dissenting. I respectfully dissent and would affirm the court of appeals’ decision based upon two independently sufficient grounds.
First, the appellant did not exhaust her administrative remedies when she failed to timely file a motion for a rehearing. A writ of mandamus is an extraordinary remedy that may be denied when a relator fails to exhaust his administrative remedies since an administrative appeal is an adequate remedy at law. Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d 217, 55 O.O. 2d 462, 271 N.E. 2d 280. The exhaustion of administrative remedies, of course, is not necessary if there is no remedy that is “effectual to afford the relief sought.” Id. at paragraph one of the syllabus. In this case, there is no doubt that upon a rehearing the commission had the authority to grant all the relief the appellant sought.
The only close question in this case is whether the appellant had grounds for requesting a rehearing. Ohio Adm. Code 4121-3-20(G) provides two bases for a rehearing — the submission of “new and additional proof not previously considered” or “where the order was based on an obvious mistake of fact.” The appellant in her second proposition of law alleges that the hearing officer’s order cites no evidence to support the finding that the decedent selected the chain sling assembly and, furthermore, that no conclusive evidence of this alleged selection was presented to the commis*49sion. This argument would, in my view, justify a motion for a rehearing under the second requirement of Ohio Adm. Code 4121-3-20(G), and it would give the commission an opportunity to clarify or reconsider its determination. I cannot agree with the majority that such an effort would be a mere exercise in futility. Given the limitations upon the courts when evaluating the factual findings of the Industrial Commission, parties should be required in circumstances such as these to exhaust all administrative appeals before seeking an extraordinary writ of mandamus. Such a posture follows well-established law and ensures the most complete record possible, which in turn facilitates effective review.
Even so, the court of appeals’ ruling should be affirmed because the record contains some evidence, as specified by the Industrial Commission, to support its factual findings. Therefore, those findings must not be disturbed. State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St. 2d 77, 14 O.O. 3d 275, 397 N.E. 2d 403. Such a conclusion should appear obvious in light of the facts before us.
The parties stipulated that the core that fell on appellant’s decedent weighed at least 4,700 pounds. It is not in dispute that heavier chain slings were available, but that in this case, according to the hearing officer’s order, “[the] weight of the evidence and common sense lead to the conclusion that the cause of the straightening of the hooks [attached to the sling] and the resultant fall of the core was that the load placed on the chain sling was in excess of its limits.” The appellant argues that the analysis is complete at this point because Ohio Adm. Code 4121:l-5-15(D)(2)2 was violated. However, Section 35, Article II of the Ohio Constitution provides that:
“* * * Such board shall have full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes * * *. When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just * * * shall be added by the board, to the amount of the compensation that may be awarded on account of such injury * * (Emphasis added.)
An award for violating a specific safety requirement (“VSSR”) is deemed a penalty to the employer, and the focus is therefore upon the action or inaction of the employer. Accordingly, the failure of a required safety device, standing alone, may not lead to a VSSR award. State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St. 2d 128, 58 O.O. 2d 317, 279 N.E. 2d 861; State, ex rel. Barrett, v. Indus. Comm. (1963), 175 Ohio St. 255, 25 O.O. 2d 1, 193 N.E. 2d 516. Furthermore, if the claimant or decedent is injured through the failure of equipment that is not the property of, or under the control of, the employer, then a VSSR award may be denied. State, ex rel. Bowling, v. Indus. Comm. (1982), 8 Ohio App. 3d 32, 8 OBR 35, 455 N.E. 2d 1311. In Bowling, a worker assembled a scaffold using a wooden *50board which failed because it was defective. The employer had no knowledge of the particular plank, did not own it, and was not responsible for it, although the use of a plank of some sort was necessary to complete the assigned welding job. The fact that the plank failed and the fact that regulations existed mandating the correct dimensions of planks used in scaffolds were not dispositive.
The court of appeals’ decision in this case relied upon Kale v. Indus. Comm. (May 3, 1984), Franklin App. No. 83AP-968, unreported, in which the Industrial Commission found that an employer had provided mandatory safety goggles for use by its employee. The employee chose not to wear them and injured his eye. A VSSR award was denied because the employer had done all that was required by the regulations — to provide eye goggles so the employee could safely perform his task. The focus was not on the negligence of the worker in failing to wear goggles. Likewise, in this case the employer in fact made available the correct slings to safely lift the core. The decedent simply selected the wrong sling and happened to be standing underneath it. The employer had done what the regulations required of it by making available the correct equipment to perform the required task. It is obvious from the regulations and the record in this case that the correct configuration of sling components will vary from task to task. The correct sling selection, of course, must be determined by someone. The affidavits specifically relied upon by the hearing officer assigned this responsibility to the decedent. The affidavits also establish that the decedent was thoroughly trained and experienced in the selection and use of slings. Thus, the employer was not remiss in delegating to the decedent that task of selecting and adjusting slings.
The reasoning of the majority to the contrary notwithstanding, the facts in this case are completely dissimilar to those in cases where a worker negligently reaches into the moving parts of a machine which is neither guarded nor provided with an automatic stopping device. See State, ex rel. Hartco, Inc., Custom Coated Products, v. Indus. Comm. (1988), 38 Ohio St. 3d 181, 527 N.E. 2d 815; State, ex rel. United States Steel Corp., v. Cook (1983), 10 Ohio App. 3d 183, 10 OBR 254, 461 N.E. 2d 916. The regulation at issue requires the employer only to supply the correct slings to its employee. Decedent, a thoroughly trained and experienced employee, was authorized by the employer to select and adjust the sling. It must be emphasized that the decedent was not required to use an inadequate sling.
The hearing officer’s order was sufficiently specific regarding the facts relied upon for his decision. The order is not the conclusory sort of order criticized in State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St. 3d 481, 6 OBR 531, 453 N.E. 2d 721. As can be seen, the syllabus law announced in this matter, while accurate, simply misses the point with respect to the salient points in this controversy.
The appellant has failed for the foregoing reasons to demonstrate a clear right to a writ of mandamus. Accordingly, I would affirm the court of appeals and deny the request for a writ of mandamus.
Moyer, C. J., and Holmes, J., concur in the foregoing dissenting opinion.Ohio Adm. Code 4121:l-5-15(D)(2) provided:
“Alloy steel chain slings shall not be used with loads in the excess of the rated capacities prescribed in table 15-A. Other alloy steel chain slings not included in this table shall be used in accordance with manufacturer' s recommendations.''