State ex rel. Byington Builders, Ltd. v. Indus. Comm.

[Cite as State ex rel. Byington Builders, Ltd. v. Indus. Comm., 2017-Ohio-2623.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Byington Builders Ltd., :

Relator, :

v. : No. 15AP-407

Industrial Commission of Ohio and : (REGULAR CALENDAR)
Thomas Trousdale,
:
Respondents.
:

D E C I S I O N

Rendered on May 2, 2017

On brief: Christopher S. Clark, for relator. Argued:
Christopher S. Clark.

On brief: Michael DeWine, Attorney General, and Patsy A.
Thomas, for respondent, Industrial Commission of Ohio.
Argued: Patsy A. Thomas.

On brief: Calhoun, Kademenos & Childress, Co., LPA , and
Janet L. Phillips, for respondent, Thomas Trousdale.
Argued: Janet L. Phillips.

IN MANDAMUS
ON OBJECTION TO MAGISTRATE'S DECISION

BRUNNER, J.
{¶ 1} Relator, Byington Builders Ltd. ("Byington"), commenced this original
action in mandamus seeking an order compelling respondent, Industrial Commission of
Ohio ("the commission"), to vacate its order mailed November 20, 2014 granting the
application of respondent, Thomas Trousdale, for an additional award for violation of a
specific safety requirement ("VSSR") and to enter an order denying the application.
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No. 15AP-407
{¶ 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 the
commission did not abuse its discretion in determining that Ohio Adm.Code 4123:1-3-
09(F)(1) required Byington to securely fasten a lifeline to the structure to which Trousdale
could have attached a safety belt or harness that would have prevented Trousdale's fall.
Based on this finding, the magistrate has recommended that we deny Byington's request
for a writ of mandamus.
{¶ 3} Byington timely filed its objection to the magistrate's decision. Trousdale
and the commission timely filed their respective memorandum contra Byington's
objection. After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of the objection, we overrule
Byington's objection and adopt the magistrate's findings of fact and conclusions of law as
our own.
I. FACTS AND PROCEDURAL HISTORY
{¶ 4} The facts in this matter are undisputed. Trousdale sustained a work-related
injury on September 2, 2011, when he fell from a roof to the ground, approximately 25 feet
below, in the course of and arising from his employment with Byington. At the time
Trousdale fell from the roof, he was not wearing fall protection equipment. Byington
acknowledged it had neither provided Trousdale with fall protection to wear nor installed
safety nets or a catch platform around the roof. Trousdale's claim was allowed.
{¶ 5} On November 8, 2012, Trousdale filed an application for a VSSR award,
alleging that Byington had violated former Ohio Adm.Code 4121:1-3-09(E)(1) and (2)
(current Ohio Adm.Code 4123:1-3-09 (E)(1) and (2)) regarding the installation of roofing
brackets, 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.
{¶ 6} The Bureau of Workers' Compensation's Safety Violations Investigative Unit
investigated and generated a report containing affidavits of Trousdale and Aaron
Byington as exhibits. Both affiants averred that Trousdale was not wearing fall protection
equipment when he fell from the roof. Trousdale further averred that Byington had
neither provided him with fall protection to wear nor installed safety nets or a catch
platform around the roof. Byington does not dispute that roof hooks had not been
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No. 15AP-407
installed at the work site at which Trousdale was working, but averred that safety belts,
lifelines, lanyards, roof jacks, and toe-boards were at the jobsite, and that "[t]he fall
protection was in use on the roof and some of it was in the company trailer at the jobsite."
(June 5, 2015 Stipulation of Evidence at 16.)
{¶ 7} On November 12, 2014, Trousdale's VSSR application was heard by a
commission staff hearing officer ("SHO"), who subsequently issued an order finding that
Byington had violated Ohio Adm.Code 4123:1-3-09(F)(1), and that the violation was the
proximate cause of Trousdale's injury. The SHO found, however, that Byington had not
violated Ohio Adm.Code 4123:1-3-09(E)(1) regarding the installation of roof brackets.
The SHO granted Trousdale's VSSR application in part and denied it in part.
{¶ 8} Byington's motion for rehearing was denied by another SHO by order
mailed February 10, 2015. Byington then filed this mandamus action on April 13, 2015.
II. OBJECTION TO THE MAGISTRATE'S DECISION
{¶ 9} Byington does not present any specifically enumerated objection to the
magistrate's decision, stating instead as follows:

Relator objects to the decision of the magistrate filed with the
court on Mary 24, 2016, denying relator's request for writ of
mandamus and affirming the decision of the Industrial
Commission of Ohio finding that relator violated a specific
safety requirement (VSSR) resulting in the injuries sustained
by respondent, Trousdale on September 2, 2011.
(June 7, 2016 Obj. to Mag. Decision at 2.) Byington restates the arguments it presented in
its merit brief, all of which the magistrate considered and rejected.
III. LAW AND DISCUSSION
{¶ 10} To be entitled to relief in mandamus, Byington must establish that it has a
clear legal right to relief 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), paragraph nine of
the syllabus. To do so, Byington must demonstrate that the commission abused its
discretion and, "in this context, abuse of discretion has been repeatedly defined as a
showing that the commission's decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). To be successful
in this mandamus action, Byington Builders must show that the commission's decision is
not supported by some evidence in the record. State ex rel. Elliott v. Indus. Comm., 26
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No. 15AP-407
Ohio St.3d 76 (1986). Conversely, 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).
Credibility and the weight to be given evidence are clearly within the discretion of the
commission as the fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165
(1981).
{¶ 11} As the magistrate's decision clarifies, the relevant inquiry in this matter is
whether Byington installed the necessary safety equipment required under Ohio
Adm.Code 4123:1-3-09(F)(1). The magistrate's decision contains a comprehensive
discussion of the statutory and case law regarding this issue. A specific safety
requirement must clearly inform an employer of the legal obligations owed to employees.
State ex rel. Holdosh v. Indus. Comm., 149 Ohio St. 179 (1948), syllabus; State ex rel.
Trydle v. Indus. Comm., 32 Ohio St.2d 257, 261 (1972) (citing and paraphrasing the
Holdosh syllabus). Because a VSSR finding results in a penalty, specific safety
requirements must be strictly construed in the employer's favor. State ex rel. Burton v.
Indus. Comm., 46 Ohio St.3d 170 (1989). "The commission has the discretion to interpret
its own rules; however, where the application of those rules to a unique factual situation
give rise to a patently illogical result, common sense must prevail." State ex rel. Harris v.
Indus. Comm., 12 Ohio St.3d 152, 153 (1984). A reviewing court must defer to the
commission's interpretation when it relies on its own common sense to avoid an illogical
result. State ex rel. Devore Roofing & Painting v. Indus. Comm., 101 Ohio St.3d 66,
2004-Ohio-23, ¶ 22, recon. denied, 101 Ohio St.3d 1491, 2004-Ohio-1293.
{¶ 12} The magistrate found helpful State ex rel. Avalotis Painting Co. v. Indus.
Comm., 91 Ohio St.3d 137 (2001). The commission granted a VSSR award to an Avalotis
Painting Company ("Avalotis") employee who had suffered an industrial injury after
falling four stories. The commission determined that Avalotis had violated Ohio
Adm.Code 4121:1-3-03(J)(1), which required that employers "provide" lifelines, safety
belts and lanyards, and that employees "wear" them when working more than 15 feet
above ground. The commission premised its ruling on the findings that: (1) a lifeline or
safety cable, could have been rigged at the specific site to which Gordon's foreman
assigned him allowing Gordon to tie off with his harness and lanyard; and (2) Avalotis
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No. 15AP-407
failed to provide this safety protection by rigging it for Gordon's use. Avalotis filed a
mandamus action in this Court, in which we rejected Avalotis' argument that Gordon bore
responsibility for rigging his own lifeline in his work area and that his injury therefore
resulted from his own failure to use the safety equipment that was available elsewhere at
the worksite. We found instead that the commission could reasonably construe Ohio
Adm.Code 4121:1-3-03(J)(1) to assign the employer this responsibility such that Avalotis'
failure to put this equipment in place was the same as not having it at all. State ex rel.
Avalotis Painting Co. v. Indus. Comm., 10th Dist. No. 98AP-798 (1999). After we denied
the writ, Avalotis appealed to the Supreme Court of Ohio, which affirmed the judgment
and denied the writ. Avalotis Painting Co., 91 Ohio St.3d 137.
{¶ 13} The magistrate's decision included a discussion of the applicability of the
Supreme Court's holding in Avalotis to this case:
The magistrate recognizes that, unlike Ohio Adm.Code
4123:1-3-03(J)(1), Ohio Adm.Code 4123:1-3-09(F)(1) does not
use the word "provide" which was under discussion in the
Avalotis case. However, both rules fail to spell out who is
responsible for rigging the lifeline─the employer or the
worker. As Avalotis shows, 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. The employer is not
allowed to assume that it bears no responsibility for rigging a
lifeline until the worker requests that a lifeline be rigged for
his use.
Given the above analysis, neither proximate cause nor
unilateral negligence are truly issues.

(App'x at ¶ 47-48.) We find Avalotis applicable to the present case.
{¶ 14} We find that the magistrate appropriately concluded as follows:
Unilateral negligence sufficient to avoid a VSSR liability can
exist only if there is evidence that the employer initially
satisfied the specific safety requirement and the claimant
disabled or otherwise circumvented the safety apparatus.
State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37
Ohio St.3d 162 (1988). Here, Byington Builders did not
initially satisfy the specific safety requirement and, thus, it
cannot be held that claimant disabled or circumvented a
safety device.
(App'x at ¶ 50.)
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No. 15AP-407
IV. CONCLUSION
{¶ 15} Following an independent review of this matter and giving due
consideration to Byington's objection, we find the magistrate has properly determined the
pertinent facts and applied the appropriate law. Therefore, we adopt the magistrate's
decision as our own, including the findings of facts and conclusions of law therein. In
accordance with the magistrate's decision, we deny the requested writ of mandamus.
Objection overruled;
writ of mandamus denied.

SADLER and DORRIAN , JJ., concur.
________________
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No. 15AP-407
APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Byington Builders Ltd., :

Relator, :

v. : No. 15AP-407

Industrial Commission of Ohio and : (REGULAR CALENDAR)
Thomas Trousdale,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on May 24, 2016

Christopher S. Clark, for relator.

Michael DeWine, Attorney General, and Patsy A. Thomas,
for respondent Industrial Commission of Ohio.

Calhoun, Kademenos, and Janet Phillips, for respondent
Thomas Trousdale.

IN MANDAMUS

{¶ 16} In this original action, relator, Byington Builders Ltd. ("Byington Builders"
or "relator"), requests a writ of mandamus ordering respondent, Industrial Commission
of Ohio ("commission"), to vacate its order granting to respondent, Thomas Trousdale
("claimant"), his application for an additional award for violation of a specific safety
requirement ("VSSR"), and to enter an order denying the application.
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No. 15AP-407
Findings of Fact:
{¶ 17} 1. On September 2, 2011, claimant sustained serious injuries while
employed as a roofer for Byington Builders. On that day, claimant fell off of a roof when
he stepped on a loose shingle.
{¶ 18} 2. The industrial claim (No. 11-847390) is allowed.
{¶ 19} 3. On November 8, 2012, claimant filed an application for a VSSR award.
On his application, claimant alleged that relator had violated former Ohio Adm.Code
4121:1-3-09(E)(1) and (2) regarding roofing brackets and former Ohio Adm.Code 4121:1-
3-09(F)(1) regarding catch platforms for pitched roofs. Those alleged specific safety
requirements can be currently found at Ohio Adm.Code 4123:1-3-09(E)(1) and (2) and at
4123:1-3-09(F)(1).
{¶ 20} 4. The VSSR application prompted an investigation by the Safety Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
{¶ 21} 5. On April 8, 2014, an SVIU special investigator conducted an on-site
investigation at the home offices of Byington Builders where he met Aaron Byington, the
owner of Byington Builders.
{¶ 22} 6. The special investigator obtained an affidavit from Aaron Byington
executed April 8, 2014. The affidavit avers:
[Two] Thomas Trousdale contacted me and asked me if I had
any work for him. He had worked for me on and off
approximately two other times. Thomas started working at
[the] job on Monday and Tuesday and then he was off on
Wednesday for a doctor's appointment. On Thursday, I
assigned Thomas to a jobsite where we were installing new
shingles on the Countryset Apartments * * *. Thomas was
injured in the morning of his first day at this particular[r]
jobsite.

[Three] I was not present at the time of the incident
involving Thomas Trousdale. I received a call and was
informed that Thomas had fallen off the roof. I immediately
drove to the jobsite and arrived just as Thomas [was] being
taken away in the ambulance. I then drove to Fireland's
Hospital to check on him. * * *

[Four] I returned to the jobsite to talk with my other
employees and find out what happened to Thomas. An
employee with the first name of Dillon told me that he saw
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No. 15AP-407
Thomas hanging from the corner of the building just before
he dropped into a bush below.

[Five] There were safety belts, lifelines, lanyards, roof jacks,
and wood for toe-boards at the jobsite. The fall protection
was in use on the roof and some of it was in the company
trailer at the jobsite. Thomas is a union roofer an is familiar
with the proper use of the fall protection, roof jacks, and toe-
boards.

{¶ 23} 7. Later, the special investigator obtained an affidavit from claimant
executed February 21, 2014. Claimant's affidavit avers:
[Two] I began my employment with Byington Builders on the
Monday of the week I was injured. My injury occurred on
Friday of the week I began my employment with the
company. Byington Builders did general construction and I
was employed as a roofer. I had prior roofing experience
before working for Byington Builders.

[Three] On September 2, 2011, I was assigned to a two-story
apartment complex * * * to perform roofing work. It was
approximately twenty-five feet from the bottom of the roof
where the gutters would go to the ground. The pitch of the
roof was, I believe, 8-12. The job required installing new
trusses to make the pitch of the roof and the installing [of]
new plywood and shingles.

[Four] I was in the process of installing roof caps towards the
peak and I was about one-quarter of the way up the pitched
roof. Someone left a loose piece of shingle on the roof and I
stepped on it while coming down the roof to get more roof
caps. My feet slipped out from under me and I slid down the
roof and fell to the ground. I landed on my butt in a seated
position and sustained injuries from the fall. An ambulance
was called and I was transported to Firelands Hospital for
medical treatment.

[Five] The employer did not provide me with fall protection
to wear while working on the roof. I was not given a safety
belt, lifeline, or lanyard to use while working on the roof. The
employer did not install safety nets or a catch platform
around the roof. The employer did not install roof jacks or
toeboards on the roof.
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No. 15AP-407
{¶ 24} 8. On May 1, 2014, the SVIU special investigator issued his report of
investigation. The affidavits of Aaron Byington and claimant were presented as exhibits
to the report.
{¶ 25} 9. On November 12, 2014, the VSSR application was heard by a commission
staff hearing officer ("SHO"). The hearing was recorded and transcribed for the record.
{¶ 26} 10. Following the hearing, the SHO issued an order finding that relator had
violated Ohio Adm.Code 4123:1-3-09(F)(1) and that the violation was the proximate cause
of the industrial injury. The SHO's order explains:
The Injured Worker's IC-8 Application filed 11/08/2012 is
granted in part and denied in part as follows.

It is the finding of the Staff Hearing Officer that the Injured
Worker was employed on the date of injury noted above, by
the Employer as a roofer, and that the Injured Worker
sustained an injury in the course of and arising out of
employment when he stepped on a loose shingle while
roofing and fell off of the roof.

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 install catch platforms or to fasten a lifeline to the
roof in lieu of a catch platform, as required by the following
Ohio Administrative Code (OAC) section related to the
Construction Industry:

4123:1-3-09(F)(1)

***

The Injured Worker was injured on 09/02/2011 while
working for the named Employer as a roofer. The Injured
Worker was on the roof of an apartment building installing
roof caps approximately 1/4 the way up on a pitched roof
(per Injured Worker's affidavit dated 02/21/2014). The
Injured Worker indicated he stepped on a loose piece of
shingle and fell to the ground. The Employer, Mr. Byington,
stipulated at hearing that the height from the ground to the
top of the roof was 22 feet. Mr. Byington, the employer, also
testified that the pitch of the roof was "6-12." * * *

The Injured Worker alleged a violation of OAC 4123:1-3-
09(E)(1) and (2). Those sections state in pertinent part as
follows:
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No. 15AP-407

(E) Roofing brackets.

(1) Construction

Roofing brackets shall be constructed to fit the pitch of the
roof.

(2) Fastening.

Roofing brackets shall be securely fastened in place. When
brackets cannot be securely fastened by any other means,
rope supports shall be used. When rope supports are used,
such supports shall consist of manila rope of no less than
three-quarter-inch diameter, or equivalent.

The Staff Hearing Officer finds that the Employer did not
violate this code section. The Staff Hearing Officer finds that
4123:1-3-09(E)(1) lacks specificity in that it does not put the
Employer on notice as to when roofing brackets are required
to be placed on a roof and when they are not. This code
section does not inform and plainly apprise an Employer of
what is required for the protection of its employees. The code
section does not indicate what pitch of roof requires a roof
bracket. Clearly it does not apply to all roofs as it is unclear
as to why a flat roof or one with only a slight pitch would
require a roofing bracket be installed. As the code section
lacks specificity, the Employer would not know from this
provision whether a "6-12" roof would require roofing
brackets to be installed. As the code sections must be strictly
construed in favor of the Employer, the Staff Hearing Officer
finds no violation of this code section. The Staff Hearing
Officer found no section in the construction codes which
specifies under what circumstances a roofing bracket is
required. The requirement that a bracket be constructed "to
fit the pitch of the roof" lacks specificity.

The Injured Worker also alleged a violation of OAC 4123:1-3-
09(F)(1). That section states in pertinent part as follows:

(F) Catch platforms for pitched and flat roofs.

(1) Catch platforms for pitched roofs.

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
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No. 15AP-407
shall be installed. The platform shall extend two feet beyond
the projection of the eaves and shall be provided with a
standard guardrail substantially fixed in place. Safety belts
attached to a lifeline which are securely fastened to the
structure may be used in lieu of a catch platform.

The Staff Hearing Officer finds this section applies to the
instant claim and finds the Employer has violated this
specific safety requirement. The Employer testified at
hearing that the roof involved was a pitched roof with a rise
of four inches in 12 or greater. Specifically the Employer
testified the pitch of the roof involved was six inches in 12
("6-12"). Further the Employer testified that the roof
involved was 22 feet from the ground. Therefore the
requirement of the roof being 16 feet or more above ground
has also been met. Upon cross-examination of the Employer
by the Injured Worker's representative, the Employer
testified that there was no parapet around the edge of the
roof and that no catch platform was installed on the roof in
question. The Employer's representative argued that the
above cited code section provides an alternative to the
requirement of installing a catch platform. Specifically, he
argued that safety belts or harnesses attached to a lifeline
may be used in lieu of a catch platform. Mr. Byington, the
owner of the company (ie the Employer), Mr. Mock, a "lead
man/supervisor" for the Employer, and Mr. Pengov, another
supervisor for the Employer, all testified that the Employer
had a work trailer on site which contained buckets
containing lanyards, and that harnesses were also contained
in the work trailer on site. Those persons testified that all
workers would meet at the trailer every morning where the
equipment, tools, etc, as well as the safety equipment
(harnesses, lifelines, lanyards) were located. Mr. Byington
testified all workers were told the safety equipment was
available and Mr. Mock specifically indicated that he
instructed the employees that they had the option to wear
the safety equipment if they felt unsafe on the roof, but that
no one on the job asked to use a harness. Mr. Mock further
testified on cross examination that no parapets or catch
basins were installed on the roof in question. Both the
Injured Worker and his witness, Mr. Clift, indicated they
never saw a trailer on the job site and never saw any safety
equipment. The Injured Worker specifically testified that he
was never told by the Employer that any safety equipment
was available. Mr. Mock testified that he showed the Injured
Worker the trailer on the Injured Worker's first day on that
building which was on Thursday, 09/01/2011. The Injured
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No. 15AP-407
Worker testified he had never seen Mr. Mock on a job site
and never saw him on Thursday (09/01/2011) or on Friday
(09/02/2011). Further, the Employer and his two witnesses
allege they had never seen Mr. Clift before, yet Mr. Clift
indicated he worked at the job site from Monday through
Friday of the week of injury, but that he quit after the Injured
Worker fell on 09/02/2011. His employment could not be
verified as he testified he was to be paid in cash and never
got paid. The Employer acknowledged that workers keep
track of their own hours, the "honor system," and that some
workers are paid in cash. However he denied hiring Mr. Clift
as a roofer for his company.

It is obvious that the Employer and his witnesses dispute the
testimony of the Injured Worker and his witness regarding
the presence of safety equipment on the job site and whether
or not the Injured Worker knew of the presence of the safety
equipment. Even when construing the evidence in favor of
the Employer, ie. that the safety equipment was on-site and
that the Injured Worker knew of its availability, the Staff
Hearing Officer still finds a violation of 4123:1-03-09(F)(1).
Even assuming safety belts were available, 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." This particular
code section places the burden on the Employer, not the
Injured Worker, to securely fasten a lifeline to the structure.
There was no testimony at hearing that a lifeline was
securely fastened to the roof for those employees who may
have chosen to use a safety belt. "Securely fastened" is
defined in OAC 4123:1-3-01(B)(24) as meaning "that the
object or thing referred to shall be substantially fixed in
place." OAC 4123:1-3-09(F)(1) does not place the
responsibility on the Injured Worker to fasten a lifeline to
the structure. Rather, the Employer has the option to either
install a catch basin 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. The Employer in
the instant case did not install either of those devices and as
such, is found to be in violation of OAC 4123:1-3-09(F)(1).

***

The Staff Hearing Officer finds that the Employer's non-
compliance with OAC 4123:1-3-09(F)(1) was the proximate
cause of the injury as the Employer's compliance with that
code section would have prevented the fall from the roof. The
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No. 15AP-407
Staff Hearing Officer finds the violation to be serious,
warranting a 40% penalty. The Staff Hearing Officer notes
that the Injured Worker testified that another worker fell off
of the same roof, earlier in the week but prior to the day of
the Injured Worker's fall, but that that worker "Joe" landed
on a balcony rather than falling to the ground. The Employer
offered no evidence to rebut the testimony that another
worker had fallen off of the same roof just days prior to the
Injured Worker's fall. Despite the first worker falling, the
Employer still did nothing to protect the other workers from
a fall hazard such as installing a catch basin or securing a
lifeline to the roof to prevent future falls, as required by OAC
4123:1-3-09(F)(1).

(Emphasis sic.)

{¶ 27} 11. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-20(E).
{¶ 28} 12. On February 10, 2015, another SHO mailed an order denying the
motion for rehearing.
{¶ 29} 13. On April 13, 2015, relator, Byington Builders, Ltd., filed this mandamus
action.
Conclusions of Law:
{¶ 30} The main issue is whether the commission, through its SHO's order of
November 12, 2014 abused its discretion in determining that Ohio Adm.Code 4123:1-3-
09(F)(1) required relator to securely fasten to the structure upon which claimant was
working a lifeline to which claimant could have attached a safety belt or harness that
would have prevented his fall.
{¶ 31} Finding no abuse of discretion, it is the magistrate's decision that this court
deny relator's request for a writ of mandamus, as more fully explained below.
{¶ 32} Currently, Chapter 4123:1-3 (formerly 4121:1-3) of the Ohio Administrative
Code provides specific safety requirements for "construction activity." Ohio Adm.Code
4123:1-3-01(A).
{¶ 33} Ohio Adm.Code 4123:1-3-01(B) provides two definitions pertinent here:

(16) "Lanyard means a flexible line rope, wire rope, or strap
which generally has a connector at each end for connecting
the body belt or body harness to a line or anchorage.

***
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No. 15AP-407
(24) "Securely fastened" means that the object or thing
referred to shall be substantially fixed in place.

{¶ 34} Ohio Adm.Code 4123:1-3-09 is captioned "Roofing devices." Thereunder,
Ohio Adm.Code 4123:1-3-09(E) is captioned "Roofing brackets." Thereunder, it is stated:
(1) Construction.

Roofing brackets shall be constructed to fit the pitch of the
roof.

(2) Fastening.

Roofing brackets shall be securely fastened in place. When
brackets cannot be securely fastened by any other means,
rope supports shall be used. When rope supports are used,
such supports shall consist of manila rope of no less than
three-quarter-inch diameter, or equivalent.

{¶ 35} Ohio Adm.Code 4123:1-3-09(F) is captioned "Catch platforms for pitched
and flat roofs." Thereunder, Ohio Adm.Code 4123:1-3-09(F)(1) provides:
(1) Catch platforms for pitched roofs.

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. The platform shall extend two feet beyond
the projection of the eaves and shall be provided with a
standard guardrail substantially fixed in place. Safety belts or
harnesses attached to a lifeline which is securely fastened to
the structure may be used in lieu of a catch platform.

{¶ 36} Ohio Adm.Code 4123:1-3-03 is captioned "Personal protective equipment."
The following is stated under "(A) Scope:"
The requirements of this rule relate to the personal
protective equipment listed immediately below, as required
for employees on operations described in this rule in which
there is a known hazard, recognized as injurious to the
health or safety of the employee.

Ohio Adm.Code 4123:1-3-03(B) provides the following three definitions:
(2) "Lanyard" means a flexible line of rope, wire rope, or
strap which generally has a connector at each end for
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No. 15AP-407
connecting the body belt or body harness to a life line or
anchorage.

(3) "Vertical Lifeline" means a rope, suitable for supporting
one person, to which a lanyard or safety belt (or harness) is
attached.

***

(7) "Safety belt or harness" means a device, worn around the
body, which, by reason of its attachment to a lanyard and
lifeline or a structure, will prevent an employee from falling.

{¶ 37} Ohio Adm.Code 4123:1-3-03(J) is captioned "Safety belts, harness lifelines
and lanyards." Thereunder, Ohio Adm.Code 4123:1-3-03(J)(1) provides:
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 * * *. 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.

{¶ 38} The portion of the SHO's order of November 12, 2014 most pertinent to the
issue here again states as follows:
Even when construing the evidence in favor of the Employer,
ie. that the safety equipment was on-site and that the Injured
Worker knew of its availability, the Staff Hearing Officer still
finds a violation of 4123:1-03-09(F)(1). Even assuming safety
belts were available, 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." This particular code section
places the burden on the Employer, not the Injured Worker,
to securely fasten a lifeline to the structure. There was no
testimony at hearing that a lifeline was securely fastened to
the roof for those employees who may have chosen to use a
safety belt. "Securely fastened" is defined in OAC 4123:1-3-
01(B)(24) as meaning "that the object or thing referred to
shall be substantially fixed in place." OAC 4123:1-3-09(F)(1)
does not place the responsibility on the Injured Worker to
fasten a lifeline to the structure. Rather, the Employer has
the option to either install a catch basin or to fasten a lifeline
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No. 15AP-407
to the roof so that those wishing to use a safety belt would
have something to attach the safety belt to on the structure.
The Employer in the instant case did not install either of
those devices and as such, is found to be in violation of OAC
4123:1-3-09(F)(1).

{¶ 39} A specific safety requirement must be "of a character plainly to apprise an
employer of his legal obligations toward his employees." State ex rel. Holdosh v. Indus.
Comm., 149 Ohio St. 179 (1948), syllabus; State ex rel. Trydle v. Indus. Comm., 32 Ohio
St.2d 257, 261 (1972) (citing and paraphrasing the Holdosh syllabus).
{¶ 40} Because a VSSR results in a penalty, specific safety requirements must be
strictly construed in the employer's favor. State ex rel. Burton v. Indus. Comm., 46 Ohio
St.3d 170 (1989).
{¶ 41} Under State ex rel. Harris v. Indus. Comm., 12 Ohio St.3d 152, 153 (1984),
"[t]he commission has the discretion to interpret its own rules; however, where the
application of those rules to a unique factual situation gives rise to a patently illogical
result, common sense should prevail." Id. at 153. By the same token, this court must
defer to the commission's interpretation when it relies upon its own common sense to
avoid an illogical result. State ex rel. Devore Roofing & Painting v. Indus. Comm., 101
Ohio St.3d 66-70, 2004-Ohio-23.
{¶ 42} The magistrate finds helpful State ex rel. Avalotis Painting Co. v. Indus.
Comm., 91 Ohio St.3d 137 (2001), a case not cited by the parties to this action.
{¶ 43} In September 1994, Robert Gordon suffered traumatic injuries when he fell
four stories while painting an industrial building for Avalotis Painting Company, Inc.
("Avalotis"). He was standing on one narrow I-beam in order to paint another beam
above him when he lost his balance and landed on the concrete floor below. At the time of
his accident, no lifeline from which Gordon could have tied off had been rigged, and he
had no other way both to secure himself and paint where his foreman had instructed him
to work.
{¶ 44} Following Gordon's filing of an application for VSSR award, the commission
determined that Avalotis had violated Ohio Adm.Code 4121:1-3-03(J)(1) which required
that employers "provide" lifelines, safety belts and lanyards, and that employers "wear"
them when working more than 15 feet above ground. The commission premised its ruling
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No. 15AP-407
on the findings that (1) a lifeline or safety cable, could have been rigged at the specific site
to which Gordon's foreman assigned him allowing Gordon to tie off with his harness and
lanyard; and (2) Avalotis failed to provide this safety protection by rigging it for Gordon's
use.
{¶ 45} Avalotis filed a mandamus action in this court. This court rejected Avalotis'
argument that Gordon bore responsibility for rigging his own lifeline in his work area and
that his injury therefore resulted from his own failure to use this safety equipment, which
was available elsewhere at the worksite. This court instead found that the commission
could reasonably construe Ohio Adm.Code 4121:1-3-03(J)(1) to assign the employer this
responsibility such that Avalotis' failure to put this equipment in place was the same as
not having it at all. This court denied the writ and Avalotis appealed as of right to the
Supreme Court of Ohio.
{¶ 46} In affirming this court's judgment and denying the writ, the Supreme Court
explained:
Avalotis argues that in assigning the responsibility to actually
rig a lifeline to the employer, the commission's construction
tacks onto Ohio Adm.Code 4121:1-3-03(J)(1) an additional
requirement without prior notice. Moreover, since specific
safety requirements are unenforceable to the extent they fail
to "plainly apprise" employers of their legal obligations to
employees, State ex rel. Waugh v. Indus. Comm. (1997), 77
Ohio St.3d 453, 456, 674 N.E.2d 1385, 1388, Avalotis
maintains that it is not liable for this VSSR. Avalotis further
argues that since the required lifeline was "available" to
Gordon before he began painting on the day he fell, Avalotis
actually complied with the safety requirement and, therefore,
had no liability under the "unilateral negligence" defense.

The court of appeals rejected these arguments, again because
the lifeline was not in place at the site from which Gordon
fell. The court explained:

"The commission did not abuse its discretion in defining and
applying 'provide' * * * to the facts of this case. Specifically,
we find that the commission did not abuse its discretion
when it interpreted Ohio Adm.Code 4121:1-3-03(J) to
require the employer to have a lifeline in place in the area
where their employees are instructed to work. A lifeline is
useless if it's not in place for the employee to tie off. This
interpretation is reasonable and logical and, therefore,
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No. 15AP-407
affords [Avalotis] notice of its obligation pursuant to the
code."

In reaching this conclusion, the court of appeals adopted its
magistrate's report, which distinguished a lifeline from either
a lanyard or a safety belt because, under Ohio Adm.Code
4121:1-3-03(J)(1), the employee is accountable only for
equipment that is "worn," i.e., "a 'lifeline' cannot be worn."
We agree, especially since, in this case, rigging a lifeline was
not even one of Gordon's job duties.

Testimony showed that the responsibility for rigging this
particular lifeline belonged to another shift and,
furthermore, that it required a crew of employees to do it.
Thus, while Gordon, who knew how to rig a lifeline, could
have been more cautious and demanded the installation of a
lifeline from his foreman, as a practical matter, it was not his
job. He, therefore, had no basis to enforce this specific safety
requirement, particularly after his foreman had just told him
what he was to do and where.

Accordingly, the commission was justified in applying Ohio
Adm.Code 4121:1-3-03(J)(1) as it did in this context.

Id. at 139-40.

{¶ 47} The magistrate recognizes that, unlike Ohio Adm.Code 4123:1-3-03(J)(1),
Ohio Adm.Code 4123:1-3-09(F)(1) does not use the word "provide" which was under
discussion in the Avalotis case. However, both rules fail to spell out who is responsible
for rigging the lifeline─the employer or the worker. As Avalotis shows, 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. The employer is not allowed to assume that it bears no responsibility for rigging a
lifeline until the worker requests that a lifeline be rigged for his use.
{¶ 48} Given the above analysis, neither proximate cause nor unilateral negligence
are truly issues.
{¶ 49} Citing State ex rel. Bayless v. Indus. Comm., 50 Ohio St.3d 148 (1990),
relator points out that the commission need not address employer compliance before it
may reach proximate cause. (Relator's brief, 6.) However, given that relator's failure to
securely fasten a lifeline is a violation of Ohio Adm.Code 4123:1-3-09(F)(1), it is clear
 20
No. 15AP-407
beyond dispute that this failure was the proximate cause of the injury because claimant
had no means on the date of injury to tie off.
{¶ 50} Unilateral negligence sufficient to avoid a VSSR liability can exist only if
there is evidence that the employer initially satisfied the specific safety requirement and
the claimant disabled or otherwise circumvented the safety apparatus. State ex rel. Frank
Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988). Here, Byington Builders
did not initially satisfy the specific safety requirement and, thus, it cannot be held that
claimant disabled or circumvented a safety device.
{¶ 51} Accordingly, for all the above reasons, 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).