BRIEF - sconet.state.oh.usAmos Hostetter (hereinafter "Hostetter") was the other ABI employee on...

IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO EX REL. ) CASE NO. 2007-0619ANGELO BENEDETTI, INC.

Appellant,)) On Appeal from the Tenth) Appellate District

vs. )THE INDUSTRIAL COMMISSION OF ) Case No. 06AP-165OHIO, et al. )

)Appellees. )

BRIEF OF THE APPELLANT,ANGELO BENEDETTI, INC.

LEONARD F. CARR (0029884)L. BRYAN CARR (0066649)1392 SOM Center RoadMayfield Heights, Ohio 44124(440) 473-2277Attorneys for the Appellant,Angelo Benedetti, Inc.

KEVIN J. REIS (0008669)150 East Gay Street22"d Floor

Columbus, Ohio 43215-3130(614)Attomey for the Appellee,The Industrial Commission of Ohio

DAVID B. BARNHART ( 0003818)89 East Nationwide BoulevardSuite 300Columbus, Ohio 43215Attorney for the Appellee,Heath Jessop

TABLE OF CONTENTS

PAGE(S)

Table of Contents I

Table of Authorities iii

Statement of Facts

Propositions of Law 3

Proposition of Law IAppellee's Request to Amend Was Untimely, Prejudicial andShould Not Have Been Granted

Proposition of Law IIAllowing Appellee To Call An "Expert" On Date of the Hearingwas Prejudicial and Should Have Been Denied

Proposition of Law IIIAppellee Acknowledged He Knew Of A Procedure To Clean TheHopper Without Entering It and Without Augers Moving; There WasNo Evidence He Was Required To Enter The Hopper With the AugersMoving

Proposition of Law IVAppellant Never Ordered Or Required Appellee To Be Inside TheHopper With or Without The Augers Running

4

8

10

11

Proposition of Law VThe Augers Were Not "Uncovered" 12

i

Proposition of Law VIThe Industrial Commission Failed to Construe Anything In Appellant'sFavor, Even Though There Were Doubts, Confusion, With No ReliableTestimony From Any Reliable "Expert"

Proposition of Law VIIThere Was No Justification To Punish Appellant; Appellant isEntitled To Immunity

13

16

Proposition of Law VIIIAppellee's Knowledge Should Have Been Considered 18

Proposition of Law IXAppellant Did Not Violate Any Applicable Specific Safety 21Requirement

Proposition of Law XAppellee's Improper, Untimely Request to Amend Was To A RepealedSection of the Ohio Administrative Code 28

Proposition of Law XIAppellee's VSSR Application Is Defective 29

CONCLUSION 30

CERTIFICATE OF SERVICE 32

APPENDIX

Decision of the Industrial Commission dated September 15, 2005 A-1 to A-6

Decision of the Industrial Commission dated January 20, 2006 A-7 to A-8

Decision of the Tenth Appellate District dated March 1, 2007 A-9 to A-33(With Magistrate's Decision attached as Appendix A)

Notice of Appeal to Ohio Supreme Court dated Apri19, 2007 A-34 to A-37(With Judgment Entry of Tent Appellate District)

ii

TABLE OF AUTHORITIES PAGE S

State ex rel. Avalotis Painting Company v. Industrial Commission, 11, 24, 2691 Ohio St. 3d 137 (2001)

State ex rel. Bailey v. Industrial Commission,23 Ohio St. 3d 53 (1986)

State ex rel. Bishop v. Waterbeds `N' Stuff,94 Ohio St. 3d 105 (2002)

State ex rel Boltenhouse v. Industrial Commission, 32006 Ohio 2537

State ex re. Brilliant Sign Company v. Industrial Commission,57 Ohio St. 2d 51 (1979)

State ex rel Burton v. Industrial Commission,46 Ohio St. 3d 170 (1989)

State ex rel. Cast Specialties, Inc. v. Industrial Commission,2005 Ohio 154

24

3, 14-15, 27

16

State ex rel. Cleveland Rebabbitting Services v. Industrial Conunission. 6, 72006 Ohio 2269

State ex rel. Curtin v. Industrial Commission, 15, 2786 Ohio St. 3d 581 (1999)

State ex rel. Dillon v. Davton Press, 76 Ohio St. 3d 295 (1983)

State ex rel. Double v. Industrial Commission, 2165 Ohio St. 3d 13 (1992)

State ex rel. Elliot v. Industrial Commission,26 Ohio St. 3d 76 (1986)

State ex rel. Frank Brown & Sons v. Industrial Commission,37 Ohio App. 3d 162 (1989)

State ex rel. Garza v. Industrial Commission,94 Ohio St. 3d 397 (2002)

3

3, 16-20, 26

13

iii

PAGE(S)

State ex rel. Johnson v. Hilltop Basic Resources,95 Ohio St. 3d 36 (2002)

State ex rel. Lamp v. J.A. Croson Compan75 Ohio St. 3d 77 (1996)

State ex rel. Martin Painting & Coating Cornpanyv. Industrial Commission,78 Ohio St. 3d 333 (1997)

State ex rel. MTD Products, Inc. v. Stebbins,43 Ohio St. 2d 114 (1975)

4, 7

19

25

17

State ex rel. Northern Petrochemical Nortech Div. v. Industrial Commission, 2061 Ohio St. 3d 453 (1991)

State ex rel. Oliver v. Southeastem Erectors, Inc., 776 Ohio St. 3d 26 (1996)

State ex rel. Parks v.Industrial Commission, 19, 2885 Ohio St. 3d 22, 26 (1999)

State ex rel Petrie v. Atlas IRON Processors, Inc., 28, 3085 Ohio St. 3d 372 (1999)

State ex rel. Pressley v. Industrial Commission,11 Ohio St. 2d 141

State ex rel. Oualitv StampinQ Products v. BWC, 2984 Ohio St. 3d 259 (1998)

State ex rel. R. Bauer & Sons Roofing and Siding, Inc. v.Industrial Commission84 Ohio St. 3d 62 (1998)

7

State ex rel. Rae v. Industrial Commission, 24136 Ohio St. 168 (1939)

State ex rel. Supreme Bumpers, Inc. v. Industrial Commission, 13, 1498 Ohio St. 3d 134 (2002)

iv

PAGE(S)State ex rel. Thieman v. Industrial Commission, 18, 22, 252002 Ohio 5071

State ex rel. Thompson Building Associates, Inc. v. Industrial Commission 736 Ohio St. 3d 199 (1998)

State ex rel. Trydle v. Industrial Commission, 332 Ohio St. 2d 257 (1972)

State ex rel. Virgin v. Empire Detroit Steel, et al., 2224 Ohio St. 3d 205 (1986)

State ex rel. Wau$h v. Industrial Commission, 2477 Ohio St. 3d 453 (1997)

Other Authorities

OAC 4121-3-20(1)(a)(b) 4

OAC 4121-3-20(1)(a) 4

OAC 4121-3-20(1)(b) 4

OAC 4121:1-3-03 5

OAC 4121:1-3-06 5, 28- 29

OAC 4121:1-3-03(E) 28-29

OAC 4121:1-3-03(5) 28-29

OAC 4121:1-3-03(K) 28-29

OAC 4121-3-09(A)(1)(a) 9

OAC 4121:1-3-05(D),(G) 22-24

OAC 4123:1-3-05(2) 23

OAC 4123:1-3-05 5, 14, 24

OAC 4121-3-20 6-7

v

STATEMENT OF FACTS

Background Facts

Appellee, Heath Jessop (hereinafter "Jessop") began working for Appellant, Angelo

Benedetti, Inc. (hereinafter "ABI") in July, 1998 (Stipulation ofEvidence ("SOE") Page 268)

ABI is in the asphalt recycling business. (SOE, Pages 11-12, 19) In May, 1998, ABI was

utilizing a brand new machine (a drum mix recycler, "DMR") for purposes of road and freeway

paving, which was unique to the industry and put into service only weeks before the accident.

(SOE, Pages 207, 211-212) Jessop's expert, Gary Curren, acknowledged this. (SOE, Page 435)

The DMR contains a "hopper" where gravel accumulates. According to Jessop, the

"hopper" was one-half of the size of the Industrial Commission's Hearing Room, which one

could easily walk around in. (SOE, Pages 402-403) When the DMR is prepared for transport, this

hopper must be emptied of gravel. Significantly, Jessop knew (because he has witnessed first-

hand) that the hopper is emptied from the outside. (SOE, Pages 273, 300-301)

Amos Hostetter (hereinafter "Hostetter") was the other ABI employee on site. Hostetter

began working for ABI in May, 1998, was hired at the same time as Jessop and had no prior

experience with a DMR. (Soe, Pages 206, 210, 219-221)

According to Angelo Benedetti, Jr. ("Benedetti") the day-to-day operations manager of

ABI at the time, Jessop was involved in a prior "tear down" and cleaning of the machine and was

told how to clean out the hopper. (SOE, Pages 14, 100, 125) Hostetter testified that Jessop was

with other employees, and not Benedetti or Hostetter, when Jessop witnessed and/or participated

in an improper manner to clean the hopper. (SOE, Page 221)

I

On the date of his injury, the only directive that Benedetti gave Hostetter was to "get [the

hopper] ready for transport." (SOE, Page 224)

According to Jessop, he was cleaning out the hopper from the inside (Jessop intentionally

kept the augers moving) for approximately one hour when he was injured. (SOE, Pages 277, 279)

Procedural Facts

Jessop's VSSR application was filed on or about August 4, 2000. (SOE, Page 320)

Jessop had no knowledge that a VSSR claim was filed on his behalf (SOE, Page 294)

From 2000 to 2005, this matter remained pending, as the parties litigated the intentional

tort claim. Notwithstanding the resolution of the intentional tort claim (which was supposed to

comprehend this claim) this matter was ultimately set for a Hearing on August 14, 2005.

On August 11, 2005, Jessop requested to "amend" his VSSR application. (SOE, Page

363) Counsel for ABI, via letter to the Industrial Commission and otherwise at the Hearing,

vehemently objected to this 5 year late "request to amend." (SOE, Pages 364-370, 378-384)

The Industrial Commission (SHO) issued a"Decision" on September 20, 2006, finding a

violation of a specific safety requirement against ABI. (SOE, Pages 465-470)

A Motion for Rehearing was filed on October 20, 2005. (SOE, Pages 471-502) Jessop

filed an Opposition on November 7, 2005. (SOE, Pages 503-539) The Industrial Commission

denied the Motion on January 26, 2006. (SOE, Pages 542-543)

ABI filed a Complaint for Writ of Mandamus with the Tenth District Court of Appeals on

February 22, 2006. The Court referred this matter to a Magistrate. Subsequently, the Magistrate

issued a Decision, affirming the SHO's decision on September 14, 2006. The Court of Appeals

sustained the Magistrate's Decision on March 1, 2007. This appeal followed.

2

PROPOSITIONS OF LAW

General VSSR and Mandamus Law

For a Court to issue a writ of mandamus as a remedy from a determination of the

Industrial Commission, a relator must show a clear, legal right to the relief sought and that the

commission has a clear legal duty to provide such relief. State ex rel Boltenhouse v. Industrial

Comm., 2006 Ohio 2537; State ex rel. Pressley v. Industrial Comm., 11 Ohio St. 2d 141. A

clear, legal right to a writ of mandamus exists where the relator shows that the commission

abused its discretion by entering an order that is noYsupported by any evidence in the record.

State ex rel. Elliot v. Industrial Comm., 26 Ohio St. 3d 76 (1986)

With respect to an application for a VSSR, an employee must establish: (1) that there

exists an applicable and specific safety requirement in effect at the time of the injury; (2) the

employer failed to comply with the requirement; and (3) the failure to comply was the cause of

the injury in question. State ex rel. Trydle v. Industrial Comm., 32 Ohio St. 2d 257 (1972)

Because a VSSR award is a penalty, it must be strictly construed, and all reasonable

doubts conceming the interpretation of the safety standard are to be construed anainst its

applicability to the employer. State ex rel Burton v. Industrial Commission, 46 Ohio St. 3d 170

(1989) Further, the safety standard must be specific enough to plainly appraise an employer of his

legal obligations to his employees; an employer should not have to speculate whether it falls

within the class of employers to whom a specific safety requirement applies. State ex rel. Frank

Brown & Sons v. Industrial Commission, 37 Ohio App. 3d 162 (1989)

3

Prouosition of Law IAppellee's Request to Amend Was Untimely, Prejudicial and Should Not Have Been

Granted

Jessop's was injured on August 5, 1998. His VSSR application was filed August 4, 2000.

On August 11, 2005, Jessop requested to "amend" his claim to a non-existent, repealed

section of the Ohio Administrative Code. (SOE, Page 363) Specifically, Jessop is relied upon

OAC 4121:1-3-05. To begin with, not only was Jessop's "request to amend" untimely, his

amendment was to an Administrative Code Section that was repealed five (5) years ago.

Jessop's attempt to amend was out of rule and prejudicial. Also, the cases he cited were

inapplicable. State ex rel Johnson v. Hillton Basic Resources, 95 Ohio St. 3d 36 (2002)

Additionally, on Page 2 of her "Order on the Merits" (SOE, Page 466) the Hearing

Officer: (1) cites to Section 4121-3-20(1)(a)(b) of the Ohio Administrative Code; (2) restates the

pertinent language of these Code Sections; (3) acknowledges that Jessop and his attorneys failed

to comply with these mandates; and then, somehow, (4) finds that the requested amendment

(after 5 years) is permissible, as it "clarifies" the claim. This is contrary to the letter, spirit and

intent of the Ohio Administrative Code as well as basic fairness and equity.

Section 4121-3-20(1)(a) mandates that any proposed ainendment be filed within 2 years

following the injury. As the injury occurred in 1998, and the request to amend was filed in 2005

(7 years later,) Jessop failed to comply with the strict and clear mandated time period.

Section 4121-3-20(1)(b) mandates that the 2 year limit may be obviated if the request to

amend is made within 30 days (or an additiona130 days if a request is made) of the receipt by the

claimant of a report regarding the specific safety requirement. Significantly, the VSSR Report

was issued on January 10, 2001 (SOE, Pages 333-361) Jessop failed to comply with this mandate

4

and file a request 30 days thereafter. The foregoing are the only two (2) manners by which an

amendment may be made. Jessop failed to comply with either.

Astonishingly, the Hearing Officer found the request to amend "elarifies" prior charges.

(SOE, Pages 466-467) However, the Hearing Officer fails to state how, after seven (7) years,

this request could possibly "clarify" prior charges. In fact, Jessop's VSSR application only

states: "I was cleaning out gravel tank and I slipped and fell into auger, steel toe was caught and

crushed foot, hurt rt. shoulder." There is absolutely no indication, inference or other allegation

regarding any failure to properly safeguard any devise. This amendment cannot "clarify" the

application. Jessop attempts to argue under a completely different Section of the Administrative

Code (4121:1-3-05 vs. 4121:1-3-03 and 06.) In fact, this Section has been repealed, see infra.

The Administrative Code Section Jessop wished to amend to was available to Jessop and

his many attorneys from the time he was injured (up until the time it was repealed.) There was

no good cause given, notwithstanding the fact that the Hearing Officer asked for one. (SOE, Page

382) Jessop's initial application did not cite to 4121:1-3-05 whatsoever and his counsel failed to

"amend" the application in a timely manner.

Jessop's attempt to "amend" his VSSR application is fatally defective. The "amendment"

relied on an Administrative Code Section that was repealed years ago. The Hearing Officer

states that it was "amended" (SOE, 467) This is incorrect. Further, in his request to amend,

Jessop's counsel admitted that "upon further research we find that OAC 4121:1-3-05 was in fact

repealed..." (SOE, Page 502) The VSSR claim did not rely on any existing Code Section. No

violation could have been found. At the close of the Hearin¢ Jessop did not have anv evidence

before the Hearin2 Officer as to any violation of any existing Code Section.

5

The request to amend prejudiced Appellant and precluded it from engaging an expert and

further preparing. The untimely amendment to the VSSR Application should have rendered the

SVIU Report a nullity and resulted in further investigation under OAC 4121-3-20(A)(2). State ex

rel . Cleveland RebabbittingServices v. Industrial Commission, 2006 Ohio 2269

The Tenth District found that the Industrial Commission did not abuse its discretion in

permitting the Appellee to amend his VSSR Application five (5) years after the initial filing of

the VSSR Application. This conclusion is legally incorrect,

There is no dispute that the Appellee's injury occurred on August 5, 1998. There is also

no dispute that his application was filed on August 4, 2000. No activity occurred by Appellee,

regarding amendments, for half a decade.

On August 11, 2005, Appellee requested to "amend" his claim. Not only was this

"request to amend" untimely, his amendment was to an OAC Section that was repealed years

ago. The Staff Hearing Officer and Magistrate somehow utilize various cases to bring a five year

delay into the very narrow and specific parameters of amending a VSSR Application. (OAC

4121-3-20) The Tenth District even states (Magistrate's Decision, P. 12) the request to amend

was filed "outside the time provisions" of the Ohio Administrative Code and "clearly outside the

prescribed time limits." As a result, the request to amend should have been denied. It was not.

Granting the request to amend, at the eleventh hour, prejudiced Appellant and precluded

it from engaging an expert and ftirther preparing, based upon totally new allegations.

Significantly, the Tenth District relies upon the fact that "the BWC investigation had been

complete in January, 2001." However, what is never addressed is: (1) the Appellee continued to

wait over five years to request to amend (constituting laches and a clear violation of the OAC);

6

and (2) that the BWC investigation had to have been re-produced. The untimely amendment to

the VSSR Application should have rendered the SVIU Report a nullity and resulted in further

investigation under OAC 4121-3-20(A)(2). State ex rel. Cleveland Rebabbitting Services v.

Industrial Commission, 2006 Ohio 2269. This was never addressed.

With respect to this issue, the Courts below rely upon various cases, to wit: State ex rel.

R Bauer & Sons Roofing and Siding Inc v. hidustrial Comm., et al., 84 Ohio St. 3d 62 (1998);

State ex rel. Thompson BuildingAssociates Inc v. hidustrial Commission, 36 Ohio St. 3d 199

(1988); State ex rel. Johnson v. Hilltop Basic Resources, 95 Ohio St. 3d 36 (2002); State ex rel.

Oliver v. Southeastern Erectors, hic., 76 Ohio St. 3d 26 (1996); State ex rel. Bailey v. Indus.

Comm., 23 Ohio St. 3d 53 (1986) and State ex rel. Dillon v. Dayton Press, 6 Ohio St. 3d 295

(1983) However, these cases are not applicable to Appellee's request to amend. First, R. Bauer

addressed a 1 year issue from the date of injury; Thompson Building Associates had noting to do

with a request to amend or a delay; Johnson addressed less than a two year issue from the date of

injury; Oliver had nothing to do with a request to amend and addressed a two year issue from the

date of injury (and there has never been any justification for the delay) and Bailey had nothing to

do with a request to amend. None of these cases (relied upon by the Magistrate) address or

justify a 5 year delay. Laches, equity and OAC require denial.

The Tenth District relies upon the depositions filed and the Report of Dr. Richard

Harkness (Appellee's first expert) to buttress the theory that the amendment "merely clarified the

charges." However, all of these documents were produced in the year 2000. There was no

request to amend for 5 additional years. This is not fair, equitable or with any precedent.

7

The Tenth District (Magistrate's Decision, Page 15) also states the requested amendment

was "under the construction sections of the code." However, the case authority relied upon by

the Tenth District stand for the proposition that citation to an "entire body of law" is not

sufficient. The Court of Appeals' Decision is inconsistent and not supported by applicable law.

Finally, the Courts below do not rely upon any existing law to overlook the fact that the

request to amend was to, in fact, a repealed section of the OAC. This is simply disregarded.

Moreover, the request to amend did not "clarify " any prior charges. There is absolutely no prior

indication or inference regarding failures to properly safeguard any device or regarding a shut-off

switch. This cannot "clarify" the application, as Appellee amended under a completely different

Section of the Administrative Code which, in fact, had been repealed.

Proposition of Law IIAllowing Appellee To Call An "Expert" On Date of the Hearing was Prejudicial and

Should Have Been Denied

As with his untimely and prejudicial "request to amend," Jessop's request to call "expert"

Gary Curren ("Curren") to testify at the Hearing was untimely, prejudicial to ABI and should

have been denied. However, as with the request to amend, the Officer pennitted the testimony.

As stated, Jessop's injury occurred in August, 1998 and his VSSR Application was filed

in August, 2000. Curren admitted to being engaged in approximately 2001. (SOE, Pages 426,

428) The Hearing was scheduled for August 14, 2005. Curren was advised on August 11`° that

he would be testifying. However, from 1998 to August 15, 2005, ABI was never notified, in any

manner, that this "exert" was retained or otherwise involved. (SOE, Page 429)

On August 11, 2005, via facsimile, Jessop filed a "request to amend" his claim with a

"filing" of a report from Robert Harkness. Conspicuous by its absence in this letter is any

8

indication of Mr. Curren (the "expert") testifying at the Hearing. (See SOE, Page 363) This is

one of the most blatant examples of "trial by ambush" that one will find in any legal forum.

The Hearing was August 14, 2005 at 1:30 p.m. It was not until that very day (August 14'b

at 1:00 p.m.) that counsel was advised an "expert" was going to be testifying on behalf of Jessop.

Further, this "expert" was not even the author of the report "filed" on August 11, 2005.

According to Section 4121-3-09(A)(1)(a) of the Ohio Administrative Code:

"The parties or their representatives shall provide to each other, as

soon as available and prior to the Hearing, a copy of the evidence

the parties intend to submit at a commission proceeding."

Further, Section 4121-3-09(A)(1)(a) of the Ohio Administrative Code states:

"In the event a party fails to comply with paragraph (A)(1)(a) ofthis rule, the Hearing Officer has the discretion to continue theclaim to the end of the hearing docket, or to a future date withinstructions to the parties or their representatives to comply..."

In this case, the Hearing Officer did not comply with this rule. Instead, over objection,

the Hearing Officer allowed the surprise witness. Counsel for ABI objected to opposing

counsel's surprise "expert." (SOE, Pages 416-417)

As indicated, this expert was engaged in approximately 2001 and contacted to testify five

days prior to the Hearing. (SOE, 428-429) Thus, counsel should have been advised. In fact, the

"expert" admitted he had no new information to provide since 2001. (SOE, Page 438) Counsel

should have been advised Curren was going to testify. The Commission's file will not contain

any notice from Jessop or his counsel that an "expert" was to testify. This was prejudicial to ABI

and inequitable. The Hearing Officer's justification (SOE, Page 417) that it was a "Record

Hearing" does not render the concepts of equity and fairness moot.

9

Proposition of Law IIIAppellee Acknowledged He Knew Of A Procedure To Clean The Hopper Without EnteringIt and Without Augers Moving; There Was No Evidence He Was Required To Enter TheHopper With the Augers Moving

The Courts below assigned blame to Hosteter, finding he ordered Jessop into the hopper

with the augers moving. There is no foundation for this. The Courts below ignored that Jessop

was aware there was no need to be in the hopper with the augers moving. Jessop admitted:

1. That he witnessed other employees cleaning out hopperfrom outside, not from inside as he chose to do. (SOE,Pages 272-273; 299-300)

That he heard Benedetti state only that he should "emptythe gravel out of rock box..." He never heard Benedetti tellhim to "get inside" the hopper. (SOE, Page 274)

3. That Hostetter never said he had to have the augers onwhile he cleaned the hopper. (SOE, Page 280)

4. That it would be harder for him to clean the hopper outfrom the top. (SOE, Page 280)

Significantly, at the Hearing, Jessop was questioned as to why he changed his testimony

regarding this issue. (SOE, Pages 404-405) No explanation was given. Further, Jessop admitted

that neither Hostetter nor Benedetti instructed him to have the augers moving. (SOE, Page 393,

Line 11) In fact, even the opening statement from Jessop's counsel does not indicate any

requirement of Jessop by Benedetti or Hostetter. (SOE, Page 384-386) Any contrary finding is

error, given Jessop's own testimony (deposition and at the Hearing.)

10

Also, the Courts below never specifically found that anyone ordered Jessop into the

hopper and to have the augers running. This fails to establish that ABI put Jessop in a dangerous

situation or violated any specific safety requirement ("VSSR".)

Case law regarding a finding of a VSSR mandates that evidence be presented that a

supervisor specifically order an employee to work in a situation without a specific safety

requirement. State ex rel. Avalotis Painting Companv v. Industrial Commission, 91 Ohio St. 3d

137 (2001) In this case, Jessop's own testimony refutes the Hearing Officer's "findings." Jessop

admitted that he was never told, required or ordered to get into the hopper with augers on. In

fact, according to Jessop: "Angelo Benedetti gave Amos instructions, I overheard, to empty the

gravel out of the rock box, or whatever its called, because it would be too much weight to move.

So then Angelo Benedetti left..." (SOE, Page 274) Jessop never heard Benedetti state that Jessop

should "get inside" the hopper with the augers moving.

The Courts below relied upon a "Report" from Richard Harkness. Notwithstanding the

fact that it was legal error to do so (see, infra,) even Harkness' "Report" never alleges that Jessop

was ordered or required to be in the hopper with the augers moving. (SOE, 328) In fact, even

Harkness acknowledges that Benedetti testified that the augers should not be movinp when the

hopper is being emptied and, in fact, Benedetti so indicated to others. (SOE, Page 329)

Given these admissions, the SHO's Order was based on obvious mistakes of fact.

Proposition of Law IVAppellant Never Ordered Or Required Appellee To Be Inside The Hopper With or

Without The Augers Running

It is without dispute that Benedetti (the manager of ABI at the time) never ordered or required

that Jessop be inside the hopper with the augers moving. (supra and infra) Further, Jessop testified

11

in his deposition that, on the date of his injury, he only heard his employer, Benedetti, state that the

hopper needed to be cleaned and emptied. (SOE, Pages 392-393, 414) Jessop never heard Benedetti

state that he [Jessop] had to be inside the hopper with the augers running. (SOE, Pages 392-393, 401,

406, 414) Significantly, at the Hearing, Jessop claimed that he "messed up" at his deposition and that

his current testimony was more reliable. (SOE, Page 402) Further, Jessop actually testified at the

Hearing that, "I really can't remember too much about all that because it was, it's just fuzzy to me."

(SOE, Page 403) It is clear that Jessop's August 14, 2005 testimony is unreliable.

As there was no evidence, from anyone, that ABI ordered, directed or required Jessop to enter

the hopper with the augers running, and as Jessop was armed with knowledge that the hopper is to

be cleaned out (and has been cleaned out) without the augers running, the Industrial Commission

(SHO) erred in finding a VSSR against ABI; especially when a VSSR is construed strictly against

its application prior to any of this information coming to light.

Proposition of Law VThe Augers Were Not "Uncovered"

The Hearing Officer also wrongfully found that "the auger ofthe DMR-2 machine was being

operated without a cover secured in place." (SOE, Page 468) There was absolutely no testimony or

evidence to this. In fact, the testimony was just the opposite.

To begin with, there was no photograph produced ofthe DMR or the augers. Thus, there was

no visual evidence for the Hearing Officer to make this finding. Second, Jessop's "expert" testified

that he never saw the machine. (SOE, Page 434) Thus, he also has no basis to opine one way or

another. Third, there was testimony that, indeed, the augers were covered (SOE, Page 422, infra)

Thus, this finding is clearly erroneous. This is, yet another, obvious mistake of fact.

12

Finally, while the reliance on the "report" from Harkness was legally incorrect (infra), his

"report" further contradicts this finding. With respect to the DMR and the augers, Harkness states:

"Note that the right auger acts as a guard in this case, since a worker standing on the right side of

this auger can't reach the left auger with his feet." (SOE, Page 324) The finding that the augers were

not properly guarded is contradicted by the very document the Commission relied upon.

On a number of levels, the Court's below committed clear mistakes of law and failed to

acknowledge and follow the proper law in this case. For instance, the applicable law for a VSSR

claim is clear. To establish a VSSR an employee must prove:

1. There exists an applicable and specific safety requirement in effect at the time

of the injury;

2. The employer failed to comply with the requirements; and

3. The failure to comply was the cause of the injury. State ex rel. SupremeBumpers Inc. v. Industrial Comm., 98 Ohio St. 3d 134 (2002)

It is well established that mere evidence of injury insufficient to show violation. State ex

rel. Garza v. Industrial Comm., 94 Ohio St. 3d 397 (2002) In this case, there were a number of clear

mistakes of law. All doubts must be construed against a VSSR and that any requirement must

plainly appraise an employer of its obligations. Jessop's VSSR claim should have been denied.

Proposition of Law VIThe Industrial Commission Failed to Construe Anything In Appellant's Favor, Even ThoughThere Were Doubts, Confusion, With No Reliable Testimony From Any Reliable "Expert"

Significantly, in this case, it cannot be disputed that the Hearing Officer had no photographs

of the DMR. Thus, there was no physical evidence as to the machine at issue (the major piece of

evidence.) Also, the SHO was clearly unsure as to the nature of the VSSR claim in this case. These

factors (among others) should have been construed in ABI's favor. They were not. This was error.

13

Because a VSSR claim is a penalty, the Industrial Commission must strictly construe a

specific safety requirement in employer's favor. State ex rel. Burton v. Indus. Comm., 46 Ohio St.

3d 170; Also, Supreme Bumpers. In this case, the Hearing Officer was bound to follow the VSSR

law and, indeed, strictly construe the specific safety requirement in ABI's favor.

Not only is this legal mandate not even mentioned in the Order, the Hearing Officer failed

to consider the un-refuted, sworn testimony in this case.

Angelo Benedetti, Jr. testified to the following at his deposition:

1. The DMR came into existence in April / May, 1998, a veryshort time before the injury. (SOE, Pages 39-40);

2. No other DMR's exist; it is unique to the market. (SOE, Pages

33, 85)

3. ABI is the only company that has a DMR. (SOE, Page 120)

4. The employee's Attorney acknowledged that this machine, at

the time of the injury, was "brand new" (SOE, Page 126)

The SHO demonstrated her own confusion and doubts regarding application of and the

interpretation of the safety standard:

"I have one question because I'm trying to get a picture of this

because I have not seen the pictures, I hope somebody's going to

show me some pictures of what this looks like." (SOE, Page 443)

No pictures were ever provided to the Hearing Officer. Second, the following colloquy

(Soe, Pages 443-444) took place between the Hearing Officer and the "expert:"

HearingOfficer: "Why4121:1-3-05AthescopeNo.2itsays, therules should not be applicable to powertransmission facilities located within the frameof the equipment. I mean I picture this augerbeing inside of it, am I not construing that

correctly?"

14

Mr. Curren: "You're construing it partly correct in that theclaimant's foot did not get caught in the powermechanism that was powering the auger.I hope I haven't confused you Ms. Karl..."

Hearing Officer: "So then does (D)(1)(h) apply in this case?"

These doubts and confusion should have: (1) been construed in ABI's favor; and (2)

resulted in a finding that no violation existed. This Court has spoken clearly:

"Equally important, specific safety requirements must be strictly construed,and all reasonable doubts construin2 the interpretation of the specificsafety standard are to be construed against its apnlicabilitv to the

em lo er."State ex rel. Curtin v. Industrial Commission, 86 Ohio St. 3d 581

(1999); State ex rel. Burton, at 172.

Not only does this demonstrate doubts and confusion regarding the interpretation of the Code,

it demonstrates that even the "expert" was making baseless assumptions (based on hearsay) and

tremendous leaps regarding the Code (which clearly do not apply in this case.) Curren's testimony

was equivocal and based on guesses. Curren guessed: "If the claimant was caught ... then this No. 2

part of the scope would apply and that would be held exempt from the standard." (SOE, Page 444)

Also, Curren's testimony was not to be believed or relied upon due to the fact that: (1) Curren

admitted he never met Jessop and never provided a report. (SOE, Page 430); (2) Curren admitted

that he never even saw the DMR. (SOE, Page 434); (3) Curren spent a total of 2 and % hours on

Jessop's case. (SOE, Page 431); (4) Curren prefaced his testimony by stating (SOE, Page 421) "I'm

not really specific"; and (5) From 2001 to August 11,2005, Curren never looked at Jessop's file.

(SOE, Pages 429, 432) Curren did not even know how to pronounce his client's name (SOE, Page

429) and admitted when he got the call on August 11, 2005 to testify he "spent the next day going

through my brain trying to figure out who Heath Jessop was." (SOE, Page 429)

15

Curren also fails to provide "expert" testimonyto any accepted standard and, also, admits that

he did not review must at all in this case. (SOE, Page 433) Thus, Curren's "testimony" should not

have been relied upon. In fact, a portion of Curren's testimony, supports this:

Mr. Curren: "The file indicates that there was [sic] hydraulicmotors on chains and sprockets that was drivingthe ends of the augers and that's not where theclaimant's injury or the leg or foot wasinjured.. So ifyou read into the scope it shouldnotbeconsideredasbeingapp&cabletopowertransmission facilities located within..."

Finally, it must be noted that Curren seems to have a "sliding scale" as to when he opines that

employers have complied with the Ohio Administrative Code. (See, State ex rel. Cast Specialties,

Inc. v. Industrial Commission, 2005 Ohio 154) Mr. Curren's credibility is significantly lacking.

Proposition of Law VIIThere Was No Justification To Punish Appellant; Appellant is Entitled to Immunity

This Court has stated that a VSSR is an employer penalty and must be strictly construed in

the employer's favor. Further, "a specific safetv requirement must be specific enough to plainlv

appraise an employer of his legal obligations toward his employees." State ex rel. Frank Brown &

Sons v. Industrial Commission, 37 Ohio St. 3d 162 (1988) In this case, as the DMR was brand new,

there was nothing "plainly appraising" ABI of any obligation(s.) The deposition testimony is clear:

1. The DMR came into existence a very short time before theinjury. (SOE, Pages 39-40, 109);

2. There is no other machine like the DMR in the market; noothers exist. (SOE, Pages 33, 85)

3. ABI is the only company that has a DMR. (SOE, Page 120)

4. Jessop's Attomey verified the DMR, at the time ofinjury, was

"brand new" (SOE, Page 126)

16

This was a new machine, with no history or equivalent. ABI was not on notice of any

specific safety requirement. (SOE, Page 86) As the DMR was new, there was no history of injury.

(SOE, 4) No contrary evidence was adduced.

As no injury had occurred before this, ABI is entitled to immunity pursuant to State ex rel.

MTD Products, Inc. v. Stebbins, 43 Ohio St. 2d 114 (1975)

Benedetti's deposition evidences no VSSR was justified. His uncontradicted deposition

demonstrates that he never suggested, advocated, or required any employee clean out the hopper

from the inside, with augers running. Benedetti testified clearly of the accepted practice of cleaning

out the hopper. (SOE, Page 130) This procedure was not followed by Jessop. Benedetti testified:

1. In preparing the DMR for transport (which is what was beingdone inthis case), it does not have to be nzmiing for anyreason.

(SOE, Pages 114-115);

2. His instruction to Jessop on the date of the accident was onlyto "shovel out the hopper." Benedetti never told Jessop to getin the hopper, nor did he tell Jessop to get in the hopper withthe augers on. (SOE, Pages 125, 131, 134)

3. "The auger should not be mmning when somebody is in thereshoveling." Benedetti told employees this. (SOE, Page 131)

4. The hopper could be shoveled out from outside of the DMR

machine. (SOE, Page 166)

5. Benedetti discussed with Hostetter that the employees shouldshut the augers off before shoveling the balance out of thehopper. (SOE, Pages 181, 194)

6. Benedetti testified to emptying the hopper without any augersrunning. (SOE, Pages 174-175)

7. Prior to Jessop, ABI did not have any injuries occur with theDMR, a brand new machine. (SOE, Page 193)

17

Benedetti never required or instructed Jessop get inside the hopper and clean it while the

augers were running. Benedetti was clear regarding the proper manner to clean the hopper. The fact

that it was performed contrary to his instruction (given the mandates that a VSSR penalty must be

strictly construed against the finding of same) should have resulted in no VSSR penalty.

Proposition of Law VIIIAppellee's Knowledge Should Have Been Considered

Jessop's own actions and intentional choices caused his injury. Armed with the knowledge

that the augers not be running when cleaning the hopper (having witnessed such a cleaning) Jessop

intentionally kept them running and got into the hopper. His unilateral negligence should bar his

application. State ex rel Frank Brown & Sons, Inc. v. Industrial Comm., 37 Ohio St. 3d 162 (1988)

Other evidence which should have been construed in ABI's favor is the fact that Jessop:

(1) was not ordered into a dangerous situation; (2) entered the hopper knowing of other alternatives;

and (3) knew the dangers that existed, yet entered the hopper anyway. (SOE, Pages 407-408)

Jessop's deposition testimony contradicts his claim. It is has been held that an employee's

knowledge of dangerous situation or misjudging hazardous situation will bar recovery. State ex rel.

Thieman v. Industrial Comm., 2002 Ohio 5071. With respect to his own knowledge and negligence:

1. Jessop admitted that he saw another employee cleaning outhopper from outside, not from inside as he chose to.(SOE, Pages 273, 300-301) Thus, Jessop knew ofanother manner to clean the hopper without going inside.

2. Jessop admitted that he heard Angelo Benedetti, Jr. state onlythat he should "empty the gravel out of rock box..." Jessopnever heard Angelo Benedetti, Jr. tell him to "get inside" thehopper. (SOE, Page 274)

18

3. Significantly, notwithstanding the Hearing Officer's findings,Jessop admitted that Amos Hostetter never said he had to havethe augers on while he cleaned the hopper out.

(SOE, Page 280)

Second, Benedetti's uncontradicted deposition is also clear.

1. Benedetti testified that the hopper could be emptied withoutanyone inside. (SOE, Page 130)

2. Benedetti testified that he never told Jessop to get inside thehopper. (SOE, Pages 131, 134)

3. Benedetti testified that employees can shovel the hopper fromthe outside and, in fact, there is no need to go inside the hopper.

(SOE, Page 166) Jessop knew this, supra.

4. Benedetti told Hostetter to let the augers run out, shut theaugers off, and then shovel out. (SOE, Pages 181, 195)

Jessop chose not to call (or subpoena) Benedetti to testify. Thus, Benedetti's deposition

testimony cannot be disputed.

Third, Hostetter's deposition testimony was clear. According to Hostetter:

1. Benedetti was not present when any individual may have goneinto the DMR to empty the hopper. (SOE, Pages 214-216)

2. On the date of Jessop's injury, Benedetti only stated that thehopper had to be cleaned out. No directive was given to getinto the hopper. (SOE, Page 224)

Jessop chose not to call (or subpoena) Hostetter to testify. Given all of the foregoing

testimony, Jessop's own acts and prior knowledge must bar his claim. In fact, Jessop was involved

in a prior transport of the DMR. (SOE, Page 100)

While the commission has some discretion to interpret its own rules, common sense must

prevail where the application of those rules give rise to a patently illogical result. State ex rel. Lamp

19

v. J A Croson Comnany, 75 Ohio St. 3d 77 (1996); Also, State ex rel. Parks v. Industrial

Commission, 85 Ohio St. 3d 22 (1999) Given the testimony, it is unfair for ABI to be punished for

a VSSR. The Ohio Supreme Court, in Frank Brown & Sons, Inc., made two important findings:

1. Employerscanbe subjectto VSSRpenalties onlyforthose acts

within the employers control; and

2. A specific safety requirement does not impose a duty of

constant surveillance.

Given: (1) State ex rel. Frank Brown & Sons, Inc.; (2) Jessop's knowledge of the practice of

cleaning out the hopper from outside the DMR (as he saw others clean the hopper from outside the

DMR) and (3) as this should have been construed in ABI's favor, the Decision is error.

Further, it cannot be disputed that Jessop got into the hopper, after he turned the augers on,

knowing they were running. (SOE, Pages 407-408) This fact, also, should have been construed in

ABI's favor to deny the VSSR claim. In fact, the Ohio Supreme Court has gone further on this issue

of an employees knowledgeable act, and has held:

"No VSSR liability where employee had been trained and given adequatewarnings, and the accident resulted primarily from employee carelessness infailing to inspect adequately" State ex rel. Northern Petrochemical Nortech

Division v. Industrial Comm., 61 Ohio St. 3d 453 (1991)

Jessop testified that he got into the hopper knowing that the augers on and he was not afraid.

(SOE, Page 308) Given this, as well as the established law cited above, the VSSR claim should have

been construed strictly in the employer's (ABI's) favor and been denied.

Significantly, Jessop's own "expert" testified that if he knew Jessop witnessed the hopper

being emptied in another manner (i.e. from outside, as Jessop did), this may change his opinion as

to whether it was reasonable for Jessop to enter the hopper. (SOE, Page 442)

20

Furthermore, after his injury, Jessop apologized to Benedetti, acknowledging his own

carelessness and negligence. Benedetti testified that:

1. Jessop apologizedto Benedetti. (SOE, Pages 58,142-144, 146)

2. Jessop stated to Benedetti "Iwas stupid" (SOE, Pages 58,142-

144, 146)

Finally, Jessop testified that he was in the hopper for close to an hour and that the gravel was

almost gone. (SOE, Pages 277, 279) However, Jessop and Hostetter differ in their accounts as to

what happened next. According to Jessop, although there was almost none left in the hopper, he

"slipped" on gravel. (SOE, Pages 279-280) However, Jessop never told Hostetter that he "slipped."

Hostetter testified Jessop only told him that his steel toe boot got "caught" behind the auger. (SOE,

Page 237) Further, while Jessop testified that he had no alcoholic beverages the morning of his

injury, he could not remember if he had any alcoholic beverages the night before. (SOE, Page 303)

These unusual events (and the testimony) should have been construed in ABI's favor. They, in fact,

seem to indicate that Jessop was kicking gravel into the machine (which he should not have been

doing) and the injury was the result of his negligence.

Proaosition of Law IX

Appellant Did Not Violate Any Applicable Specific Safety Requirement

Quite simply, Appellant did not violate any applicable Specific Safety Requirement.

There Were No Specific Safety Reauirements A licableDD

This Court has spoken clearly:

"A VSSR is an employer penalty and must be strictly construed in the

employer's favor. A specific safetv reauirement must be specific enough

to plainly aauraise an employer of his legal obligations toward his

employees." State ex rel. Double v. Industrial Commission, 65 Ohio St. 3d

13 (1992)(emphasis added)

21

There was no evidence or fmding that the specific safety requirement was "specific enough

to plainly appraise an employer of his obligations." The evidence was just the opposite. First, the

StaffHearing Officer, herself, was confused. (SOE, Pages 443-445)Ifthe StaffHearing Officer has

doubts, questions and confusion as to the interpretation and applicability of the Code Sections

alleged, ABI could not have reasonably known or been appraised. Second, the testimony was that

the augers were, in fact, covered. Third, there is no way the Hearing Officer could have made

findings, given the fact that she had no photograph of the DMR or the augers.

There is no evidence that ABIhad anynotice or knowledge of any specific safetyregulations.

(See Depositions, Hearing Transcript and Findings) This fact, combined with the facts that: (1) ABI

could do nothing more; (2) ABI had no prior experience with any other injury with respect to the

machine; (3) ABI did not require or order Jessop to be inside the hopper; and (4) ABI did not require

or order Jessop to be insider the hopper with augers on (all which should have been strictly construed

in ABI's favor,) should have resulted in a finding of no violation of a specific safety requirement.

See, State ex rel Virgin v Empire Detroit Steel, et al., 24 Ohio St. 3d 205 (1986); Also, Thieman.

Significantly, this Court has held that no VSSR liability attached where there existed no

evidence that additional guarding would have prevented the accident. State ex rel. Bishop v.

Waterbeds `N' Stuff, 94 Ohio St. 3d 105 (2002) Neither Jessop nor his expertprovided any evidence

that additional "guarding" of the new machine would have prevented the accident.

There Was No Evidence That OAC 4121:1-3-05(D) or (G) Applied

The Hearing Officer found that OAC 4121:1-3-05(D) and (G) applied to this case. Not only

have those Sections been repealed for approximately 5 years, there is no evidence that they applied.

22

There was no testimony the DMR contained a "horizontal overhead, vertical or inclined

conveyor." First, the "expert" testimony of Curren was that he never saw the DMR, never

interviewed anybody and could not describe the augers to the Hearing Officer. (SOE, Page 423) In

fact, Curren never saw the initial VSSR Application until the date of the Hearing. (SOE, Page 426)

He cannot testify to detail or "purpose" of same, as he attempted. (SOE, Page 421) Curren, who did

not look at this case from 2001 to 2005 (and spent a total of 2 and'/z hours on this case), could not

even recall the approximate size of the hopper or,the specifics of the auger. (SOE, Pages 421, 423,

429, 431 and 437) His testimony, fraught with "guesstimates" is without merit. (SOE, Page 422)

Second, although the Hearing Officer finds the machine was operating "without a cover,"

Curren's testimony was clear that, indeed, a cover was on the top of the augers. (SOE, Pages

422, 424) Curren goes on to admit that, with respect to the metal covering the auger that: "I guess

one could look at it as a guard most definitely because it's a barrier guard." (SOE, Page 422)

Third, the Hearing Officer makes much of the fact that a "screen" was removed. However,

Jessop testified that this was not a safety screen; it was a screen to prevent large rocks from entering

the hopper. (SOE, Pages 394, 408; SOE, 302) Significantly, Section 4123:1-3-05(2) states that:

"This rule shall not be construed as being applicable to power

transmission facilities located within the frame of the equipment andwhere exposure is necessary to its operation or adjustment."

The facts ofthis case demonstrate that this Section is not applicable. First, there is no dispute

that any power transmission facilities (if this section is applicable) are, indeed located within the

frame of the equipment. (SOE, Pages 443-445) Second, all individuals providing sworn testimony

state that exposure to the "facilities" is necessary for the operation and adjustment of the DMR in

order to empty the gravel out of the hopper and transport the equipment. Third, there is no evidence

23

that the mechanism causing the injury to Jessop is contemplated in this Administrative Code Section.

In fact, the Hearing Officer's confusion reinforces this argument. Section (b) only considers "screw

conveyors." As Jessop's "expert" has never seen the DMR or inspected it, there was no valid

testimony that there was any "screw conveyor" on the DMR which caused Jessop's injury.

Harkness states that, with respect to the augers, human intervention is "necessary." (SOE,

Page 325) As human intervention would be "necessary," Section 4123:1-3-05 is not applicable.

Finally, as Jessop was not an "operator"of the DMR (in fact, the DMR was not operating at

the time of the injury, it was idle) Section 4121:1-3-05(G) does not apply to this case. Jessop

himself testified that he did not know how to operate the DMR, thus, the SHO's finding is error.

(SOE, Pages 267-273, 388-389) Further, the "operator" of the DMR is not in the hopper. This

Section of the Ohio Administrative Code does not apply in this case.

The Ohio Administrative Code Fails To Appraise Relator OfAny ObliQations

The Ohio Supreme Court has reiterated that specific safety requirements are unenforceable

to the extent that they fail to "plainly appraise" employers of their legal obligations to employees.

State ex rel Avalotis Painting Company v Industrial Commission, 91 Ohio St. 3d 137 (2001); See

also, State ex rel. Wauyh v Industrial Commission, 77 Ohio St. Bd 453 (1997) Assumingarguendo

that the aforementioned Administrative Code Section applies in this case, this Section, in no way,

is of a character to plainly apprise ABI of its legal obligation to its employees. See, State ex re.

Brilliant Sign Companv v. Industrial Commission, 57 Ohio St. 2d 51 (1979) The requirement "must

be such as to forewarn the employer and establish a standard which he may follow." State ex rel. Rae

v. Industrial Commission, 136 Ohio St. 168 (1939); See also, State ex rel. Brilliant Sign Companv,

at 54. Even the Hearing Officer was confused at the possible application. If the Hearing Officer was

24

confused, ABI could not be specifically appraised of its obligations, given uniqueness of the DMR.

Further, the Code Section relied upon does not contain any language which would plainly

apply to a machine such as the DMR at issue. Also, no standard to ABI is provided by this

Administrative Code Section. Certainly, ABI would have had the same degree of confusion. "All

reasonable doubts concerning the interpretation of the safety standard are to be construed against its

applicability to the employer." State ex rel. Martin Painting & Coating Company v. Industrial

Commission, 78 Ohio St. 3d 333 (1997) In this case, the Courts below failed to construe her

confusion (and all of the reasonable doubts) in ABI's favor. As a result, Jessop failed to establish

a VSSR. It has been held the violation must be the probable cause of the injuryThieman. Further,

according to Thieman, an employee's conduct could be a factor.

The Hearing Off cer Utilized And Relied Upon Unrelated And Irrelevant Material

Finally, the Hearing Officer states that she relies upon a"Report" from Richard E. Harkness.

This "Report" was irrelevant and unrelated to the VSSR issue. This "Report" was drafted and

utilized in the intentional tort case brought by Jessop. Thus, it was clearly based upon a wholly

different standard than that of a VSSR claim. Moreover, there is absolutely no mention of the

Administrative Code therein. Harkness never opines on (or even mentions) any "specific safety

requirement" that was violated by ABI. Additionally, Mr. Harkness never states that Jessop was

required to be in the hopper with the augers on. (SOE, Page 329) While Mr. Harkness attempts to

quote and rely on a number of depositions (SOE, Page 328), his reliance is incorrect, the depositions

are misquoted and no page numbers are ever provided in his "Report." The Hearing Officer's

reliance on this "Report" was legally incorrect and an obvious mistake of law.

25

The Courts below relied upon the deposition testimony of Amos Hostetter and his comments

made prior to Jessop entering the hopper. However, the Tenth District acknowledges (Page 17) that

not even Hostetter was instructed to have employees enter the hopper with the augers running to

clean same. The blame on Hostetter (and Relator) is misplaced and incorrect.

Second, the Magistrate's Decision (adopted by the Tenth District) also indicates (Page 18)

that Hostetter told the Appellee where the lever was to slow or shut off the auners. Facts such as

this must be construed in Appellant's favor; as this VSSR is a penalty and punitive in nature.

Third, the Tenth District (and Industrial Commission) ignore the deposition testimony of

Appellee, wherein he admitted knowing that the hopper could be (and was) emptied out by standing

and shoveling same out while utilizing a ladder. This was totally ignored.

Fourth, the Magistrate cites to the case of State ex rel. Avalotis Painting Co.v. Indus. Comm.,

91 Ohio St. 3d 137 (2001) However, a careful reading of this case demonstrates that the holding is

applicable to this case and supports Appellant. In Avalotis, a VSSR was found because the

employee had "no other way" to complete the job or secure himself (See Magistrate's Decision,

Finding of Fact Number 7 and Page 20.) However, in the case at bar, not only was there no evidence

that the Respondent was ordered into a dangerous situation, Appellee had (and knew he had) other

means to complete his job and secure himself. (See Stipulation of Evidence, Pages 272-274; 280;

299-300; 392-393; 414) That is, emptying the hopper from the outside; which he saw completed

previously. Thus, Avalotis supports no finding of a VSSR against Appellant.

Fifth, the safety standard must be specific enough to plainly appraise an employer of his legal

obligations; an employer should not have to speculate whether it falls within the class of employers

to whom a specific safety requirement applies. State ex rel. Frank Brown & Sons v. Industrial

26

Commission, 37 Ohio App. 3d 162 (1989) In this case, there was no evidence that any specific safety

standards "plainly appraised" Relator. Respondent's own counsel was not aware of any requirement,

as is evident from the initial VSSR Application and the 5 year delay in filing a request to amend.

No safety requirement was clear. Appellant again cites the comments made by the Staff

Hearing Officer, at the August, 2005 Hearing, that demonstrated her confusion regarding application

of a safety standard: (Stipulation of Evidence, Pages 433; 443-444)

Mr. Curren: "The file indicates that there was [sic] hydraulicmotors on chains and sprockets that was drivingthe ends of the augers and that's not where theclaimant's injury or the leg or foot wasinjured...So if you read into the scope it shouldnot be considered as being applicable to powertransmission facilities located within..."

Hearing Officer: "Why 4121:1-3-05A the scopeNo. 2 it says, therules should not be applicable to powertransmission facilities located within the frameof the equipment. I mean I picture this augerbeing inside of it, am I not construing thatcorrectly?"

Mr. Curren: "You're construing it partly correct in that theclaimant's foot did not get caught in the powermechanism that was powering the auger.I hope I haven't confused you Ms. Karl... "

Hearing Officer: "So then does (D)(1)(b) apply in this case?"

Again, this Court has spoken clearly:

Equally important, specific safety requirements must be strictly

construed, and all reasonable doubts construing the interpretationof the specific safety standard are to be construed aEainst itsapplicability to the employer."State ex re. Curtin v. Industrial

Cornmission, 86 Ohio St. 3d 581 (1999); State ex rel. Burton, at 172.

This Court must overrule and reverse the Decisions of the Courts below.

27

Proaosition of Law XAppellee's Improper, Untimely Request to Amend Was To A Repealed Section of the Ohio

Administrative Code

Jessop was represented by counsel for the past seven years. However, his application was

defective and cited to Administrative Code Sections that: (1) did not apply; or (2) were repealed.

Jessop's application cited "OAC 4121:1-3-06, all sections." This Section was repealed and

is not applicable, which Jessop's counsel stipulated to. (SOE, Page 425) Jessop's application also

cited "OAC 4121:1-3-03(E), all sections." This Section was repealed and is not applicable, which

Jessop's counsel stipulated to. (SOE, Page 425) Jessop's application also cited " OAC 4121:1-3-

03(5), all sections." This Section was repealed and is not applicable, which Jessop's counsel

stipulated to. (SOE, Page 425) Jessop's application also cited `OAC 4121:1-3-03(K), all sections."

This Section was repealed and is not applicable here. (SOE, Page 425)

Jessop's amendment was to "OAC 4121:1-3-05, all sections." However, this OAC

Section was repealed in 2003. Jessop's claim must fail, as no valid or existing standards or

requirements have been cited to or relied upon. See, State ex rel. Parks v. Industrial Commission,

85 Ohio St. 3d 22, 26 (1999)

It cannot be disputed that Jessop failed to set forth any evidence of a violation of any existing

Administrative Code Section or any specific safety requirement. As all evidence, facts, doubts and

issues must be strictly construed in ABI's favor (State ex rel Petrie v. Atlas IRON Processors. Inc.,

85 Ohio St. 3d 372 (1999)), no VSSR claim can survive.

28

Proposition of Law XI

Appellee's VSSR Application Is Defective

Jessop's application is defective on its face. As a result, his claim should have been denied.

First, there is absolutely no allegation which identifies a specific safety requirement. Second, there

is no allegation whatsoever that ABI told, instructed or ordered Jessop to enter a dangerous situation.

Third, there is no allegation that Jessop was required to be in a dangerous situation. Forth, Jessop's

application does not put ABI on notice of any specific safety requirement. State ex rel. Ouality

Stamping Products v. BWC, 84 Ohio St. 3d 259 (1998)

The Courts below found that Appellee's Application for VSSR was valid and not defective.

This conclusion is legally and factually incorrect.

It has been acknowledged by: (1) Appellee's counsel; (2) Appellee's witness; (3) the Staff

Hearing Officer; and now (4) the Tenth District that none of the Ohio Administrative Code Sections

cited in Appellee's Application were applicable. Specifically, Appellee's initial Application cited

"all sections" of OA C 4121:1-3-06; OAC 4121:1-3-03(E); OAC 4121:1-3-03(5); and OAC 4121:1-

3-03(K). However, all acknowledge that these Administrative Code Sections were either repealed

or not applicable in the case at bar. (See Stipulation of Evidence, Page 425)

Moreover, the Magistrate concluded that because Appellee cited to "any other code section

the [Relator] has knowledge of' his Application is not defective. This is directly contrary to the very

case the Magistrate later cites to. The case oiState ex rel Bailey v. Industrial Commission, 23 Ohio

St. 3d 53 (1986,) cited by the Magistrate, plainly states that simply referring to a general body of law

is not sufficient. Thus, the statement in Appellee's Application to "any other code section the

[Appellant] has knowledge of' is insufficient. The Application is defective.

29

Additionally, the Tenth District relied on the "description" of injury to place Appellant on

notice. The case law belies this. The Appellee's "description" is a general statement that, in no way,

possibly places Appellant on notice of any specific safety requirements violated. Nowhere is there

any "detailed description" of the claimant's accident. Certainly, nowhere in the description of the

accident is there any mention of shut-off controls or failures to guard. The Administrative Code

Sections noted on the Application even fail to refer to same.

As Appellee's Application is clearly defective, the Magistrate's Conclusion of Law

regarding the initial Application for VSSR is in error and must be reversed by this Court.

CONCLUSION

As a VSSR claim is apenalty, all evidence, facts, doubts and issues mustbe strictly construed

in ABI's favor. State ex rel Petrie v. Atlas IRON Processors, Inc., 85 Ohio St. 3d 372 (1999) The

mere fact that there was conflicting testimony regarding whether or not Jessop was required or told

to be in the hopper with the augers running should have be construed in ABI's favor and the VSSR

claim dismissed. Further, notwithstanding Jessop's self-serving testimony on August 14, 2005, his

own deposition evidences that: (1) he knew he did not have to have any augers running when

cleaning out the hopper; and (2) he could not say that anyone told him that he had to be in the

hopper with (or without) any augers running. These are but two of a litany of pieces of evidence

which should have been construed in ABI's favor. They were not.

The following questions and answers (SOE, Pages 405-406), which were disregarded by the

Courts below, should have been construed in ABI's favor, and demonstrates there was no VSSR:

30

Is it not a fact, Mr. Jessop, that you saw someone cleaning outthe hopper previously, whether it be in Ohio or Indiana, wherethey were not in the hopper, they were actually cleaning it out

from the outside?

A: I don't remember...

Q:I will refer you to page 26 of your deposition and ask if youremember these questions and these answers. Question, nowdid Amos Hostetter tell you, that you had to be in the stonehopper with the augers tutning? Answer...He didn't, I don'tnecessarily think he said that I had to but he told me to. Do youremember those questions and answers?

A: No, not really...

And you never heard Angelo Benedetti say that you had to get

inside the rock box did you?

A: Yes

Q:I'll turn your attention to Page 20 again and ask you if youremember this question and this answer. Were you given anyinstructions what to do on the date of the accident by either Mr.Benedetti or Mr. Hostetter? Answer, Angelo Benedetti gaveAmos instructions I overheard empty the gravel out of the rockbox, or whatever its called, because it would be too much

weight to move the machine, so with that Angelo Benedetti

left. Do you remember that question and answer?

A: Yes

Jessop's own expert testified that, with respect to the augers:

"I guess one could look at it as a guard most definitely because

it's a barrier guard." (SOE, Page 422)

31

Given the foregoing, the Order, finding of a VSSR (as well as the award of "40% of the

maximum weekly rate") must be reversed.

Respectfully submitted,

LEONARD F. CARR (0029884)L. BRYAN CARR (0066649)1392 SOM Center RoadMayfield Heights, Ohio 44124

(440) 473-2277Attomeys for the Appellant,Angelo Benedetti, Inc.

CERTIFICATE OF SERVICE

A copy of the foregoing was sent by Regular U.S. Mail, postage pre-paid, this 16th day of

August, 2010, to Kevin J. Reis, 150 East Gay Street, 22"d Floor, Columbus, Ohio 43215-3130 and

David B. Barnhart, 89 East Nationwide Boulevard, Suite 300, Columbus, Ohio 43215.

LENARD F. CARR (0029884)L. BRYAN CARR (0066649)Attorneys for the Appellant,Angelo Benedetti, Inc.

32

APPENDIX

Decision of the Industrial Commission dated September 15, 2005 A-1 to A-6

Decision of the Industrial Commission dated January 20, 2006 A-7 to A-8

Decision of the Tenth Appellate District dated March 1, 2007(With Magistrate's Decision attached as Appendix A)

A-9 to A-33

Notice of Appeal to Ohio Supreme Court dated April 9, 2007(With Judgment Entry of Tent Appellate District)

A-34 to A-37

The Industrial Commission of Ohio

RECORD OF PROCEEDINGS

Claim Number: 98-474179LT-ACC-OSIF-COV

PCN: 2002351 Heath Jessop

Claims Heard: 98-474179

CARR LEONARD F. LPA.1392 SOM CENTER RD.MAYFIELD HEIGHTS OH 44124

Date of Injury: 8/05/1998 Risk Number: 347128-0

Thisclaim has been allowed for: CRUSHING LEFT LOWER LEG, TEAR ROTATORCUFF, AMPUTATION ABOVE LEFT KNEE; FRACTURE LEFT TIBIA; AXILLARY NERVEINJURY,RIGHT; PROLONG POST TRAUMATIC STRESS.

This matter was heard on 08/15/2005 before Staff Hearing Officer Melissa K.Karl, as provided for in Ohio Revised Code 4121.35(B)(3) on:

IC-8 App For Additional Award For VSSR - Non Fatal filed by Injured Worker

on 08/04/2000.Issue: 1) VSSR-Merits Of Application-Record Hearing

Notices were mailed to the injured worker, the employer, their respectiverepresentatives and the Administrator of Workers' Compensation not lessthan 14 days prior to this date, and the following were present at the

hearing:

APPEARANCE FOR THE INJURED WORKER: Injured Worker/Barnhart/CourtReporter, Curren

APPEARANCE FOR THE EMPLOYER: B. CarrAPPEARANCE FOR THE ADMINISTRATOR: N/A

ORDER ON THE MERITS

It is the order of the Staff Hearing Officer that the injured worker wasemployed on the date of injury noted above, by the employer as a pre-heateroperator on an asphalt recycling machine, and that the injured workersustained an injury in the course of and arising out of employment when hewas cleaning out gravel from a hopper and slipped and fell into the augerwhen the steel toe of his boot was caught in the auger. The claim has beenrecognized for: Crushing left lower leg; tear rotator cuff, amputationabove left knee, fracture left tibia, axillary nerve injury, right, prolong

post-traumatic stress.

It is further the finding of the Staff Hearing Officer that the injuredworker's injury was the result of the employer's failure to have a coverover the auger as required by OAC==4121t1-3-05(0)" and for failure to have astopping device within easv reach of the injured worker, while he was inthe hopper, pursuant to OAC,4121i1=3-05(G).OAC 4121:1-3-05(D) requiresthat the augers be operated with the covers in place and that when anelectric power source is used, covers designed for regular removal shall beinterlocked so that removal will disconnect the power source. OAC4121:1-3-05(G) requires that a stopping device shall be provided at eachmachine, within easy reach of the operator, for disengaging it from itssource of power. These code sections were not alleged on the IC-8application, but were requested via amendment to the IC-8 application perletter from the injured worker's representative dated 08/11/2005. TheStaff Hearing officer permits the amendment for reasons more fully set

forth below.

kaw/kaw

A-1



Claim Number: 98-474179

Initially, the IC-8 application as filed on 08/04/2000, alleged thefollowing Ohio Administrative Code Violations:

OAC4121:1-3-06 all sectionsOAC'4121:1-3-03(E) all sectionsOAC 4121:1-3-03(J) all sectionsOAC 4121:1-3-03(K) all'sections

The Staff Hearing Officer finds these code sections are not applicable tothe instant claim. The Staff Hearing Officer relies on the fact that athearing, the injured worker's representative presented no arguments withregardto any of these code sections. The Staff Hearing Officer furtherrelies on the expert testimony-of Mr, Garry N. Curren. Mr. Currentestified that theabe4ecited four (4) rndes were applicable only to theextent that therare construction codes.vHowever;"hefurther testifiedthat in his'HOSfiion, none of these faur (7+) codes were violated by the

employer.

As none of the origtttaTfy cited codes on the IC-8 were violated, the issuebecomes whether the injured worker's amendment to include additional

provisions, as requested by the injured worker's representative on08/11/2005, is permissible. The Staff Hearing Officer finds that the

amendment to include sections OAC 4121:1-3-05(D) and (G) is permissiblepursuantto case law. The Staff Hearing Officer is aware that thisamendment falls well outside the time guidelines for amending anapplication under OAC 4121-3-20(1)(a)(b). Those guidelines for amendmentstate as follows:

(1)(a) Theclaimant or the claimant's representative may amend theapplication to include any additional or alternative violation, providedthe-amendment is filed within two years following the date of injury,

disability or death.

(b) Theclaimant.or the claimant's representative may submit an amendmentof the application foradditional award for violation of a.specific safetyrequirement beyond the expiration of two years following the date ofinjury, disability or death. Any such amendment must be submitted withinthirty days of the receipt by the claimant or his counsel of the report ofthe investigation by the bureau into the alleged specific safetyrequirement violation. The claimant or the claimant's counsel may request

an extension of this period for an additional thirty days. Such requestmWst be submitted in writing within the original thirty-day period. Ifproperly submitted, the Commission shall notify both parties and theirrepresentatives of the granting of such request by mail. Such amendment,shall setforth all specific safety requirements omitted from theapplication made prior to the expiration of the two-year period which the

claimant alleges were the cause of the injury, disease or death, but which

were omitted by reasbn of mistake or incompleteness. Copies of any suchamendments shall be forwarded to the employer and its representatives asrequired by paragraph (b) of this rule. Any such amendment shall not raiseany unstated claim, but shall merely clarify a previously alleged violation.

The amendment in the instant claim was not submitted within 30 days of thereceipt by the injured worker or his counsel of the BWC's investigationreport. However, the injured worker's counsel has submitted case law whichhas held that claimant's may amend their VSSR applications to clarify. priorcharges regardless of Industrial Commission amendment deadlines or statutesof limitations. State ex rel R Bauer & Sons Roofina and Sidino. Inc. Y.Indus Comm. (1998), 84 Ohio St.3d 62. The Staff Heartng Officer rejectsthe employer ' s representative's argument that the amendment alleges an"entire new body of law." The employer has submitted the case of State exrel Johnson versus Hilltoo Basic Resources, 95 Ohio St.3rd 36 (2002). Inthat case, the Court did not allow an amendment of the VSSR applicationafter the time limitation imposed by OAC 4121-3-20. However, that case isclearly distinguishable on its facts as the amendment in that claim alleged

VSSR1 Page 2 kaw/kaw

A-2




a mine safety infraction yet the original application alleged violations ofworkshop and factory, and construction codes, a totally separate area oflaw. The Court found that nothing in the injured worker's oriainalapplication pertaining to workshops/factories/constructionactivities,would have put the employer on notice of alleged violations of mine safety

provisions.

In the instant claim however, the injured worker originally allegedviolations of construction provisions under OAC 4121:1-3-03-^and4121:1-31.jk' The amendment so pertains to ronstruction provisions, withthose provisions falling under OAC 4121-1-3-05.

The Staff Hearing Officer also relies on the case of State ex rel ThomosonBuildina Associates Inc v Industrial Commission (1988) 36 Ohio St.3d 199in finding the late amendment in the instant claim to be permissible. TheCourt in Thomoson held that the employer was not denied due process by the

Industrial Commission's reliance in part on administrative code safetyprovisions not cited by the injured worker, as,the-VSSR-^application'wassufficientlyexplicit to place the employer on notice as to whichsafetyrequirements were claimed to have been violated. The Court indicated thataffidavi^ts-filed with the Industrial Commission presented the issue ofwhether the scaffold was safely and adequately supported. The additionalprovisions relied on by the Industrial Commission to grant the VSSR, butnot cited by the injured worker on the application, pertained to the safetyof the scaffolding. Likewise, in the instant claim, the employer wasclearly aware through depositions filed for the intentional tort case, andthrough the filing of the 11/18/2000 report of Mechanical Engineer

Harkness, that the issue of the auger not being properly covered, and theinjured worker not having a shut off valve within his reach, were being

alleged as proximate causes of the injury.

Based on the above rationale and discussion, the injured worker's requestto amend the application to include OAC sections 4121:1-3-05(D) and (G) isgranted. The Staff Hearing Officer notes that at the time the machinery inquestion was placed in service (ie 1998) these code sections were still ineffect and therefore, were properly cited by the injured worker'srepresentative. Those code sections were not amended until 04/01/1999,well-after the DMR-2 machine was placed in service. The Staff HearingOfficer relies on State ex re1 Colliver v Indus. Comm. (1999) 84 Ohio

St.3d 476.

The Staff Hearing Officer finds that the injured worker was injured on08/05/1998, while at work, when his left leg was caught by an auger on anasphalt recycling machine (DMR-2). The injury resulted in the followingconditions being allowed in the claim: fractured left tibia, axillarynerve injury, right; prolong post-traumatic stress; crushing left lowerleg; tear rotator cuff; and amputation above left knee.

The purpose of the DMR-2 was to break up old asphalt for recycling. Theauger blade grinds the asphalt and then moves the asphalt out of theopening in the back of the hopper. The OMR-2 machine was owned, operated

and constructed by Angelo Benedetti Inc., the employer in this claim. AmosHostetter was serving as the.injured worker's supervisor on the date ofinjury. Mr. Hostetter indicates in his deposition, that it was his and Mr.Angelo Benedetti's decision to remove the screen device that was laid inthe middle of the hopper, because the screening was too small and the rockwas not coming through the screening into the auger. -0n"th'edateofinj'ury;°'the employer instructed-Mr.Hostetter to get theDMR-2readyfortransport. This entailed getting the hopper (also known as the "rock box"cleaned out MrHostetterinstructedthe-injured worker`to clean out therock box=an,d;to.keep=hi-s feet' away- from the auger:'=Mr'Hostetterindicatestha'6,he..slowed the auger down.When Mr. Hostetter did not see the injuredworker come out from the rock,box, he checked and found the injured workerwith his leg caught in the auger up to his knee. Mr. Hostetter shut themachine off, then started it to reverse the auger so the injured worker'sleg would come out from the auger.

VSSR1 Page 3kaw/kaw

A-3




The injured worker was severely injured and required an above left kneeamputation.

1'he above°findings of fact pre"based onthe injured worker's testimony, theos.ition-^of;Amos,Hostetter,and theBWC'SafetyInvestigation'report dated

1o/2G91:

The remaining issue to be decided is whether there wasa violation of OAC4121:1-3-05(0) and (G) and whether the violation was the proximate cause ofthe injury in thisclaim. For the reasons that follow, the Staff HearingOfficer finds t;hafJhe,..auger^o`the" DMH-21 machine-was<being,:operated-' vut^°a,!cover.secured in-place. The Staff Hearing Officer also finds

that the cover available was designedfor regular removal and was notinterlocked so that removal would disconnect the power source. Further,the stopping device was not within easy reach of the injured worker, whowas operating the DMR-2 machine. The Staff Hearing Officer further findseach of theseviolations was a proximate cause of the injured worker's

injury.

OAC 4121:1-3-05(0) states as follows:

(0) Power driven conveyors - chain, bucket, belt and screw

(1) Horizontal overhead, vertical and inclined conveyors

(a) Overhead protection

Where overhead conveyors carry material with a clearance ofseven feet or more above the floor or ground level, and crossdesignated walkways or roads, or pass over areas whereemployees are normally at work, a substantial barrier shall beinstalled to catch falling matevlial.

(b) Screw conveyors

In addition to the requirements of paragraph (D)(1)(a) the augerof screw conveyors shall be operated with the covers secured inplace. Covers shall be solid or of wire mesh, in accordancewith Appendix I. Where an electric power source is used coversdesigned for regular removal shall be interlocked so thatremoval will disconnect the power source.

The Staff Hearing Officer finds that (D)(1)(a) is notapplicable in theinstant claim. Section D(1)(b) is the applicable section at issue. TheStaff Hearing Officer finds that ,theauge„r,at,?ssue was operating withoutthe.-.co:wer,in'',place'at^the^tameof,injury:Per the deposition of AmosHostetter, the decision to remove the screen device that laid over the rockbox was made by himself and by the employer, prior to the injured workerbeing hired. There is no evidence that the cover was interlocked so thatremoval would disconnect the power source as required by the cited rule.To the contrary, per the deposition of Mr. Hostetter, the screen (cover)was removed so the rock would come into the auger. The auger remainedfully operational and powered without the screen in place as is evidencedby the fact the auger was turning without the screen in place, while theinjured worker was in the rock box. The Staff Hearing Officer finds that

the employer violated OAC 4121:1-3-05(D)(b).

The injured worker also alleged a violation of OAC 4121:1-3-05(G). That

section provides as follows:

(G) Machinery control

(1) Disengaging from source of power

A stopping device shall be provided at each machine, within

VSSR1 Page 4kaw/kaw

A-4




easy reach of the operator, for disengaging it from its sourceof power.

The Staff Hearing Officer finds that the injured worker meets thedefinition of an "operator" as defined in OAC 4121:1-3-01(R)(16) as follows:

"Operator" means any person authorized to operate the specific equipment.

The""finjured-workers=was^•specificaTly instructed toclean outthe rockbox:Per the injur,ed worker's deposition dated 05/05/2000, Mr.°Hostetter toldthe rinjured worker`to"be in"°the rockbox-while_theaugerswereturning:Mr. Hostetter states in his deposition that he showed the injured workerwhere the valve was to slow down the auger even more if the injured workerwanted to slow it down further. Mr. Hostetter also indicates when thehydraulic would stall out, the injured worker would have to come out of therock box to readjust it. The Staff Hearing Officer finds the injuredworker was an "operator" for purposes of the code at issue.

The Staff Hearing Officer finds that the DMR-2 did have a stopping device.However, the device was notwithin each reach of the operator, to disengagethe machine from its power source. Per the deposition of Mr. Hostetter,the shut off valve was "right outside the hopper." Mr. Hostetter indicatedthat the valve cannot be reached from the inside of the hopper unless theperson inside stood up on the iron and reached out over the side to reachthe shut off. Mr. Hostetter admits with the injured worker's pant legbeing caught in the auger, there was no way the injured worker could reachthe shut-off valve. Mr. Hostetter further indicates that when he did notsee the injured worker, and checked on him, Mr. Hostetter "shut the machineoff." He then told the injured worker he had to start the machine back upand manually turn the auger backwards to reverse the machine to untangle

= the injured worker's leg from the auger. It is clear from Mr. Hostetter'sdeposition that the shut off valve was not within reach of the injuredworker when the injured worker was in the hopper. The Staff HearingOfficer therefore finds that the employer is also in violation of OAC4121:1-3-05(G)(1).

The Staff Hearing Officer further finds that the employer's violations ofOAC 4121:1-3-05 (D) and (G)(1) were each a proximate cause of the injuredworker's industrial injury. The Staff Hearing Officer relies on the reportof Richard E. Harkness Ph.D. Mechanical Engineer, dated 11/18/2000. Mr.Harkness indicates that the augers in the DMR-2 were improperly safeguardedin that the screen grating had been removed by the employer prior to theinjury. Mr. Harkness indicates that the augers could have beensatisfactorily safeguarded with an interlocked guard and that such asafeguard would have provided safety to those in the hopper who were near

the operating auger, ie prevented this injury.

With regard to the violation of (G)(1), Mr. Curren, the injured worker'sexpert witness and a Safety Consultant, indicates in his testimony that,"there was not a means to disengage the power supply or stop the auger fromwhere the operator was stationed to perform the work." As Mr. Currenspeaks to an "operator," the Staff Hearing Officer finds that his testimonyis consistent with a violation of OAC 4121:1-3-05(G)(1). The Staff HearingOfficer finds that the deposition of Mr. Hostetter as well as the testimonyof Mr. Curren support the finding that had the injured worker been able todisengage the power source to the auger from where he was standing, theinjury may have been rendered less severe. The injured worker's legcontinued"to be pulled into the auger until such time as Mr. Hostetter was

able to turn the machine off.

It is therefore ordered that an additional award of compensation be grantedto the injured worker in the amount of 40 percent of the maximum weeklyrate under rule of "State ex rel Enole v . Industrial Commission," 142 Ohio

St. 425.

It is the order of the Industrial Commission that the employer is granted a

USSR1Page 5 kaw/kaw

A-5




period of 60 days from the mailing of this order tocorrect the violationsfound herein, if said-violations are still in existence.

The Staff Hearing Officer further finds that all evidence on file, prior toand including the date of hearing, was considered by the StaffHearingOfficer. . . '

A motion for Rehearing may be filed within thirty (30) days of the receiptof this order in accordance with the provisions of Ohio Administrative Code

4121-3-20(C).

Typed By: kawDate Typed: 09/15/2005

Findings Mailed: 09/20/2005

Melissa K. KarlStaff Hearing Officer

Signed copy contained in claim file.

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or employer, please notify the Industrial Commission.

98-474179Heath Jessop2601 County Road 1075 # APerrysville OH 44864-9509

Risk No: 347128-0Angelo Benedetti Inc94 1st Ave Ste 2Bedford OH 44146-4201

ID No: 15275-90***Philip J. Fulton & Associates"**89 E Nationwide Blvd Ste 300Columbus OH 43215-2554

ID No: 370-80Sheakley UniserviceP 0 Box 42212Cincinnati OH 45242

ID No: 10283-90Carr Leonard F. LPA.1392 Sos Center Rd.Mayfield Heights OH 44124

BWC, LAW DIRECTOR

VSSR1 Page 6 kaw/kaw

A-6and 8ecvlce PYOv1deZ

The Industrlal Commission of Ohio


Claim Number: 98-474179LT-ACC-OSIF-COV

PCN: 2002351 Heath Jessop

Claims Heard: 98-474179

CARR LEONARD F. LPA.1392 SOM CENTER RD.MAYFIELD HEIGHTS OH 44124

Date of Injury: 8/05/1998 Risk Number: 347128-0

This claim has been allowed for: CRUSHING LEFT LOWER LEG, TEAR ROTATORCUFF, AMPUTATION ABOVE LEFT KNEE; FRACTURE LEFT TIBIA; AXILLARY NERVEINJURY, RIGHT; PROLONG POST TRAUMATIC STRESS.

This claim came before Staff Hearing Officer Robert Cromley as provided forin the Ohio Administrative Code 4121-3-20 ( C) on:

REHEARING Motion For VSSR Re-Hearing filed by Employer on 10/20/2005.Issue: 1) VSSR-Merits Of Application-Record Hearing

It is hereby ordered that the motion for rehearing filed 10/20/2005 isdenied. The employer hasnot submitted any new and relevant evidence norshown that the order of.08/15/2005 was based on anobvious mistake of factor on a clear mistake of law.

Specifically, the Staff Hearing Officer explained the factual basis for theorder of 08/15/2005, and it is not an "obvious mistake of fact" justbecause some facts could be interpreted differehtly. The Staff HearingOfficer gave the legal basis by which it was found that clarification ofthe alleged violations was appropriate, and the mere re-numbering of theVSSR provisions ( i.e., 4121:1-3-05 becoming 4123:1-3-05) did not deprivethe employer of notice of what was alleged.

As the requirements of OAC 4121-3-20(C)(1)(a) or (b) have not been met, the

request for a VSSR rehearing must be denied.

Typed By: lwgDate Typed: 01/20/2006 Robert Cromley

Staff Hearing OfficerFindings Mailed: 01/26/2006

Signed copy contained in claim ffie.

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either theinjured worker or employer, please notify the Industrial Commission.

98-474179 ID No: 15275-90Heath Jessop ***Philip J. Fulton & Associates***

2601 County Road 1075 # A 89 E Nationwide Blvd Ste 300

Perrysville OH44864-9509 Columbus OH 43215-2554

VSSR4 Page 1 lwg/lwg,

A-7

The Indnstrial Commission of Ohio



Risk No: 347128-0 ID No: 370-80Angelo Benedetti Inc Sheakley Uniservice94 1st Ave Ste 2 P 0 Box 42212Bedford OH 44146-4201 Cincinnati OH 45242

ID No: 10283-90Carr Leonard F. LPA.1392 Som Center Rd.Mayfield Heights OH 44124

BWC, LAW DIRECTOR

VSSR4 Page lwg/lwg

A-8 M Bqual OppPZtunitY 6MloYec

an9 8eivice PioVi9ei

IN THE COURT OF APPEALS OF OHIO^l^ YfY I,)f .n

TENTH APPELLATE DISTRICT rS

The State of Ohio ex rel.Angelo Benedetti, Inc.,

Relator,

v No. 06AP-165

The Industrial Commission of Ohioand Heath Jessop,

Respondents.

(REGULAR CALENDAR)

MEMORANDUM DECISION

Rendered on March 1, 2007

Leonard F. Carrand L. Bryan Carr, for relator.

Marc Dann, Attorney General, and Kevin J. Reis, forrespondent Industrial Commission of Ohio.

Philip J. Fulton Law Office and David B. Bamhart, forrespondent Heath Jessop.

IN MANDAMUSON OBJECTIONS TO MAGISTRATE'S DECISION

McGRATH, J.

{11} Relator, Angelo Benedetti, Inc., has filed this original action requesting that

this court issue a writ of mandamus, ( 1) ordering respondent Industrial Commission of

Ohio ("commission"), to vacate its order that granted an award for a violation of a specific

safety requirement ("VSSR"); and (2) ordering the commission to find that the evidence

No. 06AP-165 2

does not establish that respondent, Heath Jessop ("claimant"), is entitled to a VSSR

award.

{12} This matter was referred to a magistrate of this court pursuant to Civ.R.

53(D) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate examined

the evidence and issued a decision (attached as Appendix A), including findings of fact

and conclusions of law. Therein, the magistrate concluded that relator has not

demonstrated that the commission abused its discretion in finding violations of various

Ohio Administrative Code sections and in awarding claimant an award for relator's VSSR.

Therefore, the magistrate recommended that this court deny relator's request for a writ of

mandamus.

{1[3} Relator has filed the following seven objections to the magistrate's decision:

[1.] The Magistrate erred in finding that the IndustrialCommission did not abuse its discretion in holding that theRespondent's VSSR Application was not defective on its face;

[2] The Magistrate erred in finding that the IndustrialCommission did not abuse its discretion in permitting therespondent to amend his VSSR Application five (5) yearsafter the initial filing;

[3.] The Magistrate erred in finding that the IndustrialCommission did not abuse its discretion in allowing theRespondent to call a surprise witness;

[4] The Magistrate erred in finding that the IndustrialCommission did not abuse its discretion in holding that theRespondent violated Specific Safety Requirements;

[5.] The Magistrate found that the Relator stated the augersshould not be running when an employee was inside cleaningthe hopper out and, further the Magistrate never found thatthe Respondent was ordered or instructed into the hopperwith the augers running;

[6] The Magistrate incorrectly relied upon the Bureau ofWorkers' Compensation safety investigation report;

No. 06AP-165 3

[7] The Magistrate erred in finding that the Relator was an"operator."

114} Initially, we note that these objections essentially contain re-arguments of

the same issues presented to and addressed by the magistrate. Because we find the

magistrate has correctly applied the law, we find the arguments made in relator's first four

objections to be unpersuasive. Consequently, for the reasons contained in the

magistrate's decision, we overrule relator's first four objections to the magistrate's

decision.

(15} Relator's remaining three objections relate to the magistrate's factual

findings, wherein relator contends the magistrate either made incorrect findings of fact, or

did not construe the findings of fact in relator's favor. Upon an independent review of the

record, we find no such error in the magistrate's decision. Accordingly, we overrule

relator's fifth, sixth, and seventh objections to the magistrate's decision.

{16} Following an independent review of the matter, we find that the magistrate

has properly determined the facts and applied the appropriate law. Therefore, relator's

objections to the magistrate's decision are overruled, and we adopt the magistrate's

decision as our own, including the findings of fact and conclusions of law contained

therein. In accordance with the magistrate's decision, we deny the requested writ of

mandamus.

Relator's objections overruled; writ of mandamus denied.

BRYANT and WHITESIDE, JJ., concur.

WHITESIDE, J., retired of the Tenth Appellate District,assigned to active duty under authority of Section 6(C), ArticleIV, Ohio Constitution.

No. 06AP-165

APPENDIX A

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT


Relator,

V.No. 06AP-165

The Industrial Commission of Ohio (REGULAR CALENDAR)and Heath Jessop,

Respondents.

MAGISTRATE'S DECISION

Rendered on September 14, 2006

Leonard F. Carrand L. Bryan Carr, for relator.

Jim Petro, Attorney General, and Kevin J. Reis, for

respondent Industrial Commission of Ohio.

Philip J. Fulton Law Office and David B. Bamhart, for

respondent Heath Jessop.

4

IN MANDAMUS

{17} Relator, Angelo Benedetti, Inc., has filed this original action requesting that

this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio

("commission") to vacate its order which granted an award for a violation of a specific

A-12

No. 06AP-165 5

safety requirement ("VSSR") and ordering the commission to find that the evidence does

not establish that respondent Heath Jessop ("claimant") is entitled to a VSSR award.

Findings of Fact:

{18} 1. Claimant was hired by relator in July 1998. Around the same time,

Amos Hostetter was also hired by relator as the foreman at the job site.

{1[9} 2. On August 5, 1998, claimant sustained a work-related injury when his

left leg was caught in the augers of a piece of equipment. Claimant's claim has been

allowed for the following conditions: "crushing left lower leg, tear rotator cuff, amputation

above left knee; fracture left tibia; axillary nerve injury, right; prolong post traumatic

stress."

{110} 3. Relator is in the asphalt recycling business. Relator was hired by

Kokosing to perform part of the re-paving project for 1-71 in Richland County. Relator's

portion of the re-paving project involved recycling the old asphalt pavement. For this task,

relator utilized a machine called the DMR-2 (drum mixer recycler), a second generation

machine which was designed by the president of relator, Angelo Benedetti, Jr. The DMR-

2 was first placed into service in the spring of 1998. The DMR-2 functioned by heating

the existing pavement, sprinkling new gravel or stone on it, scraping up the heated

asphalt and new stone, adding chemical rejuvenating agents to the mix, and then heating

the mixture to make recycled asphalt. The recycled asphalt would be laid back down

onto the roadway and rolled until smooth. This recycled asphalt pavement becomes the

new sub-paving and is covered by a layer of new asphalt.

(111} 4. The portion of the DMR-2 which is the focus of this action is the stone or

gravel hopper (also called "rock box"). Gravel is placed in the hopper. The hopper

contains two augers which run down the center of the hopper. The purpose of the hopper

No. 06AP-1656

is to hold the new gravel until the operator delivers the gravel which passes through the

rotating augers. The gravel distributed is then incorporated into the rejuvenated or

recycled paving product.

{112} 5. As originally designed by Mr. Benedetti, the DMR-2's hopper originally

had a protective grating which was designed to keep larger rocks from breaking the

augers. However, because the grating interfered with the flow of the gravel into the

augers, Mr. Benedetti had it removed shortly after the machine was put into service.

{113} 6. The speed of the rotating augers can be regulated and/or stopped by

use of a switch located outside the hopper where an employee can reach it while

standing on the ground.

(1141 7. When the DMR-2 is moved to a new job site, the excess gravel must be

removed from the hopper. The gravel can either be removed by allowing the augers to

continue to run until the excess gravel is emptied into a front-end loader or by shoveling

the gravel out of the box. This must be done because the DMR-2 is too heavy when

loaded with gravel to be transported.

1115} 8. As stated previously, both claimant and his foreman, Hostetter, were

hired by relator in July 1998. Mr. Benedetti stated in his deposition testimony that there

were no written instructions explaining how to use the DMR-2. Mr. Benedetti explained

that it was relatively simple and that he had showed both claimant and Hostetter how to

operate the machine. Mr. Benedetti stated that, while the augers should not be running

while an employee is in the hopper, it was safe to do so provided the augers' speed had

been slowed to approximately 5-6 rpms.

(116} 9. On August 5, 1998, Mr. Benedetti informed Hostetter that the DMR-2

needed to be prepared for transport to another job site.

No. 06AP-1657

(117} 10. Claimant and Hostetter were the only two workers at the site at that

time.

{118} 11. According to Hostetter's deposition testimony, Hostetter told claimant to

clean out the stone hopper; showed claimant the location of the flow control valve used to

control the speed of the augers or to tum it off; told claimant that he would slow the

augers down while claimant was inside the hopper; and told claimant to watch his feet

and to be careful in the hopper.

{119} 12. Claimant climbed into the hopper and began shoveling the gravel into

the moving augers. When the front-end loader was full, claimant would climb out of the

hopper, turn off the augers and empty the front-end loader. Claimant stated in his

deposition testimony that the hopper was approximately half full when he began and that

he emptied the front-end loader several times.

{q[20} 13. While claimant was cleaning out the hopper, Hostetter was busy

working on another part of the DMR-2 to prepare it for transport.

{1[21} 14. Claimant was almost finished clearing out the gravel when, according

to his statements, he slipped on some gravel on the floor of the hopper and the rotating

augers caught the toe of his work boot. Claimant's leg was pulled into the augers until the

hydraulic system driving the augers stalled. Hostetter heard the machine stall but did not

see claimant come out of the hopper. When he looked into the hopper, Hostetter saw

claimant lying on the floor of the hopper with his leg entangled in the augers. Hostetter

reversed the rotation of the augers so that claimant's leg could be extricated from the

augers.

No. 06AP-165 °

11221 15. Claimant filed an application for workers' compensation benefits. His

claim was allowed as indicated previously. Claimant has been awarded permanent total

disability compensation as well as scheduled-loss benefits for the loss of his leg.

{123} 16. On August 4, 2000, claimant filed an application seeking an additional

award for a VSSR. On the application, claimant indicated that his injuries were sustained

in the following manner: "I was cleaning out gravel tank and I slipped and fell into Auger,

steel toe was caught and crushed foot, hurt Rt. shoulder." Claimant asserted that relator

had violated the following specific safety requirements which caused his injuries: "4121:1-

3-06 all sections; 4121:1-3-03(E) all sections;: 4121:1-3-03(J) all sections; 4121:1-3-03(K)

all sections." Claimant also stated, on this portion of the application, the following: "The

claimant cites herein any code section the employer has reasonable notice of. The

claimant cites any previously existing code section."

1124} 17. Claimant also filed an intentional tort action against relator which was

ultimately settled. During the pendency of the intentional tort action, the processing of

claimant's VSSR application was held in abeyance. The settlement agreement

specifically excluded the VSSR action.

(125} 18. After the intentional tort action was sett ►ed, relator requested that his

VSSR application be amended to include Ohio.Adm.Code 4121:1-3-05(D) and (G).

1126} 19. A hea(ng was held before a staff hearing officer ("SHO") on August 15,

2005. At that time, the SHO granted claimant's motion to amend his VSSR complaint

finding that, although the amendment was outside the time period permitted under the

Ohio Administrative Code, the amendment was permissible because it merely clarified

the prior charges citing State ex ret. R. Bauer & Sons Roofing & Siding, Inc. v. Indus.

Comm. (1998), 84 Ohio St.3d 62, and State ex ret. Thompson Bldg. Assoc., Inc. v. Indus.

A-16

No. 06AP-165 9

Comm. (1988), 36 Ohio St.3d 199. The SHO specifically distinguished the case of State

ex reL Johnson v. Hilltop Basic Resources, Inc. (2002), 95 Ohio St.3d 36. The SHO

relied upon claimant's testimony, the deposition of Hostetter, and the Ohio Bureau of

Workers' Compensation ("BWC") safety investigation report for the determination of how

the injury occurred:

The purpose of the DMR-2 was to break up old asphalt forrecycling. The auger blade grinds the asphalt and thenmoves the asphalt out of the opening in the back of thehopper. The DMR-2 machine was owned, operated andconstructed by Arigelo Benedetti Inc., the employer in thisclaim. Amos Hostetter was serving as the injured worker'ssupervisor on the date of injury. Mr. Hostetter indicates in hisdeposition, that it was his and Mr. Angelo Benedefti'sdecision to remove the screen device that was laid in themiddle of the hopper, because the screening was too smalland the rock was not coming through the screening into theauger. On the date of injury, the employer instructed Mr.Hostetter to get the DMR-2 ready for transport. This entailedgetting the hopper (also known as the "rock box"[)] cleanedout. Mr. Hostetter instructed the injured worker to clean outthe rock box and to keep his feet away from the auger. Mr.Hostetter indicates that he slowed the auger down. WhenMr. Hostetter did not see the injured worker come out fromthe rock box, he checked and found the injured worker withhis leg caught in the auger up to his knee. Mr. Hostetter shutthe machine off, then started it to reverse the auger so theinjured worker's leg would come out from the auger.

1127} Thereafter, the SHO concluded that Ohio Adm.Code 4121:1-3-05(D)(1)(b)

applied as follows:

* * * Section D (1)(b) is the applicable section at issue. TheStaff Hearing Officer finds that the auger at issue wasoperating without the cover in place at the time of injury. Per

the deposition of Amos Hostetter, the decision to remove thescreen device that laid over the rock box was made byhimself and by the employer, prior to the injured worker

being hired. There is no evidence that the cover wasinterlocked so that removal would disconnect the powersource as required by the cited rule. To the contrary, per thedeposition of Mr. Hostetter, the screen (cover) was removedso the rock would come into the auger. The auger remained

No. 06AP-165

fully operational and powered without the screen in place asis evidenced by the fact the auger was turning without thescreen in place, while the injured worker was in the rock box.The Staff Hearing Officer finds that the employer violatedOAC 4121:1-3-05(D)(b).

10

(Emphasis sic.)

{128} Further, the SHO found a violation of Ohio Adm.Code 4121:1-3-05(G)(1) as

follows:

The Staff Hearing Officer finds that the injured worker meetsthe definition of an "operator" as defined in OAC 4121:1-3-01(B)(16) as follows:

"Operator" means any person authorized to operate thespecific equipment.

The injured worker was specifically instructed to clean outthe rock box. Per the injured worker's deposition dated05/05/2000, Mr. Hostetter told the injured worker to be in therock box while the augers were turning. Mr. Hostetter statesin his deposition that he showed the injured worker wherethe valve was to slow down the auger even more if theinjured worker wanted to slow it down further. Mr. Hostetteralso indicates when the hydraulic would stall out, the injuredworker would have to come out of the rock box to readjust it.The Staff Hearing Officer finds the injured worker was an"operator" for purposes of the code at issue.

The Staff Hearing Officer finds that the DMR-2 did have astopping device. However, the device was not within eachreach of the operator, to disengage the machine from itspower source. Per the deposition of Mr. Hostetter, the shutoff valve was "right outside the hopper." Mr. Hostetterindicated that the valve cannot be reached from the inside ofthe hopper unless the person inside stood up on the iron andreached out over the side to reach the shut off. Mr. Hostetteradmits with the injured worker's pant leg being caught in theauger, there was no way the injured worker could reach theshut-off valve. Mr. Hostetter further indicates that when hedid not see the injured worker, and checked on him, Mr.Hostetter "shut the machine off." He then told the injuredworker he had to start the machine back up and manuallyturn the auger backwards to reverse the machine to untanglethe injured worker's leg from the auger. It is clear from Mr.Hostetter's deposition that the shut off valve was not within

A-18

No. 06AP-165

reach of the injured worker when the injured worker was inthe hopper. The Staff Hearing Officer therefore finds that theemployer is also in violation of OAC 4121:1-3-05(G)(1).

(Emphasis sic.)

11

{129} Thereafter, the SHO determined that relator's violations of the above-cited

code provisions were each a proximate cause of claimant's injury based upon the report

of Richard E. Harkness, Ph.D., dated November 18, 2000, the testimony of Garry N.

Curren, and the deposition of Hostetter. The SHO ordered that an additional award of

compensation be granted to claimant in the amount of 40 percent of the maximum weekly

rate.

{130} 20. Thereafter, relator filed the instant mandamus action in this court.

Conclusions of Law:

{131} In order for this court to issue a writ of mandamus as a remedy from a

determination of the commission, relator must show a clear legal right to the relief sought

and that the commission has a clear legal duty to provide such relief. State ex rel.

Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. A clear legal right to a writ of

mandamus exists where the relator shows that the commission abused its discretion by

entering an order which is not supported by any evidence in the record. State ex rel.

Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76. On the other hand, where the record

contains some evidence to support the commission's findings, there has been no abuse

of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry

Co. (1987), 29 Ohio St.3d 56. Furthermore, questions of credibility and the weight to be

given evidence are clearly within the discretion of the commission as fact finder. State ex

reL Teece v. Indus. Comm. (1981), 68 Ohio St.2d 165.

No. 06AP-16512

{132} In making a VSSR award, the commission must determine that an

applicable and specific safety requirement exists, which was in effect at the time of the

injury, that the employer (relator herein) failed to comply with the requirement, and that

the failure to comply was the cause of claimant's injuries. Section 35, Article II, Ohio

Constitution; State ex rel. Haines v. Indus. Comm. (1972), 29 Ohio St.2d 15; State ex rel.

Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257. This is a factual determination, within

the final jurisdiction of the commission, subject to correction in mandamus only upon a

showing of an abuse of discretion. State ex reL Allied Wheel Products, Inc. v. Indus.

Comm. (1956), 166 Ohio St. 47. 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. Burley v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18.

{133} The interpretation of a specific safety requirement is within the final

jurisdiction of the commission. State ex rel. Beny v. Indus. Comm. (1983), 4 Ohio St.3d

193. Because the VSSR award is a penalty, however, it must be strictly construed and all

reasonable doubts concerning the interpretation of the safety standard or to be construed

against its applicability to the employer. State ex rel. Burton v. Indus. Comm. (1989), 46

Ohio St.3d 170.

{134} In this mandamus action, relator asserts the following four arguments in

support of its contention that a writ of mandamus is appropriate. First, relator argues that

claimant's application for a VSSR was defective on its face. Second, relator argues that

the commission abused its discretion when it permitted claimant to amend his VSSR

application outside the time limits provided in the Ohio Administrative Code. Third, relator

argues that the commission abused its discretion when it permitted claimant to call an

expert to testify at the hearing. Fourth, relator argues that there is no evidence to support

A-20

No. 06AP-165 13

a violation of either Ohio Adm.Code 4121:1-3-05(D) or (G). Within this fourth argument,

relator asserts as follows: the commission failed to construe the factual doubts in the

employer's favor; the augers were not "uncovered"; claimant was never ordered to enter

the hopper and shovel out the gravel; there is no reason to punish relator in this manner

because the DMR-2 was a new piece of machinery and relator had no reason to believe

that any of the safety requirements applied to it; and claimant's injuries were the result of

his own negligence.

{135} For the following reasons, it is this magistrate's decision that this court

should deny relator's request for a writ of mandamus.

{1[36} Relator first argues that claimant's application for a VSSR award is

defective on its face and that it did not place relator on notice. Specifically, relator argues

that claimant failed to list the specific safety requirement which the commission found

relator had violated and failed to allege that claimant had been required by the employer

to be in the hopper. As such, relator argues that claimant's application should have been

denied. For the reasons that follow, the magistrate rejects relators argument.

{137} In State ex rel. Quality Stamping Products v. Ohio Buc of Workers' Comp.

(1998), 84 Ohio St.3d 259, the Supreme Court of Ohio considered whether or not a VSSR

application which referenced an entire chapter of law was sufficient to have placed the

employer on notice of the alleged VSSR. In that case, the claimant was a minor who

severely injured his left hand while operating a power press for the employer. The

claimant's VSSR application explained the nature and the effect of his injury and alleged

that the employer had violated R.C. Chapter 4109, Employment of Minors, and various

safety regulations. The commission found that the claimant's injury was caused because

the employer had hired and employed a minor in violation of the statute.

A-21

No. 06AP-165 14

{138} In mandamus, the employer had argued that the claimant's VSSR

application did not provide the employer with sufficient notice. The court rejected the

employer's argument and specifically stated as follows:

The reference to an entire chapter of law is not enough toplace an employer on notice of an alleged VSSR unlesscoupled with a detailed description of the claimant'saccident. State ex reL Bailey v. Indus. Comm. (1986), 23Ohio St.3d 53, 55 ***. Koziol's application attributed hisinjury to a power press, see State ex rel. Thompson Bldg.

Assoc., Inc. v. Indus. Comm. (1988), 36 Ohio St.3d 199,201, * * * and recited that R.C. Chapter 4109 refers to"Employment of Minors." * * *

Id. at 263.

{9[39} As indicated in the findings of fact, claimant indicated on the application that

his injuries were sustained in the following manner: "I was cleaning out gravel tank and I

slipped and fell into Auger, steel toe was caught and crushed foot, hurt Rt. shoulder."

Relator was very familiar with the DMR-2 as the president had actually designed the

machine. Claimant's description of his accident was sufficient to put relator on notice that

claimant's foot and leg slipped into the unguarded augers in the hopper. Although the

Ohio Administrative Code sections specifically cited by claimant do not apply, claimant did

indicate on the application that he was also including any other code sections of which

relator had reasonable notice. Finding that the application, as a whole, provided relator

with notice of the alleged VSSR, the magistrate specifically finds that the commission did

not abuse its discretion and that claimant's application was not defective on its face and

rejects the first of relator's arguments.

{140} Next, relator contends that the commission abused its discretion by

permitting claimant to amend his VSSR application well outside the time limits provided.

Relator also contends that the amendment referred to Ohio Administrative Code

No. O6AP-165 15

provisions which have been repealed as the basis for its argument. The magistrate

rejects relator's arguments and finds the commission did not abuse its discretion in

permitting claimant to amend his VSSR application as follows.

{141} Ohio Adm.Code 4121-3-20 provides, in relevant part, as follows:

(A) An application for an additional award of compensationfounded upon the claim that the injury * * * resulted from thefailure of the employer to comply with the specific require-ment for the protection of health, lives, or safety ofemployees, must be filed, in duplicate, with the commission,within two years of the injury ***.

(1)(a) The claimant or the claimant's representative mayamend the application to include any additional or alternativeviolation, provided the amendment is filed within two yearsfollowing the date of injury, disability or death.

(b) The claimant or the claimant's representative may submitan amendment of the application for additional award forviolation of a specific safety requirement beyond theexpiration of two years following the date of injury ***. Anysuch amendment must be submitted within thirty days of thereceipt by the claimant or his counsel of the report of theinvestigation by the bureau into the alleged specific safetyrequirement violation. The claimant or the claimant's counselmay request an extension of this period for an additionalthirty days. Such request must be submitted in writing withinthe original thirty-day period. If properly submitted, thecommission shall notify both parties and their representa-tives of the granting of such request by mail. Such amend-ment shall set forth all specific safety requirements omittedfrom the application made prior to the expiration of the two-year period which the claimant alleges were the cause of theinjury, "** but which were omifted by reason of mistake orincompleteness. * * * Any such amendment shall not raiseany unstated claim, but shall merely clarify a previouslyalleged violation.

(2)(a) All amendments to an application for additional awardfor violation of a specific safety requirement filed after theinvestigation by the bureau shall be reviewed to determine ifthe amendment requires further investigation.

No. 06AP-165 16

{9[42} It is undisputed that claimant's motion to amend his VSSR application was

filed outside the time provisions above noted. Specifically, claimant's application for an

additional award for a VSSR was filed on August 4, 2000. Claimant's request to amend

his VSSR application was filed on August 11, 2005, five years after the original

application was filed. Furthermore, it is undisputed that the BWC's investigation had been

completed in January 2001. Further, although claimant indicated that he was also filing

the report of Richard E. Harkness, Ph.D., regarding the uncovered augers being the

cause of his injury, that report was dated November 18, 2000. As such, claimant's

request to amend his application was clearly outside the prescribed time limits. However,

Ohio Adm.Code 4121-3-20(A)(2)(b) provides for the possibility of an amendment being

permitted beyond the above time limits. Specifically, that section provides as follows:

The employer or its representative may object to anamendment to the application for additional award forviolation of a specific safety requirement, which was filedbeyond the two-year period on the grounds that the amend-ment raises a previously unstated claim. If such objection isfiled within thirty days of the employer's receipt of theamendment, a staff hearing officer shall review the amend-ment, to determine the need for a re-investigation if theoriginal investigation was conducted prior to the amendment.

{9[43} The Supreme Court of Ohio has addressed the issue of whether a request

to amend a VSSR application beyond the two-year time limit is permissible in Bauer,

Thompson and Johnson. In Bauer, the court stated, in relevant part:

Fueled by the principle that "technicai rules of procedureshould not be allowed to defeat an otherwise valid claimunder the Workers' Compensation Act," State ex ret. Dillon v.

Dayton Press, Inc. (1983), 6 Ohio St.3d 295, 299, * * * wehave on at least three occasions clarified the underlyingprinciples governing either the thirty-day amendment dead-line in Ohio Adm.Code 4121-3-20(A)(1) or a similar amend-ment deadline in former Ohio Adm.Code 4121-3-20(D). * * *We reasoned that amendments to VSSR applications shouldnot be held to a more exacting standard than are

A-24

No. 06AP-165

amendments to an ordinary civil complaint, which, providingthat the cause of action is not changed, may be amendedafter the statute of limitation expires. "` *

Likewise, in State ex rel. Bailey v. Indus. Comm. (1986), 23Ohio St.3d 53, 54, *" we specifically held that the claimantcould clarify his VSSR application under former Paragraph(D) "despite the running of the statute of limitations for suchamendments." * * *

And most recently, in State ex rel. Oliver v. Southeastem

Erectors, Inc. (1996), 76 Ohio St.3d 26, *"' we implicitlyfound a claimant's amendment to his VSSR applicationtimely, even though he had filed it more than thirty days afterhis receipt of the commission's investigation report. * ""Inherent in this finding is the conclusion that the amendment"merely clarified" the previously alleged violations, without"rais[ing] any unstated claim," within the meaning ofParagraph (A)(1).

Accordingly, we hold, based on Dillon and its progeny, thatclaimants may amend their VSSR applications to clarify priorcharges regardless of commission amendment deadlines orstatutes of limitations."* *

17

Id. at 66-67.

{1[44} In the present case, the commission specifically determined that claimant's

request to amend his VSSR application merely clarified the prior charges. Specifically,

the commission noted that the amended provisions were under the construction section

of the code as were the originally alleged sections and that claimant's application itself put

the employer on notice. Furthermore, the commission specifically noted that relator was

clearly aware, through depositions filed in claimant's intentional tort case and the report of

Dr. Harkness, that the issues of the augers not being properly covered and the claimant

not having a shut-off valve within his reach were being alleged as the proximate causes of

his injury. Further, it is undisputed that the processing of claimant's application for an

additional award for a VSSR was held in abeyance by the parties during the pendency of

claimant's intentional tort action which was filed against relator. Lastly, the provisions of

A-25

No. 06AP-16518

the Ohio Administrative Code which apply to augers were simply renumbered and moved

from Chapter 4121 to 4123. As such, even though the sections under Chapter 4121 were

repealed, the safety provisions which applied to augers continued to exist. As such, the

magistrate finds that the commission did not abuse its discretion in permitting claimant to

amend his application for a VSSR in this specific case.

{145} Next, relator contends that the commission abused its discretion by

permitting claimant to call an expert to testify at the hearing. Specifically, relator contends

that Mr. Curren's testimony constituted new evidence of which relator did not have prior

notice and which was prejudicial to relator. For the reasons that follow, this argument is

specifically rejected.

{q[46} Ohio Adm.Code 4121-3-20(B)(4) specifically provides as follows: "If a

record hearing is held, both parties will be permitted to introduce new evidence at the

hearing on the application."

{9[47} In the present case, a record hearing had been requested and was held.

As such, as contemplated by the Ohio Administrative Code, both parties were permitted

to introduce new evidence at the hearing.. To the extent that Mr. Curren's testimony

constituted "new evidence," it was permissible and this argument of relator is rejected as

well.

{9[48} Relator's final argument is that there is no evidence in the record to support

the commission's determination of violations of either Ohio Adm.Code 4121:1-3-05(D) or

(G). As stated previously, relator asserts that: the commission failed to construe factual

doubts in relator's favor; the report of Dr. Harkness indicates that the augers were not

"uncovered"; claimant was never ordered to enter the hopper and/or to shovel out the

No. 06AP-165 19

gravel; the DMR-2 was a new machine and there is no reason to punish this employer;

and it was claimant's own negligence which caused his injuries.

(149} Ohio Adm.Code 4121:1-3-05 provides, in pertinent part:

* * * Mechanical power transmission apparatus

(A) Scope.

(1) This rule provides for the protection of employees frommotion hazards associated with equipment used in themechanical transmission of power on construction sites.Installations to be guarded include sources of mechanicalpower, the associated and intermediate equipment and thedriven machines up to, but excluding, the point of operation.This pertains to revolving, oscillating, reciprocating, or othermoving parts such as, but not limited to, belts, brakes, cams,chains, clutches, collars, compressors, counterweights,couplings, cranks, eccentrics, engines, gears, lead screws,motors, power cylinders, pumps, pulleys, shafting, sheaves,spindles, sprockets, turbines and winches.

***

(D) Power driven conveyors-chain, bucket, belt and screw.

(b) Screw conveyors.

***[T]he auger of screw conveyors shall guarded. Guardsshall be solid or of wire mesh, in accordance with Appendix1. Where an electric power source is used guards designedfor removal shall be interlocked so that removal will dis-connect the power source.

*.*

(G) Machinery control.

(1) Disengaging from source of power.

A stopping device shall be provided at each machine, withineasy reach of the operator, for disengaging it from its sourceof power.

No. 06AP-165 20

{150} In the present case, the commission found violations of both of the sections

above cited. Specifically, in finding that section (D)(1)(b) applied, the commission relied

upon the deposition testimony of Hostetter, who provided that the DMR-2 was originally

equipped with an aggregate screen over the augers. Benedetti and Hostetter decided to

remove the aggregate screen because the screen was too small and did not permit the

rock to come through. According to Hostetter's testimony, this decision was made before

claimant was even hired. Further, Hostetter testified that no one had explained to him

how to empty the hopper; he had watched other people do it. Those people went inside

the hopper and shoveled the gravel out while the augers were moving. Further, Hostetter

indicated that Benedetti had been present when this was done when the DMR-2 was

being used in Indiana. Further, Hostetter testified that he instructed claimant to clean out

the hopper and explained to him how to do it. Hostetter told claimant to watch his feet,

testified that he slowed down the speed of the augers and showed claimant where the

lever was to slow the augers down more or to shut them off.

{1[51} In his November 18, 2000 report, Dr. Harkness noted that the hazard

involved in the DMR-2 is the rotating augers which can trap and seriously injure any body

part which touches the flights. Where both augers were used to feed the stone, Dr.

Harkness indicated that either auger would be hazardous to the user. Furthermore, Dr.

Harkness noted that it was foreseeable that workers would enter the hopper while the

augers were rotating such as, if the augers became jammed and needed to be cleared.

Having found that the augers were a hazard, Dr. Harkness opined that it was possible to

guard that hazard and specifically noted that originally, the DMR-2 had a screen grating in

the hopper above the augers. Because this grating became clogged on the first day the

DMR-2 was used, the decision was made to remove that grating. Further, one of relator's

No. 06AP-165 21

arguments is that Dr. Harkness actually stated, in his report, that the left auger was

actually guarded by the right auger. However, the magistrate finds that relator has taken

Dr. Harkness's statement out of context.

{152} At the time that Dr. Harkness examined the DMR-2, he noted that relator

had made changes to it. Specifically, the walls were steeper to permit the stone and

gravel to more easily fall into the augers, and the roller chain had been disconnected so

that the right auger no longer rotated. As such, following the modifications to the DMR-2,

Dr. Harkness stated that, in its current modified condition, "only the left auger will rotate. *

* * Note that the right auger of DMR 2 acts as a guard in this case since a worker

standing on the right side of this auger can't reach the left auger with his feet." As such,

contrary to relator's arguments, Dr. Harkness did not opine that the augers had been

guarded at the time of claimant's accident. Instead, his report indicates that, after

claimant's accident, relator had made modifications to the DMR-2 such that only one of

the augers rotates while the other auger acts as a guard for the rotating auger.

{153} In the present case, the commission cited the evidence upon which it relied

and found that Ohio Adm.Code 4121:1-3-05(D) was violated because relator had failed to

provide a guard for the augers and that the lack of a guard was a proximate cause of

claimant's injuries. The evidence clearly supports the commission's determination.

Furthermore, contrary to relator's arguments, the commission is not required to construe

disputed facts in the employer's favor. Instead, the law requires that the commission

construe the interpretation of the safety provision in the employer's favor, but not the

factual determinations themselves. It is the commission that weighs the evidence before

it. Clearly, the commission, as the trier of fact, could view the evidence as showing that

the DMR-2 was not guarded as required by the code section.

A-29

No. 06AP-165 22

{154} Furthermore, the evidence supports the commission's determination that

relator violated Ohio Adm.Code 4121:1-3-05(G)(1) because the DMR-2 did not have a

stopping device within reach of relator which would disengage the machine from its power

source. The commission relied upon the deposition testimony of Hostetter who indicated

that the shut-off valve was outside the hopper and could not be reached from inside the

hopper unless the person inside reached over the side of the hopper. It was not an

abuse of discretion for the commission to determine that the extent of claimant's injuries

would have been lessened if he would have been able to reach a shut-off switch. The

commission cited the evidence upon which it relied, including the testimony of Mr. Curren

and the deposition of Hostetter in support of its determination and, upon review, this

magistrate finds that the commission did not abuse its discretion in making that factual

determination. Relator also argues that claimant was required to show that Hostetter

ordered him to enter the hopper while the augers were moving and cites State ex rel.

Avalotis Painting Co. v. Indus. Comm. (2001), 91 Ohio St.3d 137. However, Avalotis

does not stand for that proposition.

{155} In Avalotis, the claimant suffered traumatic injuries when he fell four stories

while painting an industrial building. The claimant 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 the claimant could

have tied off had been rigged, and the claimant had no other way to secure himself and to

paint where his foreman had instructed him to work.

{156} The commission determined that the employer 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 the

A-30

No. 06AP-165 23

ground. In upholding that determination, the court agreed with the commission's finding

that by directing the claimant to skin out on the beam to paint, the claimant's foreman had

specifically ordered him to work without a lifeline. The employer had argued that the

commission ignored testimony concerning the practice of skinning and found a VSSR

upon the premise that the claimant's foreman had told him to paint without any safety

protection whatsoever. In upholding the commission's decision, the court noted that the

evidence indicated that claimant's foreman knew that the work area had not been rigged

with a lifeline, that the foreman thought that a lifeline could not be rigged in that space,

and the skinning was the only way to get the job done. However, nothing in the Avalotis

decision requires that an employee be specifically ordered to perform a certain task.

Furthermore, based upon the evidence in the present case, the same finding, arguably,

could be made here. The evidence indicates that Hostetter told claimant to shovel out the

hopper. Hostetter slowed down the speed of the augers and specifically told claimant to

be careful and to watch his feet. As such, Hostetter instructed claimant to perform this

dangerous task and claimant did so and was injured. Relator also asserts that claimant's

injuries were the result of his own negligence. However, negligence of an employee

serves to bar the VSSR award only where the employee has deliberately removed a

safety device or has otherwise rendered a compliant devise noncompliant. See State ex

rel. Frank Brown & Sons, Inc. v. Indus. Comm. (1988), 37 Ohio St.3d 162.

{157} In the present case, at the time that claimant was instructed to shovel out

the hopper, there was no grating to guard the augers and there was no device which

claimant could utilize to shut off the machines. As such, at the time he entered the

hopper, the DMR-2 was not in compliance. As such, the claimant did nothing to render

A-31

No. 06AP-165 24

the machine noncompliant and relator's argument that it was claimant's own negligence

which caused his injuries lacks merit.

{158} Lastly, relator argues that, because the DMR-2 was a relatively new piece

of machinery, none of the safety provisions should apply to it because no employer would

have been on notice that any of those provisions applied. This magistrate disagrees.

The record shows that, although the DMR-2 was a unique piece of equipment, it was, in

essence, a combination of several pieces of equipment which are used by other

companies who perform repaving work. Further, even though it was a relatively new

piece of equipment, its parts were not. The record shows that the DMR-2 utilized two

rotating augers to convey rock and gravel through an opening where the gravel was

mixed with the heated asphalt which had been scraped off the road. Although the

operator of the machine would not come in contact with the augers while the gravel was

being added to the recycled asphalt, the record is clear that, if the augers became

jammed or, as in the present case, when the DMR-2 is being prepared for transport to

another site, employees are inside the hopper and are exposed to the rotating augers.

Where an employee is inside the hopper while the augers are moving, the employee is

exposed to that danger and the code sections cited by the commission do indeed apply.

{159} Lastly, the DMR-2 was a second generation machine designed by

Benedetti who had also designed the first machine known as the DMR-1. The DMR-1

was still in service at the time of claimant's injuries.

{160} Based on the foregoing, it is this magistrate's conclusion that relator has not

demonstrated that the commission abused its discretion in finding violations of the above-

cited Ohio Administrative Code sections and in awarding claimant an award for relator's

No. 06AP-165 25

violation of a specific safety requirement. As such, this court should deny relator's

request for a writ of mandamus.

IsI tepfianie Bisca BrooksSTEPHANIE BISCA BROOKSMAGISTRATE

IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO, ex rel.ANGELO BENEDETTI, INC.

Appellant,)))

CASE NO. 0'7®061gvs. . )

)THE INDUSTRIAL COMMISSION OF )OHIO AND HEATH JESSOP )

Appellees. )

On Appeal from the FranklinCounty Court of Appeals,Tenth Appellate District

Court of AppealsCase No. 06AP-165

NOTICE OF APPEAL OF APPELLANTANGELO BENEDETTI, INC.

L. Bryan Carr (0066649) (Counsel of Record)Leonard F. Carr (0029884)1392 SOM Center RoadMayfield Heights, Ohio 44124(440) 473-2277

Counsel for Appellant,Angelo Benedetti, Inc.

Kevin Reis (0008669)Assistant Attorney General150 East Gay Street, 22°d FloorColumbus, Ohio 43215(614) 466-6696

Counsel for Appellee,The Industrial Commission of Ohio

David Barnhart(0003818)Phillip J. Fulton Law Office89 East Nationwide Boulevard, Suite 300Columbus, Ohio 43215(614) 224-3838

Counsel for Appellee,Heath Jessop

A-34

Notice of Appeal of Appellant, Angelo Benedetti, Inc.

Appellant, Angelo Benedetti, Inc., hereby gives notice of appeal to the Supreme Court of

Ohio from the Judgment of the Franklin County Court of Appeals, Tenth Appellate District,

entered in Court of Appeals Case No. 06AP-165 on March 1, 2007. (A copy is attached hereto)

This case originated in the Court of Appeals (the Tenth District Court of Appeals) and

is hereby appealed to this Honorable Court pursuant to Supreme Court Rule II, Section 1(A)(1.)

Respectfully Submitted,

L. BRYAN CARR (0066649)(Counsel of Record)

and

LEONARD F. CARR (0029884)1392 SOM Center RoadMayfield Heights, Ohio 44124(440) 473-2277


A-35

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to

counsel for the Appellee, The Industrial Commission of Ohio, Kevin Reis, Assistant Attomey

General, 150 East Gay Street, 22°d Floor, Columbus, Ohio 43215; and to counsel for the

Appellee, Heath Jessop, David Bamhart, Phillip J. Fulton Law Office, 89 East Nationwide

Boulevard, Suite 300, Columbus, Ohio 43215, on April 6, 2007.

L. RYAN CARR (0066649)


A-363

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT


Relator,

v. No. 06AP-165

The Industrial Commission of Ohio (REGULAR CALENDAR)and Heath Jessop,

Respondents.

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

March 1, 2007, the objections to the decision of the magistrate are overruled, the

decision of the magistrate is approved and adopted by the court as its own, and it is the

judgment and order of this court that the requested writ of mandamus is denied. Costs

shall be assessed against relator.

Within three (3) days from the filing hereof, the clerk of this court is hereby

ordered to serve upon all parties not in default for failure to appear notice of this

judgment and its date of entry upon the joarnal.fr

Judge Pa ick M. ^cGr•ath

Judge P`e'gg'V ^^ n

Jud°g'"e Alba Whiteside

WHITESIDE, J., retired of the Tenth AppellateDistrict, assigned to active duty under authorityof Section 6(C), Article 1\/, Ohio Constitution.

A-37

BRIEF - sconet.state.oh.usAmos Hostetter (hereinafter "Hostetter") was the other ABI employee on...

Documents

Transcript of BRIEF - sconet.state.oh.usAmos Hostetter (hereinafter "Hostetter") was the other ABI employee on...