[Cite as State ex rel. 31, Inc. v. Indus. Comm., 2016-Ohio-3526.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State of Ohio ex rel. 31, Inc., : 

 

 Relator, : 

 

v. : No. 14AP-925 

 

The Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Duane Ashworth, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on June 21, 2016

 

On brief: Black, McCuskey, Souers & Arbaugh, and 

Brian R. Mertes, for relator. 

On brief: Michael DeWine, Attorney General, Andrew J. 

Alatis and Stephen D. Plymale, for respondent Industrial 

Commission of Ohio. 

On brief: Nicholas E. Phillips, for respondent Duane 

Ashworth. 

 

IN MANDMAUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, 31, Inc., commenced this original action in mandamus seeking an 

order compelling respondent, Industrial Commission of Ohio ("commission"), to vacate 

its order granting respondent, Duane Ashworth's ("claimant"), application for an 

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

order denying said application. 
No. 14AP-925 2 

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

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

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

the commission did not abuse its discretion in granting a rehearing; and (2) the 

commission did not abuse its discretion in finding that a VSSR award is appropriately 

based on relator's failure to provide a means to protect employees exposed to contact with 

nip points. Therefore, the magistrate has recommended that we deny relator's request for 

a writ of mandamus. 

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

objection, relator contends that the commission abused its discretion when it granted the 

claimant's motion for rehearing because there was no mistake of law in the original 

hearing officer's decision. We disagree. 

{¶ 4} As noted by the magistrate, Ohio Adm.Code 4123:1-5-01(A) provides that: 

The purpose of this chapter of the Administrative Code is to 

provide reasonable safety for life, limb, and health of 

employees. In cases of practical difficulty or unnecessary 

hardship, the Ohio bureau of workers' compensation may 

grant exceptions from the literal requirements of the rules of 

this chapter to permit the use of other devices or methods 

when, in the opinion of the bureau, the equivalent protection 

is thereby secured. 

{¶ 5} Under this code provision, in cases where an employer demonstrates 

practical difficulty or unnecessary hardship, the Ohio Bureau of Workers' Compensation 

("BWC") may grant exceptions to the literal requirements of the rules if equivalent 

protection is provided. Here, however, the BWC did not grant relator an exception to the 

guarding requirements set forth in Ohio Adm.Code 4123:1-5-11(D)(10)(a). Therefore, the 

staff hearing officer's May 14, 2013 order contains a clear mistake of law because it applies 

an exception to the guarding requirements contained in Ohio Adm.Code 4123:1-5-

11(D)(10)(a) even though the BWC did not grant an exception prior to the claimant's 

injury. We agree with the magistrate that an exception cannot apply until the BWC has 

granted it. This conclusion is supported by State of Ohio ex rel. James W. Smith Lumber 

Co., Inc. v. Indus. Comm., 10th Dist. No. 81AP-178 (Sept. 15, 1981) (employer needs BWC 

approval of equivalent protection in advance of an industrial injury to claim an exception 
No. 14AP-925 3 

to the literal requirements of a specific safety rule). For these reasons, we overrule 

relator's first objection. 

{¶ 6} In its second objection, relator argues that the magistrate erred when he 

relied on State ex rel. Hartco, Inc. Custom Coated Prods. v. Indus. Comm., 38 Ohio St.3d 

181 (1981) in finding that the commission did not abuse its discretion in finding that 

relator violated Ohio Adm.Code 4123:1-5-11(D)(10)(a). In essence, relator argues that 

Ohio Adm.Code 4123:1-5-11(D)(10)(a) does not apply to the calendar machine at issue in 

this case because Ohio Adm.Code Chapter 4123:1-13 specifically addresses calendars. 

Again, we disagree. 

{¶ 7} As noted by the magistrate, the Hartco court analyzed and interpreted the 

very same provisions of the Ohio Adm.Code at issue here. Hartco held that former "Ohio 

Adm.Code Chapter 4121:1-13 [now 4123:1-13] must be read as supplementing, not 

supplanting, former Ohio Adm.Code 4121:1-5-11(D)(10)(a) [now 4123:1-5-11(D)(10)(a)]." 

Therefore, Hartco specifically rejected the argument advanced by relator. The fact that 

Hartco involved a reroll machine rather than a calendar is of no significance. Because the 

magistrate did not err when he relied upon Hartco, we overrule relator's second 

objection. 

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

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

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

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

for a writ of mandamus. 

Objections overruled; writ of mandamus denied.

BROWN and BRUNNER, JJ., concur. 

 

 
No. 14AP-925 4 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State of Ohio ex rel. 31, Inc., : 

 

 Relator, : 

 

v. : No. 14AP-925 

 

The Industrial Commission of Ohio : (REGULAR CALENDAR) 

and Duane Ashworth, 

 : 

 Respondents. 

 : 

 

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

Rendered on March 8, 2016

 

Black, McCuskey, Souers & Arbaugh, and Brian R. Mertes, 

for relator. 

Michael DeWine, Attorney General, and Andrew J. Alatis, 

for respondent Industrial Commission of Ohio. 

Nicholas E. Phillips, for respondent Duane Ashworth. 

 

IN MANDAMUS 

{¶ 9} In this original action, relator, 31, Inc., requests a writ of mandamus 

ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order 

granting to respondent, Duane Ashworth ("claimant"), his application for an additional 

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

denying the application. 

 
No. 14AP-925 5 

Findings of Fact: 

{¶ 10} 1. On December 20, 2011, claimant severely injured his right upper 

extremity while working at a machine known as a calender. On that date, claimant's right 

arm was pulled between the rollers of the calender. 

{¶ 11} 2. The industrial claim (No. 11-864624) was allowed. 

{¶ 12} 3. On July 2, 2012, claimant filed an application for a VSSR award. In his 

application, claimant alleged that relator had violated Ohio Adm.Code 4123:1-5-

11(D)(10)(a) regarding nip points and that the violation was the cause of his injury. 

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

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

{¶ 14} 5. On September 20, 2012, an SVIU investigator conducted an on-site 

investigation at the workshop or factory where claimant was injured. The president of 31, 

Inc., Paul Clark, and relator's counsel were present during the on-site visit. 

{¶ 15} 6. On October 9, 2012, the SVIU investigator issued a report of 

investigation. Under the heading "Discussion," seven enumerated paragraphs set forth 

the investigator's findings during the on-site investigation: 

[Two] During the on-site investigation Investigator Riley 

viewed and photographed the electric Farrel® three roll 

calender (model Three Roll serial number 9179), involved in 

Mr. Ashworth's injury, according to the employer * * *. The 

calender rolls large chunks of rubber into thin gage rubber. 

The calender was purchased in 1999, has not been moved 

from its location since the purchase. Per the employer, the 

calender has not been modified since the purchase. 

[Three] Mr. Clark advised that the claimant, Mr. Ashworth 

was at the back of the calender and was responsible for 

removing the rubber from the bottom roll of three rolls. Mr. 

Ashworth missed the rubber, tried to retrieve the rubber, and 

his hand became caught between the bottom and middle 

rolls * * *. Mr. Clark further advised instead of attempting to 

retrieve the rubber, Mr. Ashworth should have let the rubber 

continue around the roll and alerted the front end person to 

cut the rubber again or he should have activated the 

emergency pull cord to stop the rolls * * *. 

[Four] The rolls are approximately sixty inches (60") in 

length and approximately twenty inches (20") to twenty-two 

inches (22") in diameter, Mr. Clark explained. The rolls are 
No. 14AP-925 6 

power driven in-running rolls and the bottom roll is not 

heated * * *. At the time of the injury there was 

approximately three inches (3") between the middle roll and 

bottom roll. Mr. Clark further explained both the front and 

the back of the calender are equipped with emergency pull 

cords located on each side of the calender * * *. When 

activated the emergency pull cords stop the rolls from 

rolling. Mr. Clark stated the emergency pull cords were 

within easy reach of Mr. Ashworth at the time of the injury 

and were working correctly as he used one to stop the 

calender. The emergency pull cords are inspected daily by 

the shift supervisor. There was not any guarding in the area 

where the injury occurred at the time of the injury * * *. 

[Five] Mr. Ashworth was a mill operator responsible for preforming uncured rubber, mixing rubber, and getting rubber 

ready for further processing, according to the employer * * *. 

Mr. Ashworth was provided with on-the-job training which 

typically lasts ninety days * * *. Per the employer, at the time 

of the injury Mr. Ashworth was not required to wear any 

personal protective equipment * * *. 

[Six] Listed witnesses Cliff Mayse, George Helter, and 

Cheavis Webb were interviewed during the on-site 

investigation. Affidavits were obtained from all three 

workers at that time * * *. 

[Seven] Investigator Riley interviewed claimant, Duane T. 

Ashworth September 19, 2012 via telephone. An affidavit was 

obtained from Mr. Ashworth on September 27, 2012 * * *. 

Mr. Ashworth stated he was at the back of the calender 

machine and attempted to pull the rubber off of the bottom 

roll. The rubber wrapped around three of his fingers, and his 

right hand was pulled into the roll * * *. Ashworth stated, 

when his injury occurred there were not any guards to 

prevent his hand from entering the rolls * * *. His hand 

became caught between the bottom and middle power driven 

in-running rolls * * *. 

{¶ 16} 7. Appended to the SVIU report is claimant's affidavit executed 

September 27, 2012. In the affidavit, claimant avers: 

[Two] I began working at 31 Inc. August 11, 2010 as a mill 

operator (I also worked at the company for a couple of years 

prior to this and left, I do not remember those dates). At the 

time of my injury I was a calender operator responsible for 
No. 14AP-925 7 

putting rubber on the machine and operating the calender 

machine. 

[Three] I was provided with some on the job training from a 

supervisor. I basically trained myself by watching others. I 

understood how to perform my job duties at the time of my 

injury. 

[Four] I was not required to wear any personal protective 

equipment at the time of my injury. I was not wearing any 

personal protective equipment at the time of my injury. 

[Five] My injury involved a Calender machine; it is powered 

by electric. I was running the back side of the machine and 

George Helzer [sic] (Supervisor) was pushing material 

(rubber) through the front side of the machine. The rubber 

came on the bottom of the roll, I attempted to pull the rubber 

off of the roll, the rubber wrapped around three of my 

fingers, and my right hand was pulled into the roll. My hand 

was pulled into the machine approximately eight inches. 

[Six] There were three rolls on top of the other. The top two 

rolls open up to allow the rubber to run through. My hand 

became caught between the bottom roll and the middle roll. 

The bottom roll was approximately three and one half feet 

long and approximately two to three feet in diameter. The 

middle and top rolls were approximately this size. The 

bottom roll and middle roll were power driven in running 

rolls. 

[Seven] There was not any guarding for the area where my 

injury occurred. This is an area where employees stand and 

remove the rubber. There was not anything to prevent my 

hand from entering the rolls. 

[Eight] There was an emergency stop cable in the area where 

my injury occurred. I could reach this when my injury 

occurred and I used this cable. When I pulled the cable the 

machine stopped. 

[Nine] I was caught in the rolls longer because Mr. Heltzer 

[sic] did not pull the plates out of the floor to lower the 

bottom roll to release my hand. I was eventually released 

after the roll was lowered. 

[Ten] At the time of my injury we were running a wig wag 

job. There was a water tank located against the back of the 

calender. This left me an approximately two foot area to 
No. 14AP-925 8 

work in; there was two feet between the tank and the 

machine. The chain guard for the tank was against the 

calender. This did not leave me much room to work. Almost 

every job on this machine involves us pulling off the rubber, 

but on this job we are closer to the rolls. 

{¶ 17} 8. Appended to the SVIU report is the affidavit of George Helter executed 

September 20, 2012: 

[Two] I began working at 31 Inc. in 1995 as a laborer. At the 

time of Mr. Ashworth's injury I was a supervisor. 

[Three] Mr. Ashworth was not required to wear any personal 

protective equipment at the time of his injury. 

[Four] Mr. Ashworth's injury involved the calender machine. 

I was on the front side of the calender. I had cut the rubber. 

Mr. Ashworth was on the back side of the calender and I am 

not sure what happened. I heard Mr. Ashworth say shut the 

machine off. I activated the two emergency pull cords located 

on each side of the calender on the front side of the calender. 

When I pulled the cords the calender, included the rollers, 

stopped immediately. 

[Five] After I cut the rubber, I put the rubber on the bottom 

roll, and it was fed underneath the calender, and went to the 

other side. Once the rubber reaches the back side an 

employee grabs the rubber, feeds it to the dip tank, and it 

goes onto a belt. 

[Six] The employee on the back side of the calender grabs the 

rubber with his hands. A lot of times the rubber does not 

stick to the roll and falls off itself. The employee does not 

have to reach in between the rolls. Employees are not 

allowed to reach in between the rolls. 

[Seven] If Mr. Ashworth was not able to grab the rubber in 

time, he should have let the rubber continue on the roll, and 

I would have cut it on the front end. 

[Eight] There is not any guard in the area between the rolls. 

There is not any way to place a guard in this area because the 

employee would not be able to access the rubber. 

{¶ 18} 9. On May 14, 2013, the VSSR application was heard by a staff hearing 

officer ("SHO"). The hearing was recorded and transcribed for the record. Following the 
No. 14AP-925 9 

hearing, the SHO issued an order denying the VSSR application. The SHO's order of 

May 14, 2013 explains: 

It is the finding of the Staff Hearing Officer that the 

Application for Violation of a Specific Safety Requirement be 

denied for the reason that the Injured Worker has not cited a 

specific safety requirement which was violated when this 

injury occurred. 

Specifically, the Injured Worker was an operator on a 

calender machine at the time of injury. A mass of warm 

rubber material would be fed into this calender machine on 

the front side. This would be fed through rollers which would 

work it down to the correct size and thickness, and the 

operator on the front side of the machine would then cut the 

material with a knife and feed it over the bottom of three 

rollers to the operators on the back side of the machine. 

These rollers turned relatively slowly, and it was estimated at 

hearing that the roller made approximately seven revolutions 

per minute. The operators on the back side were performing 

the "wig wag" job at the time of this incident. The Injured 

Worker would start to pull the warm, somewhat sticky 

rubber material off of the bottom drum, and he and a coworker would put hooks on both sides of the sheet of rubber, 

and pull it away from the calender to a nearby dip tank. 

While attempting to pull the rubber off of the roll, the rubber 

somehow wrapped around or caught some of the Injured 

Worker's fingers, and his right hand up to his forearm was 

pulled into a three-inch gap between the bottom and middle 

rollers before he and his co-workers could activate the 

emergency stop cords. The rollers did immediately stop, but 

it took about 1/2 hour for others to lower the bottom roller to 

allow enough space to pull the Injured Worker's right arm 

out. 

It is well settled that in order to establish a VSSR claim, the 

Injured Worker must prove that: (1) an applicable and 

specific safety requirement was in effect at the time of the 

injury, (2) the Employer failed to comply with the 

requirement, and (3) the failure to comply was the proximate 

cause of the injury in question. State ex rel. Commercial 

Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191 

(1986). 

The Injured Worker has alleged the violation of Ohio 

Adm.Code 4123:1-5-11(D)(10)(a). Sections (a) and (b) of this 

provision state: 
No. 14AP-925 10 

"(10) Nip points. 

(a) Means shall be provided to protect employees exposed to 

contact with nip points created by power driven in-running 

rolls, rollover platen, or other flat surface material being 

wound over roll surface. 

(b) Exception. 

Machinery covered expressly by requirements contained in 

other codes of specific requirements of the Ohio bureau of 

workers' compensation." 

It is found that the requirements of Ohio Adm.Code 4123:1-

5-11(D)(10)(a) were in effect at the time of injury herein, but 

that the provisions did not apply to the calender machine 

involved, and that the Employer therefore did not fail to 

comply with the guarding requirements. In the Scope section 

of Ohio Adm.Code 4123:1-5-01(A), it is stated that "in cases 

of practical difficulty or unnecessary hardship, the Ohio 

bureau of workers' compensation may grant exceptions from 

the literal requirements of the rules of this chapter to permit 

the use of other devices or methods when in the opinion of 

the bureau, the equivalent protect[ion] is thereby secured." 

As the operation of the calender machine is described above, 

the rollers turned relatively slowly, and the workers needed 

to be able to grasp the rubber material as it came around the 

bottom roller to pull it away from the calender for further 

processing. Guards over the nip point were not practical, and 

there was testimony at hearing that guards were never used 

(transcript p. 51). Instead, and as provided for in Ohio 

Adm.Code 4123:1-13-03, extra safety lines and emergency 

stop cords and specified stopping limits were required. 

The argument of counsel for the Employer, that the 

"exception" language in Ohio Adm.Code 4123:1-5-

11(D)(10)(b) meant that only the provisions of 4123:1-13-03 

applied, and not the provisions of 4123:1-5-11(D)(10)(a), is 

rejected. Per State ex rel. Hartco Inc. v. Indus. Comm., 38 

Ohio St.3d 181 (1988), these sections supplement, but do not 

supplant, each other. While the court in Hartco did uphold 

the finding of a violation, the calender machine in that case 

was being used as a roll up machine and not for normal 

calender machine functions. 

Therefore, once again, it is found that the nip point guarding 

provisions were not practical on the calender machine on 

which the injuries in this claim occurred, and that alternative 
No. 14AP-925 11 

means were provided. A violation of the requirements of 

Ohio Adm.Code 4123:1-5-11(D)(10)(a) has not been 

established, and the request for the finding of a VSSR is 

denied. 

{¶ 19} 10. Claimant moved for rehearing pursuant to Ohio Adm.Code 4121-3-

20(E). 

{¶ 20} 11. On September 21, 2013, another SHO mailed an order granting 

rehearing. The SHO's order of September 21, 2013 explains: 

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 mailed 07/06/2013 

is based on a clear mistake of law or an obvious mistake of 

fact, in accordance with Ohio Administrative Code 4121-3-

20(E)(1)(b). 

The Order states that the normally required guard was not 

needed due to practical difficulty or unnecessary hardship as 

allowed under 4123:1-5-01(A). The order then states extra 

safety lines and emergency stop cords and specified stopping 

limits were provided instead. However, the order does not 

state the evidence relied upon in finding the extra safety 

lines, emergency stop cords, and specified stopping limits 

were provided. Further, the order does not explain how these 

provide equivalent protection to the normally required 

guard. Finally, the order does not address why the Industrial 

Commission can make such a finding without the BWC 

granting the exception first as discussed in the rule. Based on 

this it appears the order fails to comply with the legal 

requirement to provide the evidence relied upon to find 

alternatives were provided and they provided equivalent 

protection. 

Pursuant to Ohio Adm.Code 4121-3-20, the order mailed is 

vacated. The Injured Worker's application is ordered set for 

rehearing. 

{¶ 21} 12. On June 30, 2014, another SHO conducted a rehearing. The rehearing 

was recorded and transcribed for the record. Following the rehearing, the SHO issued an 

order granting the VSSR application. The SHO determined that relator had violated Ohio 

Adm.Code 4123:1-5-11(D)(10)(a) relating to workshops and factories. The SHO rejected 

relator's argument that the "exception" language of Ohio Adm.Code 4123:1-5-11(D)(10)(b) 
No. 14AP-925 12 

mandates that only the provisions of Ohio Adm.Code 4123:1-13-3 relating to the rubber 

and plastic industries apply. The SHO relied heavily upon the decision of the Supreme 

Court of Ohio in State ex rel. Hartco, Inc., Custom Coated Prods. v. Indus. Comm., 38 

Ohio St.3d 181 (1988). 

{¶ 22} 13. The SHO's order of June 30, 2014 explains: 

It is the finding of the Staff Hearing Officer that the 

Application for Violation of a Specific Safety Requirement, 

filed by the Injured Worker 07/12/2014 [sic], is granted for 

the reason that the Injured Worker has cited a specific safety 

requirement which was violated when this injury occurred. 

Specifically, the Injured Worker was an operator on a 

calendar [sic] machine at the time of injury. A cubed mass of 

warm rubber material was fed into this calendar [sic] 

machine on the front side. This was fed through rollers 

which would work it down to the correct size and thickness, 

and the operator on the front side of the machine would then 

cut the material with a knife and feed it over the bottom of 

three rollers to the operators on the back side of the 

machine. These rollers turned relatively slowly, estimated at 

approximately 7 revolutions per minute. The operators on 

the back side, including the Injured Worker, were 

performing the "wig wag" job at the time of this industrial 

accident. The Injured Worker would start to pull the warm, 

somewhat sticky rubber off of the bottom drum, and he and a 

co-worker would put hooks on both sides of the sheet of 

rubber, and pull it away from the calendar [sic] to a nearby 

dip tank. While attempting to pull the rubber off of the roll, 

the rubber somehow wrapped around or caught some of the 

Injured Worker's fingers, and his right hand up to his 

forearm was pulled into a three-inch gap between the bottom 

and middle rollers before he and his co-workers could 

activate the emergency stop cords. The rollers did 

immediately stop, but it took about 1/2 hour for others to 

lower the bottom roller to allow enough space to pull the 

Injured Worker's right arm out away from the heated middle 

roll. 

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

Injured Worker's injury was the result of the Employer's 

failure to provide "Means to protect employees exposed to 

contact with nip points created by power driven in-running 

rolls, rollover platen, or other flat surface material being 

wound over roll surface" as required by Ohio Administrative 
No. 14AP-925 13 

Code section 4123:1-5-11(D)(10)(a) relating to Workshops 

and Factories. Sections (a) and (b) of this provision state: 

(10) Nip points 

(a) Means shall be provided to protect employees exposed to 

contact with nip points created by power driven in-running 

rolls, rollover platen, or other flat surface material being 

wound over roll surface. 

(b) Exception 

Machinery covered expressly by requirements contained in 

other codes of specific requirements of the Ohio Bureau of 

Workers' Compensation. 

The Employer asserts the defense that it was not subject to 

Ohio Administrative Code section 4123:1-5-11(D)(10) 

because it was in the Rubber and Plastics industry, which is 

subject to the separate safety requirements contained in 

Ohio Administrative Code 4123:1-13. Ohio Administrative 

Code section 4121:1-13-03 requires safety trips and stopping 

limits for calendars[sic]. It was stipulated by the parties at 

hearing that compliance with this section was met and that 

emergency stop cords were activated. The Employer asserts 

that it was not required to provide any guarding or other 

protection from contact with the nip point. The Employer 

presented a sales flyer of calendars [sic] in the Rubber and 

Plastics industry in order to demonstrate that no calendars 

[sic] provide guarding or other protection from contact with 

the nip point. Mr. Clark, on behalf of the Employer, testified 

that he had been in the Rubber and Plastics industry for over 

25 years and had never seen a calendar [sic] machine in use 

which provided protection or other guarding from the nip 

point. 

This argument by the Employer that the "exception" 

language in Ohio Administrative Code 4123:1-5-11(D)(10)(b) 

meant that only the provisions of 4123:1-13-03 applied, and 

not the provisions of 4123:1-5-11(D)(10)(a) is not persuasive. 

Pursuant to State ex rel. Hartco, Inc. v. Indus. Comm. 

(1988), 38 Ohio St.3d 181, 527 N.E.2d 815, these 

requirements for the Rubber and Plastics industry 

supplement, but do not supplant Ohio Administrative Code 

section 4123:1-5-11(D)(10) which provides safety 

requirements for all Workshops and Factories. Hartco held, 

and the Staff Hearing Officer finds, that the Employer is 
No. 14AP-925 14 

required to prevent contact with nip points in a calendar 

[sic], as required by Ohio Administrative Code 4123:1-5-

11(D)(10), as well as providing means to quickly stop the 

calendar [sic], as provided in Ohio Administrative Code 

section 4123:1-13-03. The reasoning is that the guarding 

required by section 4123:1-5-11(D)(10)(a) prevents an injury 

from occurring, while compliance with the plastics and 

rubber code section 4123:1-13-03 helps to minimize an 

injury after it has already happened. 

Since the Staff Hearing Officer finds that the requirements of 

Ohio Administrative Code section 4123:1-5-11(D)(10)(a) were 

in effect at the time to the injury in this case, the Scope 

section of Ohio Administrative Code 4123:1-5-01(A) applies. 

The Scope section of Ohio Administrative Code 4123:1-5-

01(A) states "in cases of practical difficulty or unnecessary 

hardship, the Ohio Bureau of Workers' Compensation may 

grant exceptions from the literal requirements of the rules of 

this chapter to permit the use of other devices or methods 

when, in the opinion of the Bureau, the equivalent protection 

is thereby secured." In this case, the Employer did not obtain 

a prior determination that it was entitled to an exception. As 

such, an exception has not been granted and therefore the 

Staff Hearing Officer finds that the Employer has not 

complied with the safety requirements of the applicable Code 

section 4123:1-5-11(D)(10)(A) [sic]. The Staff Hearing Officer 

agrees in this instance with the Injured Worker's counsel's 

argument that "the Employer may not unilaterally decide to 

ignore the specific safety requirement, wait until a worker is 

injured, and then claim that compliance with the 

requirements was not required because the requirements 

were not practical. If that were allowed, many employers 

would choose not to comply with safety requirements and to 

take their chances if an employee was injured" (See Brief of 

Duane T. Ashworth in Support of Motion for Re-Hearing, 

page 4). Counsel for the Injured Worker also submits State of 

Ohio ex rel. James W. Smith Lumber Co., Inc. v. The 

Industrial Commission of Ohio and Jackie D. Alley, (Sept. 15, 

1981) Tenth Appellate District No. 81AP-178, 1981 WL 3463, 

p. 2, holding that an Employer must seek an advance 

determination as to whether it is entitled to an exception 

from a safety requirement, in support of this argument. 

It is therefore ordered that an additional award of 

compensation be granted to the Injured Worker in the 

amount of 35 percent of the maximum weekly rate under 
No. 14AP-925 15 

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

St. 425. 

{¶ 23} 14. On November 7, 2014, relator, 31, Inc., filed this mandamus action. 

Conclusions of Law: 

{¶ 24} As the commission explained in its June 30, 2014 order granting the VSSR 

application, relator did not comply with Ohio Adm.Code 4123:1-5-11(D)(10)(a) requiring 

that the employer shall provide a means to protect employees exposed to contact with nip 

points. It is largely undisputed that relator failed to provide such means. However, 

relator argues that Ohio Adm.Code 4123:1-5-11(D)(10)(b) provides an "exception" that 

permitted relator to comply with the nip point rule by complying with the safety rules set 

forth at Ohio Adm.Code 4123:1-13-03 regarding calenders. It is largely undisputed that 

relator did comply with the safety rules regarding calenders as set forth in Ohio Adm.Code 

4123:1-13-03. Thus, the controversy here is focused on the interpretation to be given to 

the "exception" language of Ohio Adm.Code 4123:1-5-11(D)(10)(b). 

{¶ 25} Two issues are presented: (1) did the commission abuse its discretion in 

granting rehearing pursuant to Ohio Adm.Code 4121-3-20(E), and (2) assuming that the 

commission appropriately granted rehearing, did the commission abuse its discretion in 

finding an unexcepted violation of Ohio Adm.Code 4123:1-5-11(D)(10)(a) that was the 

cause of the industrial injury. 

{¶ 26} The magistrate finds: (1) the commission did not abuse its discretion in 

granting rehearing, and (2) the commission did not abuse its discretion in finding that a 

VSSR award is appropriately based upon relator's failure to provide a means to protect 

employees exposed to contact with nip points. 

Pertinent Provisions of the Ohio Administrative Code 

{¶ 27} Chapter 4123:1-5 of the Ohio Administrative Code provides for "Workshop 

and Factory Safety." 

 Ohio Adm.Code 4123:1-5-01 is captioned "Scope and definitions." 

 Thereunder, Ohio Adm.Code 4123:1-5-01(A) captioned "Scope" provides: 

In cases of practical difficulty or unnecessary hardship, the 

Ohio bureau of workers' compensation may grant exceptions 

from the literal requirements of the rules of this chapter to 

permit the use of other devices or methods when, in the 
No. 14AP-925 16 

opinion of the bureau, the equivalent protection is thereby 

secured. 

The specific requirements of this chapter are requirements 

upon an employer for the protection of such employer's 

employees and no others and apply to all workshops and 

factories subject to the Workers' Compensation Act. * * * 

Specific requirements of other chapters of the Administrative 

Code adopted by the Ohio bureau of workers' compensation 

shall apply to the particular industry covered by any such 

other chapter, and, to the extent of conflict between this 

chapter and such other chapter, the latter shall govern, but in 

all other respects this chapter shall be deemed to apply and 

the other to be a supplement of this chapter. 

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

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

{¶ 29} Thereunder, Ohio Adm.Code 4123:1-5-11(D) is captioned "Other power 

machines and machine tools." 

{¶ 30} Thereunder, Ohio Adm.Code 4123:1-5-11(D)(10) is captioned "Nip points." 

Thereunder, the code provides: 

(a) Means shall be provided to protect employees exposed to 

contact with nip points created by power driven in-running 

rolls, rollover platen, or other flat surface material being 

wound over roll surface. 

(b) Exception. 

Machinery covered expressly by requirements contained in 

other codes of specific requirements of the Ohio bureau of 

workers' compensation. 

{¶ 31} Chapter 4123:1-13 of the Ohio Administrative Code is captioned "Rubber 

and Plastic Industries." 

{¶ 32} Thereunder, Ohio Adm.Code 4123:1-13-01 is captioned "Scope and 

definitions." 

{¶ 33} Thereunder, Ohio Adm.Code 4123:1-13-01(A), captioned "Scope," provides: 

The purpose of these safety requirements is to provide 

reasonable safety for life, limb and health of employees. In 

cases of practical difficulty or unnecessary hardship, the 

Ohio bureau of workers' compensation may grant exceptions 
No. 14AP-925 17 

from the literal provisions of these requirements or permit 

the use of other devices or methods when, in the opinion of 

the industrial commission, equivalent protection is thereby 

secured. 

These specific requirements supplement those of Chapter 

4123:1-5 of the Administrative Code, "Specific Safety 

Requirements of the Ohio Bureau of Workers' Compensation 

Relating to All Workshops and Factories," and are minimum 

requirements of an employer for the protection of such 

employer's employees and no others and apply to the rubber 

and plastic industries where rubber or plastics are processed. 

{¶ 34} Thereunder, Ohio Adm.Code 4123:1-13-01(B)(3) provides the following 

definition: 

"Calender" means a machine equipped with two or more 

metal rolls revolving in opposite directions and used for 

continuously sheeting or plying up rubber or plastic 

compounds and for frictioning or coating fabric with rubber 

or plastic compounds. 

{¶ 35} Ohio Adm.Code 4123:1-13-03 is captioned "Calenders." 

{¶ 36} Thereunder, Ohio Adm.Code 4123:1-13-03(A) is captioned "Calender safety 

controls." 

{¶ 37} Thereunder, the code provides: 

(1) Safety trip, face. 

A safety trip rod, cable, or wire center cord shall be provided 

across each pair of in-running rolls, extending the length of 

the face of the rolls. It shall be readily accessible and shall 

operate whether pushed or pulled. The safety tripping 

devices shall be located within easy reach of the operator and 

no more than seventy-two inches above the level on which 

the operator stands. 

(2) Safety trip, side. 

On both sides of the calender and near each end of the face 

of the rolls, there shall be a cable or wire center cord 

connected to the safety trip. These lines shall be no more 

than twelve inches from the faces of the respective rolls and 

no less than two inches from the calender frame. They shall 

be anchored to the frame no more than six inches from the 
No. 14AP-925 18 

floor or operator's platform and shall operate readily when 

pushed or pulled. 

The Granting of Rehearing 

{¶ 38} Ohio Adm.Code 4121-3-20(E) provides for the filing of a motion for 

rehearing of a VSSR decision. Thereunder, Ohio Adm.Code 4121-3-20(E)(1) provides: 

(a) In order to justify a rehearing of the staff hearing officer's 

order, the motion shall be accompanied by new and 

additional proof not previously considered and which by due 

diligence could not be obtained prior to the prehearing 

conference, or prior to the merit hearing if a record hearing 

was held and relevant to the specific safety requirement 

violation. 

(b) A rehearing may also be indicated in exceptional cases 

where the order was based on an obvious mistake of fact or 

clear mistake of law. 

{¶ 39} Claimant moved for rehearing based upon an alleged obvious mistake of 

fact or a clear mistake of law that he found in the SHO's order of May 14, 2013 that denied 

his VSSR application. In the May 14, 2013 order, the SHO found that relator had met the 

"exception" provision of Ohio Adm.Code 4123:1-5-11(D)(10)(b) by alleged compliance 

with the scope section of Ohio Adm.Code 4123:1-5-01(A), which states in part: 

In cases of practical difficulty or unnecessary hardship, the 

Ohio bureau of workers' compensation may grant exceptions 

from the literal requirements of the rules of this chapter to 

permit the use of other devices or methods when, in the 

opinion of the bureau, the equivalent protection is thereby 

secured. 

{¶ 40} There was clearly a mistake of law in the May 14, 2013 SHO's order 

regarding the SHO's application of the scope section of Ohio Adm.Code 4123:1-5-01(A). 

As the SHO who granted rehearing appropriately found: 

[T]he order does not address why the Industrial Commission 

can make such a finding without the BWC granting the 

exception first as discussed in the rule. 

{¶ 41} While the SHO's order of September 21, 2013 appropriately explains why 

the SHO's order of May 14, 2013 contains a clear mistake of law, the SHO's order of June 

30, 2014 perhaps explains it better: 
No. 14AP-925 19 

In this case, the Employer did not obtain a prior 

determination that it was entitled to an exception. As such, 

an exception has not been granted and therefore the Staff 

Hearing Officer finds that the Employer has not complied 

with the safety requirements of the applicable Code section 

4123:1-5-11(D)(10)(A) [sic].

{¶ 42} Also, the SHO's order of September 21, 2013 appropriately quotes from 

claimant's brief in support of his motion for rehearing. 

{¶ 43} Furthermore, the SHO's order of September 21, 2013 appropriately cites to 

this court's decision in State ex rel. James W. Smith Lumber Co., Inc. v. Indus. Comm., 

10th Dist. No. 81AP-178 (Sept. 15, 1981), for the proposition of that an exception from 

compliance with the safety code must be obtained prior to the industrial injury at issue. 

{¶ 44} In short, the commission did not abuse its discretion in granting rehearing. 

The Granting of the VSSR Award 

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

discretion in finding an unexcepted violation of Ohio Adm.Code 4123:1-5-11(D)(10)(a) 

that was the cause of the industrial injury. 

{¶ 46} Hartco is dispositive of relator's arguments here. 

{¶ 47} John Runyon was injured when his right arm and hand were drawn into a 

reroll machine that was winding a sheet of rubberized material. The injury occurred in 

the course of and arising out of Runyon's employment with Hartco, Inc., Custom Coated 

Products ("Hartco"). Runyon filed a VSSR application alleging employer violations of 

former Chapters 4121:1-5 and 4121:1-13, which are now designated as Chapters 4123:1-5 

and 4123:1-13 of the Ohio Administrative Code. Following a hearing, the commission 

found a violation of former Ohio Adm.Code 4121:1-5-11(D)(10)(a), which is now 

designated as Ohio Adm.Code 4123:1-5-11(D)(10)(a). The commission found that 

Runyon's injury resulted from Hartco's failure to guard the nip point created by material 

being wound over the surface of a roll. Hartco was denied rehearing. Hartco then filed a 

mandamus action in the Supreme Court of Ohio. 

{¶ 48} The issue, as explained by the court, was Hartco's contention that former 

Ohio Adm.Code 4121:1-5-11(D)(10)(b) exempts it from the requirements of former Ohio 

Adm.Code 4121:1-5-11(D)(10)(a). 
No. 14AP-925 20 

{¶ 49} As relator does here, Hartco contended that, because the machine in 

question was used in the rubber and plastics industry covered under former Ohio 

Adm.Code 4121:1-13, the (D)(10)(b) exception applies. The Supreme Court rejected 

Hartco's contention. The Hartco court relied upon the scope provision of former Ohio 

Adm.Code 4121:1-13-01(A), which stated "[t]hese specific requirements supplement those 

of Chapter 4121:1-5 of the Administrative Code." (Emphasis sic.) Hartco at 182. The 

court also pointed out that former Ohio Adm.Code 4121:1-5-01(A) states that former 

Chapter 4121:1-5's specific requirements "apply to all workshops and factories." 

(Emphasis sic.) Hartco at 182. 

{¶ 50} Pointing out that former Ohio Adm.Code Chapter 4121:1-13 contains no nip 

point protection provision, the Hartco court held that former Ohio Adm.Code Chapter 

4121:1-13 must be read as supplementing, not supplanting former Ohio Adm.Code 4121:1-

5-11(D)(10)(a). The court pointed out that, to interpret the Ohio Administrative Code as 

Hartco suggested would effectively deprive rubber and plastic workers of nip point 

protection simply because of the nature of the employer's industry. 

{¶ 51} The Hartco court emphasized that a safety cord does not prevent contact 

with nip points; it provides a way to stop the machine should body entanglement occur. 

{¶ 52} Here, in its opening brief, relator fails to even mention the Hartco case. 

Relator made no effort to distinguish the case until its reply brief was filed. This is so even 

though the commission's order specifically relies on Hartco. 

{¶ 53} In its reply brief, relator asserts that respondent's reliance on Hartco is 

misplaced. First, relator points out that the machine in Hartco was not a calender, but a 

reroll machine. However, relator neglects to mention that the Hartco court analyzed and 

interpreted the very same provisions of the Ohio Administrative Code at issue here. Given 

that scenario, it is difficult to see how it is significant that the Hartco case involved a reroll 

machine. 

{¶ 54} In its reply brief, relator asserts: 

In this matter, because the machinery involved in Ashworth's 

injury is expressly covered by 4123:1-13-03, pursuant to 

4123:1-5-11(D)(10)(b), the requirement of 4123: 1-5-

11(D)(10)(a) does not apply. To conclude otherwise would be 

to completely disregard subsection (b). The basic tenets of 

statutory interpretation do not allow for such a result. 
No. 14AP-925 21 

(Relator's Reply Brief, 4-5.) 

{¶ 55} Notwithstanding relator's assertion, the Hartco court decided the issue that 

relator has raised here. Relator cannot prevail here without undoing the decision of the 

Hartco court. 

{¶ 56} Based upon the foregoing analysis, the magistrate concludes that the 

commission did not abuse its discretion in granting a VSSR award. 

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

request for a writ of mandamus. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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).