State ex rel. Thompson Elec., L.L.C. v. Indus. Comm.

[Cite as State ex rel. Thompson Elec., L.L.C. v. Indus. Comm., 2017-Ohio-7611.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Thompson Electric, Inc.,
:
Relator, No. 16AP-23
:
v. (REGULAR CALENDAR)
:
The Industrial Commission of Ohio,
Thomas R. Otto, c/o Ms. Terry L. Otto, :
Spouse, and Ms. Jessica L. Otto, Child,
:
Respondents.
:

D E C I S I O N

Rendered on September 14, 2017

On brief: Kastner Westman & Wilkins, LLC, and Keith L.
Pryatel, for relator.

On brief: Michael DeWine, Attorney General, and Lisa R.
Miller, for respondent Industrial Commission of Ohio.

On brief: Stewart & DeChant, LLC, and Scott E. Stewart,
for respondents Thomas R. Otto, Terry L. Otto, and
Jessica L. Otto.

IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
ON MOTION TO STRIKE
DORRIAN, J.
{¶ 1} In this original action, relator, Thompson Electric, Inc., requests this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order granting the application of respondent Terry L. Otto,
spouse of Thomas R. Otto ("decedent"), and child Jessica L. Otto for an additional award
for relator's violation of a specific safety requirement ("VSSR").
No. 16AP-23 2

{¶ 2} This matter arises out of an incident that occurred on May 25, 2011 which
resulted in the death of decedent, an employee of relator. Relator had been contracted by
American Electric Power ("AEP") to replace a transmission pole in Wooster, Ohio. On the
date of the incident, decedent was working on the project as a foreman for relator. During
the course of preparing for the work, a derrick boom operated by one of decedent's crew
members approached a distribution line that had not been de-energized, causing
electricity to arc through the derrick boom. The electricity traveled from the derrick boom
into the attached digger derrick vehicle, through the outriggers, and into the ground.
Decedent, who was standing in a driveway approximately eight feet away from the digger
derrick vehicle, was fatally electrocuted.
{¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including
findings of fact and conclusions of law, which is appended hereto. In the decision, the
magistrate concluded that the June 3, 2015 order of the commission's staff hearing officer
("SHO") failed to comply with State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203
(1991). Specifically, the magistrate found that the SHO provided no explanation or
supporting evidence for the finding that relator violated Ohio Adm.Code 4123:1-5-
23(D)(3) by failing to "[a]ssure that the conductor is guarded from accidental contact."
Accordingly, the magistrate recommended this court issue a writ of mandamus ordering
the commission to vacate its order and, in a manner consistent with Noll and the
magistrate's decision, enter a new order adjudicating the VSSR application.
{¶ 4} On May 24, 2017, Otto filed the following objection to the magistrate's
decision:
The Magistrate erred in its decision:

"…that this court issue a writ of mandamus ordering the
commission to vacate the SHO's order of June 3, 2015, and,
in a manner consistent with the magistrate's decision, enter a
new order that, in accordance with Noll, finds whether or not
relator complied with Ohio Adm.Code 4123:1-5-23(D)(3) by
its alleged reliance on AEP to cover the distribution wire at
issue here."

On June 20, 2017, relator filed a brief in opposition to Otto's objection. On June 23,
2017, Otto filed a motion to strike relator's June 20, 2017 brief.
No. 16AP-23 3

{¶ 5} "In order to establish a VSSR, a claimant must establish that: (1) an
applicable and specific safety requirement existed at the time of the accident; (2) the
employer violated the requirement; and (3) the violation proximately caused the injury."
State ex rel. Sunesis Constr. v. Indus. Comm., 10th Dist. No. 09AP-423, 2010-Ohio-4434,
¶ 5, citing State ex rel. Lange v. Indus. Comm., 111 Ohio St.3d 563, 2006-Ohio-6211, ¶ 14.
"Because a VSSR penalizes the employer, specific safety requirements 'must be strictly
construed, and all reasonable doubts concerning the interpretation of the safety standard
are to be construed against its applicability to the employer.' " Id., citing State ex rel.
Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989).
{¶ 6} "In any order of the Industrial Commission granting or denying benefits to a
claimant, the commission must specifically state what evidence has been relied upon, and
briefly explain the reasoning for its decision." Noll at syllabus. "The purpose for requiring
such evidentiary identification and explanation is so that 'meaningful review can be
accomplished.' " State ex rel. Buttolph v. Gen. Motors Corp., 79 Ohio St.3d 73, 75 (1997),
quoting Noll at 206. A reviewing court will not "search the commission's file for 'some
evidence' to support an order of the commission not otherwise specified as a basis for its
decision." (Emphasis omitted.) Noll at 204, quoting State ex rel. Mitchell v. Robbins &
Myers, Inc., 6 Ohio St.3d 481, 483 (1983). "Noll applies to VSSR review in mandamus."
Sunesis at ¶ 6, citing State ex rel. Donohoe v. Indus. Comm., 10th Dist. No. 08AP-201,
2010-Ohio-1317, ¶ 18.
{¶ 7} Respondent contends in the filed objection that the commission's order
complied with Noll because the commission "did not need to explain why it found certain
evidence unpersuasive, it is not required that they cite evidence that they considered and
rejected, they do not have to list the evidence considered as a presumption of regularity
attaches to the commission's proceedings which is they considered all the evidence before
them." (Otto's Obj. at 33.)
{¶ 8} The SHO's order stated:
Clearly the evidence shows that the employer did not
(1) assure that the conductor was de-energized and
grounded, or (2) assure that the conductor was moved, or
(3) assure that the conductor was guarded from accidental
contact and an employee was designated to act as a
signalman, or (4) assure that an insulated link was installed
[and] an employee is designated to act as signalman, and
No. 16AP-23 4

therefore did not comply with the applicable safety
requirement on the date of injury herein.

The SHO concluded:

based upon the Bureau of Workers' Compensation's Safety
Violations Investigation unit packet on file, signed affidavits
and testimony at hearing from Mr. Shortridge, the Injured
Worker's expert, and Mr. Anderson the owner of the
company, all indicate that at the time of the injury, none of the
four requirements outlined in Ohio Adm. Code 412[3]:1-5-
23(D) were complied with.

(Appended Magistrate's Decision at ¶ 39.)
{¶ 9} Ohio Adm.Code 4123:1-5-23(D) provides:
Before an employee moves or operates power cranes, shovels,
backhoes or any other type of material hoisting equipment
within ten feet of an energized electrical conductor, the
employer shall:

(1) Assure that the conductor is deenergized and grounded, or

(2) Assure that the conductor is moved, or

(3) Assure that the conductor is guarded from accidental
contact and an employee is designated to act as signalman to
direct the operator in the movement of the equipment, or

(4) Assure that an insulated boom or an insulated type guard
about the boom or arm of the equipment and a dielectric
insulator link between the load and the block are installed and
an employee is designated to act as signalman to direct the
operator in the movement of the equipment.
{¶ 10} Thus, the SHO's order essentially recites the regulations at issue without
explaining specifically how relator violated the regulation and what specific evidence the
SHO relied on in making its findings. See Sunesis at ¶ 7. As noted by the magistrate, the
SHO's order fails to provide any reasoning or specific evidence in support of its findings
that relator failed to "[a]ssure that the conductor was guarded from accidental contact and
an employee [was] designated to act as signalman" pursuant to Ohio Adm.Code 4123:1-5-
23(D)(3). Relator specifically contested this issue before the SHO by arguing that it was
the responsibility of AEP, not relator, to assure that the line was guarded from accidental
contact. We agree with the magistrate that the commission had a duty to determine this
issue in the first instance. Because the commission failed to address this issue, it abused
No. 16AP-23 5

its discretion. State ex rel. Brown v. Hoover Universal, Inc., 10th Dist. No. 10AP-21,
2010-Ohio-6174, ¶ 6, citing State ex rel. Peabody Coal Co. v. Indus. Comm., 66 Ohio St.3d
639 (1993), citing State ex rel. Gen. Am. Transp. Corp. v. Indus. Comm., 49 Ohio St.3d 91
(1990). As a result, we agree with the magistrate that the SHO's order fails to comply with
the requirements of Noll.
{¶ 11} Both Otto and relator invite this court to reach the merits of the matter by
examining the evidence in the record to determine whether it supports the SHO's
determination that relator violated Ohio Adm.Code 4123:1-5-23(D). It is not, however,
the role of this court to undertake a review of the record to find whether "some evidence"
exists to support the SHO's findings. See Noll at 204. Meaningful review cannot be
accomplished where an order, such as the one here, fails to "briefly explain the reasoning
and specifically state which evidence was relied upon." Id. at 205. Therefore, we decline
at this time to determine whether sufficient evidence in the record exists to support the
SHO's findings.
{¶ 12} On June 23, 2017, Otto filed a motion to strike relator's brief in opposition
to Otto's objection to the magistrate's decision. Otto argued that relator in its brief
improperly raised issues outside the scope of Otto's objection to the magistrate's decision.
As we have declined to review the merits of this matter, Otto's arguments are moot. We
therefore deny Otto's June 23, 2017 motion to strike.
{¶ 13} Based on a review of the magistrate's decision, an independent review of the
record, and due consideration of Otto's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
Otto's objection to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
we grant a writ of mandamus ordering the commission to vacate the SHO's June 3, 2015
order and, pursuant to and in compliance with this decision and Noll, enter a new order
adjudicating the VSSR application.
Motion to strike denied;
objection overruled;
writ of mandamus granted.

TYACK, P.J., and KLATT, J., concur.
No. 16AP-23 6

APPENDIX
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. :
Thompson Electric, Inc.,
:
Relator,
:
v. No. 16AP-23
:
The Industrial Commission of Ohio (REGULAR CALENDAR)
and :
Ms. Terry L. Otto
and :
Ms. Jessica L. Otto,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on May 12, 2017

Kastner Westman & Wilkins, LLC, Keith L. Pryatel, and
Bruce H. Fahey, for relator.

Michael DeWine, Attorney General, and Lisa R. Miller, for
respondent Industrial Commission of Ohio.

Stewart & DeChant, LLC, and Scott E. Stewart, for
respondents Ms. Terry L. Otto and Ms. Jessica L. Otto.

IN MANDAMUS

{¶ 14} In this original action, relator, Thompson Electric, Inc. ("Thompson
Electric" or "TEI") requests a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its order granting to respondents Ms. Terry
L. Otto and Ms. Jessica L. Otto ("Terry and Jessica") their application for an additional
award for violation of a specific safety requirement ("VSSR"), and to enter an order
denying the application.
No. 16AP-23 7

Findings of Fact:
{¶ 15} 1. On May 25, 2011, Thomas R. Otto ("decedent") was fatally electrocuted
while employed with relator. Terry L. Otto is the surviving spouse. Jessica L. Otto is the
surviving child.
{¶ 16} 2. A death claim (No. 11-326990) was certified by relator.
{¶ 17} 3. On October 1, 2012, Terry and Jessica filed an application for a VSSR
award.
{¶ 18} 4. The VSSR application prompted an investigation by the Safety Violations
Investigation Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
{¶ 19} 5. On January 15, 2013, the SVIU investigator, Julia M. Riley, conducted an
onsite investigation at the home offices of Thompson Electric located in Munroe Falls,
Ohio. Relator's vice-president, Bill Anderson, was present during the onsite visit. Also
present was relator's attorney.
{¶ 20} 6. On January 18, 2013, the SVIU investigator issued her report of
investigation, which presents eight enumerated paragraphs under the heading
"Discussion." Paragraphs two through eight state:
[Two] On May 25, 2011 Mr. Otto (foreman), James Martin
(operator), and Matt Bickel (flagger) were assigned to
replace a transmission pole on Geyers Chapel Road near
Smithville Western Road in Wooster, Ohio according to Mr.
Anderson. The existing pole had a transmission line with
sixty-nine thousand volts that had been de-energized and a
distribution line with twenty-nine thousand volts that had
not been de-energized. Mr. Bickel was setting up the traffic
zone and Mr. Otto and Mr. Martin were unloading an auger
from the truck. Mr. Otto got on the truck and attached the
auger with a nylon choker hooked to the boom. Mr. Otto
then got off the truck to "spot" for Mr. Martin. Mr. Martin
began to remove the auger from the truck, the boom came in
contact with the energized distribution line and energized
the truck. The voltage went out the outriggers of the truck
and into the ground. Mr. Otto was standing in a driveway
approximately eight feet away from the truck. Under the
driveway where Mr. Otto was standing was a culvert, the
electricity entered Mr. Otto's body via his small toe on his
right foot. Mr. Anderson explained when the incident
occurred due to Mr. Martin's position, [Mr.] Martin could
only see one line * * * and believed this line to be the de-
energized transmission line when in reality there were two
lines; the transmission line and the distribution line. * * *
No. 16AP-23 8

[Three] Mr. Anderson explained the involved distribution
line had not been de-energized as the residences in the area
were required to have power. AEP had placed a one shot
recloser on the distribution line; if anything would come in
contact with the line[,] power would be shut down
immediately instead of allowing an item to strike the normal
three times (three shot recloser) before power was shut
down. The distribution line was approximately twenty feet
from the ground and the boom was raised at the maximum
level approximately seventy-five to eighty degrees and
eighteen to twenty feet in the air at the time of the incident.
Both Mr. Otto and Mr. Martin were aware of the wires as
they had been at the site the day prior to the incident
dropping off poles. Mr. Otto had received the clearances
from the Transmission Contract Engineer the morning of the
incident; the engineer was en route to the site but was
running late.

[Four] The involved truck was a 2007 International 4300
* * * equipped with a Pitman digger derrick * * * and Stahl
full utility line body, pole carrying rack, and hydraulic
capstan drive * * *. At the time of the incident the truck was
equipped with grounding wire and a screw anchor * * *. The
grounding wire is used to ground the truck either by using
the screw anchor screwed into the ground or connected to
the grounding wire on a utility pole * * *. When Mr.
Anderson arrived at the site after the incident the grounding
wire from the truck was attached to a grounding wire on a
pole. The employees at the site initially stated the truck was
grounded at the time of the incident. Later Lee Elgin and
Eric Rutkowski stated the truck was not grounded when the
incident occurred and was grounded after the incident. Mr.
Anderson advised company policy is to ground the truck
when the boom goes into the air and there is a possibility of
coming in contact with energized circuits. Mr. Anderson
further advised the grounds are grounded unless in an open
parking lot with no wires. Mr. Otto had the responsibility of
grounding the truck, Mr. Anderson stated. The operator does
not have the responsibility to ground the truck or ensure it
has been grounded. Mr. Otto was the foreman, controlled
everything on the ground, had the responsibility to ground
the truck, and to ensure the truck is grounded.

[Five] The involved truck was not in position to set a pole at
the time of the incident; it was over twenty feet away from
where the truck would be positioned when setting a pole, Mr.
Anderson explained. The position of the truck confirms Mr.
Otto and Mr. Martin were unloading and were not in the
process of setting a pole. There was not a trench or
No. 16AP-23 9

excavation in the area, and the incident did not involve any
underground installations. When the incident occurred the
equipment and truck did not tip or over turn nor fail. The
truck was on a level surface and the auger did not come loose
to nor strike Mr. Otto. Mr. Otto was on the ground and not
on any portion of the truck when the incident occurred. After
the incident the truck was towed and a complete inspection
was conducted. There were no burns located on the tires and
evidence indicated electrical current through the outriggers.
The truck was found to be in good condition and it was re-
certified. AEP tested the recloser after the incident with no
issues found.

[Six] Mr. Otto was a foreman responsible for overseeing the
crew, getting equipment to the job, and acting as a liaison
between the company and the customer, according to Mr.
Anderson. Mr. Otto worked out of the local union hall and
Thompson Electric provided annual training consisting of
OSHA 10 hour course, OSHA 20 hour course, and OSHA 30
hour course, rescue, CPR, First Aid, rubber product safety,
and AEP training safety and orientation * * *. Mr. Otto was
provided with and was required to wear at the time of the
incident a hard hat, safety glasses, rubber over shoes, and
leather gloves. Mr. Otto was also provided with rubber gloves
with protectors and rubber sleeves; these are required any
time an employee is working within proximity of live lines or
within the minimum approach distance of two feet to two
and one half feet. These items are stores in a leather bag and
tested every sixty days. Located on the involved truck are
hook sticks and a "shot" gun, line guards, insulator hoods (2-
3 on each truck), and blankets (2-3 on each truck). The
bucket trucks carry six line hoses. The hook sticks, "shot"
gun, line guards, insulator hoods, blankets, and line hoses
were not needed or required for unloading the auger from
the involved truck. The blankets are stored in a clean, dry
plastic tube in a compartment on the truck and the line
hoses, shot gun, line guards, insulator hoods and hot sticks
are stored in a clean, dry plastic sealed compartment.
Investigator Riley asked if the hard hat had any voltage
protection and Mr. Anderson stated he did not believe so.

[Seven] During the on-site investigation Investigator Riley
interviewed witness Matthew Bickel. An affidavit was
obtained from Mr. Bickel at that time * * *.

[Eight] Investigator Riley attempted to contact listed
witnesses Lee Elgin, Eric Rutkowski, and James Martin
January 16, 2013. Messages for all three workers were left
and as of the writing of this report none had responded.
No. 16AP-23 10

{¶ 21} 7. As earlier indicated, the SVIU investigator interviewed Matthew Bickel
and obtained an affidavit which was presented as an exhibit to the SVIU report of
investigation. The affidavit of Matthew Bickel executed January 15, 2013 states in 17
enumerated paragraphs:
[One] I am a witness in the incident involving Mr. Otto.

[Two] I began working at Thompson Electric Inc. the first
time in approximately 2005 as a ground man. I worked at
the company for approximately one year or more. I returned
to the company for approximately one year approximately
four years ago. This last time I began working for Thompson
Electric approximately three years ago as an operator. At the
time of the incident involving Mr. Otto I was an operator;
this is my current position. As an operator I operate the
equipment, the shovel, flag traffic, and anything they ask me
to do.

[Three] On May 25, 2011 * * * I was working with Mr. Otto,
Jimmy Martin, Eric Rutkowski, and Lee Elgin at a site on
Geyers Chapel Road near Smithville Western Road in Wayne
County, Ohio. We were going to change out two poles and
transfer the distribution and transmission wire. This was my
first day at the site. I believe the rest of the crew had been at
the site previously to spot poles (laying the new poles on the
ground in the area).

[Four] At the time of the incident I was flagging traffic in the
middle of the work zone. The digger truck was north of me
approximately forty yards. Mr. Martin was operating the
digger truck. Mr. Rutkowski was in the bucket truck at the
next pole down. Mr. Otto was on the ground near the digger
truck. Mr. Martin and Mr. Otto had been unloading the
auger from the digger truck. Mr. Martin swung the boom
over the side of the truck and the boom caught the
distribution line.

[Five] When the boom touched the wire Mr. Otto was on the
east side of the truck out of my vision. I do not know where
Mr. Otto was in relation to the truck. The lowest point of the
auger was approximately eight to ten feet from the ground
when the incident occurred and out of Mr. Otto's reach.

[Six] I believe the truck was grounded at the time of the
incident. I did not see who grounded the truck prior to the
incident. The ground was taken down later by Mr. Rutkowski
No. 16AP-23 11

or Mr. Elgin. I did not see anyone ground the truck after the
incident.

[Seven] As soon as I arrived at the site I started setting the
control zone and started flagging. I was not involved in any
meeting discussing the hazards or the electric lines. The
others talked but I was busy setting the zone; there was quite
a bit of traffic on the road that day.

[Eight] Normally the crew has a meeting after arriving at the
job site. The hazards of the job site area [are] discussed,
distribution lines and transmission lines are discussed (the
heights of these and working around them).

[Nine] Every employee that works at the sites are provided
with rubber gloves with protectors, rubber sleeves, rubber
over shoes, safety glasses, hard hat, safety vest, and leather
gloves. The gloves and sleeves come in a box and a plastic
bag; it is the employee's responsibility to keep these items
clean, dry, and to test daily. The company has the equipment
tested by an outside source approximately every sixty days.

[Ten] The trucks are equipped with line hoses (a minimum
of six for each truck), blankets (at least 4, more are
available), a shot gun, and one finger stick. The hoses are
normally located in the lay down bin on the driver's side of
the truck; this is a clean, dry area. The blankets are kept in a
plastic cylinder tube in the belly of the truck; this is a clean,
dry area. The shot gun and finger stick are located in the
same bin as the hoses. Insulator hoods are available in the
job trailer.

[Eleven] I am not aware of any issues with the boom or the
truck at the time of the incident. The auger did not come
loose at the time of the incident. The auger did not strike Mr.
Otto. The truck did not tip or over turn at the time of the
incident. The truck was on a level surface at the time of the
incident.

[Twelve] I do not know if there was a designated signal man;
if there was a signal man it would have been Mr. Otto. I
believe this would have been discussed at the morning
meeting.

[Thirteen] Mr. Martin was aware of the overhead lines. Mr.
Martin was an experienced operator and had worked around
overhead lines numerous times. I was not aware of previous
issues Mr. Martin had working around over head lines.
No. 16AP-23 12

[Fourteen] The transmission lines (69,000 volt line) had
been de-energized. The distribution line was not de-
energized or grounded; I believe this is because the
residences needed power.

[Fifteen] The company had a policy for working around
overhead electrical wires at the time of this incident. Each
employee is provided with a copy of this policy when they are
hired. I believe the minimum clearance distance for the
distribution line would have been between four and five feet.

[Sixteen] There was not any trench or excavation in the area
when the incident occurred and this incident did not involve
any trench or excavation.

[Seventeen] There were not poles being driven at the time of
the incident. The auger was being unloaded from the truck
when the incident occurred; no work had started.

{¶ 22} 8. Apparently, Terry and Jessica filed an intentional tort action in the
Summit County Court of Common Pleas. The action generated several depositions. In
May 2015, counsel for Terry and Jessica submitted to the bureau several deposition
transcripts relevant to the pending VSSR application. The deponent's name, date of
deposition, and the page length of the transcripts are identified below:

Deponent's Date of Transcript
Name Depo Page
Length
Bill Anderson 4-9-14 104
Robert Sallaz 6-17-14 93
Clarence 5-5-14 104
Richard
(Rich)
Householder
Rhonda 8-19-13 94
Householder
Lester Elgin 4-9-14 94

{¶ 23} 9. In February 2015, Terry and Jessica, hired Gary F. Shortridge as their
expert to prepare a report regarding the VSSR.
{¶ 24} His seven-page report is divided by headings. The headings are
"Chronology," "Observations," "Summary," and "Conclusion."
No. 16AP-23 13

{¶ 25} Under "Chronology," Shortridge wrote:
On Wednesday, May 25, 2011 a Thompson Electric line crew
was sent * * * to replace wood poles for AEP. Prior to the
crew being sent to this location the wood poles had [to] be
delivered to [the] site and the primary conductor on the
existing primary pole had been relocated from it's [sic]
original location on the wood crossarm to a temporary
location on a fiberglass hot arm. * * *

The crew members present at the site was [sic]:
Tom Otto - Journeyman Lineman
Jim Martin - Journeyman Lineman
Lester Elgin - Journeyman Lineman
Eric Rutkowski - Journeyman Lineman
Matt Bickel - Operator

The crew set up the work zone on Geyers Chappel Rd. in
preparation of performing the task of replacing the wood
poles. At some point there was a [Job Safety Analysis] filled
out and signed by the crew members. The digger derrick was
set up in front of [the] driveway. The crew then moved the
new wood pole to be installed to a location so that the hole
could be dug and the pole could be set without moving the
digger derrick. * * *

Someone from Thompson Electric received a clearance from
AEP that the 69kV circuit running on top of the existing pole
was de-energized and was ready to be grounded. There was
no written documentation of this Lock out Tag Out event.

Lester Elgin and Eric Ruthkowski [sic] setup [sic] the bucket
truck to test and ground the 69kV circuit.

Matt Bickel was flagging traffic through the work zone.

Tom Otto and Jim Martin were preparing to remove the
auger from the bed of the digger so it could be attached to
the digger derrick to dig the hole for the pole.

Jim Martin [was] operating the controls on the digger
derrick[. He] rotated the boom to a point over the center of
the truck bed and lowered the winch line to the location of
the auger lying in the bed of the truck. Tom Otto placed a
steel sling around the auger and hooked it to the winch line
* * *. Jim Martin raised the auger out of the bed of the truck
and rotated the boom toward the field side of the truck. The
boom contacted the 7200 volt distribution circuit * * *. Tom
Otto fell to the ground[. The] crew members started CPR and
No. 16AP-23 14

called 911. Tom Otto was transported to Wooster Community
Hospital where he was later pronounced dead.

{¶ 26} Under "Observations,” Shortridge wrote:

 Primary conductor was not covered up with line hose or
plastic cover. * * *

 Truck was not grounded. * * *

 Brunt [sic] marks under wooden pads. * * *

 No written documentation for the lock out tag out procedure
on the 69kV circuit.

 Pole lying across driveway. * * *

 Jim Martin continued operating the boom of the digger
derrick after losing sight of Tom Otto. Tom Otto was
identified as the signal person.

 Coroner Report burn marks on Mr. Otto 4th & 5th toes on
right foot. This would indicate that Tom Otto was stepping
down off of digger derrick.

 Eric Ruthkowski [sic] (Journeyman Lineman) completed the
JSA that morning on site.

 It is not apparent who the foreman actually was for this
particular project.

 Jason Hosteler arrived on site after the accident and signed
the accident report as foreman. Jason also directed workers
to ground digger derrick post-accident.

 AEP representative arrived on site after the accident.

 The 7200 volt circuit breaker did not lock out.

 It is very clear that Thompson Electric insist [sic] that the
foreman is responsible for safety.

 Mr. Martin lost sight of Mr. Otto who was the signal person.
Mr. Martin continued operating the digger derrick after that
and contacted the 7200 volt primary conductor.

 Brunt [sic] marks under the wooden pad also confirm the
truck was not grounded.
No. 16AP-23 15

 With the digger derrick not being grounded the fault current
on the 7200 volt primary circuit would not have been at a
high enough level to cause the oil circuit breaker to operate,
when the boom contacted the un-insulated conductor.

(Emphasis sic.)

{¶ 27} Under "Summary," Shortridge wrote:

The Root Cause for this accident:

 Lack of:

 Managements Commitment: The level of commitment
management demonstrates to the safety and health process;
the systems that control the safety culture: safety policy and
procedures and active management participation.

 Accountability: The process used to assign safety and
health management responsibilities and to evaluate,
recognize and reward performance.

 Employee Participation: The extent to which employees
participate in and are encouraged to be involved in safety
and health.
 Safety Culture: The organization climate, values,
management style and social norms related to safety.

 Hazard prevention and controls: The process to
identify and correct unsafe acts and unsafe conditions.

 The above Root Causes were very evident during the
deposition of Bill Anderson when an upper level manager
states that Safety is not [h]is Job, his Job is to win contracts.

(Emphasis sic.)

{¶ 28} Under "Conclusion," Shortridge wrote:

On May 25, 2011 Tom Otto was employed by Thompson
Electric Inc. and was fatally injured at work.

It is uncertain who the actual foreman was on site the day of
the accident[. Anyone] of the Journeyman Line were
qualified to be the foreman. Who would have been the
foreman if any of the other crew members would have been
injured?
No. 16AP-23 16

In an attempt to identify Tom Otto as foreman Thompson
Electric made an error and Tom Otto was paid [a] higher rate
than that required for this agreement.

There were numerous violations of several safety rules,
Federal, States of Ohio, IBEW, AEP and Thompson Electric.

There was an attempt to cover up the fact that the digger
derrick was not ground.

OSHA was given false information about the digger derrick
grounding. If OSHA would have be[en] given accurate
information the citations and fines would have been
substantially higher.

There is a definite failure on the part of Thompson Electric to
employ Safety Professional[s] with credentials other than
being the General Foreman's spouse.

There was fictitious information sent to AEP to cover up key
facts of the accident. If AEP would have been given accurate
facts about the grounding of the digger derrick Thompson
Electric would have be[en] at risk of losing the contract with
AEP.
I believe that all the items here solidify the fact that
Thompson Electric, Inc. has a total disregard for Safety.

This disregard for Safety was demonstrated when Mr.
Anderson an upper level manager for Thompson Electric
stated that it was the foreman's responsibility to ground the
truck.

{¶ 29} 10. In May 2015, relator hired expert Howard L. Call to prepare a report
regarding the VSSR. His eight-page report is divided by headings. The headings are
"Facts," "Observations," "Summary," "Concluding Facts," and "VSSR Response."
{¶ 30} Under "Facts," Call wrote:
Wednesday, May 25, 2011, Thompson Electric in cooperation
with America Electric Power (AEP) assigning a work order to
Thompson Electric Inc. (TEI) to replace 2 transmission poles
in the area of * * *.

In preparation for the project prior to Wednesday May 25
two transmission poles were delivered to the project and
AEP placed the 7200 volt electric distribution conductor, #4
copper out onto hot arms to gain more vertical clearance for
No. 16AP-23 17

pole setting purposes from its original position on the
existing pole. * * *

The crew consisting of:

Tom Otto, Qualified Crew Foreman and Qualified
Journeyman Lineman
Jim Martin, Qualified Journeyman Lineman
Lester Elgin - Qualified Journeyman Lineman
Eric Rutkowski - Qualified Apprentice Lineman
Matt Bickel - Operator/flagger

Part of the crew assembled at the TEI Staging site and
proceeded to the work site * * * to prepare to work the AEP
assigned project, setting transmission poles. Foreman Tom
Otto and Journey Lineman Jim Martin drove straight to the
job site from home. The crew held their tail board project
review, completed the Job Safety Analysis. The job had two
points of contact with AEP, first was the transmission line
clearing and release to apply grounds by TEI onto the
transmission line and second the hold off on the ground
distribution circuit recloser which is designed to immediately
open upon a circuit fault instead of attempting to reclose
several times and then lockout. In addition AEP was
assigned to place rubber identification and protection hose
cover-up to the distribution lines. TEI was not a vendor
contracted with AEP for Distribution work at this time. AEP
on account of the sever[e] fog Wednesday May 25, 2011 had
not left the AEP Wooster Line shop to do so prior to the TEI
crew setting up.

The transmission bucket crew preceded down the road 1
span to ground the 69,000 volt line as directed by Foreman
Tom Otto after the approval and clearance was received by
Foreman Tom Otto from AEP Transmission Dispatch.

Tom Otto and Jim Martin set up the digger derrick truck at
* * *. The outriggers and pads for truck stability were placed
out for the truck outriggers and Tom Otto and Jim Martin
proceeded to remove the transmission pole auger from the
truck bed to change the auger out in preparation of drilling
the pole hole.

Foreman Tom Otto received the approval from AEP
Transmission Contractor Representative Fred Stringer that
the recloser had been placed on one shot. Jim Martin raised
the digger derrick boom and rotated to the position directed
by Foreman Tom Otto to lift the auger with a nylon lifting
sling from the truck bed. Foreman Tom Otto descended from
No. 16AP-23 18

the truck bed via the exit stairs on the passenger truck side
body and proceeded to signal with hand motions to Jim
Martin to lift the auger. Jim Martin lost sight of Foreman
Tom Otto and continued to lift and rotate the truck derrick
boom, without direction, nearing the 7200 volt conductor
creating a ground potential to earth which arced to the
digger derrick truck to ground out through the outriggers
and outrigger pads to earth. Jim Martin immediately
reversed his rotation away from the overhead 7200 volt
conductors at 0818 hours. Journeyman Lineman Jim Martin
looked for Foreman Tom Otto and found Foreman Tom Otto
on the ground. Journeyman Lineman Jim Martin called out
to the flagger Matt Bickel that Tom Otto was down and to the
crew down the road who were preparing the Transmission. A
911 call was placed and first aid CPR was started on Tom
Otto until the EMS squad arrived and transported Foreman
Tom Otto to Wooster Community Hospital, where Tom Otto
was pronounced dead.

The Wayne County Sheriff's office arrived at 0833 hours and
documented the accident scene and took information from
Eric Rutkowski, Jim Martin, Lester Elgin.

{¶ 31} Under "Observations," Call wrote:

 All TEI employees are IBEW trained via ALBAT and 4th
District Safety trade and all safety procedures.

 All TEI employees are trained in OSHA 10, OSHA 20[,]
OSHA 30.

 All TEI employees are aware of all Policies on Safety
clothing, PPE, Rigging, Lifting, Ground to ground rubber
gloves and sleeves policy.

 JSA was completed prior to the work beginning by the crew
and written by Eric Ruthoski [sic] and approved by Foreman
Tom Otto and the balance of the crew.

 Primary conductor operating at 7200 was extended out from
the center of the pole for clearance by AEP. The wire had not
been covered with rubber line hose by AEP.

 Truck was not grounded at the time of the accident by
evidence of the burnt asphalt under the outrigger pads.

 The recloser did not operate after the arc occurred, an arc
mark on the primary #4 copper conductor was located and
No. 16AP-23 19

that wire was removed for review. The homes in the area did
not lose power.

 A reasonable conclusion is the extreme moist air relating to
the foggy conditions possibly caused the air between the
primary #4 conductor and the derrick truck boom to ionize
and arc without actual[ly] touching the boom onto the wire,
creating the arc. A copper wire of this size would melt and
burn down to the ground upon direct contact with a ground.

 Fault current from the contact existed via the outriggers
through the outrigger pads into the asphalt.

 Jim Martin continued to operate, violating lifting safety
requirements training after losing sight of the lifting
observer Foreman Tom Otto.

{¶ 32} Under "Summary," Call wrote:

Items leading to the Fatality:

IBEW Union employees not following their IBEW Union
employee training, 4th District Safety Procedures Rule and
TEI Policy on:

[One] Truck grounding rule, failure to properly ground
equipment. 4120:1-5-23 (A)

[Two] Improper use of PPE (overshoes). 4121:1-5-17 (I)(4)
4121:1-5-23 (E)(a)

[Three] Failure of Foreman Tom Otto to maintain eyesight
with Truck Operator Jim Martin. 4121:1-5-23(D)(3)(4)

[Four] Operating equipment and failure of spotter, Foreman
Tom Otto to stop Journeyman Jim Martin encroaching the
minimum approach distance to energized equipment. 4121:1-
5-23

Root Cause Analysis
 Failure to follow the IBEW ALBAT training and safety
rules, 4th District Safety rules and TEI Safety Policies by
Foreman Tom Otto and crew.

 Failure to await the installation of the rubber hose on the
distribution lines by AEP for an additional layer of
protection and visible identification of the primary wire.
No. 16AP-23 20

 Failure of Foreman Tom Otto to wear his safety
overshoes.

 Failure of the operator Journeyman Jim Martin in
continuing to operating [sic] the derrick without direction
from Foreman Tom Otto who was out of visual sight.

 Failure by Foreman Tom Otto to utilize permanently
installed protective grounding system.

 Failure of spotter, Foreman Tom Otto to stop
Journeyman Jim Martin encroaching minimum approach
distance to energized equipment.

These conclusions are drawn from testimony or statements
of Jim Martin, Qualified Journeyman Lineman, Lester Elgin-
Qualified Journeyman Lineman, Eric Rutkowski- Qualified
Journeyman Lineman, Matt Bickel- Operator and the
investigative report of Julia Riley of the Ohio Bureau of
Workers' Compensation. These Lineman, Foreman are
professionally trained in their trade including the safe
operation and creation of a safe work plan for their daily
work.

{¶ 33} Under "Concluding Facts," Call wrote:

Prior to May 25, 2011 AEP assigned a transmission project to
TEI for replacement and removal of transmission poles on
Geyers Chappel Road, Wooster, Ohio. The work was
assigned to Crew Foreman Tom Otto from General Foreman
Rich Householder, Foreman Tom Otto was experienced in
this type of work.

The crew led by Foreman Tom Otto did their JSA safety
briefing prior to the project beginning at the site and it was
documented by the crew onto the provided form.

Foreman Tom Otto and Lineman Jim Martin failed to
ground the digger derrick to earth or the AEP system pole
grounding electrode prior via the installed grounding
equipment on the digger Derrick truck prior to raising the
boom.

TEI supplies Personal Protective equipment, Hard Hats,
Rubber Overshoes, Rubber Gloves, Sleeves, Face shield,
safety glasses and more per their obligation as well as their
union agreements.
No. 16AP-23 21

TEI trains on OSHA 10, OSHA 20, OSHA 30 and all other
safety related and company policies to maintain its
employee's safety credentials and TEI policies.

{¶ 34} Under "VSSR Response," Call wrote:

OAC Ann. 4123:1-5-23 Electrical Conductors and
equipment (A) (B) (C) (D) (E)

Foreman Tom Otto chose not to wait for AEP to apply rubber
hose to the wire.

Foreman Tom Otto failed to follow TEI, ALBAT and 4th
District Safety procedures and training in not grounding the
truck and allowing operation of a derrick in the air out of site
of the spotter.

Foreman Tom Otto did not follow assured clear distance to
an energized conductor.
TEI the employer supplies all safety gear as well as standards
on grounding vehicles. The Digger Derrick was equipped by
TEI with the grounding system. The Digger Derrick was
removed from service and inspected by a third party and
found in good operating condition with industry standards
including the grounding system.

(Emphasis sic.)

{¶ 35} 11. On June 3, 2015, the VSSR application was heard by a staff hearing
officer ("SHO"). The hearing was recorded and transcribed for the record. The transcript
is 97 pages in length.
{¶ 36} During the hearing, Bill Anderson testified on behalf of Thompson Electric.
{¶ 37} During the hearing, Mr. Shortridge testified on behalf of Terry and Jessica.
{¶ 38} During the hearing, Bill Anderson was examined by relator's counsel,
Mr. Fahey. The following exchange occurred:
MR. FAHEY: Bill, would you describe the scope of the work
for the Hearing Officer?

MR. ANDERSON: The scope of work was to replace two
poles that were existing. Poles were dropped off by AEP,
Tom Otto was working with a man by the name of Rudy
Stringer, he was the TCR, that's a transmission contractor
representative.

MR. FAHEY: Is that from AEP?
No. 16AP-23 22

MR. ANDERSON: That's from AEP. Tom was working with
him on that, he told him to report --

[RESPONDENT'S COUNSEL]: Objection to how he knows
that.

THE HEARING OFFICER: Go ahead and finish, I'm going to
allow it, go ahead.

MR. ANDERSON: Tom reported to the job, Rudy was in
conversation with Tom as to when the 69 line was taken out
of service and when he had clearance to put grounds on.

And at the same time as to when the 7,200 volt line was put
on, AEP did all of the so-called switching/tagging. AEP does
that themselves, they don't allow contractors to do that at a
tran station level.

At distribution level they allow the contractors to call in and
do that but we weren't cleared to do any of the distribution
work, we were told not to do it.

Putting the conductor out on the hot arm or extender away
from the pole, that was done by AEP, they were the ones that
were supposed to come and cover the lines, that was not part
of our scope of the job.

THE HEARING OFFICER: Let me ask you this, you guys did
know that the distribution line was still alive, didn't you?

MR. ANDERSON: We did know, yes, that's correct.

THE HEARING OFFICER: And even though you guys are in
the business of installing poles, don't you guys have to take
some sort of safety measures, knowing that there's a line up
there that's live?

MR. ANDERSON: Well, we would not have under typical
circumstances started that job until AEP got out and put all
the line hose up. We wouldn't have done anything. AEP, my
understanding was their people were delayed because of fog.

THE HEARING OFFICER: Do you have any idea why these
guys went ahead and started?

MR. ANDERSON: I have no idea.
No. 16AP-23 23

THE HEARING OFFICER: All right, I mean you weren't
there, right?

MR. ANDERSON: I was not there.

THE HEARING OFFICER: All right, okay. All right, go on.

MR. ANDERSON: That was basically the extent. They were
to drill a hole beside the pole, set the new pole, put up new
insulators and remove the old pole down to the distribution.

MR. FAHEY: Did they do any work on the distribution
wires?

MR. ANDERSON: No.

MR. FAHEY: Okay. Any other work besides what you just
described?
MR. ANDERSON: No, they were instructed not to work on
the distribution.

I think Mr. Otto stated that in somebody's deposition, that
they were told not to do any of the distribution work.

MR. FAHEY: I think you misspoke, Mr. Otto?

MR. ANDERSON: Not Mr. Otto, one of the other people. I
think that person made a statement that Mr. Otto told them
not to do any of the distribution work. That was the crew.

MR. FAHEY: Okay. Mr. Otto was the liaison with AEP for
that particular job?

MR. ANDERSON: He was the foreman on the job, he was in
contact with the TCR, TCR is our only contact, with the
foreman.

(June 3, 2015 Tr. at 48-52.)

{¶ 39} 12. Following the June 3, 2015 hearing, the SHO issued an order granting a
VSSR award based solely on a finding that relator had violated Ohio Adm.Code 4123:1-5-
23(D), which is captioned "Minimum clearance."
{¶ 40} Mailed July 22, 2015, the SHO's order of June 3, 2015 explains:
[T]he Staff Hearing Officer specifically finds that the
employer was in violation of the requirements set forth in
Ohio Adm. Code 4123:1-5-23(D) mandating that certain
procedures be followed before an employee moves or
No. 16AP-23 24

operates power cranes, shovels, backhoes within ten feet of
an energized electrical conductor (1) assure that the
conductor is de-energized and grounded or (2) assure that
the conductor is moved, or (3) assure that the conductor is
guarded from accidental contact and an employee is
designated to act as a signalman to direct the operator in the
movement of the equipment, or (4) assure that an insulated
boom or an insulated type guard about the boom or arm of
the equipment and a dielectric insulator link between the
load and the block are installed and an employee is
designated to act as a signal man to direct the operator in the
movement of the equipment. All of the evidence on file,
particularly the Safety Violations Investigation Unit Report,
affidavits on file, as well as all testimony presented at
hearing supports a finding that none of the four
requirements were complied with when operating the boom
near the power source when lowering the auger. There can
be no question that operating a boom near a distribution line
would create a situation that would expose workers to
electrical conductors that are not isolated from all possible
sources of voltage.

The employer's contention that Subsection 4123:1-5-23(D)
was not violated is based upon the Decedent's own
negligence by not grounding the truck or designating an
employee as a signal man when the boom was lowering the
auger. Said contentions as previously indicated are rejected.
The Staff Hearing Officer finds the sole purpose of a violation
of a specific safety requirement is to protect injured workers
from their own negligence. The Staff Hearing Officer finds
that an employee's negligence in failing to protect himself
from an injury due to an employer's violation of a specific
safety requirement will never bar recovery because "specific
safety requirement exist to promote a safe work environment
and to protect employees against their own negligence and
folly". State ex rel. Colterman v. St. Mary's Foundry
(1989), 48 Ohio St.3d 42; State ex rel. Pressware
International, Inc. v. Indus. Comm. (1999), 85 Ohio
St.3d 284; 288; State ex rel. Quality Tower Service, Inc. v.
Indus. Comm. (2000), 88 Ohio St.3d 190. The Staff Hearing
Officer finds that the critical issue in any violation of a
specific safety requirement claim in regards to a negligence
or a unilateral negligence defense is always whether the
employer complied with the specific requirement, and only
after it is found that the employer has met the code
requirement can the Injured Worker's negligence bar a
violation of a specific safety requirement.
No. 16AP-23 25

The Staff Hearing Officer finds that the requirement under
subsection (D) is clearly the duty and responsibility of the
employer. Furthermore, the Staff Hearing Officer finds that
the employer cannot shift its responsibility to its employees
by simply instructing its employees to follow the procedures
outlined in this section. To hold otherwise would give a
patently unreasonable interpretation of Ohio Adm.
Code 4123:1-5-23(D) that would effectively place the burden
of providing a safe working environment solely upon the
employee. State ex rel. Coffman v. Indus. Comm. (2005),
WL736638 (Ohio Appeals 10th District).

Clearly the evidence shows that the employer did not
(1) assure that the conductor was de-energized and
grounded, or (2) assure that the conductor was moved, or (3)
assure that the conductor was guarded from accidental
contact and an employee was designated to act as a
signalman, or (4) assure that an insulated link was installed
[and] an employee is designated to act as signalman, and
therefore did not comply with the applicable safety
requirement on the date of injury herein.

Based upon the Bureau of Workers' Compensation's Safety
Violations Investigation unit packet on file, signed affidavits
and testimony at hearing from Mr. Shortridge, the Injured
Worker's expert, and Mr. Anderson the owner of the
company, all indicate that at the time of the injury, none of
the four requirements outlined in Ohio Adm. Code 412[3]:1-
5-23(D) were complied with. Therefore, based upon the
evidence, it is found that the employer was in violation of
this subsection as of the date and time of the Decedent's
injury.

It is further found that the employer's violation of Ohio Adm.
Code 4123:1-5-23(D) was the proximate cause of the injury.
If any one of the four requirements outlined in said rule were
complied with which is all the rule required, the injury most
likely would not have occurred, and therefore, the employer's
failure to comply with said subsection was the proximate
cause of the injury.

It is therefore, ordered that an additional award of
compensation be granted to the Decedent's spouse in the
amount of 15% of the maximum medical rate under the rules
of State ex rel. Engle v. Indus. Comm. 142 Ohio St. 425.

{¶ 41} 13. On August 20, 2015, relator moved for rehearing pursuant to Ohio
Adm.Code 4121-3-20(C). In its memorandum in support, relator's counsel wrote:
No. 16AP-23 26

The SHO ruled that the Employer violated Ohio
Administrative Code 4123:1-5-23(D) and that said violation
was the proximate cause of the injury. A review of the BWC
Investigator's report, affidavits, and Hearing Transcript,
shows that the SHO misconstrued the evidence and based
his decision on clear mistakes of the facts and law as it
relates to this injury.

A review of the BWC Investigator's report, affidavits, and the
file transcript clearly shows that the Employer complied with
OAC 4123:1-5-23(D)(3).

FACTS
Thompson Electric Inc. was contracted by American Electric
Power (AEP) to replace two transmission utility poles in the
area of * * * near Wooster. The two transmission utility poles
were delivered to the project on May 24, 2011 and were laid
on the ground at * * *. The utility pole on which Thomas Otto
and Jim Martin were to work held two sets of wires - the
highest electrical wire is known as the transmission line,
which carried 69,000 volts, and the lower wire is known as
the distribution line, which carried 7,200 volts. Prior to TEI
performing any work on the job on the date of injury,
May 25, 2011, AEP's utility crews moved the 7,200 volt
electric distribution line onto extender cross-bars with what
are known as "hot arms" to gain more vertical clearance for
pole setting purposes. This procedure extends the electrical
wires out further from the center of the utility pole.

The crew assigned to do the work was led by the Injured
Worker, Tom Otto, the Foreman and a qualified
journeymen/lineman. Other crew members were Jim
Martin, a qualified journeyman/lineman, Lester Elgin, a
qualified journeyman/lineman, Eric Rutkowski, a qualified
apprentice/lineman and Matt Bickel, an operator/flagger.

On the morning of the accident, Elgin, Rutkowski and Bickel,
assembled at the TEI staging site and proceeded to the work
site in a bucket truck and a digger derrick truck. Otto and
Martin drove directly to the job site from their homes.

Upon arriving at the job site, Foreman Otto's crew held the
tailboard safety review, completing the Job Safety Analysis
form.

As part of Foreman Otto's duties, Foreman Otto contacted
AEP transmission dispatch and received approval and
clearance for the work by Elgin, Rutkowski and Bickel to
No. 16AP-23 27

proceed with their portion of the work on another pole,
which was not part of the work Otto and Martin were to do.

Foreman Otto next received the confirmation from AEP
Transmission that a piece of equipment known as a
"ReCloser" had been placed on what is called "one shot,"
pertaining to the transmission wire.
Elgin, Rutkowski and Bickel moved the bucket truck away
from the injury site to perform work not relevant to the facts
of the injury.

Foreman Otto and Martin['s] portion of the work was to use
a digger derrick truck, which contained an auger, to dig the
hole in the ground to set the new pole. This is where the
injury occurred.

AEP's own crews were assigned to place rubber identification
and protective hose cover on the 7,200 volt distribution line
to guard the wire on the pole where Otto and Martin were to
work from accidental contact prior to Otto and Martin
starting their portion of the work.

Despite AEP not completing its portion of the job by placing
the protective rubber hoses onto the 7200 volt distribution
line to guard the wire from accidental contact, Foreman Otto
and Martin nevertheless began to set up the digger derrick
truck to attach the auger to the boom to prepare to drill the
hole for the new pole. The outriggers and pads for truck
stability were set. The auger bit which would dig the hole was
still in the cradle on the truck bed and had to be lifted off the
truck with the crane/boom to then be attached to the boom
in order to dig the hole.

Foreman Otto's task after attaching the auger to the boom
from the cradle in which it was transported on the digger-
derrick vehicle was then to act as the signalman for Martin,
who would operate the boom and lift the auger from the
cradle on the truck and then place it on the ground. After
attaching the auger to the boom, Foreman Otto got off the
truck to the ground, moved away from the digger derrick
truck and began directing Martin with hand signals on where
to lift and place the auger on the ground.

Martin then lost sight of Foreman Otto, as Foreman Otto
changed location. However, Martin continued to lift and
rotate the derrick boom. The boom neared the 7,200 volt
wire and the boom, while not contacting the wire,
approached close enough to the wire that the electricity
No. 16AP-23 28

arced and proceeded through the boom into the digger
derrick and then through the outriggers to the ground.

Foreman Otto, while not near the truck, was electrocuted.

MISTAKES OF FACT AND LAW
The SHO clearly ignored the fact that Otto and Martin were
not to start their portion of the work in setting the new pole
until the AEP crew had arrived and installed the protective
rubber blanket on the distribution wire to guard the wire
from accidental contact. AEP's portion of that work in
guarding the wire from accidental contact is compliance with
the first prong of OAC 4121:1-5-23(1)(3). (see Page 50-51 of
the Hearing Transcript.) TEI was not to touch or perform
any work on the distribution wire. (See deposition transcript
of Lester Elgin at Pages 21 and 29 and of Richard
Householder at Page 71.)

The SHO also ruled that TEI did not designate an employee
to act as a signalman. The record clearly shows that Otto, the
crew foreman, designated himself to act as a signalman and
actually was performing work as a signalman when the
injury occurred. (See Page 42 of the Hearing Transcript.)
These are clear mistakes of fact and law.

***

As the record shows, the Employer, through the scope of its
work with AEP in which AEP was to cover the wire with
rubber hoses to prevent accidental contact and by Otto
designating himself as the signalman, clearly complied with
the two prongs of the requirements of OAC 4121:1-5-
23(D)(3). The proximate cause of the injury is that Otto did
not wait to start his portion of the work until AEP applied the
protective rubber identification and hoses on the wire to
guard the wire from accidental contact, did not use the
provided grounding device on the digger derrick truck and
did not use his protective rubber overshoes. As the Employer
clearly complied with all applicable safety regulations, it is
the Employer's contention that Otto's three acts of unilateral
negligence as noted above were the proximate cause of his
injury. The SHO made a clear mistake of law in ruling that
unilateral negligence did not apply here.

{¶ 42} 14. On August 25, 2015, Terry and Jessica filed a written response to
relator's motion for rehearing.
No. 16AP-23 29

{¶ 43} 15. On September 3, 2015, relator filed a reply brief in support of motion for
rehearing.
{¶ 44} 16. On September 9, 2015, Terry and Jessica moved to strike the reply brief.
{¶ 45} 17. On September 15, 2015, another SHO mailed an order denying relator's
August 20, 2015 motion for rehearing. The SHO's order explains:
It is hereby ordered that the Motion for Rehearing filed
08/20/2015 be denied. The Employer has not submitted any
new and relevant evidence nor shown that the order of
06/03/2015 was based on an obvious mistake of fact or on a
clear mistake of law.

As the requirements of Ohio Admin. Code 4121-3-20
(E)(1)(a) or (b) have not been met, the request for a VSSR
rehearing must be denied.

{¶ 46} 18. On January 13, 2016, relator, Thompson Electric, Inc., filed this
mandamus action.
Conclusions of Law:
{¶ 47} The main issue is whether the commission abused its discretion in
determining that relator had violated Ohio Adm.Code 4123:1-5-23(D) by failing to satisfy
Ohio Adm.Code 4123:1-5-23(D)(3), which provides that the employer shall "[a]ssure that
the conductor is guarded from accidental contact and an employee is designated to act as
signalman to direct the operator in the movement of the equipment."
{¶ 48} Finding that the commission abused its discretion in determining that
relator had failed to satisfy Ohio Adm.Code 4123:1-5-23(D)(3), it is the magistrate's
decision that this court issue a writ of mandamus, as more fully explained below.
Pertinent Administrative Rules
{¶ 49} As earlier noted, decedent's fatal injury and death occurred on May 25,
2011.
{¶ 50} Effective April 10, 2011 and currently, Ohio Adm.Code 4123:1-5 is captioned
"Workshop and Factory Safety." Thereunder, Ohio Adm.Code 4123:1-5-23 is captioned
"Electrical conductors and equipment."
{¶ 51} Thereunder, effective April 10, 2011 and currently, Ohio Adm.Code 4123:1-
5-23(D) is captioned "Minimum clearance." It provides the specific safety requirement
that the commission found was violated and the proximate cause of the fatal injury at
issue here.
No. 16AP-23 30

{¶ 52} Ohio Adm.Code 4123:1-5-23(D) provides:
Before an employee moves or operates power cranes,
shovels, backhoes or any other type of material hoisting
equipment within ten feet of an energized electrical
conductor, the employer shall:

(1) Assure that the conductor is deenergized and grounded,
or

(2) Assure that the conductor is moved, or

(3) Assure that the conductor is guarded from accidental
contact and an employee is designated to act as signalman to
direct the operator in the movement of the equipment, or

(4) Assure that an insulated boom or an insulated type guard
about the boom or arm of the equipment and a dielectric
insulator link between the load and the block are installed
and an employee is designated to act as signalman to direct
the operator in the movement of the equipment.

{¶ 53} It can be noted that the four requirements are stated in the disjunctive.
Thus, the employer need only satisfy one of the four requests under Ohio Adm.Code
4123:1-5-23(D).
{¶ 54} Here, in the SHO's order of June 3, 2015, the commission finds that relator
failed to meet all four of the requirements. However, in its August 20, 2015 motion for
rehearing, relator asserts that it satisfied Ohio Adm.Code 4123:1-5-23(D)(3) and, thus, it
cannot be found that relator failed to meet the minimum clearance requirements of Ohio
Adm.Code 4123:1-5-23(D).
Basic VSSR Law
{¶ 55} It is well-settled that a VSSR award is deemed a penalty to the employer
subject to the rule of strict construction with all reasonable doubts concerning the
interpretation of the safety standard to be construed against the applicability of the
standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354
(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
{¶ 56} It is also firmly established that the determination of disputed factual
situations as well as the interpretation of a specific safety requirement is within the final
jurisdiction of the commission, and subject to correction in mandamus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 1
No. 16AP-23 31

(1984); State ex rel. Allied Wheel Products, Inc. v. Indus. Comm., 166 Ohio St. 47 (1956);
State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).
{¶ 57} Of course, the commission's authority to interpret its own safety rules is not
unlimited. Strict construction does require that the commission's interpretation be
reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d
333 (1997). The commission may not effectively rewrite its own safety rules when it
interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77 (1996).
Basic Mandamus Law
{¶ 58} "In any order of the Industrial Commission granting or denying benefits to a
claimant, the commission must specifically state what evidence has been relied upon, and
briefly explain the reasoning for its decision." State ex rel. Noll v. Indus. Comm., 57 Ohio
St.3d 203 (1991), syllabus. The commission need not cite evidence it has considered and
rejected; nor must it explain why it finds certain evidence to be unpersuasive. State ex rel.
Scouler v. Indus. Comm., 119 Ohio St.3d 276, 2008-Ohio-3915, ¶ 15 citing State ex rel.
DeMint v. Indus. Comm., 49 Ohio St.3d 19, 20 (1990). See also State ex rel. Lovell v.
Indus. Comm., 74 Ohio St.3d 250, 252 (1996). However, a reviewing court will not
"search the commission's file for 'some evidence' to support an order of the commission
not otherwise specified as a basis for its decision." (Emphasis removed.) Noll at 204,
citing State ex rel. Cox v. Indus. Comm., 67 Ohio St.2d 235 (1981).
Analysis
{¶ 59} It is undisputed that the energized distribution wire that arced electrical
current to the boom of the digger truck was not covered with blankets or line hoses that
would have prevented the electrocution of decedent.
{¶ 60} As indicated by the hearing testimony of relator's vice-president, Bill
Anderson, Thompson Electric was not authorized by American Electric Power ("AEP") to
place blankets or line hoses on the energized distribution line. According to Mr.
Anderson, AEP reserved for itself the responsibility for covering the distribution line.
According to Mr. Anderson, under such circumstances, on the date of the fatal injury,
decedent and Jim Martin should not have proceeded to move the auger into place with
the boom until AEP had covered the distribution line with blankets or line hoses.
However, for reasons that are not clear, decedent and Mr. Martin did not wait for AEP to
perform its responsibility for covering the energized distribution line.
No. 16AP-23 32

{¶ 61} Mr. Anderson's hearing testimony, as indicated above, was clearly intended
as Thompson Electric's asserted factual basis showing that, under Ohio Adm.Code 4123:1-
5-23(D)(3), Thompson Electric had assured that the conductor was to be guarded from
accidental contact. While the conductor was obviously not guarded by line hoses or
blankets at the moment of the fatal injury, relator argues that it must be allowed reliance
on AEP's responsibility to cover the distribution wire and relator's lack of authorization to
cover the wire without AEP's assistance. There is no evidence that decedent or Mr.
Martin were instructed by any supervisor at Thompson Electric to proceed without AEP
covering the distribution line.
{¶ 62} Mr. Anderson's hearing testimony was relator's critical defense to the
assertion that it had violated all four of the requirements under Ohio Adm.Code 4123:1-5-
23(D). Yet that critical issue or defense is not addressed or mentioned in the SHO's order
of June 3, 2015. Rather, in conclusory fashion, the SHO simply holds that "none of the
four requirements * * * were complied with." In support, the SHO simply cites to the
"Investigation unit packet on file, signed affidavits and testimony at hearing from Mr.
Shortridge, the Injured Worker's expert, and Mr. Anderson."
{¶ 63} The general citation to evidence is so non-specific that this court and
magistrate is invited by the SHO to search the record for the testimony or evidence
supporting a finding the relator must be held accountable in the VSSR proceeding for the
absence of line hoses on the distribution lines at the time of injury.
{¶ 64} Thus, the SHO's order of June 3, 2015 finds that relator failed to "assure
that the conductor is guarded from accidental contact," as stated by Ohio Adm.Code
4123:1-5-23(D)(3), yet the order provides no explanation for the finding and the evidence
supporting the explanation. This was a violation of Noll, requiring this court to issue a
writ of mandamus. See State ex rel. Gerstenslager Co. v. Wilson, 10th Dist. No. 06AP-
512, 2007-Ohio-2657.
{¶ 65} Clearly, it is not the duty of this magistrate or this court to determine for the
commission whether relator can rely on AEP's alleged responsibility to cover the
distribution wire and relator's alleged lack of authorization to cover the wire.
{¶ 66} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate the SHO's order of
June 3, 2015, and, in a manner consistent with the magistrate's decision, enter a new
order that, in accordance with Noll, finds whether or not relator complied with Ohio
No. 16AP-23 33

Adm.Code 4123:1-5-23(D)(3) by its alleged reliance on AEP to cover the distribution wire
at issue here.

/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).