State ex rel. Am. Cylinders Ents., Inc. v. Logue

[Cite as State ex rel. Am. Cylinders Ents., Inc. v. Logue, 2021-Ohio-1661.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. :
American Cylinder Enterprises, Inc.,
:
Relator, No. 17AP-831
:
v. (REGULAR CALENDAR)
:
[John Logue], Administrator,
Ohio Bureau of Workers' Compensation, :

Respondent. :

D E C I S I O N

Rendered on May 13, 2021

On brief: Reminger Co., L.P.A., and Kevin R. Sanislo, for
relator.

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

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
{¶ 1} Relator, American Cylinder Enterprises, Inc., has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Ohio Bureau of
Workers' Compensation ("BWC"), to vacate its order that changed relator's manual
classification code from 8720 to 3620, and ordering the BWC to change the manual
classification back to 8720.
{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R.
53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 17AP-831 2

appended decision, including findings of fact and conclusions of law, and recommended
this court deny relator's request for a writ of mandamus. Relator has filed six objections to
that decision.
{¶ 3} Relator argues in its first objection that the magistrate erred when she
omitted several pertinent facts from her findings of fact concerning the procedural history
of relator's manual code reclassification by BWC. First, relator asserts the magistrate's
statement in the second finding of fact—that the employee with the claim that prompted
the audit in this case was "severely" burned by an "exploding" cylinder—was improper
because relator has consistently claimed that the burn was not "severe" because the total
claim payout was only $1,219.47 and that the cylinder did not "explode." Relator contends
the magistrate should have mentioned the multiple documents in the stipulated record
contesting these claims. We find this argument without merit. The facts revealed the
injured employee received second-degree partial thickness burns to his right forearm.
Whether the magistrate termed the injured employee as being burned "severely" rather
than "significantly," or some other adjective, is of little relevance to the ultimate
determination. Furthermore, in the second finding of fact the magistrate found that it was
the employee who described the accident as involving an "exploding cylinder," which is
accurate. In addition, whether this particular claim resulted in "only" a $1,200 payout and
attempting to juxtapose that with the fact that the premium for the new classification was
more than double that of the old classification is not relevant to determining whether the
BWC used the correct manual classification. Claim payouts could be higher if similar
accidents occur in the future. Relator's attempt to downplay the seriousness of the incident
and the injured employee's injuries is also belied by relator's own description of the
accident, which it described as putting others at great peril.
{¶ 4} Relator next argues the magistrate omitted the fact that the BWC previously
assigned it code 8720 in 2004, and then reversed course after 11 years without sufficient
explanation. However, the BWC clearly explained that code 8720 did not accurately reflect
the description of relator's business activities and the risk involved in conducting such
activities after conducting an audit subsequent to an employee injury and claim. The BWC
also has the authority to change BWC classification codes regardless of how long the
business was assigned the previous code.
No. 17AP-831 3

{¶ 5} Relator also raises several issues with regard to the DVD video it submitted
to the BWC claiming to show its operations. Despite relator's first complaint that the BWC
failed to send an auditor to the business to personally view its operations before assigning
the new code, relator fails to cite any authority requiring the BWC to do so. Also, that the
BWC found in its June 21, 2016 decision that the video demonstrated "some" but "likely
not all" of relator's operations was supported, at a minimum, by the fact that, as pointed
out by the BWC, the video did not show the very activity—performing work on acetylene
cylinders—that caused the injury that originally prompted the audit. Nevertheless, the
magistrate's failure to mention the DVD in her findings of fact does not detract from her
analysis and conclusions of law and we cannot find the BWC's skepticism of the
comprehensiveness of the video was a factor that significantly impacted its decision to
assign relator a new classification code. For these reasons, we find relator's first objection
without merit.
{¶ 6} Relator argues in its second objection that the magistrate erred when she
failed to address the arbitrary and capricious nature of the BWC's decision to change
relator's manual code from 8720 to 3620. We disagree. Relator first claims there was no
discussion by the magistrate concerning the fact that it was not engaged in the actual
business of manufacturing despite the fact that code 3620 applies to manufacturers. To the
contrary, the magistrate specifically noted that relator claimed the BWC's decision was
arbitrary and capricious because it was not a manufacturer. The magistrate then cited and
discussed the application of Ohio Adm.Code 4123-17-08(D)(7), which provides that where
it is the business of an employer to repair products but no classification specifically refers
to that type of repair work, the BWC must assign the classification that applies to the
manufacturer of the product even when the employer does not manufacture any product.
Thus, the magistrate did not ignore this issue. Relator's argument is without merit.
{¶ 7} Relator next claims the magistrate failed to discuss how the BWC could assign
it new code 3620 after 11 years of operating under code 8720. We disagree. The magistrate
specifically explained the BWC had auth0rity to change relator's classification code,
regardless of how many years it operated under the prior code, based on the following: no
NCCI classification specifically applies to relator's business; relator's business exposes
workers to greater risks than contemplated by the prior classification code; the description
No. 17AP-831 4

in the new classification code encompasses aspects of relator's business that more closely
align to it than the description for the old classification code; courts generally defer to the
BWC's judgment regarding its assignment of classification codes; and Ohio Adm.Code
4123-17-08(D)(7) applies to these circumstances. Relator also fails to explain why the
length of time relator operated under the prior code is relevant and fails to cite any authority
for the proposition that BWC's analysis or authority is affected by the length of time the
employer operated under a prior code. Thus, this argument is without merit.
{¶ 8} Relator next claims the magistrate failed to discuss that it was the BWC and
not relator that assigned code 8720 in 2004. However, relator fails to explain the relevance
of this fact. Again, the length of time relator operated under the prior code is irrelevant.
Furthermore, it is BWC's duty to assign classification codes under R.C. 4123.29(A)(1) and
Ohio Adm.Code 4123-17-08; thus, that it was BWC that assigned the prior classification
code is consistent with its requirement to do so. If relator's actual argument is that the BWC
should somehow be estopped from changing the classification code based on an audit that
shows the previously assigned code was in error, relator fails to cite any authority for such
proposition, and it ignores that the very task of assigning classification codes is statutorily
and administratively required of the BWC. For these reasons, we find relator's second
objection without merit.
{¶ 9} Relator argues in its third objection that the magistrate erred when she failed
to address relator's contention in its brief concerning the arbitrary and capricious nature of
the BWC's comments that the DVD video contained some, but likely not all, of relator's
operations. Relator already raised this issue in its first objection, and we rejected its
argument. Based on the same reasons, we find relator's third objection without merit.
{¶ 10} Relator argues in its fourth objection that the magistrate erred when she
concluded that Ohio Adm.Code 4123-17-08(D)(7) applies herein to "repair operations"
when nowhere in any of the BWC orders on appeal did the BWC determine that the reason
for placing relator into code 3620 was because it engaged in "repair operations," there was
no evidence that relator engages in repair operations but only evidence that it inspects
cylinders, and the BWC never found that its assignment of code 3620 was based on Ohio
Adm.Code 4123-17-08(D)(7). We disagree with these contentions. Although the BWC did
not cite a specific Ohio Administrative Code section, the magistrate showed that the BWC's
No. 17AP-831 5

determination was supported by Ohio Adm.Code 4123-17-08(D)(7). Also, despite relator's
claim that there was no evidence relator engaged in repair operations and that it only
visually inspected cylinders, the record showed relator itself described its operations as
including the repair of cylinders and replacement of parts on cylinders. Relator also
confirmed that it removes paint from tanks, repaints tanks, and hooks up the tanks to
depressurize them, all of which go beyond mere visual inspection. Furthermore, the nature
of the burns and "explosion" involved in the allowed claim that prompted the audit in the
present case, as well as that the injured employee's statement that he "opened up" a tank,
demonstrates that relator's business activities involve more than visual inspection.
Therefore, we find relator's fourth objection without merit.
{¶ 11} Relator argues in its fifth objection that the magistrate erred when she failed
to address whether the BWC abused its discretion and erred as a matter of law by failing to
discuss the hazards and risks of its business. Relator contends that the risks and hazards
faced by relator are not commensurate with the risk and loss potential for other employers
engaged in manufacturing operations under code 3620. Initially, we have already
addressed the BWC's mandated application of classification codes for manufacturers of
products to employers who repair the same products when there is no classification that
specifically refers to that type of repair work, pursuant to Ohio Adm.Code 4123-17-
08(D)(7). The magistrate specifically acknowledged there was no NCCI classification that
applied to relator's business; thus, Ohio Adm.Code 4123-17-08(D)(7) provided the recourse
for such situations. In addition, although the magistrate did not make a specific conclusion
of law that addressed the risk and loss potential faced by relator's business compared to a
boilermaker's business, the magistrate did note relator's argument that it was not a
manufacturer so it should not be assigned code 3620 and also found that the exposure to
risk involved in relator's business, which includes the risk of fire and explosion, was greater
than the exposure to risk faced by the type of employers described in code 8720, such as
real estate appraisers who only conduct visual inspections. The magistrate also included in
its findings of fact the BWC's finding that the description under code 3620 includes
cleaning and painting, which relator's business undertakes, and the description associated
with code 3620 comes closer to describing the work that it performs than code 8720.
Although the risks and potential losses relator faces might not be perfectly aligned with
No. 17AP-831 6

those of the manufacturers described in code 3620, the BWC is specifically authorized to
use the code for the product manufacturer code when there is no code available for the
repairer of that product. Also, as acknowledged by the magistrate, citing State v. Ohio
Aluminum Industries, Inc. v. Conrad, 97 Ohio St.3d 38, 2002-Ohio-5307, occupational
classification is a difficult problem, and the employer has an uphill battle to contest it, given
the BWC's wide range of discretion in determining which code best describes the
employer's business. When the risk and potential for loss fits imperfectly between
classifications, such as here, the appropriate classification is best left to the discretion of the
BWC. For these reasons, we find relator's fifth objection without merit.
{¶ 12} Relator argues in its sixth objection that the magistrate erred when she found
relator was asking this court to determine a wholly new manual classification code. In the
magistrate's decision, the magistrate concluded the decision by stating it was not the
magistrate's duty to comb through the NCCI manual to see if a different classification code
might be more appropriate. Relator argues that it has not requested such relief from this
court but, instead, requests this court order the BWC to reclassify relator's classification
code from 3620 back to its original code of 8720.
{¶ 13} However, we do not read this portion of the magistrate's decision the same as
relator. In the paragraph preceding the magistrate's above statement, the magistrate
discussed its conversation with relator's counsel at the hearing regarding whether relator
had suggested any other classification that might be a better fit. After noting that relator
did not obtain counsel until after the BWC reached its decision, the magistrate indicated it
had referred the parties to mediation in hopes that the parties could review the NCCI
manual to find a classification that better fits relator's business. The magistrate's
subsequent statement that it was not the magistrate's duty to comb the manual to see if
there was a better classification was in reference to the parties' failed attempt to do so. In
addition, it is clear from the opening paragraph of the magistrate's decision that the
magistrate was aware that relator was requesting the BWC change the manual classification
code back to 8720. For these reasons, we find relator's sixth objection without merit.
{¶ 14} Accordingly, after an examination of the magistrate's decision, an
independent review of the record pursuant to Civ.R. 53, and due consideration of relator's
No. 17AP-831 7

objections, we overrule relator's six objections. We adopt the magistrate's findings of fact
and conclusions of law. Relator's request for a writ of mandamus is denied.
Objections overruled;
writ of mandamus denied.

DORRIAN, P.J., and SADLER, J, concur.

___________________
No. 17AP-831 8

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The State ex rel. :
American Cylinder Enterprises, Inc.,
:
Relator,
:
v. No. 17AP-831
:
Sarah Morrison, Administrator, (REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation, :

Respondent. :

MAGISTRATE'S DECISION

Rendered on February 14, 2019

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

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

IN MANDAMUS

{¶ 15} Relator, American Cylinder Enterprises, Inc., has filed this original action
requesting this court issue a writ of mandamus ordering respondent, Ohio Bureau of
Workers' Compensation ("BWC"), to vacate its order which changed relator's manual
classification code from 8720 to 3620, and ordering the BWC to change the manual
classification back to 8720.
Findings of Fact:
{¶ 16} 1. For approximately 11 years prior to the audit which is the subject matter of
this mandamus action, relator's employees were assigned National Council on
Compensation Insurance ("NCCI") manual classification 8720. This classification applies
No. 17AP-831 9

to real estate appraisers, insurers, and others who appraise property for claim purposes in
part because relator's employees inspected pressurized cylinders.
{¶ 17} 2. After one of relator's employees was severely burned by what the employee
described as an exploding cylinder, the BWC began an audit to determine whether the
manual classification assigned to relator accurately reflected the degree of hazard involved
in its business. The employee explained that he opened up a tank to let it bleed out. The
tank exploded which caused second-degree partial thickness burns to his right forearm.
Although the employee's workers' compensation claim was allowed for those conditions,
relator challenged the claim arguing the employee had caused the incident by using the
wrong tools.
{¶ 18} 3. Following an internal referral, the BWC conducted a premium audit to
determine whether or not relator's employees were properly classified. In the audit, the
BWC described relator's operations as follows:
Insured refurbishes acetylene tanks for requalification and
propane cylinder testing. Insured will inspect the equipment,
change valves, replace bad parts, hydro testing.

{¶ 19} 4. Prior to the audit, these employees were classified under NCCI code 8720
which applies to insurance inspectors, outside claims adjustors, includes inspections of
roofs, crawl spaces, sub-basements, etcetera. Following the audit, relator was transferred
to NCCI code 3620 which is titled boiler making and includes companies which are engaged
in manufacturing.
{¶ 20} 5. Relator's protest was heard before the adjudicating committee of the BWC
on June 21, 2016. At the outset, the adjudicating committee set forth the position of both
the BWC and relator.
Bureau's Position

The BWC representative stated that when he audited the
employer, the employer was reporting its employees under
the code mainly used for insurance inspecting. The auditor
stated that this employer had a previous claim that occurred
when an employee opened up a tank and it exploded. The
auditor indicated that the "boilermaking" classification is
more appropriate and has been assigned to a competing
employer. The auditor noted that while the term boilermaking
No. 17AP-831 10

may not describe the employer, the actual narrative associated
with the classification comes closer to describing the work
that the employer performs. The auditor indicated that the
new classification was made prospective due to previous
audits.

[Relator's] Position

At the hearing the employer's representatives stated the
employer does not do hydrostatic testing of cylinders, but
rather visual inspection only. This is contrary to what the
auditor stated. The employer originally used a manual
classification other than 8720, but was told to use code 8720
due to a prior audit. The employer has used that code for
approximately the past 15 years. The representatives
emphasized that the auditor did not come to its facility, but
rather met with the CPA.

The main point of manual 3620 is that it involves
manufacturing. The employer does not manufacture any
cylinders and only inspects the cylinders. That is the exact
description used in manual code 8720.

Also, the employer stated that they do not have any
competitors that do exactly what this employer does. The
competitors may purchase, service, and resell cylinders. This
employer only services and inspects cylinders. The employer
tests products and if a valve is bad, it exhausts the product
before replacement. The employer may paint the cylinders
using a paint gun.

{¶ 21} After stressing the purpose of the classification system is to assign the
classification that best describes the business of the employer, the adjudicating committee
denied relator's protest and upheld the change of relator's classification to 3620, stating:
In this particular case, at the time that 8720 was assigned, it
appeared to be the "best fit" for work which may not be
described exactingly under any of the NCCI manual
classifications. In looking at the heading for 8720, one would
note that the manual contemplates inspection by insurance
type or other appraisers. The scope also references building
hazards, and includes both boiler and elevator "inspection
staffs" and distinguishes those from crews that actually install
and repair elevators or boilers.
No. 17AP-831 11

At first glance, "the heading" for manual 3620,
"boilermaking," is even less descriptive of this particular
employer than is the inspection heading. Nevertheless, when
looking at the actual scope, one sees the term "pressure
vessels," which clearly describes the product that this
employer is working with. More importantly, the processes
involved under 3620 include both cleaning and painting,
which is exactly the type of work that is described by the
employer and shown in its short video. Given the nature of the
products that this employer inspects, which includes both
cleaning and painting, the Committee agrees with the auditor
that 3620 "best describes" this employer's operations.

{¶ 22} 6. Relator appealed and the matter was heard before the administrator's
designee on October 13, 2016. The administrator's designee upheld the determination,
stating:
Here, BWC's auditor concluded that manual code 3620 was
the best fit for American Cylinder, based on the type of work
American Cylinder performs, particularly with regard to
pressure vessels. Manual code 3620 is entitled
"Boilermaking" and its scope is as follows:

Boilermaking and tank building—metal—shop. Code 3620 is
applied to insureds engaged in manufacturing various types
of plate steel tanks, boilers, gas holders, whiskey stills,
pressure vessels, smokestacks, heat exchangers, gas
dehydrators, garbage dumpsters and air cleaning equipment.
The materials used in the process include iron, steel or
stainless steel plates, channel iron, I-beams, round and square
bars, etc. The materials are laid out, marked, power-sheared
or torch-cut to size, power-braked or rolled and formed,
drilled, punched and assembled into the final product by
welding, grinding, cleaning and painting.

Military tank hull manufacturing or assembly. Code 3620
covers insureds who fabricate or assemble armor plate into
military tank bodies or hulls. It also covers armor plate
processing. Such processing includes the cutting, forming or
heat-treating and machining of the armor plate.

Under the NCCI codes, manual code 3720 is found under
Industry Group 3, which pertains to the Manufacturing
industry. In contrast, the prior manual code, 8720, is entitled
"Inspection of Risks for Insurance or Valuation Purposes NOC
No. 17AP-831 12

[not otherwise classified]." This code is listed within Industry
Group 8, which pertains to the Service industry under the
NCCI codes. Its description, in part, is below:

Code 8720, a "not otherwise classified" classification, is
applicable to insurance inspectors, outside claims adjusters,
and/or safety engineers; appraisers of fire companies engaged
in estimating the salvage value of property; and employments
of a similar character.

Code 8720 includes insureds that perform physical
inspections of property. Physical inspections include but are
not limited to activities such as inspections of roofs or attic
crawl spaces; subbasement inspections; or inspections of
equipment such as boilers, furnaces, or electrical systems.
Refer to Code 8721-Real Estate Appraisal Companies for firms
that evaluate real estate to determine the market value of
same, but as part of their appraisal efforts, do not engage in
the types of inspections described above.

The auditor assigned what was determined to be the most
appropriate manual code based [on] American Cylinder's
operations, which were noted in the audit to be
"refurbish[ing] acetylene tanks for requalification and
propane cylinder testing. Insured will inspect the equipment,
change valves, replace bad parts, hydro testing. Insured will
then repaint the cylinders." The employer confirmed at the
Administrator's Designee hearing that it inspects the tanks for
dents or corrosion, removes paint, if needed, re-paints the
tanks, hooks up the tanks to depressurize them, and inspects
and replaces valves, but disputed that it did any kind of
hydrostatic testing. However, the fact that American Cylinder
does not do hydrostatic testing is not dispositive of whether
BWC appropriately reclassified its manual code. Rather, the
types of manipulation to the pressurized vessels that
American Cylinder does, such as refurbishing tanks,
depressurizing tanks to replacing bad valves, and repainting
the tanks for reuse is what led the auditor to conclude that
manual code 3620, which specifically references the
manufacturing, cleaning, and painting of pressure vessels,
was the best fit.

At the Administrator's Designee hearing, American Cylinder
asserted that no NCCI manual code exists that adequately
describes its operations and it has requested to be able to
continue to report payroll under manual code 8720. However,
No. 17AP-831 13

that code, which contemplates visual inspections done by
inspectors in the insurance industry, does not encompass the
risk of this particular employer's work or the hazards it
encounters when it works with pressurized tanks. In fact, the
auditor stated at the hearing that a worker at American
Cylinder was injured when he "opened up a tank" and it
exploded, for which there is an allowed claim. While the
auditor acknowledged that the term "boilermaking" may not
describe American Cylinder's operations, the narrative
description associated with the code comes closer to
describing the work that it performs and assigned the code to
be used prospectively.

{¶ 23} 7. Thereafter, relator filed the instant mandamus action in this court.

Conclusions of Law:
{¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should uphold the decision of the administrator's designee.
{¶ 25} 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. 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).
{¶ 26} R.C. 4123.29applies to the classification of occupations for industries and
provides in pertinent part:
(A) The administrator of workers’ compensation, subject to
the approval of the bureau of workers’ compensation board of
directors, shall do all of the following:
No. 17AP-831 14

(1) Classify occupations or industries with respect to their
degree of hazard and determine the risks of the different
classes according to the categories the national council on
compensation insurance establishes that are applicable to
employers in this state.

{¶ 27} Ohio Adm.Code 4123-17-08 supplements R.C. 4123.29and provides, in
relevant part:
In accordance with division (A)(1) of section 4123.29of the
Revised Code, the purpose of this rule is for the bureau of
workers' compensation to conform the classifications of
industries according to the categories the national council on
compensation insurance (NCCI) establishes that are
applicable to employers in Ohio.

(A) Classification system.

(1) The purpose of the classification system is to group
employers with similar operations into classifications so that:

(a) The assigned classification reflects the exposures common
to those employers.

(b) The rate charged reflects the exposure to loss common to
those employers.

***

(D) Classification procedures. The purpose of the
classification procedure is to assign the one basic
classification that best describes the business of the employer
within a state. Subject to certain exceptions described in this
rule, each classification includes all the various types of labor
found in a business.

{¶ 28} In the present case, the biggest problem is that there is no NCCI classification
that specifically applies to relator's business. Although relator had argued that its
employees did not perform any hydrostatic testing but only visual inspection, the
employee's injuries show that more than visual inspection occurs. Given the exposure to
an explosion and fire which can injure employees, it is clear that relator's business
encompasses more than what is included under code 8720. The visual inspections
conducted by people such as real estate appraisers does not expose them to this type of risk.
No. 17AP-831 15

As such, it was incumbent on the BWC to consider the business of relator and find the
classification which, in the BWC's opinion, was the best fit.
{¶ 29} In State ex rel. Ohio Aluminum Industries v. Conrad, 97 Ohio St.3d 38,
2002-Ohio-5307, a case involving an employer's challenge to the BWC's manual
reclassification, the Supreme Court of Ohio acknowledged that the court will generally defer
to the BWC's judgment regarding the use of its discretion to assign proper manual
classifications, stating:
Section 35, Article II of the Ohio Constitution authorizes the
board to "classify all occupations, according to their degree of
hazard * * *." Implemented by what is now R.C. 4123.29(A)(1),
the result is the Ohio Workers' Compensation State Fund
Insurance Manual. The manual is based on the manual
developed by NCCI and has hundreds of separate
occupational classifications. See Ohio Adm.Code 4123-17-04,
Appendix A. It also specifies the basic rate that an employer
must pay, per $100 in payroll, to secure workers'
compensation for its employees. See Ohio Adm.Code 4123-17-
02(A).

***

OA has an uphill battle from the outset. That is because "the
bureau is afforded a 'wide range of discretion' in dealing with
the 'difficult problem' of occupational classification." State ex
rel. Roberds, Inc. v. Conrad (1999), 86 Ohio St. 3d 221, 222,
714 N.E.2d 390, quoting State ex rel. McHugh v. Indus.
Comm. (1942), 140 Ohio St. 143, 149, 23 Ohio Op. 361, 42
N.E.2d 774. Thus, we have "generally deferred to the
[bureau's] expertise in premium matters" and will find an
abuse of discretion "only where classification has been
arbitrary, capricious or discriminatory." State ex rel.
Progressive Sweeping Contrs., Inc. v. Ohio Bur. of Workers'
Comp. (1994), 68 Ohio St. 3d 393, 396, 627 N.E.2d 550. We
find that the present declassification was reasonable.

Id. at ¶ 17, 20.

{¶ 30} Throughout this adjudication and in its brief before this court, relator
acknowledges there is no NCCI code that exactly describes the nature of its business.
Further, relator contends the use of a code provision for manufacturing is arbitrary and
capricious because they do not manufacture anything. However, Ohio Adm.Code 4123-17-
No. 17AP-831 16

08(D)(7) provides that where it is the business of an employer to repair products but no
classification specifically refers to that type of repair work, the BWC must assign the
classification that applies to the manufacturer of the product even where the employer does
not manufacture any product. Specifically, that portion provides:
Repair operations. Risks with shop operations that involve the
repair of a product for which there is no repair classification
are assigned to the classification that applies to the
manufacture of the product, unless this repair work is
specifically referred to by another classification, footnote, or
definition in the manual.
Example of repair operations that are classified to the
manufacturing code:

(a) A pump repair business is assigned to code 3612 (pump
mfg.). There is no separate code for pump repair.

(b) A motor repair business is assigned to code 3643 (electric
power or transmission equipment mfg.). There is no separate
code for motor repair.

{¶ 31} Relator also asserts there is no explanation in the BWC's orders explaining
why the classification was changed. Although relator's business was classified under code
8720 for many years, it was the injury to the employee inspecting tanks as part of his work
assignment that led to the audit which led to the change in classification. As such, relator
was aware why the classification was reviewed and why it was changed.
{¶ 32} At oral argument, the magistrate asked counsel for relator if any other
classification had been suggested to the BWC by relator. Counsel responded that relator
had not sought legal representation until after the BWC reached its decision. In the hopes
the parties could review the NCCI manual and find a classification which better fit relator's
business, the magistrate suggested mediation and the parties agreed. Unfortunately, the
parties did not reach an agreement.
{¶ 33} It is not the duty of this court to comb through the NCCI manual and see if a
different classification might be more appropriate. We have no expertise in such matters.
Because of the presumption of regularity afforded to determinations of the BWC, this
magistrate cannot say that relator has a clear legal right and the BWC has a clear legal duty
to either allow relator to remain under NCCI code 8720 or select a code other than NCCI
No. 17AP-831 17

code 3620. Relator has failed to demonstrate the BWC abused its discretion and this court
should deny relator's request for a writ of mandamus.

/S/ MAGISTRATE
STEPHANIE BISCA

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).