The opinion
[Cite as State ex rel. Sunesis Constr. Co. v. Indus. Comm., 2015-Ohio-3973.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sunesis Construction Co., :
Relator, :
v. : No. 13AP-449
Industrial Commission : (REGULAR CALENDAR)
of Ohio et al.,
:
Respondents.
:
D E C I S I O N
Rendered on September 29, 2015
Dunlevey, Mahan & Furry, Douglas S. Jenks and Gary W.
Auman, for relator.
Michael DeWine, Attorney General, and Andrew J. Alatis,
for respondent Industrial Commission of Ohio.
Fox & Fox Co., L.P.A., Bernard C. Fox, Jr., and Karen P.
Mitchell, for deceased respondent Timothy Roark and his
estate.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Sunesis Construction Co. ("Sunesis"), petitions this court for a writ
of mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate a commission order. The order in question grants an application for an additional
award based on violations of specific safety requirements ("VSSR") in connection with the
death of Timothy Roark ("claimant" or "Roark"), a Sunesis employee. In the alternative,
No. 13AP-449 2
Sunesis seeks a writ ordering the commission to exercise continuing jurisdiction over the
matter and reconsider its hearing officer's determination.
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision
that includes findings of fact and conclusions of law. The magistrate's decision, which is
appended hereto, recommends that this court grant the writ of mandamus requested by
Sunesis. Claimant filed objections to the magistrate's decision, and the commission filed
a memorandum in support incorporating claimant's objections by reference. The matter
is now before the court for our independent review based on the stipulated evidence and
the magistrate's decision.
I. Facts and Procedural History
{¶ 3} We will restate the extensive facts given in the magistrate's decision only to
the extent necessary for a full review of those aspects of the decision addressed in the
objections. Timothy Roark worked for Sunesis on a sewer construction job in Hamilton
County, Ohio known as the Cooper Creek Sewer Replacement Project. This involved
extensive trenching and tunneling. Roark died while working at the bottom of a deep
trench when a collapse left him almost entirely buried by moving earth. There were no
eyewitnesses to the actual collapse and, although other workers were able to respond
promptly, Roark died before they could extricate him. The alleged violations in this case
pertain to the construction of this trench, particularly the sloping, shoring, and bracing
incorporated to stabilize the sides of the excavation.
{¶ 4} The Ohio Bureau of Workers Compensation allowed the resulting death
claim and awarded benefits to Roark's dependent children. The present proceedings
concern only an application for additional benefits due to alleged violations of specific
safety requirements by Sunesis when excavating and bracing the trench. As detailed in
the magistrate's decision, the commission initially granted the VSSR application, Sunesis
contested that determination, and lengthy proceedings have ensued. As a result, this is
the third original action filed in this court in the matter.
{¶ 5} In the latest order of the commission, a staff hearing officer ("SHO") order
issued October 4, 2012, the SHO determined that various aspects of the shoring and
sloping of the trench did not comply with applicable sections of the Ohio Administrative
No. 13AP-449 3
Code, that the resulting earth movement was the proximate cause of Roark's death, and
that an additional award of compensation should be granted in the amount of 35 percent
of the maximum weekly rate. The magistrate now recommends granting a writ in this
case to vacate the SHO's order.
{¶ 6} The magistrate finds that the SHO's October 4, 2012 order fails to
determine the degree of slope incorporated into one end of the trench and, thus, fails to
examine the sufficiency of actual slope when compared to the required slope under the
Ohio Administrative Code. The magistrate also concludes that the SHO erred in
determining that the trench had not been designed by a "qualified person." The
magistrate notes that this term is not defined in the pertinent regulations, and that as a
result the SHO's conclusion that the trench should have been designed or inspected by a
professional engineer is not supported. From this, the magistrate determines that the
record does not support any failure by Sunesis to comply with these regulatory standards,
and concludes that the commission abused its discretion when finding that the proximate
cause of the accident was a failure to comply with regulatory standards in constructing the
trench.
{¶ 7} Because we find that the magistrate has not applied the appropriate
regulatory language when examining the site conditions leading to the accident, we adopt
only the magistrate's findings of fact and modify the conclusions of law to deny the
requested writ.
II. Objections to the Magistrate's Decision
{¶ 8} Claimant sets forth the following objections to the magistrate's decision:
[1.] The magistrate erred by finding that the staff hearing
officer abused his discretion for failing to determine the
degree of sloping at the trench under Table 13-1. (Appendix to
OAC 4123:1-3-13(D)(1)-(2) and 4123:1-3-13(E)(1)).
[2.] The magistrate erred in finding that the staff hearing
officer abused his discretion in finding proximate cause,
because he failed to determine the degree of sloping actually
employed at the trench.
[3.] The magistrate erred by finding that the commission
abused its discretion in deciding that the trench was not
No. 13AP-449 4
designed by a qualified person and that it did not meet
accepted engineering requirements.
[4.] The magistrate erred by substituting his determination of
disputed facts and his evaluation of the weight and credibility
of the evidence in place of the commission's.
III. Discussion
{¶ 9} We note from the outset of our discussion that it is both undisputed and
irrelevant that Roark found himself in an exposed position at the bottom of the trench
only because he had directly disregarded explicit instructions. His supervisors had
recognized the risk of this particular excavation and ordered workers to undertake all
tasks, including the work attempted by Roark, while staying within the protection of a
steel tubular casing driven along the bottom of the trench. Nonetheless, a claimant's
negligence bars a VSSR award only where the claimant deliberately renders an otherwise
complying device noncompliant. State ex rel. R.E.H., Co. v. Indus. Comm., 79 Ohio St.3d
352, 355 (1997). Specific safety requirements are intended to provide protection to
negligent employees as well as diligent ones. Id. Unless in the present case the decedent
had deliberately neutralized the shoring arrangements or slope of the affected trench, the
extent to which the decedent was acting against instructions when he ventured into the
unstable trench is not relevant to the VSSR determination. See, e.g., State ex rel. Quality
Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000) (employer exonerated
from VSSR liability only because an employee had removed part of the scaffold required
by a specific safety requirement).
A. First Objection — Degree of Slope
{¶ 10} The first objection argued by claimant is that the magistrate erred by
finding that the SHO abused his discretion by failing to determine the actual degree of
slope at the unbraced end of the trench where the accident occurred. The final SHO order
issued in this case on October 4, 2012 described this "fourth wall" of the excavation as
consisting of "soft material, Class C soil with ground water. The Employer attempted to
shore [sic] this side of the trench/excavation by sloping the wall enough to ensure that a
cave-in could not occur." (Oct. 4, 2012 SHO Order, 2.) The SHO then examined certain
sections of the Ohio Administrative Code to determine whether the trench structure
No. 13AP-449 5
complied with regulations governing sloping or shoring of excavations. The SHO
concluded that "the sloped side of the trench/excavation was not sloped by means of
sufficient strength [sic] to protect the employee working in it. Further, the Staff Hearing
Officer find[s] that the slope did not meet accepted engineering requirements." (Oct. 4,
2012 SHO Order, 3.)
{¶ 11} Ohio Adm.Code 4123:1-3-13(D)(1) and (2) address safety measures for
"trenches" and Ohio Adm.Code 4123:1-3-13(E)(1) addresses safety measures for
"excavations." The relevant definitional provisions make clear that a trench is a subtype
of excavation whose "depth is greater than the width, but the width of a trench at the
bottom is no greater than fifteen feet." Ohio Adm.Code 4123:1-3-13(B)(11). Based on
these definitions, the regulations for trenches and excavations must to some extent
overlap and be read in pari materia. Subsections (D) and (E) both incorporate references
to an appendix, Table 13-1, which specifies five different degrees of slope for different
types of ground, ranging from solid rock to loose sand. These table specifications,
however, provide only "minimum requirements" for shoring and bracing. Ohio Adm.Code
4123:1-3-13(D)(5)(a). The table itself specifies that as an exception to the five described
ground types and associated amounts of slope, "non-homogenous soils require Shoring
and Bracing. * * * The presence of ground water requires special treatment." Ohio
Adm.Code 4123:1-3-13, appendix, Table 13-1.
{¶ 12} We agree with claimant's objection to this aspect of the magistrate's
decision regarding the absence of a factual finding of slope in the collapsed trench. We
find that the SHO did not need to ascertain the specific angle of slope existing in the
trench as a prerequisite to finding that the trench did not meet requirements. The SHO's
order in this case clearly specified that the soil on the unbraced end of the trench was wet1
and presented the potential for moving ground requiring "special treatment." The SHO
therefore did not need to refer to the slope specifications of Table 13-1 for different types
of ground because wet ground specifically falls outside the table guidelines.
1 Although the SHO's order initially mentions "Class C" soil, which is an OSHA standard and not
referenced in the Ohio Administrative Code sections cited above, the order does clearly state that the soil
contained ground water.
No. 13AP-449 6
{¶ 13} Although the SHO's order contains an obvious clerical error when it states
that the excavation was not "sloped by means of sufficient strength," where the SHO
clearly intended to parallel the regulatory phrase "sloped or shored by means of sufficient
strength," the meaning is readily ascertainable, and elsewhere the SHO does refer to the
possibility of either enhanced bracing or sloping. The magistrate focused on the
proposition that the SHO's order found that the "sloping" was not of "sufficient strength."
This injects uncertainty into the SHO's order when there is none; the SHO clearly
intended to state, as is spelled out elsewhere in the order, that the sloping was not of
sufficient stability nor the bracing of sufficient strength (in fact, entirely absent on this
end of the trench) to ensure safety and compliance with Ohio Adm.Code 4123:1-3-13(D)
and (E). The testimony in the record clearly corroborates the reference to Type C soil as
soft, wet, non-homogenous, saturated soil that presented an increased risk of cave-in. The
reference to "Type C soil" is redundant once the SHO had referred to groundwater and
wet soil, which took the conditions in the trench outside the purview of Table 13-1 and
imposed a general requirement of additional measures necessary to ensure stability and
safety. We accordingly find that the magistrate incorrectly analyzed the significance of the
pre-accident degree of slope in the trench and sustain claimant's first objection.
B. Second Objection — Proximate Cause
{¶ 14} The second objection brought by claimant addresses the magistrate's
conclusion that the SHO failed to make a supported finding that the violations were the
proximate cause of the accident. This conclusion by the magistrate is entirely based on
the failure to establish the degree of slope of the exposed end of the trench. Because our
disposition of the first objection establishes that the degree of slope per se is not
controlling in the matter, this determination of a lack of proximate cause by the
magistrate becomes unsupported. Nonetheless, Sunesis asserts there is no evidence in
the record to pinpoint the original location of the soil that collapsed to bury Roark, and for
this reason there is no evidence to support a finding that the failure to adequately slope or
brace the trench was the proximate cause of his death.
{¶ 15} The record contains the hearing or deposition testimony of various Sunesis
employees regarding conditions at the accident site. Roark's brother, Anthony Roark, was
a site foreman and his direct supervisor on the Cooper Creek job. Chuck Renken was
No. 13AP-449 7
Sunesis's director of human resources and safety. Jeffrey Darrah was a licensed
professional engineer and Sunesis's vice president. Gary Bradford was a Sunesis field
superintendent for the Cooper Creek sewer project. The October 4, 2012 SHO's order
specifically states that "the Staff Hearing Officer finds that the sloped wall of the
trench/excavation caved in on the Decedent resulting in his death. This finding is based
on the testimony of Mr. Chuck Renken * * * and Mr. Jeffrey Darrah * * *. This finding is
also based upon the photographs on file which depict the scene of the accident before the
scene was disturbed." (SHO Order, 2.)
{¶ 16} Claimant and the commission concede that there was no direct observation
of the collapse as it happened. Even in the absence of direct observation, however, the
stipulated facts regarding the nature of the shoring on the three other sides of the
excavation, combined with admissions from Renken, Darrah, and Anthony Roark at
various points in the record that the sloped end was inadequate, could support the SHO's
conclusion that the failure to adequately brace or slope the fourth side of the trench was
the proximate cause of the accident. In fact, Renken did more than describe the
inadequate state of the trench. Although he cautioned that no one could ascertain for
certain the path of the moving dirt, he was willing to opine regarding the likely source of
the collapse: "My belief is it could not have come from the side underneath the trench box.
Just the physics of that would not have worked out to put it in the position that he was
found in. The material appears to have come from behind him * * * or above him and not
from in front of him." (June 10, 2008 hearing testimony, 19.) "I don't think it came from
beneath the plate. It came from up on the end down on top of him." (June 10, 2008
hearing testimony, 67.) "Again I don't know for sure where it came from. Based on this
picture [of the scene] it looks like the void is, you know -- on the end of the trench where it
must come from." (June 10, 2008 hearing testimony, 69.)
{¶ 17} The testimony of these Sunesis employees, along with the photographs
referenced by the SHO, constitute some evidence to support the commission's
determination that the deficient trench design was the proximate cause of the collapse.
We sustain claimant's second objection to the magistrate's decision and do not adopt the
magistrate's conclusions regarding proximate cause.
No. 13AP-449 8
C. Third Objection — Design
{¶ 18} Claimant's third objection asserts that the magistrate erred when he found
that the commission abused its discretion in concluding that the trench was not designed
by a "qualified person" and did not meet accepted engineering requirements. Ohio
Adm.Code 4123:1-3-13(E)(2) and (4) provide that supporting systems, including shoring,
shall be designed "by a qualified person and shall meet accepted engineering
requirements," and "slopes, and faces of all excavations shall meet accepted engineering
requirements." The parties disagree as to the import of this language.
{¶ 19} Sunesis argues that the reference to accepted engineering requirements
does not mean that the trench must be designed and inspected by a licensed professional
engineer. Claimant and the commission point out that various points of testimony from
Sunesis employees Anthony Roark, Bradford, and Renken indicate that the trench
satisfied neither OSHA safety standards nor Sunesis's own safety requirements. Both of
these require that excavations in excess of 20 feet of depth incorporate a protective system
designed by a professional engineer. Anthony Roark testified that he designed the trench
in question, that he is not a licensed professional engineer, and the trench was
noncompliant. Bradford testified that the trench did not meet standards because the box-
and-plate protection on the sides did not extend all the way to the bottom and the trench
lacked an egress ladder. Bradford was aware that the condition of the trench led his
superiors at Sunesis to issue standing instructions for all personnel to avoid working in
the trench except in the protected volume provided by the end of the pipe casing.
{¶ 20} Without determining whether Ohio Adm.Code 4123:1-3-13(E)(2) and (4)
require actual detail design by a licensed professional engineer in order to meet accepted
engineering standards, we find that there was some evidence before the commission to
find that, regardless of who undertook design of the trench, it did not meet accepted
OSHA or Sunesis internal standards. The SHO had the discretion to refer to these
standards in determining whether the trench complied with the Ohio Administrative Code
requirement of design by a qualified person to meet accepted engineering standards. We
sustain claimant's third objection.
No. 13AP-449 9
D. Fourth Objection – Disputed Facts
{¶ 21} Finally, claimant's fourth objection asserts that the magistrate improperly
substituted his view of the weight and credibility of the evidence in place of the
commission's when resolving disputed facts. The disputed facts in question concern the
extent to which Sunesis intended for any employee to work in an exposed position in the
trench, given its unsafe nature. Evaluation of the VSSR claim in this case did not require
a finding that Sunesis ordered Roark into the trench, nor a finding that Sunesis took
inadequate measures to prevent an incautious employee from venturing into the trench.
This factual issue is moot. R.E.H. Co.
IV. Conclusion
{¶ 22} In summary, in response to claimant's first three objections to the
magistrate's decision, we adopt the factual findings of the magistrate to the extent
outlined above, reject the conclusions of law devolving therefrom, and deny the requested
writ. Relator's request for a writ of mandamus requesting that the commission reconsider
its refusal to exercise continuing jurisdiction, which was found moot by the magistrate, is
also denied.
Objections sustained; writ denied.
DORRIAN and BRUNNER, JJ., concur.
No. 13AP-449 10
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sunesis Construction, :
Relator, :
v. : No. 13AP-449
Industrial Commission : (REGULAR CALENDAR)
of Ohio, et. al,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on December 31, 2014
Dunlevey, Mahan & Furry, Douglas S. Jenks and Gary W.
Auman, for relator.
Michael DeWine, Attorney General, and Andrew J. Alatis,
for respondent Industrial Commission of Ohio.
Fox & Fox Co., L.P.A., and Bernard C. Fox, Jr., for deceased
respondent Timothy Roark and his estate.
IN MANDAMUS
{¶ 23} In this original action, relator, Sunesis Construction, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to
vacate the October 4, 2012 order of its staff hearing officer ("SHO") that granted the
application filed on behalf of Timothy Roark ("decedent" or "claimant") for an
additional award for violations of specific safety requirements ("VSSR"), and to enter an
order denying the VSSR application. Also, relator requests that the writ order the
commission to vacate its March 14, 2013 order refusing to exercise continuing
No. 13AP-449 11
jurisdiction over the SHO's order of October 4, 2012, and to enter an order exercising its
continuing jurisdiction.
Findings of Fact:
{¶ 24} 1. On July 31, 2005, decedent was killed in a trench while working for
relator.
{¶ 25} 2. This is the third original action filed in this court regarding the VSSR
award.
{¶ 26} 3. In its brief, relator presents what is captioned "Facts." See Loc.R.
13(J)(3) pertaining to briefs filed in an original action. Without adopting all of relator's
factual assertions as true, the magistrate, nevertheless, finds relator's version of the facts
relating to the trench site to be useful to an understanding of this action:
The work injury occurred on Sunday July 31, 2005, when the
injured worker, Tim Roark, worked for Sunesis at a sewer-
pipe jobsite on Galbraith Road in Hamilton County, Ohio.
During the week before the accident, Sunesis had dug a
trench (the "West trench") from which to push a four-foot
diameter casing through the ground, toward the East, using a
trackhoe. * * * The casing is a steel pipe which would
eventually house a smaller pipe. The casing was big enough
for employees to work in and even lay tracks inside for a
"tram car" to carry dirt and debris through it.
Sunesis did not plan to dig a trench where this accident
occurred; the plan was to push the casing from the existing
trench horizontally through the ground without digging a
trench. * * * However, while pushing the casing through the
ground from the existing trench with the trackhoe, they hit
an obstruction. * * * The obstruction turned out to be a large
piece of concrete, approximately fourteen feet long and ten
feet deep. * * * Unable to simply extract the obstruction, on
Friday July 29, 2005, Sunesis began to dig a path with a
trackhoe for the casing to run alongside the obstruction.
This digging resulted in a second trench (the "East Trench")
where the accident occurred on Sunday July 31, 2005. * * *
As such, by Saturday, there were two separate trenches, the
West trench and East trench, each running east and west on
the same straight line.
No. 13AP-449 12
The East trench was approximately 20 feet deep, 20 feet
long, and six-feet wide. * * * The South side of the East
trench consisted entirely of concrete and rock, from the
bottom of the trench to the top at ground level. * * * This was
the obstruction Sunesis had encountered when pushing the
casing from the West trench.
The north side of the East trench consisted of soil. * * *
Sunesis inserted a certified ten-foot tall trench box that
extended from ground level, down approximately ten feet to
where it hit the concrete. * * * Sunesis did not shore the
South side (the concrete and rock side) of the East trench
under the trench box because it was solid concrete and rock.
* * * On the north side, Sunesis inserted and braced steel
plates (10 feet wide and 20 feet high), between the trench
box and the trench wall; the plates extended from the top of
the trench, behind the trench box, down to the trench floor.
Anthony Roark, the claimant's brother [and] foreman, * * *
sloped the west end of the East trench. * * * He also inserted
a steel plate at that end. * * * The other end of the East
trench, the east end, connected with another previously dug
trench.
Despite the shoring, bracing, and sloping of the East trench,
as of Saturday July 30, 2005, Sunesis decided that no
employees should enter it. Sunesis vice president, Steve
Abernathy, had directed Sunesis employees to continue
pushing the casing from the West trench through the East
trench, and not work in the East trench itself. * * * Mr.
Abernathy told Gary Bradford, a Sunesis superintendent,
that no one was to enter the East trench.
Accordingly, on Saturday, Gary Bradford visited the jobsite.
When he arrived, he found Anthony Roark in the East trench
working without a "top man" (as safety a monitor [sic]). * * *
Apparently, Anthony Roark was chiseling rock with a
jackhammer, clearing a path for the casing. Gary Bradford
ordered Anthony Roark out of the East trench, and
instructed the entire crew to stay out, and work from inside
the casing only.
***
As such, Sunesis planned to push the casing from the West
trench through the East trench with the trackhoe that was
No. 13AP-449 13
parked at ground level between the two trenches. Jimmy
Sparks, the trackhoe operator, would literally knock it about
a foot at a time toward the East, with the trackhoe bucket
which he extended down into the West trench. * * * After dirt
and rock accumulated inside the leading and open end of the
casing as it was pushed eastward, Sunesis employees would
then enter the west end of the casing, from the West trench,
remove the material from the casing into the West trench
using the "tram car," and then exit before Mr. Sparks would
use the trackhoe to push it another foot. * * * Sunesis
employees would also knock off any obstruction blocking the
casing's path from inside the casing using a pneumatic hand-
held device called an "air spade." * * * This process, known
as "tunneling," is safe and common in the trenching
industry.
Sunesis employees met on Sunday morning, July 31, 2005,
and discussed the plan to push the casing all the way through
the East trench with the trackhoe. * * * By that point, the
four-foot diameter casing extended about five feet into the
East trench, and rested on the floor. * * * They already had
the pipe on hand that Sunesis would feed into the casing
once they had knocked it through the East trench. * * * First,
before they could proceed, however, they had to enter the
casing from the West trench, and clean out debris that had
accumulated while being pushed from the West trench. * * *
Although Sunesis employees did that Saturday, they had not
completed the task as of Sunday morning.
At no time did Sunesis decide, intend, or actually send Tim
Roark or any other employee to work in the East trench on
Sunday July 31, 2005. * * * The plan was to do the opposite:
keep employees out of the trench. Tim Roark's only job that
morning was to clean out the casing from the inside * * *.
However, when the casing hit the concrete obstruction
earlier in the week, the leading edge was bent. It was Leon
Trisdale's job to use a cutting torch and remove the bent end
* * *.
The plan called for Leon Trisdale to enter the casing and cut
the bent end from inside the casing * * *.
***
No. 13AP-449 14
Before leaving to get safety glasses to cut the casing, Leon
Trisdale saw Tim Roark standing at the west end of the East
trench holding a cutting torch.
***
Tim Roark decided on his own to leave the casing, and step
into the East trench with the cutting torch.
Before Leon Trisdale went to get his safety glasses to work on
the bent casing, he looked down into the trench and saw Tim
Roark standing at the edge of the casing holding the cutting
torch. * * * He pleaded with Tim Roark to get out of the
trench * * *.
Apparently Tim Roark did not listen. When Leon Trisdale
returned a few moments later, he discovered Tim Roark
outside the casing nearly covered in debris.
(Relator's Brief, 8-18.)
{¶ 27} 4. The Ohio Bureau of Workers' Compensation ("bureau") allowed the
death claim (No. 05-849445) and also awarded benefits to decedent's dependent
children.
{¶ 28} 5. On January 29, 2007, a VSSR application was filed on behalf of
decedent and his dependents.
{¶ 29} 6. The VSSR application prompted an investigation by the bureau's Safety
Violations Investigation Unit ("SVIU").
{¶ 30} 7. In the year 2006, Lowell Roark, the administrator of decedent's estate,
filed an intentional tort action in the Butler County Court of Common Pleas. That action
generated multiple deposition transcripts.
{¶ 31} 8. The SVIU special investigator obtained copies of the deposition
transcripts from the intentional tort action. He also obtained photographs of the
accident scene taken by the fire department of the Deer Park Silverton Joint Fire
District.
{¶ 32} 9. On July 11, 2007, the SVIU investigator issued his report of
investigation. The deposition transcripts and fire department photographs were made
exhibits to the report.
No. 13AP-449 15
{¶ 33} 10. On June 10, 2008, the VSSR application was heard by a commission
SHO. The hearing was recorded and transcribed for the record. Three witnesses
testified at the hearing. Chuck Renken, relator's director of field support services was
called to testify as on cross-examination by decedent's counsel.
{¶ 34} Jeffrey S. Darrah, relator's vice president, was called to testify under direct
examination by relator's counsel. Mr. Darrah has a bachelor's degree in civil
engineering and he is a registered professional engineer.
{¶ 35} The third witness called to testify at the June 10, 2008 hearing was Wayne
Haddix, who is a self-employed expert with a company called "Road to Safety."
{¶ 36} 11. Following the June 10, 2008 hearing, the SHO issued an order
granting the VSSR application. The SHO found six violations of specific safety rules
applicable to trenches and excavations.
{¶ 37} 12. Relator moved for rehearing pursuant to Ohio Adm.Code 4123-3-
20(E).
{¶ 38} 13. On November 21, 2008, another SHO mailed an order denying
relator's motion for rehearing.
{¶ 39} 14. On December 5, 2008, relator moved for so-called reconsideration.
On January 8, 2009, the three-member commission mailed an order denying
reconsideration.
{¶ 40} 15. On April 29, 2009, relator filed in this court a mandamus action that
was assigned case number 09AP-423. The action was assigned to a magistrate.
{¶ 41} 16. On May 12, 2010, the magistrate issued his magistrate's decision. The
magistrate recommended that this court issue a writ of mandamus.
{¶ 42} 17. On September 21, 2010, this court issued its decision in case number
09AP-423. Adopting the magistrate's decision, this court issued a writ of mandamus,
explaining:
The objections filed by both decedent's estate and the
commission contend that the order of the staff hearing
officer ("SHO") complies with Noll because the SHO stated
the evidence upon which she relied and sufficiently
explained her reasoning. We disagree. As is readily apparent
from a review of the SHO's order, the SHO's findings
No. 13AP-449 16
pertaining to five of the six alleged violations, Ohio
Adm.Code 4123:1-3-13(C)(2), (D)(1) and (2), and (E)(1) and
(2), essentially recite the regulation without explaining
specifically how relator violated the regulation, how the
violation proximately caused decedent's death, and what
evidence the SHO relied upon in making such finding.
Regarding the remaining violation, Ohio Adm.Code 4123:1-
3-13(D)(9), the evidence relied upon by the SHO is
insufficient to establish the violation and proximate cause.
Thus, we agree with the magistrate's determination that the
SHO's order does not comply with the requirements of Noll
with regard to five of the six violations, and lacks evidentiary
support with regard to the remaining violation.
***
We issue a writ of mandamus ordering the commission to
vacate its order granting the VSSR application and to enter
an order that adjudicates the matter in a manner in
accordance with law and consistent with this decision.
State ex rel. Sunesis Constr. v. Indus. Comm., 10th Dist. No. 09AP-423, 2010-Ohio-
4434, ¶ 7, 10.
{¶ 43} 18. On December 16, 2010, an SHO mailed an order acknowledging this
court's writ of mandamus. In accordance with the writ, the SHO vacated the SHO's
order of June 10, 2008 that had granted the VSSR application. Also, the SHO's order of
December 16, 2010 vacated the SHO's order mailed November 21, 2008 that had denied
relator's motion for rehearing. The SHO's order of December 16, 2010 further stated:
The claim is to be set for a de novo hearing before a Staff
Hearing Officer on the issue of the IC-9 Application for
Additional Award for VSSR - Fatal, filed 01/29/2007.
The Staff Hearing Officer is to issue an order on the merits of
the IC-9 Application and which complies with State ex rel.
Noll v. Industrial Commission (1991), 57 Ohio St.3d 203.
The Staff Hearing Officer is to apply the reasoning in the
Tenth Appellate District Court of Appeals decision dated
09/21/2010.
The Staff Hearing Officer order will be subject to the usual
rights of Administrative Rehearing in accordance with the
provisions of Ohio Administrative Code 4121-3-20(C).
No. 13AP-449 17
{¶ 44} 19. Relator objected to the SHO's order of December 16, 2010 on grounds
that this court's writ allegedly did not direct a de novo hearing. The commission denied
relator's objection.
{¶ 45} 20. The commission's denial of relator's objection to the scheduling of a
de novo hearing prompted relator to file in this court an action for a writ of prohibition.
The prohibition action, filed May 17, 2011, was assigned to a magistrate.
{¶ 46} 21. On February 21, 2012, the magistrate issued a magistrate's decision
recommending that this court deny relator's request for a writ of prohibition.
{¶ 47} 22. On May 24, 2012, this court adopted the magistrate's decision and
denied the writ of prohibition. State ex rel. Sunesis Constr. v. Indus. Comm., 10th Dist.
No. 11AP-449, 2012-Ohio-2323.
{¶ 48} 23. Earlier, following an October 6, 2011 hearing, an SHO issued an order
(mailed December 15, 2011) that grants the VSSR application in part and denies the
application in part. The SHO's order finds that relator violated five specific safety rules
applicable to the construction of trenches and excavations.
{¶ 49} 24. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-
20(C).
{¶ 50} 25. On March 13, 2012, another SHO mailed an order granting relator's
motion for rehearing. The SHO's order mailed March 13, 2012 explains:
It is the order of the Industrial Commission that the Motion
for Rehearing be granted for the reason that the Employer
has demonstrated that the order mailed 12/15/2011 was
based on a clear mistake of law, in accordance with Ohio
Administrative Code 4121-3-20(E)(1)(b).
Specifically, the order finds that the wall of the trench/
excavation that collapsed was not adequately sloped or
shored and the failure to adequately slope or shore the
trench led to the cave-in that caused the decedent's death.
Based on the finding that the lack of adequate sloping or
shoring caused the decedent's death, a violation of 4123:1-3-
13(D)(1) and (2) was found. However, both of these sections
refer to Table 13-1 in the appendix to determine the
approximate angle of repose for the sloping of the sides of
excavations. This table lists the amount of sloping required
based on the type of soil where the trench is dug. Therefore,
No. 13AP-449 18
to determine by the chart the amount of sloping that was
necessary it is necessary to know the type of soil involved
and the amount of sloping that was done. The order fails to
site the type of soil involved, stating only that it was soft
material with water and there was an exposure to moving
ground. Further, the order does not provide any indication of
what evidence shows the amount of sloping that was done to
show it was not within the amounts required per the
appendix and thus the rule cited as violated. Based on this it
appears there is a mistake of law and the request for
rehearing is granted.
Pursuant to Ohio Adm.Code 4121-3-20, the order mailed
12/15/2011 is vacated. The Injured Worker's application is
ordered set for rehearing.
{¶ 51} 26. Following an October 4, 2012 hearing, an SHO mailed an order on
October 30, 2012 that grants in part and denies in part the VSSR application filed
January, 2007.
{¶ 52} 27. To permit comparison of the SHO's order of October 4, 2012 with the
SHO's order of October 6, 2011, the SHO's order of October 4, 2012 is reproduced here
showing some italicized language. The italicized language indicates language in the
October 4, 2012 order that was not contained in the October 6, 2011 order. That is, the
italicized language was added by the SHO in response to the SHO's order mailed
March 13, 2012 that granted rehearing. The October 4, 2012 order of the SHO, as
italicized, states in part:
The Staff Hearing Officer finds a violation of Ohio
[A]dministrative Code 4123:1-3-13(D)(1) and (2), Ohio
Administrative Code 4123:1-3-13(E)(1) and (2), and Ohio
Administrative Code 4123:1-3-13(E)(4).
The pertinent facts are as follows. The Injured Worker was
employed by the Employer as a construction laborer. On
07/31/2005, the Injured Worker was working alone at the
bottom of a more than twenty foot deep trench/excavation
when the trench/excavation "caved in" on top of the Injured
Worker resulting in his death. The actual "cave-in" was not
witnessed. The Decedent was found at the bottom of the
trench/excavation crushed against the pipe which ran along
the bottom of the trench/excavation. He was buried up to his
shoulders in dirt and debris. The coroner's report on file
indicates that the cause of death was blunt force trauma to
No. 13AP-449 19
the head and asphyxiation. The file contains pictures of the
scene of the accident prior to the decedent's body being
removed or the accident scene being disturbed in any
manner.
The evidence on file indicates that one side of the
trench/excavation was comprised of a solid concrete slab and
solid shale rock. Another side of the trench/excavation was
secured by steel road plates which were 10 feet wide and 20
feet high. A third side of the trench was secured by the use of
a 10 foot tall trench box. The Staff Hearing Officer finds that
there is no allegation that these three walls were
inadequately shored.
The fourth wall of the excavation trench consisted of [soil]2
soft material, Class C soil with ground water. The Employer
attempted to shore this side of the trench/excavation by
sloping the wall enough to ensure that a cave-in could not
occur. A steel plate was also inserted at the top of this wall
above the sloped area.
Based upon the photographs of the accident scene, the Staff
Hearing Officer finds that the steel plate was placed at the
top of the trench/excavation and did not cover the sloped
portions of the wall.
The Staff Hearing Officer finds that the sloped wall of the
trench/excavation caved in on the Decedent resulting in his
death. This finding is based on the testimony of Mr. Chuck
Renken at pages 18, 19, 67, 69, and 70 of the Hearing
Transcript filed 06/25/2008 and Mr. Jeffrey Darrah at pages
119-121 of the Hearing Transcript filed 06/25/2008. Mr.
Renken is the Employer's Director of Human Resources and
Safety and Mr. Darrah is the company Vice President. This
finding is also based upon the photographs on file which
depict the scene of the accident before the scene was
disturbed.
The issue to be decided is twofold. First, a determination has
to be made as to whether the sloped wall of the
trench/excavation was properly sloped. Second, if the sloped
wall is found to be improperly sloped or shored, whether the
improper sloping or shoring is the proximate cause of the
cave-in and the Decedent's death.
2 In the October 6, 2011 order, this sentence ends with the word "soil."
No. 13AP-449 20
Ohio Administrative Code 4123:1-3-13(D) governs trenches.
Ohio Administrative Code 4123:1-3-13(D)(1) states:
The exposed faces of all trenches more than five feet high
shall be shored, laid back to a stable slope, or some other
equivalent means of protection shall be provided where
employees may be exposed to moving ground or cave-ins.
Ohio Administrative Code 4123:1-3-13(D)(2) states:
Sides of trenches in unstable or soft material, five feet or
more in depth, shall be shored, sheeted, braced, sloped, or
otherwise supported by means of sufficient strength to
protect the employees working within them.
Ohio Administrative Code 4123:1-3-13(E) governs
excavations.
Ohio Administrative Code 4123:1-3-13(E)(1) states:
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.
Ohio Administrative Code 4123:1-3-13(E)(2) states:
Supporting systems, i.e. piling, cribbing, shoring, etc., shall
be designed by a qualified person and shall meet accepted
engineering requirements.
Ohio Administrative Code 4123:1-3-13(E)(4) states:
Sides, slopes, and faces of all excavations shall meet accepted
engineering requirements by scaling, benching, barricading,
rock bolting, wire meshing, or other equally effective means.
In the case at hand, the trench/excavation the Decedent was
working in at the time of the industrial accident was over
twenty feet deep. Further, the Decedent was working in soft
material Class C soil with ground water and was exposed to
moving ground or the possibility of cave-ins at the time of
the industrial accident. This finding is based upon the
testimony of Mr. Anthony Roark, the decedent's supervisor,
on Pages 103 and 104 of his deposition on file.
No. 13AP-449 21
The Staff Hearing Officer finds that the sloped side of the
trench/excavation was not sloped by means of sufficient
strength to protect the employee working in it. Further, the
Staff Hearing Officer find[s] that the slope did not meet
accepted engineering requirements.
Specifically, Mr. Renken acknowledges that the Employer
knew that the trench/excavation at issue was not OSHA
compliant at the time of the accident on page 16 of the
Hearing Transcript. Importantly, Mr. Renken acknowledges
that the slope was not sufficient to prevent cave-ins and
protect the employees working in the trench/excavation on
pages 83-86 of the Hearing Transcript.
The Staff Hearing Officer finds that Ohio Administrative
Code Rule 4121:1-3-13 refers to Trenches and Excavations.
The Appendix to Rule 3121:1-3-13 [sic] includes Table 13-1,
Approximate Angle of Repose for Sloping of Sides of
Excavations. The note to Table 13-1 states: "the presence of
ground water requires special treatment."
Additionally, Mr. Renken indicates that the slope was not
engineered and probably did not meet acceptable
engineering standards. Mr. Renken's deposition states that
the slope was not inspected by an engineer or any other
qualified person on pages 72-73 of the Hearing Transcript.
The Deposition of Mr. Anthony Roark supports Mr. Renken's
conclusions. Specifically, Mr. Roark indicates that he knew
that the trench/excavation was not OSHA compliant at the
time of the industrial accident on pages 117-118 of his
deposition.
Mr. Anthony Roark's deposition explains further on Pages
118-119. Mr. Roark indicates that applicable safety rules and
regulations were routinely disregarded. Mr. Roark compares
safety regulations to speed limits. He states that although the
speed limit may be 55 miles per hour, everyone routinely
drives 60 to 65 miles per hour without thinking twice about
it.
Additionally, Mr. Roark indicates, on Page 143 of his
deposition that the Employer decided to proceed with having
employees work in the trench/excavation despite the fact
that the Employer knew that the trench/excavation satisfied
No. 13AP-449 22
neither OSHA safety standards nor the Employer's own
safety standards.
The deposition of Mr. Gary Bradford, (Pages 58-60) Field
Superintendent, indicates that the Employer knew that both
OSHA and the Employer's own safety regulations require all
excavation/trenches in excess of twenty feet deep have a
protective system which is designed by a professional
engineer.
Mr. Bradford's deposition further indicates that the
Employer knew the excavation/trench was in excess of
twenty feet deep prior to the industrial accident. However,
Mr. Bradford states that the Employer decided to put
employees in the trench/excavation even though they knew
the trench/excavation safety system was not designed by, or
inspected by a pro[f]essional engineer on Pages 76-81 of his
deposition.
The Staff Hearing Officer acknowledges that a violation of an
OSHA regulation does not automatically equate to a violation
of a specific safety requirement.
However, the Staff Hearing Officer finds the testimony of
Mr. Renken, Mr. Anthony Roark, and Mr. Bradford
probative in that these depositions depict the Employer's
attitude toward safety. Expressly, these depositions indicate
that the Employer was apathetic or careless, if not reckless,
in complying with applicable safety rules and regulations.
The Staff Hearing Officer further finds that the above cited
depositions establish that the trench/excavation was in soft
wet material, Class C soil with ground water which exposed
employees to the possibility of moving ground or cave-ins.
Further, these depositions indicate that the sloped side of the
trench/excavation was not sloped or otherwise supported by
sufficient means to protect the employees working in them.
The Staff Hearing Officer further finds that the Employer's
failure to adequately slope or shore the trench/excavation as
required by these sections was the proximate cause of the
cave-in and the Decedent's death.
Specifically, the Staff Hearing Officer finds that, had the
trench/excavation been sloped or otherwise shored by means
of sufficient strength to protect the employee's working in
No. 13AP-449 23
the trench/excavation, the industrial accident would not
have occurred.
Therefore, the Staff Hearing Officer finds violations of Ohio
Administrative Code 4123:1-3-13(D)(1) and (2).
Additionally, the above referenced depositions indicate that
the slope on the soil side of the excavation/trench did not
[meet] accepted engineering standards or accepted
engineering requirements for scaling, benching, barricading,
rock bolting, wire meshing or other equally effective means.
The Staff Hearing Officer further finds that the Employer's
failure to design the trench/excavation in accordance with
accepted engineering standards was the proximate cause of
the cave-in.
The Staff Hearing Officer further finds that, had the
trench/excavation been designed to meet accepted
engineering standards, the industrial accident would not
have occurred.
The Staff Hearing Officer therefore finds violations of Ohio
Administrative Code 4123:1-3-13(E)(1), (2) and (4).
It is therefore ordered that an additional award of
compensation be granted to the Injured Worker in the
amount of 35 percent of the maximum weekly rate under the
rule of State ex rel. Engle v. Indus. Comm. (1944), 142 Ohio
St. 425.
(Emphasis sic. and added.)
{¶ 53} 28. On December 3, 2012, relator moved the three-member commission
for reconsideration of the SHO's order of October 4, 2012 (mailed October 30, 2012).
{¶ 54} 29. Following a March 14, 2013 hearing before the three-member
commission, the commission, by unanimous vote, mailed an order on March 22, 2013
that denies relator's December 3, 2012 motion for reconsideration:
[I]t is the finding of the Industrial Commission that it does
not have authority to exercise continuing jurisdiction
pursuant to R.C. 4123.52 and State ex rel. Nicholls v. Indus.
Comm., 81 Ohio St.3d 454, 692, N.E.2d 188 (1998), State ex
rel. Foster v. Indus. Comm., 85 Ohio St.3d 320, 707 N.E.2d
1122 (1999), and State ex rel. Gobich v. Indus. Comm., 103
No. 13AP-449 24
Ohio St.3d 585, 2004-Ohio-5990, 817 N.E.2d 398. The
Employer has failed to meet its burden of proving that
sufficient grounds exist to justify the exercise of continuing
jurisdiction. Therefore, the Employer's request for
reconsideration, filed 12/03/2012 is denied, and the Staff
Hearing Officer order, issued 10/30/2012, remains in full
force and effect.
{¶ 55} 30. On May 30, 2013, relator, Sunesis Construction, filed this mandamus
action.
Conclusions of Law:
{¶ 56} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
The Safety Rules
{¶ 57} The following provisions of the Ohio Administrative Code were in effect on
the date of death, i.e., July 31, 2005.
Ohio Adm.Code 4123:1-3-13 is captioned "Construction Safety."
{¶ 58} Thereunder, Ohio Adm.Code 4123:1-3-13 is captioned "Trenches and
excavations."
{¶ 59} Thereunder, Ohio Adm.Code 4123:1-3-13(B) provides definitions:
(1) "Accepted engineering requirements (or practices)"
means those requirements or practices which are compatible
with standards required by a registered architect, a
registered professional engineer, or other duly licensed or
recognized authority.
***
(4) "Excavation" means any manmade cavity or depression
in the earth's surface, including its sides, walls, or faces,
formed by earth removal and producing unsupported earth
conditions by reasons of the excavation. If installed forms or
similar structures reduce the depth-to-width relationship, an
excavation may become a trench.
(5) "Hard compact soil" means all earth materials not
classified as unstable.
***
No. 13AP-449 25
(9) "Sides," "walls," or "faces" means the vertical or inclined
earth surfaces formed as a result of trenching or excavation
work.
***
(11) "Trench," when used as a noun, means a narrow
excavation made below the surface of the ground. In general,
the depth is greater than the width, but the width of a trench
at the bottom is no greater than fifteen feet.
(12) "Trench boxes (safety cages, trench shields)" means a
shoring system composed of steel plates and bracing, welded
or bolted together, which support the walls of a trench from
the ground level to the trench bottom and which can be
moved along as work progresses.
***
(14) "Unstable soil" means earth material, that because of its
nature or the influence of related conditions, cannot be
depended upon to remain in place without extra support,
such as would be furnished by a system of shoring.
Ohio Adm.Code 4123:1-3-13(D) is captioned "Trenches."
{¶ 60} Thereunder, ten enumerated paragraphs set forth ten specific rules
pertaining to trenches. Two of those rules provide:
(1) The exposed faces of all trenches more than five feet high
shall be shored, laid back to a stable slope, or some other
equivalent means of protection shall be provided where
employees may be exposed to moving ground or cave-ins.
(See appendix "Table 13-1").
(2) Sides of trenches in unstable or soft material, five feet or
more in depth, shall be shored, sheeted, braced, sloped, or
otherwise supported by means of sufficient strength to
protect the employees working within them. (See appendix
"Table 13-1" and "Table 13-2").
{¶ 61} Ohio Adm.Code 4123:1-3-13(E) is captioned "Excavations." Thereunder,
nine enumerated paragraphs set forth nine specific rules pertaining to trenches. Three
of those rules provide:
(1) The walls and faces of all excavations in which employees
are exposed to danger from moving ground shall be guarded
No. 13AP-449 26
by a shoring system, sloping of the ground, or some other
equivalent means. (See appendix "Table 13-1 and Table 13-
2").
(2) Supporting systems, i.e. piling, cribbing, shoring, etc.,
shall be designed by a qualified person and shall meet
accepted engineering requirements.
***
(4) Sides, slopes, and faces of all excavations shall meet
accepted engineering requirements by scaling, benching,
barricading, rock bolting, wire meshing, or other equally
effective means.
Basic VSSR Law
{¶ 62} It is well-settled that a VSSR award is deemed a penalty to the employer
subject to the rule of strict construction with all reasonable doubts concerning the
interpretation of the safety standard to be construed against the applicability of the
standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354
(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
{¶ 63} It is also firmly established that the determination of disputed factual
situations as well as the interpretation of a specific safety requirement is within the final
jurisdiction of the commission, and subject to correction in mandamus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio
St.3d 1 (1984); State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47
(1956); State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).
{¶ 64} Of course, the commission's authority to interpret its own safety rules is
not unlimited. Strict construction does require that the commission's interpretation be
reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d
333, 342 (1997). The commission may not effectively rewrite its own safety rules when it
interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996).
{¶ 65} Specific safety requirements are intended to protect employees against
their own negligence and folly as well as provide them a safe place to work. State ex rel.
Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 47 (1989).
No. 13AP-449 27
{¶ 66} The unilateral negligence defense to VSSR liability derives from State ex
rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988), in which an
employer was exonerated from VSSR liability because an employee had removed part of
a scaffold that had been required by a specific safety requirement. State ex rel. Quality
Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000).
{¶ 67} However, a claimant's alleged negligence is a defense only where the
employer has first complied with relevant safety requirements. State ex rel.
Hirschvogel, Inc. v. Miller, 86 Ohio St.3d 215, 218 (1999). A claimant's negligence bars
a VSSR award only where the claimant deliberately renders an otherwise complying
device noncompliant. State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352, 355,
(1997); Martin Painting at 339.
Appendix, Table 13-1
{¶ 68} It can be observed that relator was found to have violated three specific
safety rules that reference Table 13-1 Those three safety rules are Ohio Adm.Code
4123:1-3-13(D)(1) and (2) pertaining to trenches and Ohio Adm.Code 4123:1-3-13(E)(1)
pertaining to excavations.
{¶ 69} Table 13-1 presents a diagram showing five different degrees of sloping
that are adequate for the type of soils described in the diagram. The description of the
soils and the permitted degree of sloping are as follows:
(1) Solid Rock, Shale, or Cemented Sand And Gravel, Vertical
(90 Deg.)
(2) Compacted Angular Gravel — Short Term Exposure (63
Deg.)
(3) Compacted Angular Gravel, (53 Deg.)
(4) Recommended slope for Average Soils (45 Deg.)
(5) Compacted Sharp Sand and well Rounded Loose Sand,
(34 Deg.)
(See Respondent Industrial Commission's Brief, 31-32.)
{¶ 70} Aside the above-described five soils and their permitted degree of sloping,
Table 13-1 provides two "notes" as follows:
No. 13AP-449 28
Note: Clays, Silts, Loams, or Non-homogenious soils require
Shoring and Bracing.
Note: The presence of ground water requires special
treatment.
{¶ 71} Analysis begins with the observation that the SHO's order mailed
March 13, 2012 granted rehearing on grounds that the SHO's order of October 6, 2011
contained a mistake of law. Citing to Table 13-1, the SHO's order granting rehearing
states in pertinent part:
The order fails to site the type of soil involved, stating only
that it was soft material with water and there was an
exposure to moving ground. Further, the order does not
provide any indication of what evidence shows the amount of
sloping that was done to show it was not within the amounts
required per the appendix and thus the rule cited as violated.
{¶ 72} In response, as earlier noted, another hearing was held before an SHO on
October 4, 2012.
{¶ 73} It is important to note that the SHO's order of October 4, 2012 finds "that
the sloped side of the trench/excavation was not sloped by means of sufficient strength
to protect the employee working in it. Further, the Staff Hearing Officer finds that the
slope did not meet accepted engineering requirements." Thus, the SHO's order of
October 4, 2012 does not find that sloping was not permitted at all. To the contrary, the
SHO's order finds that the sloping was not of "sufficient strength." The SHO's order
fails to determine the degree of sloping that was permitted under Table 13-1.
{¶ 74} The SHO's order of October 4, 2012 does determine the existence of Class
C soil with ground water. In that regard, the SHO's order of October 4, 2012 differs
from the SHO's order of October 6, 2011 that was vacated pursuant to the granting of
rehearing. However, Table 13-1 does not mention Class C soil.
{¶ 75} The SHO's order of October 4, 2012 fails to cite to any evidence or to make
any finding upon which a determination of the degree of sloping permitted can be made.
{¶ 76} Here, respondent claimant asserts that, under the first "note" at Table 13-
1, relator was required to use shoring and bracing which means that sloping was not
acceptable. This assertion lacks merit because the SHO found the existence of Class C
No. 13AP-449 29
soil. The SHO did not find the existence of the soils described at the first note at Table
13-1.
{¶ 77} Moreover, the SHO's order of October 4, 2012 not only fails to determine
the degree of sloping permitted based upon the type of soil at the trench site, the order
also fails to determine the degree of sloping that relator actually employed at the trench.
{¶ 78} Given the above analysis, the SHO's order of October 4, 2012 fails to make
findings supported by cited evidence that it was improper or insufficient sloping that
proximately caused the wall of the trench to collapse. Moreover, neither the commission
nor the claimant here provide any explanation as to what evidence may be found in the
record that might support a commission finding that the actual degree of sloping
employed at the trench site was insufficient under Table 13-1 for the type of soil at the
trench.
{¶ 79} Thus, the magistrate finds that the SHO's order of October 4, 2012
constitutes an abuse of discretion as to the findings that relator violated Ohio Adm.Code
4123:1-3-13(D)(1) and (2) and Ohio Adm.Code 4123:1-3-13(E)(1).
{¶ 80} As earlier noted, the SHO's order of October 4, 2012 finds a violation of
Ohio Adm.Code 4123:1-3-13(E)(2), which requires that supporting systems shall be
designed by a qualified person and shall meet accepted engineering requirements.
{¶ 81} Also, the SHO's order of October 4, 2012 finds a violation of Ohio
Adm.Code 4123:1-3-13(E)(4), which requires that sides, slopes, and faces of all
excavations shall meet accepted engineering requirements.
{¶ 82} In the SHO's order of October 4, 2012, the SHO states reliance upon the
depositions earlier referenced in the order to support the SHO's conclusion that
Anthony Roark, who designed the trench shoring system, was not a "qualified person"
as that term is found in the rule. The SHO also states reliance upon the depositions to
support a finding that relator failed to design the trench/excavation in accordance with
accepted engineering standards.
{¶ 83} For example, the SHO's order cites to that portion of the Anthony Roark
deposition where Roark compares safety regulations to speed limits where everyone
routinely drives 60 to 65 miles per hour when the speed limit is 55 miles per hour. In
No. 13AP-449 30
another part of his deposition, Anthony Roark admitted that the trench did not satisfy
OSHA safety standards nor relator's own safety standards.
{¶ 84} The magistrate notes here that the term "qualified person" in the safety
rule is not defined.
{¶ 85} Even if it can be said that Anthony Roark was not a "qualified person" as
that term is employed in Ohio Adm.Code 4123:1-3-13(E)(2), that does not by itself
support a VSSR award for violation of Ohio Adm.Code 4123:1-3-13(E)(2). As relator
here correctly observes, proximate cause is lacking because of the commission's failure
to make appropriate findings as to the actual slope as well as the slope permitted under
Table 13-1.
{¶ 86} The SHO's order of October 4, 2012 states reliance upon the deposition of
Gary Bradford, relator's field superintendent, who testified that he knew that the
trench/excavation had not been designed by or inspected by a professional engineer.
{¶ 87} Even if it can be said that the commission cited to some evidence that the
trench/excavation did not meet accepted engineering requirements, relator again
correctly observes that proximate cause is lacking because of the commission's failure to
make appropriate findings as to the actual slope and the permitted slope.
{¶ 88} The magistrate concludes that the commission, through its SHO's order of
October 4, 2012, abused its discretion in finding or inferring the presence of proximate
cause as to all five of the safety rules at issue.
{¶ 89} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the October 4, 2012 order of the SHO and
to enter an order that denies the VSSR application. Moreover, it is the magistrate's
decision that the writ order the commission to vacate its March 14, 2013 order that
found the lack of continuing jurisdiction to grant relator's motion for reconsideration
and to enter an order that finds relator's motion for reconsideration to be moot.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 13AP-449 31
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).