that claimant gained access to the area inside the perimeter 

fence through an opening in the fence and did not utilize the safety doors. In this regard, 

relator asserts that if claimant would have entered the area through the safety doors, 

power to the machines would have been off, and claimant would not have sustained his 

injuries. 

{¶ 26} In response, claimant admitted that he gained access to the machine 

through an opening in the perimeter fencing and that he had been taught this method. 

Claimant also acknowledged that opening the safety doors would shut off power to both 

the Wayne Trail 2 and the Motoman robot. Claimant also indicated that it was necessary 

to have power turned on to both machines in order to troubleshoot the problems and use 

the teach pendant to alter the Motoman robot's actions. Because both machines needed 

to be energized, the opening in the perimeter fence was utilized by employees so that the 

machines would not need to be de-energized and then re-energized since that took time. 

{¶ 27} 7. Three different experts prepared reports relative to ongoing litigation. 

The magistrate has reviewed all three reports and below has noted salient findings and 

opinions of those three experts which are relevant to the issues raised here. 
No. 13AP-1002 11 

{¶ 28} (a) At the outset of his September 15, 2009 report, Steven Kramer, Ph.D., 

stated: 

At issue is the fence surrounding the work cell. The salient 

questions about the fence are: [1] Is it strong enough? [2] Is 

it large enough or too large? and [3] Does it do what it is 

supposed to do? The answers are: [1] yes, the fence is strong 

enough in that someone cannot break through and enter the 

work cell. [2] the work cell was made larger than it should 

have been in the area where workers needed to view the 

robot gripper in order to make adjustments. 

To question number three; does it do what it is supposed to 

do? The answer is yes and no. Yes to the portion of the fence 

with the two interlocking gates because when either is 

opened, the electrical, hydraulic and pneumatic power are 

shut down and therefore all motion of the robot and other 

equipment in the work cell stops. In depositions taken in 

May 2009, it was stated by Wayne Trail [hereafter noted as 

WT], that the robot will operate in teach mode with the 

interlocking gate open. However, this was not adequately, if 

at all, conveyed to Camaco since Mr. Albu and other Camaco 

employees did not know of this feature. Back to question 

three: The part of the answer which is No pertains to the 

portion of the fence where the parts exit the work cell in what 

has been called the exit opening or exit chute. 

At the time of the accident the portion of the fence where the 

bent tubes exited the work cell consisted of an opening that 

was 32 inches high by 71 inches wide starting at a height of 

21 inches above the floor. 

This opening was much larger than needed. * * * Had the 

opening been sized to allow only the bent tubes to exit the 

work cell, this accident would not have occurred. 

Camaco had safety walks throughout the plant by members 

of their safety committee every other week. It is unfortunate 

that no one on this committee identified this large opening 

as a potential problem. The RIA Standard says: 

"Safeguarding devices [in this case, the safety fence] shall be 

designed, constructed, attached and maintained to ensure 

that personnel cannot reach over, under, around, or through 

the device undetected and reach the hazard." More simply, 

the same standard in section 11.1 says: "Barrier guards, fixed 

and interlocked, shall prevent access to a hazard." In my 
No. 13AP-1002 12 

opinion, the safety committee should have identified this 

large opening as a potential problem and made the opening 

smaller. Had they done this, the accident would not have 

occurred. 

Someone designing this safety fence as well as someone in 

charge of safety at this company should have known that 

employees at some point would climb through such an 

opening as a shortcut. The safety standards for robotics and 

moving machinery accept as a predicate that workers will 

either inadvertently, or intentionally, obtain access to 

machinery that is guarded by an inadequate fixed barrier 

guard. Why? Sometimes workers try to cut corners, 

sometimes they are pressured to keeping production running 

while needing to fix a jam-up, or sometimes they think they 

can make an adjustment on-the-fly in the work cell. The 

safety standards accept this as a premise in the design of the 

machinery and safety devices. Thus, the design of this 

machinery and safety fence were a proximate cause in this 

accident. 

* * * 

There is another issue regarding the design of the work cell. 

That is, the equipment that gripped the tubes was positioned 

inside the work cell such that they could not be adequately 

seen from outside the work cell. On page 102 and 103 of Mr. 

Curtis Taylor's deposition, Mr. Taylor says Mr. Albu couldn't 

have made the adjustment from outside "because you have a 

big post in your way when you're looking at it from the 

backside of the machine....it's so far away and up so high you 

can't see the die itself...and you have the second flattening 

station that are all in your line of sight to be able to see 

exactly what you had to do to lay that part down." 

Consequently weld techs needed to enter the work cell to get 

a better look in order to make any needed adjustments. Also 

Mr. Roland Sheppard stated in his deposition that weld techs 

who were positioned outside the work cell said they could 

not adequately see how the tubes were being gripped in the 

clamping devices. Consequently weld techs had to enter the 

work cell to get a closer look in order to troubleshoot and 

touch-up [their word for adjust] a pickup or drop-off point. 

They indicated they needed the power kept on in order to 

make the proper adjustment. Mr. Taylor said [page 97] 

"now...after the accident, we don't run that side. We run the 

other side where everything is easy to see, its right in front of 
No. 13AP-1002 13 

you up close, you know. You can adjust any problem as far as 

the robot goes, you can adjust from outside." 

Having personally seen the work cell on February 10, 2009 I 

can corroborate that the clamping devices were too far from 

the fence to be adequately viewed from outside the work cell. 

If the clamping devices would have been positioned closer to 

any portion of the fence, or the fence positioned closer to 

where the pickup and drop-off positions were, touch-up 

could have been accomplished using the pendant from 

outside the work cell. From a design standpoint, it was 

entirely feasible to reposition the clamping devices, benders, 

robot, fence and transfer mechanisms, just as done on the 

other side of this work cell. Had the work cell been so 

designed, there would have been no need to enter the work 

cell with it powered up. 

In order to adequately troubleshoot the manufacturing line 

[and hence adjust a drop-off or pickup point] a weld tech or 

other suitably trained person needed to be inside the work 

cell with the power turned on and the robot in teach mode. 

Camaco did not have a policy about entering the work cell. 

The policy they did have concerning not dismantling or 

overriding or tampering guarding [Exhibit 8] was ambiguous 

because it was interpreted by weld techs to not apply to 

troubleshooting as well as not prohibiting entering the work 

cell through the unguarded exit opening. 

In April and May you sent me the following depositions for 

my review: Stephanie Fox, William Hamby Jr., Ollie Higgins, 

Alfred Horton III, David Maysonet, Patrick Schwartz, Roland 

Sheppard, Curtis Taylor, Jonathan Wright and of course 

Robert Albu in January 2009. In June you sent me 

depositions for review of: Matthew Brown, Danny Haid, 

Kevin Greiner, Chris May, Robert Mayse, Scott McCabe, and 

Mark Swob. Although your safety expert, Mr. Rennell, will 

likely comment on safety issues discussed in these 

depositions, I noted the following points in the deposition of 

Mr. Roland Sheppard. Mr. Sheppard stated...and I'm 

paraphrasing: 

[One] The work cell did not have any sort of physical safety 

device preventing or stopping people from entering it 

through the parts exit opening which was large enough for a 

grown man to fit through it rather easily. 
No. 13AP-1002 14 

[Two] The company put production numbers ahead of safety. 

They cared about production numbers and getting parts out; 

that's why their quality lagged. They make it an emphasis to 

get the equipment or the work cell back up and running as 

quickly as possible. 

[Three] Several weld techs were inside of the WT2 work cell 

while it was powered up and the company knew this. 

[Four] Dave Maysonet almost had a near miss on this line 

some time before Albu's accident. 

[Five] Maintenance supervisor, Bill Hamby, Jr. said he 

would look into trying to figure out a way for us to be able to 

be in the work cell without all of this other stuff going on. 

Mr. Taylor also detailed that several weld techs including 

himself entered the work cell through the exit opening in 

order to troubleshoot and adjust the robot pickup and dropoff points. He provided an accurate description of the power 

to the robot and other equipment and how the sensors sent 

signals to these devices. He indicated it was the WT guys who 

showed Camaco employees how to go into the work cell 

when necessary [page 32]. It appears that it was common 

practice at Camaco for weld techs to enter the work cell when 

the power was on in order to fix a problem that might have 

occurred. In my opinion, this clearly violates good safety 

principles in the workplace since injury was substantially 

certain to occur. 

* * * 

In the WT2 work cell at Camaco it appears the robot can 

move in teach mode while the interlock barrier gate is open. 

This in itself is not a violation of RIA or OSHA. However, it is 

not known if the speed of 10 inches/second [for safety, no 

doubt] was maintained in troubleshooting mode. 

(Emphasis sic.) 

(b) In his October 14, 2009 report, Tarald O. Kvalseth, Ph.D., noted: 

The opening through the fence was unnecessarily large and 

could easily and foreseeably be used by an individual to enter 

the cell to perform maintenance work or troubleshooting 

instead of going through an interlocked gate. Entering 

through that opening could certainly and foreseeably be 
No. 13AP-1002 15 

perceived by an individual as being more efficient than going 

through an interlocked gate, which would shut down the 

power to the equipment. 

* * * 

Camaco had not provided Robert Albu with sufficient 

training for him to perform the type of maintenance and 

troubleshooting that he was doing at the time of his injury. It 

seems clear from his and other depositions that he was not 

sufficiently qualified to do this work by himself. 

* * * 

The unsafe act by Robert Albu involved entering the 

enclosure through the fence opening rather than using the 

electrically interlocked gate, which would have de-energized 

the equipment. However, he apparently did it as he had 

observed others do it. He did not act contrary to any 

instructions he had been provided with. He believed that he 

needed power to the equipment in order to properly perform 

his task, which could be achieved efficiently by going through 

the fence opening. He did not act contrary to any warning 

sign informing or reminding him that this fence opening 

should not be used to enter the enclosure since none was 

provided. 

(c) The November 30, 2009 report of Vernon Mangold, Jr., who stated: 

At the time that WTT designed, fabricated and installed the 

system at Camaco they did not have a thorough 

understanding of the operation and function of the Motoman 

controller. In layman's language: their recommended fault 

recovery process was incorrect and potentially lethal. 

In several of the depositions WTT personnel erroneously 

state that Mr. Albu's incident could not have happened if he 

entered the work cell via the main entrance gate. They assert 

that entering through the gate would have placed the system 

in a hold mode and the robot would be placed in teach mode 

to allow Albu to correct the type of machine fault that he 

observed at the dimple press. They have emphatically stated 

that the transfer device could not have injured Albu while he 

was standing in the danger zone of the dimple press with the 

robot teach pendant in hand and the robot in teach mode. 
No. 13AP-1002 16 

Simply put: Conventional robots that have been marketed 

and sold in the US since 1992 are equipped with 

sophisticated safety control devices known as teach 

pendants. Modern teach pendants are equipped with a midposition enable switch that must be properly depressed to 

cause the robot to move exclusively by means of teach 

pendant control. The robot is restricted in its movement so 

that it cannot travel any faster than what is described as slow 

speed during teach mode. This control feature is useful but is 

specific to the robot only. 

It can be proven that the robot did not strike anyone. 

However, the transfer device that did strike Mr. Albu was, at 

the time of the incident, capable of moving at full speed 

while the robot is in tech mode. How is this possible? Robot 

control interfaces have a factory installed feature that allows 

a person to, in the parlance of the industry, "Force an Output 

On" from the teach pendant with the robot in the teach 

mode. 

It is incorrect to assert that Albu would have been safe with 

the robot in teach mode. WTT designed and built a PLC 

control system that allowed for a custom robotic device, in 

this case the overhead transfer mechanism that struck Albu, 

and a vertical hydraulic dimple press, to operate 

independently of the robot machine control. 

* * * 

Emergency stop circuit was improperly and defectively 

designed because the robot teach pendant emergency-stop is 

not designed to emergency-stop all equipment within work 

cell that can produce safety hazards to personnel. WTT failed 

to provide a proper emergency stop control scheme 

integrating emergency stop controls in a coherent electrical 

design that complies with ANSI single point of control 

requirements. Thus, the functioning of the robot teach 

pendant emergency stop control and the interaction of the 

control feature with other capital equipment system 

elements present in the integrated system was not properly 

designed. In the event that the emergency-stop circuit had 

been properly designed, then the use of the e-stop control on 

the teach pendant could have prevented Mr. Albu's incident 

from occurring. The risks of this emergency stop circuit 

design outweigh any conceivable benefit. 
No. 13AP-1002 17 

* * * 

At the time WTT designed, fabricated and installed this 

industrial robot system at Camaco they (WTT) did not have a 

thorough understanding of the operation and function of the 

Motorman controller. WTT's recommended fault recovery 

process was incorrect, hazardous, defective and potentially 

lethal. The transfer device that did strike Mr. Albu was 

capable of moving at full speed even if the robot was in teach 

mode and even if Mr. Albu entered the work cell through the 

interlocked gate. As a result, it is incorrect to claim that Mr. 

Albu would have been safe with the robot in teach mode 

because the program logic control (PLC) control [sic] system 

that WTT designed and built allowed for the subject 

overhead transfer mechanism and the vertical hydraulic 

dimple press to operate independently of the robot machine 

control. 

{¶ 29} 8. Claimant's application was heard before a staff hearing officer ("SHO") 

on December 19, 2012. The SHO determined that claimant was not entitled to an 

additional award for a VSSR solely because he circumvented the machine's safety 

features. Specifically, the SHO stated: 

The Staff Hearing Officer finds that, but for Mr. Albu's 

intentional act in circumventing the safety features (limit 

switch equipped man doors) protecting the cell, the Wayne 

Trail machine would not have been energized at the time 

during which Mr. Albu was within the cell and that, 

consequently, his injury would not have taken place. The 

question of whether or not head protection was required or 

whether or not there was a violation of O.A.C. 4123:1-5-17(G) 

is not pertinent in the present scenario as there would have 

been no potential for a head injury to occur, in the manner 

sustained by Mr. Albu, had the personnel doors been used by 

Mr. Albu and the cell de-energized. 

For all the foregoing reasons, the IC-8 application is denied. 

All evidence on file and at hearing, including the 12/18/2012 

report of Dr. Vargo, the 12/17/2008 deposition of Robert 

Albu, the 04/16/2009 deposition of Roland Sheppard, the 

04/15/2009 deposition of Jonathan V. Wright and the 

04/15/2009 deposition of Alfred F. Horton, was reviewed 

and considered. 

 

{¶ 30} 9. Claimant filed a motion for rehearing. 
No. 13AP-1002 18 

{¶ 31} 10. In an order mailed March 20, 2013, an SHO granted claimant's motion, 

stating: 

It is the order of the Industrial Commission that the Motion 

for Rehearing be granted for the reason that the Injured 

Worker has demonstrated that the order issued 01/26/2013 

was bas[ed] on a clear mistake of law in accordance with 

Ohio Administrative Code 4121-3-20(E)(1)(b). 

The Injured Worker's counsel sites [sic] to evidence in the 

rehearing request that indicates the Injured Worker had to 

be inside the cell with the power to the machine on in order 

to trouble shoot and fix the Motoman that was not working. 

He also cites evidence indicating the Motoman and the 

Wayne Trail machine were interconnected power wise and 

that the power could not be turned on or off to each 

separately. The Staff Hearing Order fails to address these 

issues and fails to cite any evidence to indicate the Injured 

Worker did not need to be inside the cell with the power on 

to the Motoman, and thus also to the Wayne Trail machine,

in order to trouble shoot and fix the Motoman. The 

Employer's rebuttal memo to the rehearing request fails to 

cite any evidence that contradicts what is noted by the 

Injured Worker's counsel. 

If the evidence sited [sic] by the Injured Worker's counsel is 

correct, then the intentional circumvention of the doors that 

automatically shut off the power is immaterial as the power 

would have to have been turned back on once the Injured 

Worker was inside the cell so he could perform the required 

trouble shooting even if he had used the doors. The 

intentional circumvention of the safety feature is only a bar 

to an award if the injury would not have occurred had the 

circumvention not occurred. In this case the order fails to 

explain why the Injured Worker's argument is not correct 

that the injury would have occurred despite the 

circumvention of the safety feature of the doors since the 

power had to be on once the Injured Worker was in the cell. 

Since the Staff Hearing Order fails to address this issue and 

site [sic] evidence indicating the power did not need to be 

turned on once the Injured Worker was in the cell whether 

he used the doors to enter or not, or that the Wayne Trail 

could be turned off without the Motoman being turned off, it 

is found the order is not legally sufficient pursuant to [State 

ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481 

(1983)]. 
No. 13AP-1002 19 

Further, since the order found no violation solely because of 

the Injured Worker's circumvention of the safety feature 

associated with the doors, the order does not address 

whether head protection would have been required by the 

rule once the Injured Worker was inside the cell with the 

power back on if such was in fact required to perform the 

trouble shooting. 

(Emphasis added.) 

{¶ 32} 11. The matter was reheard before a second SHO on June 26, 2013. The 

SHO concluded that claimant was entitled to an additional award for a VSSR, stating: 

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 weld technician; that the Injured Worker 

sustained an injury in the course of and arising out of 

employment when he was struck in the head by a transfer 

arm from a Wayne Trail bending machine and then struck 

his head on a pipe. 

At the time of the injury the Injured Worker had been 

assigned to correct a malfunction in a fenced in area that 

contained a Motoman robot and the Wayne Trail bending 

machine. Under normal circumstances the robot transferred 

pipes to the bending machine where they would be formed 

into frames for automobile seating. On the day in question 

the transfer process had malfunctioned and the bending 

machine was not accepting the transfer of a pipe. The 

Injured Worker was called in to correct the situation. He 

stated that he needed to enter the enclosure to make the 

repair as he could not see the area of the problem from 

outside the enclosure. 

The fenced in area was designed so that when a person 

entered the enclosure through a door power was cut off to 

both the robot and the bending machine. At the time of the 

injury the Injured Worker did not enter the fenced in area 

through a door. He, rather, climbed into the enclosure 

through an opening that was designed to permit finished 

product to leave the enclosure. The Injured Worker testified 

that he had observed other employees enter the enclosure in 

this way prior to the date of the injury and that he did so as 

he did not want to cut off power to the bending machine as 

he did not know how to restart it. Prior to entering the 
No. 13AP-1002 20 

enclosure the Injured Worker picked up a hand held device 

called a teach pendant and shut off the power to the robot. 

He then slid the teach pendant under the bottom of the 

enclosure and entered the fenced in area. He does not 

remember any of the events following this until a point after 

which the injur[y] had occurred. The evidence indicates that 

the Injured Worker attempted to adjust the robot using the 

teach pendant and the transfer arm of the bending machine 

moved and struck the Injured Worker in the head. He was 

then thrown into the pipe that was in the machine. 

The Injured Worker has requested a finding that his injury 

was the result of the Employer's violation of Section 4123:1-

5-17(G) of the Ohio Administrate Code. This section requires 

an Employer to provide an employee with suitable protective 

headgear where his work activity exposes him to potential 

hazards from falling or flying objects or where there is the 

potential of physical contact to the head from rigid objects. 

There is no evidence that the Injured Worker's employment 

presented him with potential hazards from falling or flying 

objects. The issue is whether his employment presented a 

potential hazard of contact with rigid objects. 

The Employer has asserted that the work activity presented 

no potential hazard of contact with rigid objects. It states 

that the Injured Worker bypassed a safety device when he 

failed to enter the enclosure through a door thereby shutting 

off all power. The Employer argued that, if he had entered 

through a door, the Injured Worker could have used the 

teach pendant to repair the robot by using the teach pendant 

to turn on power only to the robot and then make the repair 

when the robot was in teach mode. After the repair was 

made, the Injured Worker would have exited the enclosure 

and then turned on power to all of the machinery. 

There is no doubt that the Injured Worker bypassed a safety 

device when he entered the enclosure through means other 

than the main door. The Hearing Officer, however, finds that 

the injury would have occurred even if the Injured Worker 

had gone into the enclosure through the main door. The file 

contains a report from Vernon Mangold, an expert in the 

design and operation of robotic systems. Mr. Mangold 

indicated that it was not possible for the Injured Worker to 

enter the enclosure and then turn on power only to the robot 

by means of the teach pendant. Mr. Mangold states that the 

transfer arm of the bending machine was capable of moving 
No. 13AP-1002 21 

at full speed when the robot was in teach mode. He indicated 

that even the employees of Wayne Trail who trained the 

employees of the Employer were not aware of this. 

The Hearing Officer finds that the Injured Worker's 

employer did present a potential hazard of head contact with 

rigid objects as the system did not permit power to be turned 

off to the bending machine when power to the robot was 

activated. The Employer, therefore, should have provided 

head protection to the Injured Worker. Had the Employer 

done so the injury might not have occurred or might have 

been much less serious. 

It is therefore ordered that an additional award of 

compensation be granted to the Injured Worker in the 

amount of thirty-five percent of the maximum weekly rate 

under the rule of State ex rel. Engle v. Indus. Comm. (1944), 

142 Ohio St. 425. 

{¶ 33} 12. Relator filed requests for reconsideration and rehearing and argued that 

the Mangold report could not be relied on because it was contradicted by all the other 

evidence submitted. Further, relator asserted that the SHO failed to explain why the 

Mangold report was found to be persuasive. 

{¶ 34} 13. Relator's requests for reconsideration and rehearing were denied by 

orders of the commission mailed September 5 and 26, 2013. 

{¶ 35} 14. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 36} For the reasons that follow, it is this magistrate's decision that relator has 

not demonstrated that the commission abused its discretion by granting claimant an 

additional award for a VSSR and this court should deny relator's request for a writ of 

mandamus. 

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

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 
No. 13AP-1002 22 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 38} In regard to an application for an additional award for a VSSR, the claimant 

must establish that an applicable and specific safety requirement exists, which was in 

effect at the time of the injury, that the employer failed to comply with the requirement, 

and the failure to comply was the cause of the injury in question. State ex rel. Trydle v. 

Indus. Comm., 32 Ohio St.2d 257 (1972). The interpretation of a specific safety 

requirement is within the final jurisdiction of the commission. State ex rel. Berry v. 

Indus. Comm., 4 Ohio St.3d 193 (1983). Because a VSSR award is a penalty, however, it 

must be strictly construed, and all reasonable doubts concerning the interpretation of the 

safety standard are to be construed against its applicability to the employer. State ex rel. 

Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989). The question of whether an injury 

was caused by an employer's failure to satisfy a specific safety requirement is a question of 

fact to be decided by the commission subject only to the abuse of discretion tests. Trydle; 

State ex rel. A-F Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); and State ex rel. 

Ish v. Indus. Comm., 19 Ohio St.3d 28 (1985). 

{¶ 39} Relator raises some new arguments in this mandamus action which were 

never made to the commission. The only issue challenged below was whether or not the 

cited report of Mr. Mangold constituted some evidence upon which the commission could 

rely to find a VSSR. Relator argued before the commission and continues to argue that 

Mangold's report is contrary to the reports of Drs. Kramer and Kvalseth, as well as the 

testimony of Stephanie Fox, and the commission was required to explain the reason why. 

At this time, relator also contends that the Wayne Trail 2 had a design defect and because 

of that defect, relator could not be held responsible for claimant's injuries. 

{¶ 40} Ohio Adm.Code 4123:1-5-17 provides, in pertinent part: 

Personal protective equipment 
No. 13AP-1002 23 

* * * 

(G) Head and hair protection. 

(1) Responsibility. 

(a) Employer. 

(i) Whenever employees are required to be present where the 

potential hazards to their head exists from falling or flying 

objects, or from physical contact with rigid objects, or from 

exposures where there is a risk of injury from electric shock, 

employers shall provide employees with suitable protective 

headgear. 

{¶ 41} First, to the extent that relator argues that a VSSR is inappropriate because 

the Wayne Trail 2 had a latent defect, which relator did not know, relator failed to raise 

this issue when the matter was still before the commission. Ordinarily reviewing courts 

do not have to consider an error which the complaining party could have called, but did 

not call, to the lower tribunal is attention at a time when it could have been avoided or 

corrected. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78 (1997). These 

principles also apply to cases reviewed in mandamus. State ex rel. Gibson v. Indus. 

Comm., 39 Ohio St.3d 319, 320 (1988). 

{¶ 42} Relator asserts that it is immaterial that it did not raise this issue because 

the SHO made it an issue which this court must now consider in this mandamus action. 

However, the magistrate notes that relator could have raised this issue when it sought 

review of the June 26, 2013 SHO order; however, relator did not. Relator asserts the SHO 

made contradictory findings which negate any VSSR penalty. Relator asserts the SHO 

specifically found that, because of the latent defect, relator could not have known 

claimant's injuries could have occurred. However, relator still failed to raise this 

argument at a time when the commission could have considered it and the magistrate 

does not find it appropriate for this court to consider the potential implications of the 

SHO's statements. 

{¶ 43} Turning now to the finding of a VSSR, relator first argues that there were no 

potential hazards from physical contact with rigid objects when employees were outside 

the perimeter fencing. This was never an issue. The danger to employees arose because it 
No. 13AP-1002 24 

was impractical, if not impossible, to troubleshoot this machine from outside the 

perimeter fence. There is evidence in the record indicating that the preferred way to 

troubleshoot these machine was from outside the perimeter fence. As a result, when 

troubleshooting was required, employees needed to enter inside the perimeter fence. The 

safety-interlocked gates were designed to shut off power to both of the machines in the 

event that an employee needed access. However, there is evidence that the teach pendant 

did not work on the Motoman robot if the power to both machines was shut off. Further, 

there was a large opening in the perimeter fence used by employees to bypass the safetyinterlocked gates to gain access to the machine. There is also evidence that relator knew 

employees utilized this opening to gain access to the machine and warning signs were 

posted by the opening. This information is contained within the Mangold report and is 

corroborated in the other reports as well as deposition testimony from various employees. 

{¶ 44} Relator also argues that the finding of a VSSR here is improper because 

claimant deliberately circumvented the machine's safety features and cites State ex rel. 

Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190 (2000). This was never 

disputed by any of the parties. However, the SHO relied on evidence that even if claimant 

would have entered the area via the opening, the injury would have occurred. Given this 

finding, relator's argument fails. 

{¶ 45} Although relator challenged the Mangold report in its motion for rehearing, 

relator does not challenge that report here. Relator only argues that there cannot be a 

VSSR finding when the injuries were caused by a latent defect about which relator was 

unaware. As such, the magistrate finds the Mangold report does constitute some evidence 

upon which the commission could rely to find that even if claimant would have entered 

through the perimeter fence by way of the safety-interlocked doors, the transfer arm 

would have been capable of moving at full speed when the robot was in teach mode. As 

noted previously, the other arguments relator makes here, that the machine was defective, 

and this was a first time accident cannot be raised, for the first time, in this mandamus 

action. Relator failed to raise those arguments before the commission. 

{¶ 46} Based on the foregoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion when it found that relator had 
No. 13AP-1002 25 

violated a specific safety requirement in making that award to claimant, and this court 

should deny relator's request for mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA BROOKS 

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).