The opinion
[Cite as State ex rel. Berry v. Indus. Comm., 2024-Ohio-2616.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Curtis A. Berry, :
Relator, : No. 21AP-548
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on July 9, 2024
On brief: Plevin & Gallucci Co., L.P.A., Frank L. Galluci, III,
Louis E. Grube, and David R. Grant; Flowers & Grube,
Paul W. Flowers, and Louis E. Grube, for relator.
On brief: Dave Yost, Attorney General, and Cindy L.
Albrecht, for respondent Industrial Commission of Ohio.
On brief: Frost Brown Todd, L.L.C., Noel C. Shepard, and
Steven M. Tolbert, Jr., for respondent Underground Utilities,
Inc.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
BOGGS, J.
{¶ 1} Relator, Curtis A. Berry, has filed this original action requesting a writ of
mandamus directing respondent Industrial Commission of Ohio (“commission”) to vacate
its orders dated May 4 and July 24, 2021, and grant his Violation of a Specific Safety
Requirement (“VSSR”) application dated April 23, 2020.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this court referred the matter to a magistrate of this court. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate found
No. 21AP-548 2
the commission did not abuse its discretion and recommends that this court deny Berry’s
petition for a writ of mandamus. (Appended Mag.’s Decision at 24-27.)
{¶ 3} On June 9, 2023, Berry filed his objections to the magistrate’s decision.
Therefore, we must independently review the decision to ascertain whether “the magistrate
has properly determined the factual issues and appropriately applied the law.” Civ.R.
53(D)(4)(d).
I. FACTS AND PROCEDURAL HISTORY
{¶ 4} On July 24, 2017, Berry was injured while working as a pipe layer for
respondent Underground Utilities, Inc. (“Underground Utilities”). A crew from
Underground Utilities, including Berry, was working along Shattuck Road in Columbus to
install a water line. A large excavator weighing an estimated 40,000 pounds would remove
dirt and asphalt to create a trench in which to lay the new water line and would place the
removed dirt and asphalt in dump trucks weighing approximately 15,000 pounds parked
next to the excavator. The dump trucks would haul away the removed dirt and asphalt and
bring back fresh fill dirt to the trench. After the new water line was placed in the trench, a
front loader weighing approximately 35,000 pounds would then place fill dirt around and
over the new water line, and then a mini excavator with a plate compactor weighing
approximately 24,000 pounds would compact the fresh fill dirt.
{¶ 5} On the date of his injury, Berry was working next to the large excavator
locating other utility lines in the trench, which was approximately 3.5 feet deep. The large
excavator had driven over a section of the asphalt along Shattuck Road while digging the
trench and was sitting idle, next to a dump truck. The front loader, mini excavator, and an
unused trench box were approximately 60 to 70 feet away, at the other end of the trench,
where a section of the new water line had been laid. While Berry was working in the trench,
a large piece of asphalt (6 to 12 inches thick, 12 to 18 inches wide, and 15 to 30 feet long)
detached from the roadway and fell on top of him, causing severe injuries. The slab of
asphalt landed above Berry’s hip and was so large it had to be removed with machinery.
{¶ 6} On August 11, 2017, Berry’s claim for workers’ compensation was allowed for
fracture of superior rim of right pubis for closed fracture; contusion of right thigh;
contusion of lower back and pelvis; nondisplaced fracture of anterior wall of right
acetabulum; contusion of right hip; protrusion with effacement thecal sac L5-S1; protrusion
with effacement thecal sac L4-L5; thigh hematoma, right; hip hematoma, right; substantial
No. 21AP-548 3
aggravation of pre-existing spinal stenosis lumbar region L3-L5; substantial aggravation of
pre-existing spinal stenosis lumbosacral region L5-S1; and intervertebral disc displacement
at L3-L4. Berry was awarded temporary total disability compensation through March 30,
2021, when he reached maximum medical improvement for the allowed conditions.
{¶ 7} On April 23, 2019, Berry submitted an application for an additional award for
VSSR. In his application, he asserted violations of Ohio Adm.Code 4123:1-3-13(C)(2),
(E)(1), and (E)(7). Those provisions read as follows:
(C) General requirements.
***
(2) Additional precautions by way of shoring and bracing shall
be taken to prevent slides or cave-ins where trenches or
excavations are made in locations adjacent to backfilled
trenches or excavations, or where trenches or excavations are
subjected to vibrations from railroad or highway traffic, the
operation of machinery, or any other source.
***
(E) Excavations.
(1) The walls and faces of all excavations in which employees
are exposed to danger from moving ground shall be guarded by
a shoring system, sloping of the ground, or some other
equivalent means.
***
(7) If it is necessary to place or operate power shovels, derricks,
trucks, materials, or other heavy objects on a level above and
near an excavation, the side of the excavation shall be sheet-
piled, shored, braced or sloped as necessary to resist the extra
pressure due to such superimposed loads.
{¶ 8} On December 17, 2020, Berry’s VSSR additional award application was heard
by a staff hearing officer (“SHO”), who heard testimony from Berry and several other
employees of Underground Utilities. In an order issued May 4, 2021, the SHO noted the
parties “appear to agree that had a trench box been used, the injury probably would have
been prevented,” however the SHO denied Berry’s VSSR application. (Stip. of Evidence,
Appx. 276 at 3.) The SHO reasoned that, under Ohio Adm.Code 4123:1-3-13(C)(2), shoring
or bracing is required if (1) a trench is made adjacent to backfilled trenches, or (2) when a
trench is subjected to vibrations from the operation of machinery. Here, the SHO
No. 21AP-548 4
determined there were no adjacent backfilled trenches. The SHO also found, based on the
testimony of Underground Utilities employees, that at the time of the injury, the plate
compactor excavator was 60 to 70 feet away from Berry, and thus too far away for vibrations
from its operation to be felt in the trench. The SHO also rejected Berry’s argument that the
trench was subjected to vibrations from dump trucks, the large excavator, and the front
loader, which would have necessitated shoring and bracing of the trench. The SHO looked
to the testimony of Underground Utilities’ controller and safety director, who noted that
the excavator’s weight was dispersed on a two-track design, and that the soil type the day
of the incident was hard clay and therefore subsection Ohio Adm.Code 4123:1-3-13(C)(2)
was not applicable.
{¶ 9} The SHO also noted that a safety inspection of an identical work set-up by the
Ohio Bureau of Workers’ Compensation (“BWC”) just one month prior to the incident
“found no issues with regard to the trench size, the lack of use of a trench box or other
shoring methods, and use of machinery and equipment around the trench site that was
concerning for vibration.” (Stip. of Evidence, Appx. 276 at 4.) The SHO determined that,
under Ohio Adm.Code 4123:1-3-13(E)(1), Berry did not establish there was a danger from
moving ground and that evidence from testimony at the hearing indicated the ground was
hard clay and not subject to compromise from water or other hazards. With respect to Ohio
Adm.Code 4123:1-3-13(E)(7), the SHO determined that the excavator in use at the time of
Berry’s injury was not a “power shovel” because it did not have wenches and steel ropes,
and neither the dump trucks nor mini excavators were near the edge of the trench. (Stip.
of Evidence, Appx. 276 at 4.)
{¶ 10} On June 3, 2021, Berry filed a motion for rehearing on the SHO’s decision,
and on July 24, 2021, the commission denied Berry’s motion, reasoning that he had “not
submitted any new and relevant evidence nor shown that the order of the [SHO] * * * was
based on an obvious mistake of fact or on a clear mistake of law.” (Stip. of Evidence, Appx.
15 at 1.)
{¶ 11} On October 26, 2021, Berry filed his petition for a writ of mandamus
requesting this court issue a peremptory or permanent writ of mandamus directing the
commission to vacate its orders and grant Berry’s VSSR application. (Compl. at 13.)
No. 21AP-548 5
{¶ 12} On May 15, 2023, the magistrate rendered his decision, recommending this
court deny Berry’s request for a writ of mandamus. The magistrate found no abuse of
discretion in the commission’s determination that Ohio Adm.Code 4123:1-3-13(C)(2) did
not require shoring and bracing of the trench due to vibrations from machinery. The
magistrate pointed to evidence in the record, including testimony from Underground
Utilities employees that the mini excavator with the plate compactor was at a distance
where vibrations would not have been felt in the trench, that another Underground Utilities
employee could not feel vibrations when he was in the trench prior to the incident, that
BWC had performed a safety inspection one month prior to the incident and found no safety
violations, and that there was no machinery, including the compactor, being actively used
at the time of the accident. (Appended Mag.’s Decision at ¶ 63.)
{¶ 13} The magistrate also rejected Berry’s argument that under Ohio Adm.Code
4123:1-3-13(E)(1), there was a danger of moving ground which would require a shoring
system or some other means of securing the excavation. The magistrate concluded the
evidence in the record demonstrated no abuse of discretion by the SHO in rejecting Berry’s
argument with respect to Ohio Adm.Code 4123:1-3-13(E)(1). (Appended Mag.’s Decision
at ¶ 64.) The magistrate noted the SHO relied on testimony from an Underground Utilities
employee who stated that while the dump trucks likely drove over the section of asphalt
that collapsed the previous day, on the day of the incident, the dump trucks had not yet
driven over that section of asphalt, that machinery and equipment were kept to a minimum
along the trench, and, at the time of the incident, there was nothing beside the trench.
(Appended Mag.’s Decision at ¶ 64.) The magistrate also noted testimony that the soil
conditions were hard clay and that an Underground Utilities employee who was in the
trench that day did not see any hazardous conditions, such as water or cracking, to indicate
there was a danger of moving ground. (Appended Mag.’s Decision at ¶ 64.)
{¶ 14} Finally, the magistrate considered Berry’s third argument that the SHO erred
in not considering the large excavator as a heavy object above and near the trench Berry
was working in, which would have then required bracing or shoring of the trench under
Ohio Adm.Code 4123:1-3-13(E)(7). The magistrate again found no abuse of discretion, as
the SHO’s decision was supported by some evidence in the record. (Appended Mag.’s
Decision at 30.) The magistrate pointed to the SHO’s consideration of the testimony of
No. 21AP-548 6
Underground Utilities employees that the excavator was not straddling the sides of the
trench but was immediately north of the trench on intact asphalt, and that on the day of the
injury, dump trucks had not driven over the asphalt that fell on Berry. Berry testified that
the dump trucks were parked “maybe five” feet away from the trench. (Dec. 17, 2020 Tr. at
77.) The magistrate found this evidence supportive of the SHO’s conclusion that there was
“not any extra pressure due to superimposed loads on a level above and near an excavation
that required bracing or shoring.” (Appended Mag.’s Decision at ¶ 79.) The magistrate also
reasoned that considering the excavator to be a “heavy object,” which was “necessarily
‘near’ the excavation,” under Ohio Adm.Code 4123:1-3-13(E)(7) would be too expansive a
reading of the regulation, as it would require bracing or shoring in every instance where
equipment is being used to excavate. (Appended Mag.’s Decision at 37.)
{¶ 15} On June 9, 2023, Berry submitted the following objections to the magistrate’s
decision:
[1.] Relator strongly objects to the Magistrate’s factual
observation that “the excavator” was not “operating near the
trench at the time of the cave-in.”
[2.] Relator Berry objects to the Magistrate’s failure to
recognize a conceded legal error in the SHO’s application of
Ohio Adm.Code 4123:1-3-13(E)(7), and the decision to answer
in the first instance whether the large excavator triggered this
provision due to its significant weight.
[3.] Relator Berry objects to the Magistrate’s consideration of
the conditions in the soil in which the trench was dug, the lack
of prior cave-ins, and prior inspections, which are not
enumerated factors under any of the regulations at issue.
[4.] Relator Berry objects to the Magistrate’s focus on the
timing of certain events around the workplace because timing
is not explicitly factored into the regulatory scheme either.
{¶ 16} On February 28, 2024, this court requested supplemental briefing from the
parties. Specifically, we asked the parties to consider:
[W]hether, in consideration of Article II, Section 35 of the Ohio
Constitution, the standard of review for interpretation of a
specific safety requirement set forth in State ex rel. United
States Tubular Prods. v. Indus. Comm., 165 Ohio St.3d 85,
2021-Ohio-1174; State ex rel. Berry v. Indus. Comm., 4 Ohio
St.3d 193 (1983); State ex rel. Allied Wheel Products, Inc. v.
No. 21AP-548 7
Indus. Comm., 166 Ohio St. 47 (1956), and other decisions, is
modified by the Ohio Supreme Court’s decision in In re Alamo
Solar I, LLC, __ Ohio St.3d __, 2023-Ohio-3778, ¶ 13-14, and
TWISM Ents., L.L.C. v. State Bd. of Registration for
Professional Engineers & Surveyors, 172 Ohio St.3d 225, 2022
Ohio 4677, 223 N.E. 3d 371, para. 3.
{¶ 17} On March 13, 2024, the parties filed their supplemental briefs.
II. ANALYSIS
{¶ 18} To be entitled to relief in mandamus, Berry must establish that he has a clear
legal right to relief, the commission has a clear legal duty to provide such relief, and that
there is a lack of an adequate remedy in the ordinary course of law. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141, 152 (1967).
{¶ 19} In regard to an application for an additional award for a VSSR, Berry must
establish that an applicable and specific safety requirement exists, which was in effect at
the time of the injury, that the employer failed to comply with the requirement, and the
failure to comply was the cause of the industrial injury in question. State ex rel. Strawser
v. Indus. Comm., 10th Dist. No. 22AP-330, 2023-Ohio-4327, ¶ 53. Because a VSSR award
is a penalty, however, it must be strictly construed, and all reasonable doubts concerning
the interpretation of the safety standard are to be construed against its applicability to the
employer. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989). The
question whether an injury was caused by an employer’s failure to satisfy a specific safety
requirement is a question of fact to be decided by the commission, subject only to appellate
review for an abuse of discretion. State ex rel. A-F Industries, ACME-FAB Div. v. Indus.
Comm., 26 Ohio St.3d 136, 140 (1986). When the record contains some evidence to support
the commission’s findings, there has been no abuse of discretion and mandamus is not
warranted. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56, 58 (1987).
Therefore, to be entitled to a writ of mandamus, a relator must show the commission’s
decision is not supported by some evidence in the record. State ex rel. Elliott v. Indus.
Comm., 26 Ohio St.3d 76, 79 (1986).
{¶ 20} We also consider our review in light of changing judicial standards of review
and agency deference. As the cases referenced in our request for supplemental briefing
demonstrate, the Supreme Court of Ohio has previously held that the interpretation of a
specific safety requirement is within the final jurisdiction of the commission. State ex rel.
No. 21AP-548 8
Berry v. Indus. Comm., 4 Ohio St.3d 193, 194 (1983), citing State ex rel. Allied Wheel Prod.,
Inc. v. Indus. Comm., 166 Ohio St. 47, 50 (1956); State ex rel. Humble v. Mark Concepts,
Inc., 60 Ohio St.2d 77, 79 (1979).
{¶ 21} However, the Supreme Court has more recently questioned the practice of
judicial deference to agencies’ interpretations of statutes and their own regulations. In
TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors,
172 Ohio St.3d 225, 2022-Ohio-4677, the court stated:
[I]t is the role of the judiciary, not administrative agencies, to
make the ultimate determination about what the law means.
Thus, the judicial branch is never required to defer to an
agency’s interpretation of the law. As we explain, an agency
interpretation is simply one consideration a court may
sometimes take into account in rendering the court’s own
independent judgment as to what the law is.
(Emphasis omitted.) Id. at ¶ 3.
{¶ 22} The Supreme Court further spoke to judicial deference to agency
interpretations of its own regulations in In re Alamo Solar I, L.L.C., __ Ohio St.3d __,
2023-Ohio-3778:
When a court defers to an agency’s interpretation of its own
regulation, it allows the agency to assume the legislative power
(the rule drafter), the judicial power (the rule interpreter), and
the executive power (the rule enforcer). Doing so violates the
fundamental precept that the power of lawmaking and law
exposition should not be concentrated in the same hands. See
generally Manning, Constitutional Structure and Judicial
Deference to Agency Interpretations of Agency Rules, 96
Colum.L.Rev. 612; see also id. at 645, quoting Montesquieu,
The Spirit of the Laws bk. XI, ch. 6, at 157 (Anne Cohler et al.
eds. & trans., 1989) (1768) (“‘when legislative power is united
with executive power * * * in a single body * * * there is no
liberty’”).
Id. at ¶ 14.
{¶ 23} In light of this precedent, we take pause and consider whether an abuse of
discretion standard of review is appropriate in a mandamus action for an alleged VSSR.1
As the Supreme Court has made clear, deferring to an agency’s interpretation of the law
1 We note that the Supreme Court has not spoken about the extent to which a court should defer to the
commission’s interpretation of a specific safety rule in light of Alamo, Solar, and TWISM. The court recently
referenced this issue in State ex rel. Cassens Corp. v. Indus. Comm., __ Ohio St.3d __, 2024-Ohio-526, ¶ 19,
fn. 6, but declined to address it as the case was decided on other grounds.
No. 21AP-548 9
allows the agency to improperly sway into the domain of judicial purview, and we find the
commission’s interpretation of its own specific safety regulations no different. While we
note that questions of credibility and the weight to be given to evidence are clearly within
the discretion of the commission as the fact finder, see State ex rel. Teece v. Indus. Comm.,
68 Ohio St.2d 165, 169 (1981), interpretation of a specific safety regulation in question is
not. The Supreme Court stated in Alamo, “we will independently interpret the regulations
at issue in these cases. If the text of a regulation is clear, then we apply it as written and
stop right there. But if we determine that the text is ambiguous, we may consider the
board’s interpretation only for its persuasive power.” Alamo at ¶ 44-45. The court noted
that, when interpreting text involving common words used in their ordinary sense, there
“will rarely, if ever, be a need for a court to look to an agency interpretation,” as this is “well
within the judiciary’s core competence.” TWISM at ¶ 47, citing Sarasota Mem. Hosp. v.
Shalala, 60 F.3d 1507, 1511 (11th Cir.1995). However, the agency’s interpretation on
specialized matters that involve technical meaning within the agency’s core competency
may serve the court. Id.
{¶ 24} Therefore, in reviewing the commission’s interpretation of a VSSR, we may
look to the commission’s interpretation for its persuasive power if the text of the regulation
is ambiguous. If the text is not ambiguous, however, we will read the safety requirement
according to the common and ordinary meaning of the words used.
A. Berry’s Second Objection
{¶ 25} We now turn to Berry’s objections to the magistrate’s decision and, for ease
of discussion, we first consider Berry’s second objection. Here, Berry argues the
commission erred in failing to consider and determine that the large excavator immediately
north of the trench on the day of Berry’s injury was a “heavy object[] on a level above and
near [the] excavation” under Ohio Adm.Code 4123:1-3-13(E)(7). The SHO found that the
only pieces of equipment being used at the time were the excavator and two mini
excavators. (Stip. of Evidence, Appx. 276 at 3.) The SHO found that the large excavator
was not a “power shovel” under Ohio Adm.Code 4123:1-3-13(E)(7) because it was not
controlled and powered by wenches and steel ropes typical of power shovels. (Stip. of
Evidence, Appx. 276 at 3.) However, the SHO did not analyze whether the large excavator
was a “heavy object” at a “level above and near” the excavation, triggering a requirement
for sheet-piling, shoring, bracing, or sloping. (Stip. of Evidence, Appx. 276 at 3.) Berry
No. 21AP-548 10
argues this constitutes a legal error by the commission, and he argues that the magistrate
erred by finding no abuse of discretion in that regard.
{¶ 26} We first consider whether Ohio Adm.Code 4123:1-3-13(E)(7) is ambiguous.
As discussed above, if the text of the regulation is ambiguous, we may look to the
commission’s interpretation for its persuasive power. Ohio Adm.Code 4123:1-3-13(E)(7)
states:
If it is necessary to place or operate power shovels, derricks,
trucks, materials, or other heavy objects on a level above and
near an excavation, the side of the excavation shall be sheet-
piled, shored, braced or sloped as necessary to resist the extra
pressure due to such superimposed loads.
{¶ 27} The plain language of the regulation is not ambiguous. The regulation simply
states that if heavy objects, including the listed categories of equipment, must be placed or
operated on a level above and near an excavation, that excavation should utilize an
additional safeguard to resist the extra pressure on the side of the excavation. While Ohio
Adm.Code 4123:1-3-13 does not contain a definition of “near,” Merriam Webster defines it
as “at, within, or to a short distance or time.” https://www.merriam-
webster.com/dictionary/near (accessed July 9, 2024). Merriam Webster also defines
“heavy” as “having great weight.” See Merriam Webster’s Dictionary at
https://www.merriam-webster.com/dictionary/heavy (accessed July 9, 2024).
{¶ 28} Here, a large excavator, a dump truck, a pile of fill dirt, a front loader, and
mini excavator were at the site where Berry was working. We now look to whether any of
the equipment triggered under subsection Ohio Adm.Code 4123:1-3-13(E)(7) was also
“near,” in its common and ordinary meaning, the excavation where Berry was working.
{¶ 29} We note the mini excavator and front loaders were placed at the opposite end
of the trench approximately 60 to 70 feet away and therefore not near the trench where
Berry was working. However, the large excavator was placed directly in front of where
Berry was working. As noted in testimony, Berry worked in tandem with the large
excavator. As the large excavator would dig the trench, Berry would stand in the trench to
attempt to locate gas or water lines. In fact, the operator of the large excavator testified that
he would hop in and out of the large excavator to assist Berry as they dug out the trench.
By operation, the large excavator needed to be near, or within a short distance of, the trench
in order to dig it. Also near the trench was the dump truck, which was parked close enough
No. 21AP-548 11
to the trench and the large excavator that the excavator’s arm could place dirt from the
trench into the dump truck. By operation, the dump truck and large excavator needed to
be near the trench where Berry was working, and the facts in the record support such
conclusion.
{¶ 30} The SHO’s decision and the magistrate both noted testimony or evidence in
the record that they believed supported a finding that the dump truck and excavator were
not near the trench, but the cited evidence does not support that finding. The SHO found
that the dump truck was not near the edge of the trench, based on cited testimony from the
operator of the large excavator. However, in fact, the operator stated, “the dump truck
would not have touched [the piece of asphalt that fell on Berry],” not that it was not “near”
the trench. (Dec. 17, 2020 Tr. at 13.) The magistrate similarly refuted that the excavator
was not near the trench according to the testimony of an Underground Utilities employee
who indicated the excavator was not straddling the sides of the excavation. We find this is
beside the point. Whether the excavator could have been straddling the trench does not
mean it was not “near” the trench in the common and ordinary meaning of the word. As
we have already discussed, the excavator and dump trucks had to have been near the trench
where Berry was working, by their very operation and function at the site.
{¶ 31} Having established what equipment was “near,” we must also consider
whether the large excavator and dump truck are “heavy” by its common and ordinary
meaning. Here, the large excavator was estimated to weigh approximately 40,000 pounds
and can only be reasonably described as having a great weight. The dump trucks that would
sit next to the large excavator weigh an estimated 15,000 pounds and would carry 19 tons
or 38,000 pounds of fill dirt back and forth from the trench. These trucks also fall within
the definition of “heavy object.” (Stip. of Evidence, Appx. 276 at 3.)
{¶ 32} In its supplemental briefing, the commission argues that it did not interpret
the safety regulations but, instead, simply applied the facts it found credible and persuasive
to the specific safety regulations. We do not agree. Implicit within the commission’s
application of the facts was its analysis of the meaning of the safety regulation. This is most
notable in the SHO’s determination that the large excavator was not a “power shovel,” as
that term is used in the regulation. (Stip. of Evidence, Appx. 276 at 4.) However, as the
magistrate noted “whether the excavator was a ‘power shovel’ is not determinative of
No. 21AP-548 12
whether there was a violation of Ohio Adm.Code 4123:1-3-13(E)(7) here, as a violation can
also occur when trucks, materials or other heavy objects are placed or operated on a level
above and near an excavation without adequate shoring.” (Appended Mag.’s Decision at
¶ 65.) Here, the commission erred by failing to consider whether “heavy objects” near the
excavation on the day of Berry’s injury triggered a requirement of sheet-piling, shoring,
bracing, or sloping under Ohio Adm.Code 4123:1-3-13(E)(7).
{¶ 33} Applying the plain and unambiguous meaning of Ohio Adm.Code 4123:1-3-
13(E)(7), we agree with Berry that the commission abused its discretion by finding no
violation of that section. Underground Utilities violated Ohio Adm.Code 4123:1-3-13(E)(7)
by failing to employ sheet-piling, shoring, bracing, or sloping to resist the extra pressure
from the superimposed loads created by the large excavator, as well as the dump truck and
fill dirt. As noted by the SHO, the parties do not dispute that had a trench box been used
to shore and brace the trench, the injury would have probably been prevented. (Stip. of
Evidence, Appx. 276 at 3.) Accordingly, we sustain Berry’s second objection to the
magistrate’s decision. We find Berry has established that there was an applicable and
specific safety requirement that was in effect at the time of his injury, the employer failed
to comply with the requirement, and the failure to comply was the cause of the industrial
injury in question. Strawser, 2023-Ohio-4327, at ¶ 53.
B. Berry’s First Objection
{¶ 34} We now consider Berry’s first objection to the magistrate’s decision, which
relates to Berry’s claimed violation of Ohio Adm.Code 4123:1-3-13(C)(2). Berry argues that
the magistrate erred in making a factual determination that the large excavator was not
“ ‘operating near the trench at the time of the cave-in.’ ” (Objs. to Mag.’s Decision at 11,
quoting Appended Mag.’s Decision at ¶ 63.) Berry argues that, under Ohio Adm.Code
4123:1-3-13(C)(2), shoring or bracing of the trench was necessary due to vibrations from
the operation of machinery. The entirety of the subsection reads:
Additional precautions by way of shoring and bracing shall be
taken to prevent slides or cave-ins where trenches or
excavations are made in locations adjacent to backfilled
trenches or excavations, or where trenches or excavations are
subjected to vibrations from railroad or highway traffic, the
operation of machinery, or any other source.
No. 21AP-548 13
{¶ 35} We again look to whether the regulation is ambiguous and find it is not.
Subsection (C)(2) of Ohio Adm.Code 4123:1-3-13 requires shoring and bracing of trenches
or excavations when they are adjacent to other backfilled trenches or excavations or are
subjected to vibrations. The SHO looked to the common and ordinary definition of adjacent
as “not distant, nearby; having a common end point or border.” (Stip. of Evidence, Appx.
276 at 3.) There were no other trenches adjacent or near to the portion of trench where
Berry was working, and therefore it did not trigger subsection (C)(2) of Ohio Adm.Code
4123:1-3-13. While we agree with Berry that the large excavator was near the trench, as
discussed above, that fact is not dispositive as to whether there was a VSSR with respect to
Ohio Adm.Code 4123:1-3-13 (C)(2). “[W]here the record contains evidence which supports
the commission’s factual findings, this court will not disturb that determination.” State ex
rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 283 (1975); see also State ex
rel. Coen v. Indus. Comm., 126 Ohio St. 550 (1933); State ex rel. Mees v. Indus. Comm., 29
Ohio St.2d 128 (1972); State ex rel. Breno v. Indus. Comm., 34 Ohio St.2d 227 (1973). The
existence of vibrations is a question of fact. An Underground Utilities employee stated that
he could not feel vibrations, from the excavator or other machinery, when working in the
portion of trench where Berry was injured on the date of the injury. That testimony
constitutes some evidence supporting the SHO’s finding of no violation under Ohio
Adm.Code 4123:1-3-13(C)(2). We therefore overrule Berry’s first objection to the
magistrate’s decision.
C. Berry’s Third and Fourth Objections
{¶ 36} We now consider Berry’s third and fourth objections to the magistrate’s
decision, which both argue the commission and magistrate relied upon improper factors in
denying Berry’s VSSR application. Specifically, Berry argues the magistrate and the
commission improperly considered the conditions of the soil in and around the trench, the
lack of previous cave-ins, a BWC safety inspection that occurred before the incident, and
the timing of events that may have impacted the trench. Berry argues these are not
enumerated factors under any of the regulations at issue and that it was legal error for the
commission and the magistrate to consider them. As we have already found a VSSR in
regard to Ohio Adm.Code 4123:1-3-13(E)(7), we examine Berry’s arguments as they pertain
to subsection (C)(2) and subsection (E)(1), which focus on excavations and trenches that
are subject to vibrations, and excavations which are subject to moving ground.
No. 21AP-548 14
{¶ 37} Berry’s objections center around the facts and factors that the commission
considered in weighing whether the trench was subject to vibration or moving ground,
rather than the interpretation of the regulations at issue. In reviewing the commission’s
factual findings, this court looks to whether there is some evidence in the record to support
the commission’s decision. Here, there is some evidence in the record to support the
commission’s determination that there was not a safety violation under Ohio Adm.Code
4123:1-3-13(C)(2) and (E)(1). Whether the magistrate and SHO were entitled to consider
what Berry believes to be improper factors does not impact our decision, as there was
evidence concerning undisputedly proper factors that support the SHO’s and the
magistrate’s decisions regarding subsection (C)(2) and subsection (C)(1). We agree with
the magistrate and find no abuse of discretion here. We therefore overrule Berry’s third
and fourth objections to the magistrate’s decision.
III. CONCLUSION
{¶ 38} Following an independent review of this matter, we overrule Berry’s first,
third, and fourth objections, and we sustain his second objection. We adopt the
magistrate’s findings of facts and conclusions of law, except those pertaining to Ohio
Adm.Code 4123:1-3-13(E)(7). Having sustained Berry’s second objection to the
magistrate’s decision, we grant Berry’s request for a writ of mandamus and order the
commission to vacate its decision denying Berry’s request for a VSSR award and issue a
VSSR award for Berry consistent with this decision.
Writ of mandamus granted.
JAMISON, J., concurs.
DORRIAN, J., concurs in part and dissents in part.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 39} I respectfully concur in part with and dissent in part from the majority. I
concur because I would grant Berry’s request for a writ of mandamus. I respectfully dissent,
however, because I would grant a limited writ for the purpose of sending this action back
to the commission to determine in the first instance whether the large excavator constituted
a heavy object placed or operating on a level above and near the excavation and thus
triggered the requirements of Ohio Adm.Code 4123:1-3-13(E)(7).
No. 21AP-548 15
{¶ 40} Moreover, I agree with the majority that it is appropriate to revisit the proper
standard of review in VSSR cases in light of TWISM Ents., L.L.C. v. State Bd. of
Registration for Professional Engineers & Surveyors, 172 Ohio St.3d 225, 2022-Ohio-
4677, and In re Application of Alamo Solar I, L.L.C., __ Ohio St.3d __, 2023-Ohio-3778,
and I write further to offer additional context for this conclusion.
{¶ 41} Generally, interpretation of a regulation is a question of law that is reviewed
de novo. See, e.g., Minges v. Ohio Dept. of Agriculture, 10th Dist. No. 12AP-738, 2013-
Ohio-1808, ¶ 13 (“The interpretation of statu[t]es and administrative rules presents a
question of law.”); Cincinnati v. Nicholson, 1st Dist. No. C-120332, 2013-Ohio-708, ¶ 8
(“Interpretation of an administrative regulation presents a question of law that we review
de novo.”). Despite that general principle, since the mid-1950s the Supreme Court of Ohio
has held that interpretation of a specific safety requirement is within the final jurisdiction
of the commission. State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47,
50 (1956). Although that holding has been regularly cited during the ensuing decades, close
scrutiny demonstrates the Supreme Court offered little explanation as to why such
deference should be granted to the commission in VSSR cases.
{¶ 42} VSSR awards are “specifically authorized in Article II, Section 35 of the Ohio
Constitution.” State ex rel. Camaco, L.L.C. v. Albu, 151 Ohio St.3d 330, 2017-Ohio-7569,
¶ 5. That provision was most recently amended in 1923, with the amendment stating, in
relevant part, that the commission “shall have full power and authority to hear and
determine whether or not an injury, disease or death resulted because of the failure of the
employer to comply with any specific requirement for the protection of the lives, health or
safety of employes, [sic] enacted by the General Assembly or in the form of an order adopted
by such board, and its decision shall be final.” Addressing the commission’s authority
under the amendment only two years after it took effect, the Supreme Court stated that the
finality of the commission’s decisions “extends only to the determination whether, in fact,
the injury, etc., resulted because of the failure to comply with such specific requirement.”
(Emphasis added.) Slatmeyer v. Indus. Comm., 115 Ohio St. 654, 656 (1926). The court
further declared that the finality of the commission’s decisions did not extend to questions
of law:
The language of the Constitution is plain. The commitment of
finality extends only to the single question of fact to be heard
No. 21AP-548 16
and determined. While the constitutional amendment may
have contemplated that the industrial tribunal could dispose of
a question of fact as well as a court constituted for that purpose,
it no doubt recognized that upon legal, fundamental, or
jurisdictional questions, action by a court would be necessary.
At all events, no legal questions were committed by the
Constitution to the final jurisdiction of the commission.
Id. at 657.
{¶ 43} Notwithstanding this declaration in Slatmeyer, 30 years later in Allied
Wheel, the court stated that “the determination of disputed factual situations as well as the
interpretation of a specific safety requirement is within the final jurisdiction of the
Industrial Commission.” (Emphasis added.) Allied Wheel at 50. The Allied Wheel decision
provided no explanation for the court’s conclusion that interpretation of a specific safety
requirement was within the final jurisdiction of the commission, and the decisions cited in
support of that conclusion offer little guidance. Nonetheless, Allied Wheel became the
governing standard, regularly applied by the Supreme Court and this court. See, e.g., State
ex rel. Internatl. Truck & Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428, 2009-Ohio-
3502, ¶ 10; State ex rel. Thompson Elec., Inc. v. Indus. Comm., 10th Dist. No. 16AP-23,
2017-Ohio-7611, ¶ 56.
{¶ 44} As the majority notes, the Supreme Court recently rejected the concept of
broad judicial deference to administrative agencies in the interpretation of regulations:
Under federal doctrine, a federal court must defer to an
agency’s interpretation of an ambiguous regulation that the
agency has promulgated. See Auer v. Robbins, 519 U.S. 452
* * * (1997). But the same separation-of-powers principles that
led us to reject Chevron-style deference in TWISM also apply
to deference of the Auer variety. Compare TWISM at ¶ 3, 29
with Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 865 * * * (1984).
When a court defers to an agency’s interpretation of its own
regulation, it allows the agency to assume the legislative power
(the rule drafter), the judicial power (the rule interpreter), and
the executive power (the rule enforcer). Doing so violates the
fundamental precept that the power of lawmaking and law
exposition should not be concentrated in the same hands. * * *
Thus, we will independently interpret the regulations at issue
in these cases. If the text of a regulation is clear, then we apply
it as written and stop right there. But if we determine that the
No. 21AP-548 17
text is ambiguous, we may consider the board’s interpretation
only for its persuasive power.
Alamo Solar at ¶ 13-14.
{¶ 45} The general principles underlying Alamo Solar, coupled with the Supreme
Court’s original view of the commission’s authority expressed in Slatmeyer, suggest that to
the extent an appeal raises questions of law, such as the interpretation of a specific safety
regulation, we need not give broad deference to the commission. Therefore, I concur with
the majority that we are not required to defer to the commission’s interpretation of specific
safety regulations but may consider such interpretation for its persuasive power when
interpreting an ambiguous regulation.
{¶ 46} Applying the level of deference outlined in Alamo Solar and TWISM, I
concur with the majority’s decision to sustain Berry’s second objection to the extent it
rejects the SHO’s interpretation that Ohio Adm.Code 4123:1-3-13(E)(7) did not apply to the
large excavator because it was not a power shovel. I further concur with the majority’s
decision to the extent it looks to the dictionary for the common and ordinary meaning of
“heavy” and “near.” However, I dissent from the majority’s decision to the extent it makes
the factual determination in the first instance that the large excavator was a “heavy object”
and was located “near” the trench. I also dissent from the majority’s decision to the extent
it makes factual determinations that the dump truck and fill dirt were “heavy objects”
located “near” the trench because relator did not object to the commission’s or magistrate’s
determinations regarding the same. Therefore, I differ from the majority as to the extent
of the appropriate writ to be issued.
{¶ 47} In its analysis of Berry’s second objection, the majority begins by interpreting
the common and ordinary meaning of the terms “heavy” and “near” as used in Ohio
Adm.Code 4123:1-3-13(E)(7). The majority then goes on to analyze whether the large
excavator, dump truck, pile of fill dirt, front loader, or mini excavator were “near” the
excavation where Berry was working. After concluding the large excavator and dump truck
were near the excavation, the majority analyzes whether those items constituted “heavy
objects” for purposes of the regulation.
{¶ 48} Berry’s second objection to the magistrate’s decision asserts the SHO erred
as a matter of law by concluding that Ohio Adm.Code 4123:1-3-13(E)(7) did not apply to
No. 21AP-548 18
the large excavator and that the magistrate erred by determining in the first instance
whether the large excavator triggered the regulation. Because Berry’s second objection only
refers to the large excavator, I would not consider whether the other equipment or the pile
of fill dirt triggered the requirements of Ohio Adm.Code 4123:1-3-13(E)(7) in this case.
{¶ 49} As noted above, I concur with the majority’s decision rejecting the staff
hearing officer’s (“SHO”) interpretation that Ohio Adm.Code 4123:1-3-13(E)(7) did not
apply to the large excavator because it was not a power shovel. I would further reject the
magistrate’s statement that “to find that the ‘heavy’ excavator that was digging the trench
here automatically triggered the applicability of Ohio Adm.Code 4123:1-3-13(E)(7) would
essentially make subsection (E)(7) applicable to all trenching operations, given excavators,
backhoes, and track hoes are necessarily ‘near’ the excavation they are digging. There is no
authority for such an expansive reading of subsection (E)(7).” (Appended Mag.’s Decision
at ¶ 79.) Contrary to the magistrate’s conclusion, I would find that the terms of the
regulation itself provide support for such an interpretation. Ohio Adm.Code 4123:1-3-
13(E)(7) states that shoring or bracing must be used if it is necessary to place or operate
certain equipment, materials, or other heavy objects above and near the excavation. The
use of the phrase “if it is necessary” implies that it is not always necessary to place or operate
equipment on a level above and near an excavation. Ohio Adm.Code 4123:1-3-13(E)(7)
provides that, when it is necessary to do so, measures must be taken to “resist the extra
pressure due to such superimposed loads.”
{¶ 50} Additionally, although I concur with the majority that the magistrate erred in
determining whether the large excavator triggered the requirements of Ohio Adm.Code
4123:1-3-13(E)(7), I would not perform the analysis of whether the large excavator triggered
the requirements of Ohio Adm.Code 4123:1-3-13(E)(7). Although there was testimony
about the weight and location of the large excavator, the SHO did not make specific findings
regarding those issues; instead, the SHO concluded the rule did not apply to the large
excavator because it was not a “power shovel.” The Supreme Court has held that “ ‘[f]actual
questions relevant to proof of a [violation of a specific safety requirement] rest exclusively
within the discretion of the commission.’ ” Albu at ¶ 29, quoting State ex rel. Scott v. Indus.
Comm., 136 Ohio St.3d 92, 2013-Ohio-2445, ¶ 12. See also State ex rel. Hayes Lemmerz
Internatl. Commercial Hwy. v. Indus. Comm., 10th Dist. No. 09AP-908, 2011-Ohio-2161,
No. 21AP-548 19
¶ 19 (“The commission should be given an opportunity to consider legal and factual issues
in the first instance and decide them, rather than having such issues determined in the first
instance by this court in a mandamus action, which is essentially contrary to the purposes
of mandamus.”). Accordingly, I would grant a limited writ only for the purpose of sending
this action back to the commission to determine, in the first instance, whether the large
excavator constituted a “heavy object” placed or operated “on a level above and near” the
excavation for purposes of Ohio Adm.Code 4123:1-3-13(E)(7). See State ex rel. Cassens
Corp. v. Indus. Comm., 10th Dist. No. 21AP-93, 2022-Ohio-2936, ¶ 16-20 (Dorrian, J.,
concurring in part and dissenting in part).
{¶ 51} With respect to Berry’s first objection, I find the magistrate’s statement that
“[i]n the present case, there was testimony that * * * neither the excavator nor compactor
plate was operating near the trench at the time of the cave-in” is confusing at best.
(Appended Mag.’s Decision at ¶ 73.) It is confusing for two reasons. First, the magistrate’s
statement to which relator objects used the term “near,” a term, as noted above and in the
majority opinion, that is expressly used in Ohio Adm.Code 4123:1-3-13(E)(7). However,
the magistrate’s statement was made in the context of analyzing whether the machinery
operating at the worksite subjected the trench to vibrations which would require additional
precautions of shoring and bracing pursuant to Ohio Adm.Code 4123:1-3-13(C)(2), not
(E)(7). Therefore, I would not construe the magistrate’s statement as making a factual
observation with regard to the application of Ohio Adm.Code 4123:1-3-13(E)(7) and,
consistent with the discussion above, would grant a limited writ to have the commission
determine in the first instance whether, for purposes of Ohio Adm.Code 4123:1-3-13(E)(7),
the large excavator was “near” the trench and if it was a “heavy object.” Second, the
magistrate’s statement is not clear as to which excavator it was referring. The SHO’s
decision explained there were three excavators in use on the project: the large excavator
that was digging the trench, a mini excavator that was being used to help lay the pipe, and
another mini excavator equipped with a compactor plate being used to compact back fill
dirt after the pipe had been installed. Therefore, it is unclear which “excavator” the
magistrate was referring to when asserting there was testimony that the excavator was not
operating near the trench at the time of the cave-in.
No. 21AP-548 20
{¶ 52} Ultimately, the magistrate concluded that “the commission could reasonably
infer that any machinery operating at the worksite did not subject the trench to vibrations.”
(Appended Mag.’s Decision at ¶ 73.) I agree with the majority’s conclusion that the
existence of vibrations is a question of fact and there was some evidence to support the
commission’s conclusion that there was no violation of Ohio Adm.Code 4123:1-3-13(C)(2).
Therefore, I concur in overruling Berry’s first objection.
{¶ 53} I also concur in overruling Berry’s third and fourth objections to the
magistrate’s decision.
{¶ 54} For these reasons, I respectfully concur in part with and dissent in part from
the majority.
_________________
No. 21AP-548 21
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Curtis A. Berry, :
Relator, :
v. : No. 21AP-548
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on May 15, 2023
Plevin & Gallucci Co., L.P.A., David R. Grant, and Paul W.
Flowers Co., L.P.A., Paul W. Flowers, Louis E. Grube, and
Melissa A. Ghrist, for relator.
Dave Yost, Attorney General, and Cindy Albrecht, for
respondent Industrial Commission of Ohio.
Frost Brown Todd LLC, Noel C. Shepard, and Steven M.
Tolbert, Jr., for respondent Underground Utilities Inc.
IN MANDAMUS
{¶ 55} Relator, Curtis A. Berry (“claimant”), has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
(“commission”) to vacate its order that found respondent Underground Utilities, Inc.
(“employer”) did not violate a specific safety requirement (“VSSR”).
Findings of Fact:
No. 21AP-548 22
{¶ 56} 1. On July 24, 2017, claimant sustained a work-related injury while working
as a pipe layer for the employer when a section of asphalt detached from the roadway and
fell into the excavated trench in which claimant was working. The section of asphalt landed
above claimant’s hip, causing injuries to claimant. Claimant’s workers’ compensation claim
was allowed for fracture of superior rim of right pubis for closed fracture; contusion of right
thigh; contusion of lower back and pelvis; nondisplaced fracture of anterior wall of right
acetabulum; contusion of right hip; protrusion with effacement thecal sac L5-S1; protrusion
with effacement thecal sac L4-L5; thigh hematoma, right; hip hematoma, right; substantial
aggravation of pre-existing spinal stenosis lumbar region L3-L5; substantial aggravation of
pre-existing spinal stenosis lumbosacral region L5-S1; and intervertebral disc displacement
at L3-L4.
{¶ 57} 2. At the time of the injury, the employer was installing a new water main. To
install the new water main, workers sawed two parallel lines, 28 to 32 inches apart, into the
asphalt roadway. A large excavator straddled the sawed lines, removing asphalt and dirt to
create a trench behind it as it backed northerly down the street on solid roadway. As the
excavator removed dirt and asphalt, it placed the dirt and asphalt in dump trucks that sat
parallel to the excavator and at least five feet from the excavated trench. The dump trucks
dumped the debris and returned with fresh fill dirt to be dumped beside the newly
excavated trench at the opposite end of the trench. A front loader would dump fresh fill dirt
over the new water main. Two smaller mini-excavators were also used in the filling
operation, with one mini-excavator using a plate compactor to pound and compact the
fresh fill dirt. The vibrations from the plate compactor could be felt within a 20-to-30-foot
radius.
{¶ 58} 3. Claimant was working directly in front of the large excavator as it dug the
trench, locating buried utility lines in the path of the excavation. The trench depth at the
beginning of the trench was five to six feet deep and was stabilized with a trench box, but
the area where claimant was working at the time of the accident was approximately 42
inches deep and was not stabilized by a trench box. Neither OSHA regulations nor Ohio
Adm.Code 4123:1-3-13(D) required shoring of trenches under five feet deep. The soil was
hard clay. The area where the front loader and compactor were being used was
No. 21AP-548 23
approximately 60 to70 feet from claimant at the time of the accident, but these machines
were not operating at the time of the accident.
{¶ 59} 4. There was disagreement as to the size of the section of roadway that fell
into the trench, but it was anywhere from 12 to18 inches wide, 6 to 12 inches thick, and 15
to 30 feet long. The section of roadway landed above claimant’s hip, and a machine had to
be used to lift it off of claimant. The dump truck was not operating at the time of the
accident, but Shawn Swihart, the operator of the large excavator, testified that he was
dumping a bucket of soil into the dump truck at the time of the accident. The large excavator
was several feet away from the trench, and the dump trucks were at least five feet from the
trench.
{¶ 60} 5. On April 23, 2019, claimant filed an application for an additional award for
VSSR, alleging that the employer had violated Ohio Adm.Code 4123:1-3-13(C)(2), (E)(1),
and (E)(7).
{¶ 61} 6. Ohio Adm.Code 4123:1-3-13 provides, in pertinent part:
(C) General requirements.
***
(2) Additional precautions by way of shoring and bracing shall
be taken to prevent slides or cave-ins where trenches or
excavations are made in locations adjacent to backfilled
trenches or excavations, or where trenches or excavations are
subjected to vibrations from railroad or highway traffic, the
operation of machinery, or any other source.
***
(E) Excavations.
(1) The walls and faces of all excavations in which employees
are exposed to danger from moving ground shall be guarded by
a shoring system, sloping of the ground, or some other
equivalent means. (See appendix “Table 13-1 and Table 13-2”).
***
(7) If it is necessary to place or operate power shovels, derricks,
trucks, materials, or other heavy objects on a level above and
near an excavation, the side of the excavation shall be sheet-
piled, shored, braced or sloped as necessary to resist the extra
pressure due to such superimposed loads.
{¶ 62} 7. On December 17, 2020, the matter was heard before a staff hearing officer
(“SHO”) for the commission. In a May 4, 2021, order, the SHO denied the VSSR application,
No. 21AP-548 24
finding the following: (1) the application for VSSR is denied; (2) the testimony of claimant,
Swihart, and foreman Gerald Crowner provided a consistent description of the worksite
and how the injury occurred; (3) Ohio Adm.Code 4123:1-3-13(C)(2) mandates the use of
shoring and bracing to prevent slides or cave-ins in two situations: (a) when the trench is
made adjacent to backfilled trenches, or (b) when trenches are subject to vibrations from
the operation of machinery; (4) the incident did not involve a cave-in but could arguably be
construed as a slide; (5) the area of the accident was not adjacent to the area of backfilled
trench, as the nearest area of backfilled trench was more than 20 feet away from claimant;
(6) the compactor plate was operating 60 to 70 feet away from claimant; (7) the testimony
was that you could feel vibrations from the compactor in a 20 to 30-foot radius; (8) Swihart
said he did not feel vibrations from the compactor or any other machinery while he was in
the trench with claimant; (9) Swihart testified that the dump truck did not drive over the
part of the road that fell; (10) Swihart testified that a trench box was in use over the top of
the ball of the pipe that had just been installed and located behind where claimant was
working; (11) Joseph Schwag, controller and safety director, noted that the weight of the
large excavator is spread out due to the two-track design, and the soil depth was good and
the soil type was hard clay; (12) Crowner testified that machinery and equipment are kept
to a minimum along the side of the trench, and soil conditions can change throughout the
day, so ongoing assessments of the trench are made; (13) the road was closed to vehicular
traffic during the work day; (14) the SHO is not persuaded that claimant has established
the trench was subjected to vibration from the operation of machinery so as to require
shoring, bracing, or sloping; (15) therefore, the SHO does not find Ohio Adm.Code 4123:1-
3-13(2) applicable; (16) the set-up of work, as described by claimant, Schwag, Swihart, and
Crowner, was the same that was being used at the time the Bureau of Workers’
Compensation (“BWC”) Safety Division visit on June 20, 2017, just over one month before
the accident; (17) the BWC inspector, Paula Burleson, found no issues with regard to the
trench size, the lack of use of a trench box or other shoring methods, and use of machinery
and equipment around the trench site that was concerning for vibration; (18) Schwag
testified the setup of the project on the date of injury was basically the same as it was at the
time of the visit by the BWC; (19) with regard to Ohio Adm.Code 4123:3-13(E)(1), the SHO
finds claimant has not established he was exposed to danger from moving ground; (20) per
Crowner, the employer had never had an incident of asphalt roadway breaking off and
No. 21AP-548 25
falling into a working trench; (21) the ground was hard clay without any evidence of
compromise from water or any other hazards; (22) machinery and traffic were not being
utilized directly beside the trench; (23) there was insufficient evidence to establish the use
of a dump truck would constitute moving ground; (24) with regard to Ohio Adm.Code
4123:3-13(E)(7), the SHO finds the only equipment being used was an excavator and two
mini-excavators; (25) the excavator in use was not a power shovel because the digging arm
was not controlled and powered by wenches and steel ropes; thus, the only applicable
equipment in this subsection are the dump truck and mini-excavators; (26) Swihart
testified that the dump truck and mini-excavators were not near the edge of the trench; and
(27) the BWC observed the set up being used and found no need for bracing, shoring, or
sloping for any extra pressure due to superimposed loads.
{¶ 63} 8. On June 3, 2021, claimant filed a request for rehearing, which the
commission denied on July 24, 2021.
{¶ 64} 9. On October 26, 2021, claimant filed a complaint for writ of mandamus.
Conclusions of Law and Discussion:
{¶ 65} For the reasons that follow, it is this magistrate’s decision that this court
should not issue a writ of mandamus.
{¶ 66} In order for this court to issue a writ of mandamus, a relator must establish
the following three requirements: (1) that relator has a clear legal right to the relief sought;
(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has no
adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm.,
11 Ohio St.2d 141 (1967).
{¶ 67} To establish a VSSR, a claimant must prove that: (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 proximate cause of the
injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972).
{¶ 68} The interpretation of a specific safety requirement is within the final
jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193
(1983). However, because a VSSR is a penalty, it must be strictly construed, and all
reasonable doubts concerning the interpretation of the safety standard are to be construed
against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 46 Ohio
No. 21AP-548 26
St.3d 170 (1989). The question of whether an injury was caused by an employer’s failure to
satisfy a specific safety requirement is a question of fact to be decided by the commission
subject only to the abuse of discretion test. Trydle; State ex rel. A-F Industries, ACME-FAB
Div. v. Indus. Comm., 26 Ohio St.3d 136 (1986). When the record contains some evidence
to support the commission’s findings, there has been no abuse of discretion and mandamus
is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56, 58
(1987). Furthermore, a safety requirement must be specific enough to plainly apprise an
employer of its legal obligations to its employees. State ex rel. Frank Brown & Sons, Inc. v.
Indus., Comm., 37 Ohio St.3d 162 (1988).
{¶ 69} In the present matter, claimant asserts that the commission erred and abused
its discretion, arguing the following: (1) the trench was subjected to vibration from the
operation of machinery so as to require shoring, bracing, or sloping, as required by Ohio
Adm.Code 4123:3-13(C)(2); (2) claimant was exposed to danger from moving ground, so as
to trigger Ohio Adm.Code 4123:3-13(E)(1); and (3) Ohio Adm.Code 4123:3-13(E)(7) applied
because the large excavator fell within its purview, and machinery (the large excavator and
dump truck) and materials (clean fill dirt) were being utilized directly beside the trench.
Thus, claimant asserted that the employer violated Ohio Adm.Code 4123:3-13(C)(1), (E)(1),
and (E)(7).
{¶ 70} Claimant’s first argument pertains to Ohio Adm.Code 4123:3-13(C)(1), which
requires, in pertinent part, shoring and bracing to prevent slides or cave-ins when trenches
or excavations are subjected to vibrations from the operation of machinery. Claimant
contends that, in this case, the trench was subjected to vibrations throughout the day from
the following: (1) the compactor plate, which dispersed vibrations at least 20 feet away and
disturbed the section of the trench that fell, even though it was not in operation at the time
of the accident; and (2) idling dump trucks and a large excavator that were parked mere
feet away from claimant in the trench at the time of the accident. Claimant cites this court’s
decision in State ex rel. Hickerson Excavating, Inc. v. Kottenbrock, 10th Dist. No. 10AP-
92, 2011-Ohio-1887, for the proposition that Ohio Adm.Code 4123:1-3-13(C)(2) applied
even in the absence of evidence that certain machinery had been vibrating. In the present
case, claimant argues, there is no dispute that vibrating machinery was operating within 10
No. 21AP-548 27
to 15 feet of the trench; thus, Ohio Adm.Code 4123:1-3-13(C)(2) required the employer to
utilize specific safety precautions, which it did not do.
{¶ 71} With regard to Ohio Adm.Code 4123:3-13(C)(2), the SHO found that the
compactor plate was operating 60 to 70 feet away from claimant; there was testimony that
you could feel vibrations from the compactor in a 20 to 30-foot radius; Swihart said he did
not feel vibrations from the compactor or any other machinery while he was in the trench
with claimant; Swihart testified that the dump truck did not drive over the spot of the road
that fell; Swihart testified that a trench box was in use over the top of the ball of the pipe
that had just been installed and located behind where claimant was working; Schwag noted
that the weight of the large excavator is spread out due to the two-track design, and the soil
depth was good and the soil type was hard clay; Crowner testified that machinery and
equipment are kept to a minimum along the side of the trench, and soil conditions can
change throughout the day, so ongoing assessments of the trench are made; and the BWC
visited the site about one month before the accident and found no issues with the trench,
lack of shoring, or use of machinery.
{¶ 72} After reviewing the evidence in the record and the SHO’s findings, the
magistrate can find no abuse of discretion. The SHO’s findings were supported with
testimony and evidence, notably testimony from Swihart, Crowner, and Schwag. Although
there was undoubtedly vibrations from the compactor and other machinery, including
idling dump trucks, around the worksite, Swihart, the employer’s excavator operator,
testified that the mini-excavator with the plate compactor attachment was 60-70 feet away
from where the cave-in occurred. He also testified that he had been in the trench with
claimant shortly before the accident occurred, and he did not see any cracking, water,
undermining, or anything hazardous when assessing the trench. Swihart also said he did
not feel vibrations from the compactor or any other machinery at any time while he was in
the trench. Crowner, the employer’s foreman, testified that at some point trucks probably
drove by the trench in the previous day and that you can feel the ground shake within a 20-
foot, maybe less, radius when the compactor plate is being used. However, Crowner
testified that the compactor plate was not being used at the time of the accident, and there
was no active machinery or vibration or anything that could have caused the cave-in. As the
magistrate found, Crowner also testified that machinery and equipment are kept to a
No. 21AP-548 28
minimum along the side of the trench. Crowner stated that once the excavation is occurring,
there shouldn’t be anything beside the trench, and there was not in this particular case.
Crowner also checks the soil conditions throughout the day for changes, and the trench
consisted of hard clay. Joseph Schwag, the employer’s safety director, testified that the
BWC safety consultant visited the site about one month before the incident and found that
the failure to use a trench box in a four-foot-deep trench did not alarm her and there was
no code violation. Schwag stated that, on the day the BWC safety consultant visited, the site
would have been a typical day of doing trench work with machinery in the same general
locations as the date of the accident.
{¶ 73} As for Hickerson, although that case and the present case both involved
vibrating machinery being operated near a trench, the present factual scenario is different
than that in Hickerson. In Hickerson, the soil had not been tested, an excavator was
operating nearby at the time of the cave-in, there was water or moisture in the trench, and
the trench was deeper than five feet. In the present case, there was testimony that the soil
had been repeatedly examined and tested, there was no water in the trench, neither the
excavator nor compactor plate was operating near the trench at the time of the cave-in, and
the trench was less than five feet deep. There was also specific testimony here that there
was no vibration that could be felt inside the trench. Importantly, the court in Hickerson
noted that the commission could draw reasonable inferences and rely upon common sense
in evaluating the evidence. Likewise, in the present case, the commission could reasonably
infer that any machinery operating at the worksite did not subject the trench to vibrations,
given the circumstances explained above. For these reasons, the magistrate finds the
commission did not abuse its discretion with regard to Ohio Adm.Code 4123:3-13(C)(2).
{¶ 74} Claimant’s second argument pertains to Ohio Adm.Code 4123:3-13(E)(1),
which requires that the walls and faces of all excavations in which employees are exposed
to danger from moving ground shall be guarded by a shoring system, sloping of the ground,
or some other equivalent means. Claimant asserts that the large excavator and dump trucks
had already driven over the section of roadway that collapsed as the whole operation
progressed northerly. Claimant also points out that the entire trench was dug into soil that
had recently been disturbed as heavy machinery drove over regions of the already-cut
asphalt. Moreover, claimant argues that successive 19-ton loads of fresh fill had to be
No. 21AP-548 29
transported from the dump trucks that approached from the north end to the south end of
the trench. Claimant points out that Swihart attested that dump trucks would sometimes
back up and fill in already-excavated sections of the trench, and hefty piles of fill were
placed as close as two feet away from the ledge.
{¶ 75} With regard to Ohio Adm.Code 4123:3-13(E)(1), the SHO found that the
ground was hard clay without any evidence of compromise from water or any other
hazards; machinery and traffic were not being utilized directly beside the trench; and there
was insufficient evidence to establish the use of a dump truck would constitute moving
ground.
{¶ 76} After reviewing the evidence in the record and the SHO’s findings, the
magistrate can find no abuse of the discretion with regard to Ohio Adm.Code 4123:3-
13(E)(1). The SHO’s findings were supported with testimony and evidence, much of it
addressed above already with regard to Ohio Adm.Code 4123:3-13(C)(2). Although
Crowner testified that at some point trucks probably drove by the trench the previous day,
Swihart testified that the dump trucks would not have yet driven over the section that
collapsed. Crowner also testified that machinery and equipment are kept to a minimum
along the side of the trench, and there was not anything beside the trench in this case.
Crowner stated that the trench consisted of hard clay. Furthermore, Schwag testified that
the employer has never had a cave-in incident before, to his knowledge. In addition, Swihart
said that he had been in the trench shortly before the accident occurred, and he did not see
any cracking, water, undermining, or anything hazardous that would have indicated
claimant was exposed to danger from moving ground. As mentioned above, the BWC’s
examination of the site prior to the accident also revealed no need for shoring or sloping.
For these reasons, the magistrate finds the commission did not abuse its discretion with
regard to Ohio Adm.Code 4123:3-13(E)(1).
{¶ 77} Claimant’s third argument pertains to Ohio Adm.Code 4123:3-13(E)(7),
which requires the side of the excavation to be sheet-piled, shored, braced, or sloped as
necessary to resist the extra pressure due to the superimposed loads of power shovels,
derricks, trucks, materials, or other heavy objects placed or operated on a level above and
near an excavation. Claimant argues that this section applies to the large excavator, and the
Supreme Court of Ohio has found that a backhoe being operated at ground level in the
No. 21AP-548 30
immediate vicinity of an excavation is sufficient to trigger the application of Ohio Adm.Code
4123:3-13(E)(7), citing State ex rel. Winzeler Excavating Co. v. Indus. Comm., 63 Ohio
St.3d 290, 294 (1992). Claimant claims the SHO’s finding that the large excavator did not
qualify as a truck or power shovel because it did not have wenches or ropes is not
determinative of whether subsection (E)(7) applies. Claimant urges that the large excavator
was exceedingly heavy, and it cannot be disputed that the machine was either driving over
cut asphalt or parked immediately to the north of the trench while working or idling.
Claimant further asserts that, even if the SHO could find that the excavator was not “heavy,”
many dump trucks had been positioned directly nearby the trench throughout the day, as
supported by the testimony that the dump trucks would approach and fill sections of the
trench. Claimant insists that the SHO’s reliance upon Swihart’s testimony that the dump
trucks would not have driven over the section of the road that collapsed is misplaced, given
dump trucks would have nonetheless parked and idled near the trench all day as they
waited to be filled by the large excavator.
{¶ 78} With regard to Ohio Adm.Code 4123:3-13(E)(7), the SHO found that the only
pieces of equipment being used at the worksite were an excavator and two mini-excavators;
the excavator in use was not a power shovel because the digging arm was not controlled and
powered by wenches and steel ropes; the only applicable equipment in this subsection are
the dump truck and mini-excavators; Swihart testified that the dump truck and mini-
excavators were not near the edge of the trench; and the BWC observed the set up being
used and found no need for bracing, shoring, or sloping for any extra pressure due to
superimposed loads.
{¶ 79} Again, the magistrate can find no abuse of discretion. The commission’s order
was supported by evidence from the record. The magistrate agrees that whether the
excavator was a “power shovel” is not determinative of whether there was a violation of
Ohio Adm.Code 4123:3-13(E)(7) here, as a violation can also occur when trucks, materials,
or other heavy objects are placed or operated on a level above and near an excavation
without adequate shoring. However, to find that the “heavy” excavator that was digging the
trench here automatically triggered the applicability of Ohio Adm.Code 4123:3-13(E)(7)
would essentially make subsection (E)(7) applicable to all trenching operations, given
excavators, backhoes, and track hoes are necessarily “near” the excavation they are digging.
No. 21AP-548 31
There is no authority for such an expansive reading of subsection (E)(7). Moreover,
Crowner testified that the excavator was not straddling the sides of the excavation; rather,
it was positioned on the solid, paved ground ahead of the trench that awaited excavation.
As for any dump trucks that were idling or being used to haul dirt to and from the excavated
trench, Crowner testified that machinery and equipment are kept to a minimum along the
side of the trench, and once the excavation is occurring, there is not any machinery or
equipment beside the trench. Swihart also testified that the dump truck would not have
driven over the section of the road that caved in. Claimant testified that the dump trucks
park maybe five feet away from the excavation to get filled. Schwag also testified that the
BWC safety consultant visited the site about one month before the incident and found no
issues with the excavation procedure being utilized. Together, this testimony could have
been relied upon by the SHO to conclude that there was not any extra pressure due to
superimposed loads on a level above and near an excavation that required bracing or
shoring. Furthermore, although the court in Winzeler found that a backhoe at ground level
in the “immediate vicinity” of the excavation could constitute some evidence to support a
violation of Ohio Adm.Code 4123:3-13(E)(7), and claimant understandably cites it as
supportive of his position, Winzeler reveals very little about the facts of the case and the
exact positioning of the backhoe, i.e., what “immediate vicinity” means. Although the
magistrate does not deny that such a circumstance may provide some evidence to support
a violation of Ohio Adm.Code 4123:3-13(E)(7) in a case, it is not necessarily true that a
backhoe in the immediate vicinity is automatically a violation of Ohio Adm.Code 4123:3-
13(E)(7). The commission has the discretion to make this determination in every case, and
the magistrate can find no abuse of discretion given the testimony and evidence that exists
in the record. For these reasons, the magistrate finds the commission did not abuse its
discretion with regard to Ohio Adm.Code 4123:3-13(E)(7).
{¶ 80} Accordingly, it is the magistrate’s decision that this court should deny the
claimant’s petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 21AP-548 32
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate's decision within fourteen days of the filing of the
decision.