[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip Opinion No. 2018-Ohio-5086.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-5086

THE STATE EX REL. BYINGTON BUILDERS, LIMITED, APPELLANT, v.

INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Byington Builders, Ltd. v. Indus. Comm., Slip 

Opinion No. 2018-Ohio-5086.] 

Workers’ compensation—Violation of specific safety requirement—Industrial 

Commission did not abuse its discretion in granting additional award—

Record contained evidence supporting commission’s finding that specific 

safety requirement applied, that employer violated it, and that violation was 

proximate cause of injury—Court of appeals’ judgment denying of writ of 

mandamus affirmed.

(No. 2017-0690—Submitted July 31, 2018—Decided December 20, 2018.) 

APPEAL from the Court of Appeals for Franklin County, No. 15AP-407, 

2017-Ohio-2623. 

________________ 

 
SUPREME COURT OF OHIO

2

Per Curiam.

I. INTRODUCTION

{¶ 1} This is a workers’ compensation case in which appellee Industrial 

Commission awarded appellee Thomas Trousdale additional compensation for the 

violation of a specific safety requirement (“VSSR”) by appellant, Byington 

Builders, Ltd. (“Byington Builders”). Byington Builders asks this court to reverse 

the Tenth District Court of Appeals’ judgment denying its request for a writ of 

mandamus compelling the commission to vacate its VSSR award. 

{¶ 2} Byington Builders raises two issues in this appeal: (1) whether the 

commission abused its discretion by finding that Byington Builders violated a 

specific safety requirement and (2) whether the commission abused its discretion 

by failing to find that the proximate cause of Trousdale’s injuries was his own 

“unilateral negligence.” We affirm the denial of the writ. Although aspects of the 

Tenth District’s analysis were flawed, that court reached the correct result. 

II. FACTS AND PROCEDURAL HISTORY 

A. Trousdale’s Employment and Injury 

{¶ 3} On September 2, 2011, Trousdale fell from the pitched roof of a twostory apartment building in Sandusky, while working for Byington Builders. 

Trousdale was an experienced roofer and a union carpenter who had been assigned 

to install caps at the peak of the roof. On his way to get more caps, Trousdale 

stepped on some loose shingles midway down the roof, slipped, slid down the 

surface, went over the edge, fell 22 feet, and hit the ground, landing on his buttocks. 

He was transported to a hospital by ambulance. 

{¶ 4} Trousdale filed a claim for workers’ compensation benefits. The 

claim was allowed for compression fracture; lumbar compression fracture; buttock, 

left-hip, and left-elbow contusion; disc protrusion; stenosis; chronic compression 

deformities of thoracic and lumbar vertebrae; substantial aggravation of pre-
January Term, 2018 

3

existing disc protrusion and of degenerative disc disease; and severe and chronic 

major depressive disorder. 

B. Trousdale’s VSSR Claim 

1. Application 

{¶ 5} On November 8, 2012, Trousdale filed an application for an 

additional award for a VSSR. Trousdale claimed that Byington Builders violated 

specific safety requirements set forth in former Ohio Adm.Code 4121:1-3-09(E) 

(current Ohio Adm.Code 4123:1-3-09, regarding the installation of roofing 

brackets), which is not at issue in this appeal, and former Ohio Adm.Code 4121:1-

3-09(F)(1) (current Ohio Adm.Code 4123:1-3-09(F)(1), regarding the installation 

of catch platforms or a lifeline for pitched roofs).1

 

{¶ 6} Ohio Adm.Code 4123:1-3-09(F)(1) provides, “On pitched roofs with 

a rise of four inches in twelve [inches] or greater, sixteen feet or more above ground, 

and not having a parapet of at least thirty inches in height, catch platforms shall be 

installed. * * * Safety belts or harnesses attached to a lifeline which is securely 

fastened to the structure may be used in lieu of a catch platform.”

2. Hearing 

{¶ 7} A staff hearing officer (“SHO”) for the commission took evidence at 

a hearing that was held on November 12, 2014. At the hearing, the owner of 

Byington Builders, Aaron Byington (“Byington”), stipulated that the roof from 

which Trousdale fell had a pitch of 6 inches in 12, was 22 feet above the ground, 

and had no parapet. Trousdale testified that he thought the pitch was 8 inches in 12 

but that he could not be certain and that “[s]ix 12, eight 12 is not very much of a 

difference by looking.” It is therefore undisputed that the pitch was at least 6 inches 

in 12—i.e., that the roof gained 6 inches in height for every 12 inches in length. 

 

1. Because the pertinent language of the rule has not changed, this opinion will reference the current 

code number. 
SUPREME COURT OF OHIO

4

{¶ 8} Trousdale, Byington, and Thomas Mock, Byington Builders’ “lead 

man” on the job, all testified that on the day that Trousdale fell, no catch platforms 

had been installed and no safety belts, harnesses, or lifelines were being used by 

anyone working on the apartment roof. Byington admitted that he did not require 

his employees to use safety harnesses and that he was aware that no one was using 

safety equipment on this job. He testified, “[A] lot of times when you do have these 

harnesses and ropes, you trip and fall over it nonstop. And people weren’t 

comfortable—don’t get comfortable with them. I’ve seen more accidents with that. 

I’ve had more accidents with them on than I have without them.” Both Mock and 

Tyson Pengob, another Byington Builders supervisor, testified that they had never 

instructed anyone on the job site that using safety equipment was required. The 

day that Trousdale fell, Mock and Pengob were both working on the roof without 

any safety equipment. 

{¶ 9} Trousdale testified that a few days before he fell, another Byington 

Builders employee fell from the same roof and landed on an apartment balcony. 

According to Trousdale, Byington Builders made no changes in the use of safety 

equipment after this incident. Coworker Rodney Clift, a fellow union carpenter, 

also testified that an employee fell from the roof and landed on a balcony. Byington 

Builders presented no testimony or other evidence at the hearing disputing the fact 

that another employee fell from the same roof a few days before Trousdale did. 

{¶ 10} The parties presented conflicting testimony about whether any safety 

harnesses and lifelines were available at the job site. Byington, Mock, and Pengob 

all testified that they had made Trousdale aware that safety harnesses and lifelines 

were kept in an equipment trailer that, according to Byington, was located ten feet 

from the building from which Trousdale fell. By contrast, Trousdale testified that 

he never saw the trailer or any harnesses, ropes, lanyards, or roofing brackets on 

the job site and that neither Byington nor any supervisor ever told him that he was 
January Term, 2018 

5

required to get safety equipment from a trailer. Clift also testified that he never saw 

a trailer or any safety equipment at the job site. 

3. Order 

{¶ 11} In the commission’s order, mailed on November 20, 2014, the SHO 

denied Trousdale’s VSSR application in part and granted it in part. The SHO found 

that Ohio Adm.Code 4123:1-3-09(F)(1) applied to the roof from which Trousdale 

fell, that Byington Builders had violated it, and that the violation was the proximate 

cause of Trousdale’s injuries. 

{¶ 12} The SHO resolved the factual dispute regarding the availability of 

the safety equipment in Byington Builders’ favor but found that “[e]ven when 

construing the evidence in favor of the Employer, [i.e.,] that the safety equipment 

was on-site and that the Injured Worker knew of its availability,” Byington Builders 

still violated the provision. Mere availability did not suffice, because “[e]ven 

assuming safety belts were available, [Ohio Adm.Code] 4123:1-3-09(F)(1) requires 

that they be ‘attached to a lifeline which is securely fastened to the structure’ in 

order to satisfy the requirement of being used ‘in lieu of a catch platform.’ ” 

Accordingly, the SHO found that “the Employer has the option to either install a 

catch basin [sic: platform] or to fasten a lifeline to the roof so that those wishing to 

use a safety belt would have something to attach the safety belt to on the structure,” 

and “[t]he employer in the instant case did not install either of those devices.” 

{¶ 13} The SHO awarded additional compensation in the amount of 40 

percent of Trousdale’s maximum weekly rate due to this VSSR, finding that the 

violation was serious and noting that another worker had fallen off the same roof a 

few days before Trousdale fell. 

4. Motion for a Rehearing 

{¶ 14} Byington Builders moved for a rehearing, arguing that Ohio 

Adm.Code 4123:1-3-09(F)(1) must be read in conjunction with Ohio Adm.Code 

4123:1-3-03(J)(1) and that under the latter provision, which relates to personal 
SUPREME COURT OF OHIO

6

protective equipment, it is the responsibility of the employee, not the employer, to 

use a safety harness. Byington Builders argued that the proximate cause of 

Trousdale’s injuries was his own “unilateral negligence” in failing to use the 

lifelines that Byington Builders claimed it had made available. It further argued 

that securely fastening a lifeline to the structure would have done nothing to prevent 

injury, because workers may have failed to use the available lifeline. A different 

SHO denied the motion for a rehearing, finding that Byington Builders had not 

submitted any new and relevant evidence nor shown that the original order was 

based on an obvious mistake of fact or clear mistake of law. 

C. Byington Builders’ Mandamus Action 

{¶ 15} In April 2015, Byington Builders filed its mandamus complaint 

asking the Tenth District Court of Appeals to issue a writ directing the commission 

to vacate its prior decisions and to enter an order denying Trousdale’s request for a 

VSSR award. In support of its claim that the commission abused its discretion, 

Byington Builders again asserted that it had not violated Ohio Adm.Code 4123:1-

3-09(F)(1), because that rule, when read in conjunction with Ohio Adm.Code 

4123:1-3-03(J)(1), required it to do no more than make lifelines and safety 

harnesses available for employees and did not require Byington Builders to affix 

either catch platforms or lifelines to the building, as the SHO had ruled. Byington 

Builders also again asserted that the proximate cause of Trousdale’s injuries was 

his own unilateral negligence in failing to use available safety harnesses. Byington 

Builders additionally asserted that the commission failed to strictly construe Ohio 

Adm.Code 4123:1-3-09(F)(1) and to resolve all reasonable doubts regarding its 

interpretation in favor of the employer as required by this court’s caselaw. 

{¶ 16} A Tenth District magistrate recommended that the court deny the 

writ. 2017-Ohio-2623, at ¶ 51. Taking guidance from State ex rel. Avalotis 

Painting Co. v. Indus. Comm., 91 Ohio St.3d 137, 742 N.E.2d 1124 (2001), in 

which this court discussed Ohio Adm.Code 4123:1-3-03(J)(1), the magistrate 
January Term, 2018 

7

concluded that under Ohio Adm.Code 4123:1-3-09(F)(1), “logic requires the 

conclusion that the employer bear the responsibility of rigging the lifeline. It is not 

the responsibility of the worker to rig his own lifeline or to request that his employer 

rig a lifeline.” 2017-Ohio-2623, at ¶ 47. Because it was undisputed that Byington 

Builders failed to install a catch platform or rig a lifeline and had therefore violated 

Ohio Adm.Code 4123:1-3-09(F)(1), the magistrate further concluded that “neither 

proximate cause nor unilateral negligence are truly issues.” Id. at ¶ 48. 

{¶ 17} Byington Builders objected to the magistrate’s recommendation, 

reiterating its prior arguments and asserting that the facts in Avalotis are 

distinguishable from those in this case. The Tenth District overruled Byington 

Builders’ objections and adopted the magistrate’s decision as its own. Byington 

Builders filed a timely appeal of the Tenth District’s judgment. 

III. ANALYSIS 

A. Requirements for a VSSR Award 

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

and above standard workers’ compensation benefits. It is not covered by an 

employer’s workers’ compensation premium.” State ex rel. Precision Steel Servs., 

Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, 47 N.E.3d 109, ¶ 15, 

quoting State ex rel. Newman v. Indus. Comm., 77 Ohio St.3d 271, 272, 673 N.E.2d 

1301 (1997). “To be entitled to an additional award for a VSSR, a claimant must 

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

requirement, and (3) the employer’s violation caused the injury.” Id.

B. Requirements for a Writ of Mandamus 

{¶ 19} To prevail on its claim for mandamus relief, Byington Builders must 

“demonstrate that the commission’s decision to issue a VSSR award was an abuse 

of discretion. So long as some evidence supports the commission’s order, there 

was no abuse of discretion, and the court must uphold the decision.” State ex rel. 

Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-Ohio-
SUPREME COURT OF OHIO

8

4525, 41 N.E.3d 1233, ¶ 13. “The interpretation of a specific safety requirement is 

within the final jurisdiction of the commission and may be corrected in mandamus 

only upon a showing that the commission abused its discretion.” Precision Steel at 

¶ 21. “[B]ecause a VSSR award is a penalty imposed on an employer, specific 

safety requirements must be strictly construed and all reasonable doubts concerning 

the interpretation of a particular safety regulation must be resolved in favor of the 

employer.” Id. 

C. The Industrial Commission Did Not Abuse Its Discretion 

1. The Specific Safety Requirement Applied 

{¶ 20} Chapter 4123:1-3 of the Ohio Administrative Code applies to the 

construction and repair of buildings. Ohio Adm.Code 4123:1-3-01(A). And Ohio 

Adm.Code 4123:1-3-09(F)(1) applies to work performed on “pitched roofs with a 

rise of four inches in twelve or greater, sixteen feet or more above ground, and not 

having a parapet of at least thirty inches in height.” It is undisputed that when 

Trousdale fell, he was engaged in construction activity: the installation of roof caps. 

It is likewise undisputed that the roof from which Trousdale fell had a pitch of at 

least 6 inches in 12 (which is greater than 4 inches in 12), was 22 feet above the 

ground, and had no parapet. The rule therefore applied to the job site at which 

Trousdale was injured. Accord State ex rel. R. Bauer & Sons Roofing & Siding, 

Inc. v. Indus. Comm., 84 Ohio St.3d 62, 69, 701 N.E.2d 995 (1998) (“Ohio 

Adm.Code 4121:1-3-09 operates to protect any construction employee who works 

with pitched roofs, flat roofs, or any other roofing device mentioned in the rule, and 

who is injured due to an employer’s failure to comply with the duties imposed”). 

2. Byington Builders Violated the Specific Safety Requirement 

a. The Requirements of Ohio Adm.Code 4123:1-3-09(F)(1) 

{¶ 21} This case hinges on what Ohio Adm.Code 4123:1-3-09(F)(1) 

required of Byington Builders. The commission and the Tenth District concluded 

that it required Byington Builders to install either catch platforms or lifelines. 
January Term, 2018 

9

Byington Builders argues that Ohio Adm.Code 4123:1-3-09(F)(1) must be read in 

conjunction with Ohio Adm.Code 4123:1-3-03(J)(1) and that read together, these 

sections required Byington Builders to merely make lifelines and safety harnesses 

available to employees. The Tenth District relied on Avalotis—a case that turned 

on the construction of Ohio Adm.Code 4123:1-3-03(J)(1) and that did not involve 

the application or interpretation of Ohio Adm.Code 4123:1-3-09(F)(1)—to hold 

that it was the employer’s responsibility to install lifelines, not merely make them 

available. 

i. The plain text of Ohio Adm.Code 4123:1-3-09(F)(1) resolves the issue 

{¶ 22} Ohio Adm.Code 4123:1-3-09(F)(1) states: “On pitched roofs with a 

rise of four inches in twelve or greater, sixteen feet or more above ground, and not 

having a parapet of at least thirty inches in height, catch platforms shall be installed. 

* * * Safety belts or harnesses attached to a lifeline which is securely fastened to 

the structure may be used in lieu of a catch platform.” (Emphasis added.) The first 

sentence of this rule clearly requires employers whose employees are engaging in 

construction activity on qualifying roofs to install catch platforms. See Ohio 

Adm.Code 4123:1-3-01(B)(25) (“ ‘Shall’ shall be considered mandatory”); see also

Bauer & Sons, 84 Ohio St.3d at 69. The last sentence of the rule provides that “in 

lieu of” the required catch platform, safety belts or harnesses that are attached to a 

lifeline that is securely fastened to the structure may be used. Said another way, if 

“[s]afety belts or harnesses attached to a lifeline which is securely fastened to the 

structure” are not used, catch platforms shall be installed. See State ex rel. Danstar 

Builders, Inc. v. Indus. Comm., 108 Ohio St.3d 315, 2006-Ohio-1060, 843 N.E.2d 

761, ¶ 4 (the rule provides that “pitched roofs require a catch platform unless safety 

belts and lifelines are used”). Ohio Adm.Code 4123:1-3-09(F)(1) therefore 

required Byington Builders to install catch platforms if safety harnesses attached to 

securely fastened lifelines were not used. 
SUPREME COURT OF OHIO

10 

{¶ 23} Because Byington Builders admits that it did not install catch 

platforms, the question becomes whether safety harnesses attached to securely 

fastened lifelines were used. This depends on what “used” means. “Use” is not a 

defined term in the applicable division of the Ohio Administrative Code, so this 

court must afford the word its common meaning. State ex rel. Parks v. Indus. 

Comm., 85 Ohio St.3d 22, 25, 706 N.E.2d 774 (1999) (“ ‘The [commission’s] rules 

for specific safety requirements have the effect of legislative enactments’ and 

therefore are ‘subject to the ordinary rules of statutory construction’ ” [brackets 

sic]), quoting State ex rel. Miller Plumbing Co. v. Indus. Comm., 149 Ohio St. 493, 

496-497, 79 N.E.2d 553 (1948); R.C. 1.42 (“[w]ords and phrases shall be * * * 

construed according to * * * common usage”). 

{¶ 24} The dictionary definition of “use” is “to put into action or service 

* * * EMPLOY.” Webster’s Third New International Dictionary 2523 (2002). 

Byington Builders would have “use” mean “make available.” But the safety-andhygiene rules already have a word with that definition: “ ‘Provide’ means to make 

available,” Ohio Adm.Code 4123:1-3-01(B)(21). If the drafters of the code had 

intended Ohio Adm.Code 4123:1-3-09(F)(1) to require employers to install catch 

platforms unless safety belts, harnesses, and lifelines were merely made available, 

they would have employed the word to which they had given that definition. See, 

e.g., Ohio Adm.Code 4123:1-3-04(D)(1), (2), and (3), 4123:1-3-10(R)(6), 4123:1-

3-10(V)(3), and 4123:1-3-10(Y)(7). Indeed, Ohio Adm.Code 4123:1-3-

18(H)(2)(b) says, “When entering a toxic or flammable atmosphere, an employee 

shall be provided with and use an adequate, attended, lifeline.” (Emphasis added.) 

The code drafters’ employment of both “use” and “provide” in that rule bolsters 

our conclusion that “use” does not mean the same thing as “provide.” 

{¶ 25} Because the applicable rule employs the word “used” rather than the 

word “provided,” Byington Builders was required to install catch platforms if safety 
January Term, 2018 

11 

belts or harnesses attached to lifelines that were securely fastened to the structure 

were not used—i.e., put into action or service. 

ii. The plain meaning of the rule is consistent with the commission’s 

interpretation, which is not “patently illogical” 

{¶ 26} This court is “normally obligated to defer to the commission’s 

interpretation of its own rules,” State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 

77, 79-80, 661 N.E.2d 724 (1996), and this straightforward reading of the text of 

Ohio Adm.Code 4123:1-3-09(F)(1) is consistent with the SHO’s interpretation of 

the rule’s requirements. The SHO stated, “Even assuming safety belts were 

available, [Ohio Adm.Code] 4123:1-3-09(F)(1) requires that they be ‘attached to a 

lifeline which is securely fastened to the structure’ in order to satisfy the 

requirement of being used ‘in lieu of a catch platform.’ ” (Emphasis added.) 

{¶ 27} While “[t]he commission has the discretion to interpret its own rules 

* * *, where the application of those rules to a unique factual situation gives rise to 

a patently illogical result, common sense should prevail.” State ex rel. Harris v. 

Indus. Comm., 12 Ohio St.3d 152, 153, 465 N.E.2d 1286 (1984), abrogated on 

other grounds, State ex rel. AK Steel Corp. v. Davis, 123 Ohio St.3d 458, 2009-

Ohio-5865, 917 N.E.2d 797. Citing this principle, Byington Builders argues that it 

is illogical to require an employer to install lifelines that an employee might choose 

not to use. 

{¶ 28} However, we are not convinced that Byington Builders’ situation is 

unique or that the application of Ohio Adm.Code 4123:1-3-09(F)(1) to that 

situation would be illogical. While Trousdale’s fall was surely of unique 

importance to him, Byington Builders has identified—and the record discloses—

nothing about this particular roofing job or this particular accident that was unique 

in a way that should abrogate the application of a specific safety requirement. And, 

Byington Builders’ argument that it is illogical to require employers to install 

lifelines that might go unused would make sense only if this court agreed with 
SUPREME COURT OF OHIO

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Byington Builders’ flawed reading of Ohio Adm.Code 4123:1-3-09(F)(1). 

Byington Builders has not explained how it is illogical to apply the straightforward 

requirements of this rule regarding roofing devices to this straightforward roofing 

job. 

iii. Ohio Adm.Code 4123:1-3-03(J)(1) does not alter the requirements of Ohio 

Adm.Code 4123:1-3-09(F)(1) 

{¶ 29} Byington Builders’ primary argument is that Ohio Adm.Code 

4123:1-3-09(F)(1) must be read in conjunction with Ohio Adm.Code 4123:1-3-

03(J)(1), and that the latter rule permitted Byington Builders to comply with the 

former rule by making safety harnesses and lifelines available for employees to use. 

Byington Builders is incorrect. 

{¶ 30} Ohio Adm.Code 4123:1-3-03(J)(1) states: 

Lifelines, safety belts or harnesses and lanyards shall be 

provided by the employer, and it shall be the responsibility of the 

employee to wear such equipment when exposed to hazards of 

falling where the operation being performed is more than six feet 

above ground or above a floor or platform, except as otherwise 

specified in this chapter, and when required to work on stored 

material in silos, hoppers, tanks, and similar storage areas. Lifelines 

and safety belts or harnesses shall be securely fastened to the 

structure and shall sustain a static load of no less than three thousand 

pounds. 

(Emphasis added.) This is a general rule relating to personal protective equipment. 

By contrast, Ohio Adm.Code 4123:1-3-09(F)(1) is a more specific rule relating to 

work performed on pitched roofs that are at least 16 feet above the ground. 

{¶ 31} R.C. 1.51 states: 
January Term, 2018 

13 

If a general provision conflicts with a special or local 

provision, they shall be construed, if possible, so that effect is given 

to both. If the conflict between the provisions is irreconcilable, the 

special or local provision prevails as an exception to the general 

provision, unless the general provision is the later adoption and the 

manifest intent is that the general provision prevail. 

{¶ 32} Here, it is possible to give effect to both Ohio Adm.Code 4123:1-3-

03(J)(1) and 4123:1-3-09(F)(1). The two rules have different (though sometimes 

overlapping) scopes and are not in conflict. Ohio Adm.Code 4123:1-3-03(J)(1) 

applies to operations being performed more than six feet above the ground or above 

a floor or platform—whether on a roof or in any other workspace. In such cases, 

the employer is required to “provide”—i.e., make available—lifelines, safety belts 

or harnesses, and lanyards, and it is the “responsibility of the employee to wear 

such equipment.” Id. The rule expressly applies “except as otherwise specified in 

this chapter.” Id. 

{¶ 33} Ohio Adm.Code 4123:1-3-09(F)(1) otherwise specifies. It applies a 

more stringent requirement to operations being performed on pitched roofs that are 

more than 16 feet above the ground. In those cases, the employer is required to 

install catch platforms unless “safety belts or harnesses attached to a lifeline which 

is securely fastened to the structure” are “used,” id., i.e., put into action or service. 

The general requirements in Ohio Adm.Code 4123:1-3-03(J)(1) do not alter 

anything in this more specific requirement. And even if the two rules did conflict, 

under R.C. 1.51, the more specific provision would prevail. 

{¶ 34} For these reasons, the Tenth District’s focus on Avalotis, 91 Ohio 

St.3d 137, 742 N.E.2d 1124—and Byington Builders’ attempts to distinguish it—

are misplaced. In Avalotis, a painter stood on a narrow I-beam, without a lifeline, 
SUPREME COURT OF OHIO

14 

in order to paint the beam above. He lost his balance and fell four stories. This 

court considered the only rule at issue—the predecessor to Ohio Adm.Code 4123:1-

3-03(J)(1)—and determined that it required the employer, not the employee, to rig 

a lifeline when that rule required one to be provided, because the rule made the 

employee responsible only for equipment that was worn (i.e., safety harnesses but 

not lifelines) and because a lifeline was “useless if it [wa]s not in place for the 

employee to tie off.” Avalotis, 91 Ohio St.3d at 139, 742 N.E.2d 1124. While it is 

instructive that even under the less-stringent requirements of Ohio Adm.Code 

4123:1-3-03(J)(1), this court faulted the employer for failing to rig a lifeline, that 

decision does not control the outcome of this case, which hinges on the application 

of a different, more specific rule.

b. Byington Builders Violated Ohio Adm.Code 4123:1-3-09(F)(1) 

{¶ 35} It is undisputed that (1) Byington Builders required Trousdale to 

work on a roof with a pitch greater than four inches in twelve, that was more than 

16 feet from the ground, and that had no parapet, (2) Byington Builders did not 

install catch platforms, and (3) safety belts or harnesses attached to a lifeline that 

was securely fastened to the structure were not used. Byington Builders therefore 

violated Ohio Adm.Code 4123:1-3-09(F)(1). Accord Danstar Builders, 108 Ohio 

St.3d 315, 2006-Ohio-1060, 843 N.E.2d 761, at ¶ 4, 9, 16. 

3. Byington Builders’ Violation Proximately Caused Trousdale’s Injuries 

a. Evidence Supports The Commission’s Finding of Probable Cause 

{¶ 36} The commission did not abuse its discretion by finding that Byington 

Builders’ compliance with Ohio Adm.Code 4123:1-3-09(F)(1) “would have 

prevented the fall from the roof.” Evidence in the record indicates that Trousdale 

slipped while walking on the roof, slid down its surface, and went over the edge. 

His fall to the ground caused his injuries. Had catch platforms been installed or 

had safety harnesses attached to a lifeline securely fastened to the roof been used, 

Trousdale’s fall would have been arrested. 
January Term, 2018 

15 

b. The “Unilateral Negligence” Defense Is Inapplicable 

{¶ 37} Byington Builders argues that the proximate cause of Trousdale’s 

injuries was his own “unilateral negligence in failing to utilize the available safety 

equipment” and that under State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 

37 Ohio St.3d 162, 524 N.E.2d 482 (1988), Trousdale’s negligence precludes his 

receipt of a VSSR award.

i. Byington Builders’ VSSR bars its assertion of unilateral negligence 

{¶ 38} In Frank Brown & Sons, this court held that an injured worker’s 

“unilateral negligence in removing the top cross brace” from a scaffold “without 

first installing a corresponding cross brace beneath, contrary to instructions” 

precluded his receipt of a VSSR award. Id. at 164. In its analysis, this court 

recounted the facts of State ex rel. Lewis v. Indus. Comm., Franklin App. No. 83AP756, 1984 WL 4703 (Mar. 15, 1984), in which the injured worker had “voluntarily 

switched off a punch press safety device despite specific rules to the contrary,” 

leading to his injury. Frank Brown & Sons at 164. The court of appeals had “denied 

the writ seeking a VSSR award, finding that the employer had fully complied with 

the applicable safety regulations and the claimant’s unilateral act violated the safety 

requirement.” Id. The court of appeals in Frank Brown & Sons then concluded, 

“Here, too, the scaffold was properly assembled and in compliance with the 

applicable safety requirement until appellee’s removal of the cross brace.” Id. 

{¶ 39} These cases illustrate the rule that dispatches Byington Builders’ 

unilateral-negligence argument—i.e., that this defense “is available only if the 

employer first complies with the applicable safety requirement.” (Emphasis 

added.) State ex rel. Glunt Industries, Inc. v. Indus. Comm., 132 Ohio St.3d 78, 

2012-Ohio-2125, 969 N.E.2d 252, ¶ 16 (despite injured worker’s statement that he 

did not need any safety equipment to perform the task he was set to complete, 

employer could not take advantage of unilateral-negligence defense since it did not 

satisfy VSSR requiring it to provide electrical-safety equipment). 
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16 

{¶ 40} As this court has explained, “the defense is not actually about an 

employee’s negligence. The employer instead avoids VSSR liability when ‘[the] 

employee unilaterally violates a safety requirement,’ ” (emphasis sic) State ex rel. 

Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 193, 724 N.E.2d 778 

(2000) (granting writ to vacate VSSR award where employee used his own ultralight straps to rig a support structure in contravention of direct instructions from 

employer to use employer-provided straps that complied with the safety 

requirement), quoting State ex rel. Cotterman v. St. Marys Foundry, 46 Ohio St.3d 

42, 554 N.E.2d 887 (1989). “[A]n employee’s negligence in failing to protect 

himself from injury due to an employer’s VSSR will never bar recovery,” id., 

because specific safety requirements are “ ‘intended to protect employees against 

their own negligence and folly as well as to provide them a safe place to work,’ ” 

Cotterman at 47 (granting writ to vacate commission’s order denying VSSR award, 

despite employer’s argument that decedent was supervisor responsible for selecting 

chains to suspend the load that fell on him), quoting State ex rel. U.S. Steel Corp. 

v. Cook, 10 Ohio App.3d 183, 186, 461 N.E.2d 916 (10th Dist.1983). 

{¶ 41} Because Byington Builders failed to comply with Ohio Adm.Code 

4123:1-3-09(F)(1), it cannot employ the defense that Trousdale was unilaterally 

negligent. 

ii. Trousdale was not unilaterally negligent 

{¶ 42} Moreover, even if the applicable rule had required Byington 

Builders to do no more than make safety equipment available to Trousdale and 

Byington Builders had done so, this case does not fit the mold of those that have 

allowed employers to avoid a VSSR award due to the injured worker’s unilateral 

negligence. This is not a case in which a rogue employee disregarded direct 

instructions to use certain safety equipment, or disabled an employer-provided 

safety device. Compare Frank Brown & Sons, 37 Ohio St.3d 162, 524 N.E.2d 482; 

Lewis, Franklin App. No. 83AP-756, 1984 WL 4703; Quality Tower Serv. To the 
January Term, 2018 

17 

contrary, Byington Builders’ owner and supervisors never instructed any 

employees to use safety equipment and no employees—including the two 

supervisors—were using any safety equipment on this job, with the approval of the 

owner. 

{¶ 43} Accordingly, Trousdale’s failure to use safety equipment was hardly 

unilateral, and Byington Builders’ claim that Trousdale was negligent makes little 

sense. Byington Builders casts the decision to leave safety equipment in the 

equipment trailer on this particular job as the educated decision of experienced 

roofers. In light of this position, Byington Builders’ argument that Trousdale was 

negligent implies that its entire crew, including its supervisors and owner, were also 

acting negligently. 

{¶ 44} Had Byington Builders required its crew to use safety harnesses 

attached to lifelines that were securely attached to the structure and had Trousdale 

alone, unbeknownst to Byington Builders, failed to heed that instruction, we would 

likely view this case differently. As it is, because Byington Builders failed to 

comply with the applicable specific safety requirement and because Trousdale’s 

actions did not constitute “unilateral negligence,” the defense is inapplicable. 

IV. CONCLUSION 

{¶ 45} For the reasons above, the commission did not abuse its discretion 

in granting Trousdale a VSSR award, and the Tenth District correctly denied 

Byington Builders’ request for a writ of mandamus. We affirm the Tenth District’s 

judgment. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEGENARO, JJ., concur. 

FRENCH and DEWINE, JJ., concur in judgment only. 

KENNEDY, J., dissents, with an opinion. 

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KENNEDY, J., dissenting. 

{¶ 46} Because the plain language of Ohio Adm.Code 4123:1-3-09(F)(1) 

does not require an employer to fasten lifelines for its roofers, appellee Industrial 

Commission abused its discretion in awarding appellee Thomas Trousdale 

additional compensation based on the finding that appellant, Byington Builders, 

Ltd. (“Byington Builders”), violated a specific safety requirement (“VSSR”). 

Accordingly, I dissent and would reverse the judgment of the Tenth District Court 

of Appeals denying a writ of mandamus to compel the commission to vacate its 

award. 

{¶ 47} While working as a roofer for Byington Builders, Trousdale fell 

from a roof and sustained injuries. He was awarded workers’ compensation 

benefits and then sought an additional award for a violation of Ohio Adm.Code 

4123:1-3-09(F)(1), which provides: “On pitched roofs with a rise of four inches in 

twelve [inches] or greater, sixteen feet or more above ground, and not having a 

parapet of at least thirty inches in height, catch platforms shall be installed. * * * 

Safety belts or harnesses attached to a lifeline which is securely fastened to the 

structure may be used in lieu of a catch platform.” After a hearing, the commission 

determined that Byington Builders had violated this requirement by failing to install 

a catch platform or fasten a lifeline to the roof that its roofers could use with a safety 

belt, and it awarded Trousdale additional compensation as a penalty for the 

violation. 

{¶ 48} Byington Builders filed this mandamus action in the Tenth District 

Court of Appeals, seeking to vacate the VSSR award. The Tenth District denied 

the writ, and a majority of this court affirms, holding that Ohio Adm.Code 4123:1-

3-09(F)(1) required Byington Builders to “use” safety belts securely fastened to 

lifelines if it did not install catch platforms and that making the equipment available 

did not satisfy this requirement. 
January Term, 2018 

19 

{¶ 49} The majority’s analysis in affirming the court of appeals disregards 

the standard of review, which requires the court to strictly construe specific safety 

requirements and to resolve all doubts concerning the meaning and applicability of 

a particular requirement in favor of the employer. State ex rel. 31, Inc. v. Indus. 

Comm., 152 Ohio St.3d 350, 2017-Ohio-9112, 96 N.E.3d 246, ¶ 21, citing State ex 

rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172, 545 N.E.2d 1216 (1989). A 

VSSR award is a penalty imposed on an employer, id., and we have explained that 

specific safety requirements must establish “ ‘specific and definite requirements or 

standards of conduct * * * [that] are of a character plainly to apprise an employer 

of his legal obligation toward his employees,’ ” (alterations in Precision Steel) 

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

Ohio-4798, 47 N.E.3d 109, ¶ 17, quoting State ex rel. Trydle v. Indus. Comm., 32 

Ohio St.2d 257, 291 N.E.2d 748 (1972), paragraph one of the syllabus. In other 

words, an employer cannot be penalized for failing to comply with a safety 

requirement unless “mandatory specific duties are apparent to an employer 

interpreting [the] provision.” State ex rel. Oliver v. Southeastern Erectors, Inc., 76 

Ohio St.3d 26, 28, 665 N.E.2d 1108 (1996). 

{¶ 50} Ohio Adm.Code 4123:1-3-09(F)(1) does not specify whether it is the 

employer or the roofer who must fasten the lifeline—it only states that “a lifeline 

which is securely fastened to the structure may be used in lieu of a catch platform.” 

Because the rule is phrased in the passive voice, it is not possible to say that it is 

apparent to an employer interpreting Ohio Adm.Code 4123:1-3-09(F)(1) that it has 

a mandatory specific duty to fasten the lifeline. Construing this provision strictly 

and in favor of the employer precludes a holding that Ohio Adm.Code 4123:1-3-

09(F)(1) requires the employer to fasten the lifeline to the structure. 

{¶ 51} Nonetheless, the majority’s analysis focuses on the word “use,” 

explaining that “[t]he dictionary definition of ‘use’ is ‘to put into action or service 

* * * EMPLOY.’ ” (Ellipsis and capitalization sic.) Majority opinion at ¶ 24, quoting 
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Webster’s Third New International Dictionary 2523 (2002). It reasons that because 

Ohio Adm.Code 4123:1-3-09(F)(1) contains the word “use,” it required Byington 

Builders to do more than “provide” or “make available” lifelines and safety 

harnesses and belts. But the majority fails to explain why lifelines and safety belts 

and harnesses can only be used if the employer first fastens the lifeline to the 

structure. Lifelines and safety belts and harnesses are used if the employer supplies 

that equipment and the employee is then responsible for fastening the lifeline to the 

structure and tying onto it with a safety belt or harness. Ohio Adm.Code 4123:1-

3-09(F)(1) is broad enough to encompass both uses of the equipment, and it is at 

best ambiguous and therefore does not impose “mandatory specific duties” that are 

“apparent to an employer interpreting [the] provision.” Oliver, 76 Ohio St.3d at 28, 

665 N.E.2d 1108. 

{¶ 52} Another rule, Ohio Adm.Code 4123:1-3-03(J)(1), however, resolves 

any ambiguity by providing that “[l]ifelines, safety belts or harnesses and lanyards 

shall be provided by the employer, and it shall be the responsibility of the employee 

to wear such equipment when exposed to hazards of falling where the operation 

being performed is more than six feet above ground or above a floor or platform, 

except as otherwise specified in this chapter * * *.” It is true, as the majority points 

out, that Ohio Adm.Code 4123:1-3-09(F)(1) makes special provisions for roofs, but 

that is because Ohio Adm.Code 4123:1-3-03(J)(1) does not specifically apply to 

work performed on a platform such as a pitched roof. Ohio Adm.Code 4123:1-3-

09(F)(1) therefore supplements that rule and specifies that on certain pitched roofs, 

either catch platforms or lifelines and safety belts or harnesses must be used. But 

nothing in the roof-specific rule conflicts with the more general provision that it is 

the employer’s responsibility to supply and the employee’s responsibility to wear 

this safety equipment. The majority fails to explain why these administrative rules 

would have separate requirements for the same type of fall hazard. But reading 

these two provisions in harmony makes sense, because the employer is in the best 
January Term, 2018 

21 

position to provide a lifeline and harness or safety belt for its employees and a 

roofer is in the best position to fasten and use the equipment, moving the lifeline as 

he or she completes work on the roof. Taking the commission’s reasoning to its 

logical conclusion will mean that an employer must remain on the jobsite at all 

times in order to fasten and refasten the lifeline as work is completed, because the 

employee has no obligation to do it him or herself. And any time the employer fails 

to move the lifeline or permits a roofer to do it, the employer could be subject to a 

new VSSR penalty if an accident follows. Such a result is palpably unreasonable. 

{¶ 53} The majority’s attempt to buttress its analysis as being consistent 

with the commission’s interpretation of Ohio Adm.Code 4123:1-3-09(F)(1) bears 

little fruit. The commission’s factual determination that a worker’s injury resulted 

because of a violation of a specific safety requirement is final pursuant to Article 

II, Section 35 of the Ohio Constitution, but its interpretation of an administrative 

rule is not, because the commission cannot rewrite administrative rules in the guise 

of interpreting them. “Only the Administrator of Workers’ Compensation or the 

General Assembly may rewrite safety requirements.” State ex rel. Lamp v. J.A. 

Croson Co., 75 Ohio St.3d 77, 80, 661 N.E.2d 724 (1996), citing R.C. 4121.13 and 

4121.47. And more fundamentally, this court should not abdicate its judicial 

authority and responsibility to “say what the law is,” Marbury v. Madison, 5 U.S. 

137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803), by deferring to the commission’s 

resolution of a question of law. 

{¶ 54} Ohio Adm.Code 4123:1-3-09(F)(1) does not contain a specific and 

definite requirement that plainly apprises employers of a legal obligation to fasten 

lifelines to the structure where its employees are working on pitched roofs, and we 

ought not defer to an interpretation of that rule adding language to it. And absent 

sufficient notice to an employer that a specific safety requirement applies, a VSSR 

penalty cannot be imposed. 
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{¶ 55} Accordingly, I would reverse the judgment of the court of appeals 

and issue a writ of mandamus compelling the commission to vacate the VSSR 

award against Byington Builders. 

_________________ 

Christopher S. Clark, for appellant. 

Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant 

Attorney General, for appellee Industrial Commission. 

Kademenos, Wisehart, Hines, Dolyk & Zeiher Co., L.P.A., and Janet L. 

Phillips, for appellee Thomas Trousdale. 

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