The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Berry v. Indus. Comm., Slip Opinion No. 2025-Ohio-4720.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2025-OHIO-4720
THE STATE EX REL . BERRY, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO
ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Berry v. Indus. Comm., Slip Opinion No.
2025-Ohio-4720.]
Workers’ compensation—Mandamus—Violations of specific safety requirements
(“VSSRs”)—Adm.Code 4123:1-3-13(E)(7)—Judicial branch must defer to
Industrial Commission’s factual determinations but not to its legal
interpretations of specific safety requirements—TWISM Ents., L.L.C. v.
State Bd. of Registration for Professional Engineers & Surveyors and In re
Application of Alamo Solar I, L.L.C., followed—Court of appeals correctly
concluded that whether large excavator was a power shovel does not
determine whether Adm.Code 4123:1-3-13(E)(7) was applicable but erred
by (1) proceeding to evaluate the evidence and determine that employer
violated Adm.Code 4123:1-3-13(E)(7) because large excavator was a
“heavy object[] on a level above and near” trench where VSSR applicant
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was working when he was injured and (2) holding that staff hearing officer
abused her discretion by not finding a violation of Adm.Code 4123:1-3-
13(E)(7) based on location of dump truck and fill dirt—Court of appeals’
judgment granting writ ordering commission to issue VSSR award reversed
and limited writ ordering commission to resolve certain factual issues it did
not reach when denying VSSR application granted.
(No. 2024-1208—Submitted May 13, 2025—Decided October 16, 2025.)
APPEAL from the Court of Appeals for Franklin County,
No. 21AP-548, 2024-Ohio-2616.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.
Per Curiam.
{¶ 1} Appellee, Curtis A. Berry, was injured while working in a trench for
appellant Underground Utilities, Inc. After he began receiving workers’
compensation benefits for the injury, Berry applied for an additional award,
alleging that his injury resulted from Underground Utilities’ violations of specific
safety requirements. Under Article II, Section 35 of the Ohio Constitution and
Ohio’s workers’ compensation system, an employee may be entitled to such an
additional award when the employee’s workplace injury resulted from an
employer’s violation of a specific safety requirement (“VSSR”).
{¶ 2} Appellant Industrial Commission of Ohio denied Berry’s application,
finding that Underground Utilities did not violate any specific safety requirement.
Berry filed a complaint for a writ of mandamus in the Tenth District Court of
Appeals, which granted the writ and ordered the commission to issue a VSSR award
to Berry. Underground Utilities and the commission each appealed. Underground
Utilities has also filed a motion for oral argument.
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{¶ 3} Although we uphold the Tenth District’s determination that the
judicial branch is not required to defer to the commission’s legal interpretations of
specific safety requirements, we reverse the Tenth District’s judgment granting a
writ of mandamus and we issue a limited writ ordering the commission to resolve
certain factual issues that it did not reach when it denied Berry’s VSSR application.
The motion for oral argument is denied.
I. BACKGROUND
A. Berry’s Injury and VSSR Claim
{¶ 4} In July 2017, Berry sustained a work-related injury while employed
by Underground Utilities, a utility-connection company that was installing a new
water line under a road in the Columbus area.
{¶ 5} To install the water line, an Underground Utilities crew would
identify an area to be excavated by cutting two parallel lines in the asphalt. A large
excavator would straddle the lines and, moving in a northerly direction, dig a trench
between the lines behind the excavator. With a scooping bucket, the operator of
the excavator would lift the road material and underlying soil into the bed of a dump
truck, which was parked directly to the west of the excavator. One of Berry’s
responsibilities was to climb into trenches after they were dug and locate any
potential gas lines.
{¶ 6} While Berry and his colleagues were completing their work at the
northern end of a trench, a different crew would lay the new water pipe and backfill
the southern part of the trench. When backfilling, the crew used a mini-excavator
to compact fresh soil into the trench. A second mini-excavator was also on site to
assist the crew.
{¶ 7} While Berry was in a trench—which was approximately three and a
half feet deep and two feet wide—behind the large excavator, a section of asphalt
detached from the western edge of the trench and struck him on his right side in the
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hip, leg, and buttocks. The side walls of the trench were not supported by any type
of shoring or bracing system.
{¶ 8} Berry’s workers’ compensation claim was approved 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; intervertebral disc displacement at L3-
L4.
{¶ 9} In April 2019, Berry applied for a VSSR award, alleging that
Underground Utilities violated three safety regulations, although only Adm.Code
4123:1-3-13(E)(7) is relevant to this appeal. The version of that rule in effect on
the date of Berry’s injury provided:
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.[1]
1. Former Adm.Code 4123:1-3-13(B) defined “excavation,” “trench,” “sides,” “sheet pile,” and
“braces.”
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Former Adm.Code 4123:1-3-13(E)(7), 2010-2011 Ohio Monthly Record 2-2309,
2-2311 (effective Jan. 1, 2011).
B. The Commission Denies Berry’s Application for a VSSR Award
{¶ 10} A staff hearing officer (“SHO”) presided over a hearing for the
commission, during which Berry and several witnesses for Underground Utilities
testified. In May 2021, the SHO denied Berry’s request for a VSSR award, finding
with respect to each of the three safety rules at issue either that the rule was
inapplicable or that Underground Utilities had not violated it.
{¶ 11} In determining whether Adm.Code 4123:1-3-13(E)(7) applied, the
SHO examined the types of machinery at the job site and their proximity to the
trench where Berry was injured. The SHO found that (1) because the large
excavator did not meet a Wikipedia definition of “power shovel,” it did not trigger
application of the rule’s requirement that “the side of the excavation be sheet-piled,
shored, braced or sloped” and (2) the dump truck and the mini excavators were the
only pieces of equipment that could have triggered the requirement. The SHO then
found that neither the dump truck nor the mini-excavators were “near the edge of
the trench” so as to trigger the rule’s requirement.
{¶ 12} Berry moved for a rehearing, but the motion was denied.
C. The Tenth District Orders the Commission to Issue a VSSR Award
{¶ 13} Berry filed a complaint in the Tenth District for a writ of mandamus
directing the commission to vacate the orders denying his requests for a VSSR
award and a rehearing and to grant his VSSR application. Berry continued to argue
that Underground Utilities had violated the same three specific safety rules.
Relating to Adm.Code 4123:1-3-13(E)(7), Berry asserted that the SHO had made a
clear mistake of law by determining that the large excavator did not trigger
application of the rule’s requirement that “the side of the excavation be sheet-piled,
shored, braced or sloped” merely because the excavator was not a “power shovel.”
Berry further claimed that the large excavator, the other machinery at the job site,
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and piles of fill dirt were all “heavy objects on a level above and near an
excavation,” thereby triggering the rule’s requirement.
{¶ 14} The Tenth District referred the matter to a magistrate, who
recommended that the court of appeals deny the writ. 2024-Ohio-2616, ¶ 80 (10th
Dist.). Regarding Adm.Code 4123:1-3-13(E)(7), the magistrate agreed with
Berry’s argument that whether the large excavator is a “power shovel” is not
determinative, because the rule also applies when “‘trucks, materials, or other
heavy objects’” are placed or operated on a level above and near an excavation. Id.
at ¶ 79, quoting the rule. However, the magistrate concluded that the SHO had not
abused her discretion in finding that Underground Utilities had not violated the rule,
because her order was supported by some evidence in the record. Id.
{¶ 15} Berry objected to the magistrate’s decision. The Tenth District
requested supplemental briefing regarding whether its historical standard of review
for interpretating specific safety requirements had been modified by this court’s
decisions in TWISM Ents., L.L.C. v. State Bd. of Registration for Professional
Engineers & Surveyors, 2022-Ohio-4677, and In re Application of Alamo Solar I,
L.L.C., 2023-Ohio-3778, which concern judicial deference to administrative
agencies’ legal interpretations.
{¶ 16} After completion of supplemental briefing, all three judges on the
appellate panel agreed that in light of Alamo Solar, the court of appeals would no
longer defer to the commission’s interpretations of specific safety regulations.
2024-Ohio-2616 at ¶ 23-24 (10th Dist.); id. at ¶ 45 (Dorrian, J., concurring in part
and dissenting in part). All three judges also agreed with the magistrate’s finding
that Adm.Code 4123:1-3-13(E)(7) may apply even if the large excavator is not a
“power shovel,” id. at ¶ 32; id. at ¶ 46 (Dorrian, J., concurring in part and dissenting
in part), and they overruled Berry’s objections regarding the other two alleged rule
violations, see id. at ¶ 38; id. at ¶ 52-53 (Dorrian, J., concurring in part and
dissenting in part).
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January Term, 2025
{¶ 17} But ultimately, only two of the three judges voted to order the
commission to issue Berry a VSSR award. The majority found that because both
the large excavator and the dump truck were “heavy objects on a level above and
near” the trench where Berry was working, Underground Utilities violated
Adm.Code 4123:1-3-13(E)(7) by failing to comply with its requirement that sheet-
piling, shoring, bracing, or sloping be employed to resist the extra pressure created
by that machinery. Id. at ¶ 27-33. The majority also concluded that “fill dirt”
created extra pressure that triggered application of the rule’s requirement, although
the majority did not separately analyze whether the fill dirt was a “heavy object” or
piled “near” the trench. Id. at ¶ 28, 33. Because the majority concluded that the
SHO had abused her discretion by finding no violation of Adm.Code 4123:1-3-
13(E)(7), it ordered the commission to vacate the SHO’s decision denying Berry’s
VSSR application and issue him a VSSR award. Id. at ¶ 33, 38.
{¶ 18} The dissenting judge would have issued a limited writ for the
purpose of remanding the matter 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).” Id. at ¶ 50 (Dorrian, J., concurring and dissenting), quoting
the rule.
{¶ 19} Underground Utilities and the commission each timely appealed to
this court.
II. STANDARD OF REVIEW
A. Mandamus Standard
{¶ 20} To be entitled to a writ of mandamus, a relator must show by clear
and convincing evidence that it has a clear legal right to the requested relief, that
the commission has a clear legal duty to provide that relief, and that the relator has
no adequate remedy in the ordinary course of the law. State ex rel. Zarbana
Industries, Inc. v. Indus. Comm., 2021-Ohio-3669, ¶ 10. In a direct appeal of the
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judgment in a mandamus action that originated in the court of appeals, we review
the judgment as if the action had been originally filed here. State ex rel. Pressley
v. Indus. Comm., 11 Ohio St.2d 141, 164 (1967).
{¶ 21} A writ of mandamus may lie when there is a legal basis to compel
the commission to perform its duties under the law or when the commission has
abused its discretion in carrying out its duties. State ex rel. Gen. Motors Corp. v.
Indus. Comm., 2008-Ohio-1593, ¶ 9. “Where a commission order is adequately
explained and based on some evidence, even evidence that may be persuasively
contradicted by other evidence of record, the order will not be disturbed as
manifesting an abuse of discretion.” State ex rel. Mobley v. Indus. Comm., 1997-
Ohio-181, ¶ 16. An order denying an application for a VSSR award is not
appealable under R.C. 4123.512(A) and therefore may be challenged in a
mandamus action. See State ex rel. B & C Machine Co. v. Indus. Comm., 1992-
Ohio-75, ¶ 10.
B. VSSR Standard
{¶ 22} Article II, Section 35 of the Ohio Constitution allows for an award
of additional compensation to a worker who has sustained injuries as a result of a
“failure of the employer to comply with any specific requirement for the protection
of the lives, health or safety of employees, enacted by the general assembly or in
the form of an order adopted by [the] board.”2 See also R.C. 4121.47(A)
(prohibiting an employer from violating a “specific safety rule adopted by the
administrator of workers’ compensation . . . or an act of the general assembly to
protect the lives, health, and safety of employees”). “An award for a VSSR is ‘a
new, separate, and distinct award’ over and above standard workers’ compensation
2. The “board” referred to in Article II, Section 35 is the State Liability Board of Awards, which
was superseded in 1913 when the General Assembly created the Industrial Commission. See State
ex rel. Engle v. Indus. Comm., 142 Ohio St. 425, 429 (1944), citing Am.S.B. No. 137, 103 Ohio
Laws 95.
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January Term, 2025
benefits” and “is not covered by an employer’s workers’ compensation premium.”
State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 2015-Ohio-4798, ¶ 15,
quoting State ex rel. Newman v. Indus. Comm., 1997-Ohio-62, ¶ 7.
{¶ 23} To prevail on a VSSR claim, the claimant must establish (1) that an
applicable specific safety requirement was in effect at the time of the injury, (2)
that the employer violated the requirement, and (3) that the employer’s violation
proximately caused the injury. State ex rel. Cassens Corp. v. Indus. Comm., 2024-
Ohio-526, ¶ 12. Because a VSSR award is in the nature of a penalty, the safety
requirement must be “specific enough to plainly apprise an employer of its legal
obligations towards its employees.” (Cleaned up.) Id. at ¶ 11.
III. ANALYSIS
{¶ 24} On appeal, Underground Utilities alone argues that the Tenth
District erred by not deferring to the SHO’s legal interpretation of the specific
safety requirement at issue. Both Underground Utilities and the commission argue
that because some evidence supported the SHO’s decision, Berry is not entitled to
a writ of mandamus. We address these arguments below.
A. Deference to the Commission’s Legal Interpretation of Specific Safety
Requirements
{¶ 25} Underground Utilities asserts that the Tenth District should have
deferred to the SHO’s legal interpretation of the specific safety rule at issue here
and that the court’s reliance on TWISM and Alamo Solar was misguided because
the reasoning used in those cases does not apply to the commission or its hearing
officers. We disagree.
{¶ 26} In TWISM, we clarified that the judicial branch is never required to
defer to an agency’s interpretation of a statute it is tasked with implementing and
that “an administrative interpretation should never be used to alter the meaning of
clear text.” 2022-Ohio-4677 at ¶ 3, 44. In Alamo Solar, we further clarified that
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courts are not required to give due deference to an agency’s interpretations of its
own regulations. 2023-Ohio-3778 at ¶ 13-14.
{¶ 27} Underground Utilities argues that TWISM and Alamo Solar do not
apply to the commission because Article II, Section 35 of the Ohio Constitution
vests the commission with the final authority to adjudicate VSSR applications,
thereby requiring deference to commission VSSR decisions absent fraud,
corruption, or clear disregard of the law. Underground Utilities further asserts that
unlike other administrative agencies, the commission neither drafts nor enforces the
regulations it interprets. Rather, the administrator of the Bureau of Workers’
Compensation (“BWC”) adopts specific safety requirements.
{¶ 28} Article II, Section 35 of the Ohio Constitution provides:
Laws may be passed establishing a board which . . . 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 employees, enacted by the general assembly or in
the form of an order adopted by [the State Liability Board of
Awards], and its decision shall be final . . . .
This provision “vests exclusive and final jurisdiction in the commission, with
respect to specific-safety-requirement violations, subject to correction in
mandamus upon a showing of an abuse of discretion.” B & C Machine Co., 1992-
Ohio-75, at ¶ 10.
{¶ 29} However, almost a century ago, we explained that this finality
extends only to the determination whether, in fact, the injury was caused by the
employer’s violation of a specific safety requirement. Slatmeyer v. Indus. Comm.,
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January Term, 2025
115 Ohio St. 654, 656 (1926). “[N]o legal questions were committed by the
Constitution to the final jurisdiction of the commission.” Id. at 657.
{¶ 30} Nevertheless, as Underground Utilities points out in its merit brief,
this court has indicated in certain decisions that the interpretation of a specific
safety requirement is within the commission’s “discretion” or “final jurisdiction.”
E.g., State ex rel. Arce v. Indus. Comm., 2005-Ohio-572, ¶ 19 (“discretion”); State
ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193, 194 (1983) (“final jurisdiction”).
This court has also stated that we are “‘normally obligated to defer to the
commission’s interpretation of its own rules.’” State ex rel. Byington Builders, Ltd.
v. Indus. Comm., 2018-Ohio-5086, ¶ 26, quoting State ex rel. Lamp. J.A. Croson
Co., 1996-Ohio-319, ¶ 14.
{¶ 31} Today, in light of TWISM and Alamo Solar, we clarify that for
purposes of Article II, Section 35 of the Ohio Constitution, the commission’s
factual determinations are final but its legal interpretations of specific safety
requirements are not. The Ohio Constitution does not require that courts defer to
the commission’s legal interpretations of safety laws or administrative rules. If the
text of a safety statute or a rule promulgating a specific safety requirement is clear,
courts should apply it as written, just as courts should do when interpreting other
sections of the Revised Code or the Administrative Code. If the text is ambiguous,
courts “may consider the [commission’s] interpretation only for its persuasive
power.” Alamo Solar, 2023-Ohio-3778, at ¶ 14.
{¶ 32} Further, even if the administrator of the BWC, not the Industrial
Commission, has the responsibility to draft specific safety requirements, courts
need not abdicate their role of interpreting the law by deferring to the commission’s
legal interpretations. Interpreting text involving common words used in their
ordinary sense is a task “routinely performed by courts” and “well within the
judiciary’s core competence,” and even when the text involves “technical meaning
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uniquely within the competency of the agency,” “it remains the judiciary’s role to
independently interpret the law.” TWISM, 2022-Ohio-4677, at ¶ 47.
{¶ 33} We therefore reject Underground Utilities’ deference argument.
B. Whether Some Evidence Supports the Commission’s Decision
{¶ 34} As noted above, the Tenth District majority concluded that the
commission abused its discretion by not finding that Underground Utilities had
violated 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, the dump truck, and fill dirt. 2024-Ohio-2616 at ¶ 33 (10th
Dist.). On appeal, the commission and Underground Utilities assert that some
evidence supported the SHO’s decision and that the commission therefore did not
abuse its discretion. The commission alternatively asserts that if we conclude that
the SHO misinterpreted Adm.Code 4123:1-3-13(E)(7) relating to the large
excavator, the appropriate remedy is a limited writ of mandamus allowing the
commission to evaluate the facts on that issue in the first instance.
{¶ 35} For the reasons explained below, we issue a limited writ relating to
the SHO’s interpretation of Adm.Code 4123:1-3-13(E)(7) with respect to the large
excavator and reverse the Tenth District’s findings relating to the dump truck and
fill dirt.
1. The large excavator
{¶ 36} In its merit brief, the commission does not expressly defend the
SHO’s finding that the large excavator did not trigger Adm.Code 4123:1-3-
13(E)(7) because it is not a power shovel. Rather, the commission generally asserts
that some evidence supported a finding that no heavy machinery was near the edge
of the trench and that the rule therefore was not violated.
{¶ 37} The SHO, however, did not consider whether the large excavator
was “near” the trench for purposes of Adm.Code 4123:1-3-13(E)(7). Rather, the
SHO concluded that the large excavator was not a power shovel and that the dump
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truck and the mini-excavators were the only pieces of equipment that could have
triggered the rule’s requirement. In other words, the SHO found that the rule was
not triggered by the large excavator—the object that was closest to Berry and the
trench—on the sole basis that the excavator is not a power shovel.
{¶ 38} We find that the SHO misinterpreted Adm.Code 4123:1-3-13(E)(7).
The rule’s requirement that “the side of the excavation be sheet-piled, shored,
braced or sloped” is triggered when “power shovels, derricks, trucks, materials, or
other heavy objects” are placed above and near an excavation. (Emphasis added.)
Even if the large excavator is not a “power shovel,” it could be characterized as
“[an] other heavy object[],” which has an independent meaning. By listing “power
shovels,” the rule does not exclude all other types of excavation machinery or
equipment that could trigger application of the rule without satisfying a definition
of “power shovel.” For example, we previously found that some evidence
supported the commission’s finding of a violation of Adm.Code 4123:1-3-13(E)(7)
when a “backhoe was at ground level in the immediate vicinity of [an] excavation.”
State ex rel. Winzeler Excavating Co. v. Indus. Comm., 63 Ohio St.3d 290, 294
(1992). The rule’s applicability to the backhoe did not depend on whether the
backhoe constituted a power shovel. Therefore, the Tenth District correctly
concluded that whether the large excavator is a power shovel does not determine
whether Adm.Code 4123:1-3-13(E)(7) applies.
{¶ 39} The Tenth District erred, however, by proceeding to evaluate the
evidence and determine in the first instance that Underground Utilities violated
Adm.Code 4123:1-3-13(E)(7) because the large excavator was a “heavy object[]
on a level above and near” the trench, 2024-Ohio-2616 at ¶ 29-33 (10th Dist.).
Whether the large excavator was “near” the trench and whether any potential
violation of the rule proximately caused Berry’s injury are questions of fact, which
rest exclusively within the discretion of the commission. See State ex rel. Camaco,
L.L.C. v. Albu, 2017-Ohio-7569, ¶ 29.
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{¶ 40} We therefore grant a limited writ for the purpose of sending this
matter back to the commission to determine (1) whether the large excavator
triggered application of Adm.Code 4123:1-3-13(E)(7) (regardless of whether the
large excavator was a power shovel) and if so, (2) whether Underground Utilities
violated the rule and if so, (3) whether the violation proximately caused Berry’s
injuries. We have a “long-standing practice of granting a limited writ when a relator
fails to demonstrate entitlement to the full relief sought in mandamus and
evidentiary questions remain.” State ex rel. Heilman v. Indus. Comm., 2024-Ohio-
5518, ¶ 45; see also Camaco at ¶ 29-30 (issuing a limited writ of mandamus
ordering the commission to resolve a factual question relating to a VSSR claim that
the hearing officer had not previously reached).
2. The dump truck and fill dirt
{¶ 41} The Tenth District majority also erred by holding that the SHO
abused her discretion by not finding a violation of Adm.Code 4123:1-3-13(E)(7)
based on the location of the dump truck and fill dirt.
{¶ 42} Some evidence—namely, testimony from the operator of the large
excavator—supported the SHO’s determination that the dump truck was not “near”
the edge of the trench for purposes of Adm.Code 4123:1-3-13(E)(7). The Tenth
District discounted the operator’s testimony, finding that he had said only that “‘the
dump truck would not have touched [the piece of asphalt that fell on Berry],’ not
that it was not ‘near’ the trench.” (Bracketed text in original.) 2024-Ohio-2616 at
¶ 30 (10th Dist.). The operator’s full testimony, however, was that the dump truck
did not touch and “wouldn’t have gotten over to” the section of asphalt that fell
onto Berry. Additionally, the project foreman testified that the dump truck had
been parked beside the large excavator, that the crew had tried “to keep everything
to a minimum on the si[d]e of the trenches,” and that nothing was beside the trench
when Berry was injured. And Berry acknowledged that the dump truck was
“maybe five f[ee]t away, if that” from the trench when the asphalt fell on him.
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{¶ 43} We have “repeatedly expressed our commitment to the ‘some
evidence’ rule and a refusal to reweigh the evidence.” State ex rel. Levitin v. Indus.
Comm., 2023-Ohio-3559, ¶ 27. “Questions regarding the weight and credibility of
the evidence are within the discretion of the commission as the exclusive fact-
finder.” State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 2015-Ohio-
4525, ¶ 16. And the commission has “substantial leeway to draw inferences from
the evidence before it.” State ex rel. McBee v. Indus. Comm., 2012-Ohio-2678,
¶ 10. Here, the SHO did not abuse her discretion by relying on the large-excavator
operator’s testimony to conclude that the dump truck was not “near” the trench. By
reweighing the evidence and concluding that the dump truck was necessarily “near”
the trench, the court of appeals stepped into the shoes of the fact-finder and
substituted its opinion on a factual issue for the SHO’s.
{¶ 44} As for the fill dirt, inexplicably, the Tenth District majority did not
analyze whether fill dirt was “near” the trench or whether it constituted a “heavy
object[]” for purposes of Adm.Code 4123:1-3-13(E)(7). Moreover, it is unclear
what the Tenth District meant when it referred to “fill dirt.” The majority opinion
refers to a “pile of fill dirt” that was brought to the job site to be used to fill in the
trench, 2024-Ohio-2616 at ¶ 28, then separately refers to “fill dirt” that was
removed from the trench by the large excavator and deposited into the dump truck
to be hauled away from the site, id. at ¶ 4, 31, 33. The majority did not clarify
whether it was the pile of fresh fill dirt or the excavated dirt in the dump truck that
triggered application of Adm.Code 4123:1-3-13(E)(7).
{¶ 45} If the Tenth District majority was referring to the pile of fresh fill
dirt, the SHO made other factual findings indicating that the pile was not near the
portion of the trench where Berry was injured. Specifically, the SHO noted that the
area of the trench where Berry was injured was 20 feet away from the section being
backfilled and was “not near the area of backfill.” Regardless, given that the Tenth
District did not separately analyze or cite evidence establishing for purposes of
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Adm.Code 4123:1-3-13(E)(7) that “fill dirt” either was a “heavy object[]” or was
located “near” the trench in which Berry was injured, the Tenth District had no
basis for concluding in the first instance that Berry was entitled to a VSSR award—
and that the commission had a clear legal duty to issue a VSSR award—based on
the location of fill dirt.
IV. MOTION FOR ORAL ARGUMENT
{¶ 46} In a direct appeal, granting a request for oral argument is subject to
the court’s discretion. Rule 17.02(A). In exercising that discretion, we consider
“whether the case involves (1) a matter of great public importance, (2) complex
issues of law or fact, (3) a substantial constitutional issue, or (4) a conflict among
courts of appeals.” State ex rel. Walters v. Indus. Comm., 2024-Ohio-552, ¶ 40.
{¶ 47} Underground Utilities has moved for oral argument, asserting that
this case presents an issue of constitutional significance: whether Article II, Section
35 of the Ohio Constitution requires courts to defer to the commission’s decisions.
But as explained above, the Constitution does not require courts to defer to the
commission’s legal interpretations of specific safety requirements. Moreover, in
their briefs, the parties adequately addressed the legal issue and fully articulated the
relevant arguments. We therefore deny Underground Utilities’ motion for oral
argument.
V. CONCLUSION
{¶ 48} We uphold the Tenth District Court of Appeals’ determination that
the judicial branch is not required to defer to the commission’s legal interpretations
of specific safety requirements. But we reverse the Tenth District’s judgment
granting a writ of mandamus, and we issue a limited writ ordering the commission
to vacate the portion of the SHO’s order relating to her interpretation of Adm.Code
4123:1-3-13(E)(7) with respect to the large excavator and to determine, in the first
instance (1) whether the large excavator triggered application of Adm.Code
4123:1-3-13(E)(7) (regardless of whether the large excavator was a power shovel)
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January Term, 2025
and if so, (2) whether Underground Utilities violated the rule and if so, (3) whether
the violation proximately caused Berry’s injuries. And we deny the motion for oral
argument.
Judgment reversed
and limited writ granted.
__________________
Plevin & Gallucci Co., L.P.A., Frank Gallucci III, and David R. Grant; and
Flowers & Grube, Louis E. Grube, and Kendra N. Davitt, for appellee.
Frost Brown Todd, L.L.P., Matthew C. Blickensderfer, and Noel C.
Shepard, for appellant Underground Utilities, Inc.
Dave Yost, Attorney General, and Cindy Albrecht, Assistant Attorney
General, for appellant Industrial Commission of Ohio.
__________________
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