“Where the commission’s decision is supported by some evidence, the presence of contrary evidence in the record is immaterial.”
How later courts described this case
- “Where the commission’s decision is supported by some evidence, the presence of contrary evidence in the record is immaterial.”
Written by the judges who cited it.
The opinion
[Cite as State ex rel. Culver v. Indus. Comm., 2024-Ohio-1138.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sharmel J. Culver, :
Relator, : No. 22AP-292
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on March 26, 2024
On brief: Karp Steiger Co., L.P.A., and David J. Steiger, and
Flowers & Grube, and Louis E. Grube, Paul W. Flowers, and
Melissa A. Ghrist, for relator.
On brief: Dave Yost, Attorney General, and Andrew J.
Alatis, for respondent Industrial Commission of Ohio.
On brief: Zashin & Rich Co., LPA, Jeffrey J. Wedel, and Scott
Coghlan, for respondent TimkenSteel Corporation.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
EDELSTEIN, J.
{¶ 1} Relator, Sharmel Culver, seeks a writ of mandamus to compel respondent,
the Industrial Commission of Ohio (“commission”), to vacate its January 13, 2022 order
finding respondent Timkensteel Corporation (“Timkensteel”) did not violate a specific
safety requirement (“VSSR”) at the time of her husband’s death and denying her application
for an additional award in the workers’ compensation claim brought on her late husband’s
behalf.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a court magistrate. On August 18, 2023, the magistrate issued
No. 22AP-292 2
a decision containing findings of fact and conclusions of law, which is appended hereto.
Ms. Culver timely filed objections to the magistrate’s decision and both the commission and
the employer filed memoranda in opposition. Accordingly, we now independently review
the magistrate’s decision to ascertain whether “the magistrate has properly determined the
factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).
I. Background
{¶ 3} Ms. Culver’s late husband, Kenneth Ray Jr., was employed by Timkensteel as
a member of their fire and safety team. (May 17, 2022 Compl. at ¶ 5.) On the morning of
March 20, 2016, Mr. Ray was assigned to inspect the fire extinguishers in the elevator
control room at a Timkensteel plant. (Id. at ¶ 6.) The control room was sealed to prevent
outside pollutants from settling onto the machinery and hindering the operation of the
motors. (Id. at ¶ 7.) An air handling unit installed directly below provided the control room
with clean air. The unit drew outside air into its filtration system and then circulated
purified air into the room above. (Aug. 11, 2022 Stipulation of Evidence at 490.) To do so,
it relied on a self-cleaning feature to knock external contaminants off its filter at regular
intervals. (Compl. at ¶ 9.) When working properly, the cleaning system would use
compressed nitrogen gas to shoot a puff of air at the filter for less than a second while
circulation was momentarily paused. (Id. at ¶ 9-10.) The unit fans would then resume
circulation of clean air into the elevator control room once the process was complete. (Id.
at ¶ 9.) On the day of the deadly accident in this case, unbeknownst to Mr. Ray, the air
handling unit had malfunctioned, causing the air handling unit’s cleaning system to
continuously release nitrogen into the room above. By the time Mr. Ray entered the sealed
control room, the air inside contained 95 percent nitrogen and only 4.7 percent oxygen. (Id.
at ¶ 11-13.) Air containing less than 19.5 percent oxygen is considered dangerous to breathe.
(Id. at ¶ 14.) Therefore, the room contained less than a fourth of the amount of oxygen
present under typical conditions and was dangerously insufficient. Due to the dangerously
unsafe levels of oxygen in the elevator control room, Mr. Ray died of asphyxiation seconds
after entering the room. (Stipulation at 491.)
{¶ 4} The oxygen levels were so depleted in the room that the employees who found
Mr. Ray became sick upon entering the room to retrieve him. (Id. at 490.) Soon after the
accident, Timkensteel discovered that the air handling unit had malfunctioned. (Id. at 491.)
No. 22AP-292 3
While the cause of the malfunction is still unknown, Timkensteel acknowledged leaked
nitrogen displaced the oxygen in the control room, and it is undisputed that these
atmospheric conditions were responsible for Mr. Ray’s death. (Id.)
{¶ 5} Following allowance of her death benefits claim, Ms. Culver applied for an
additional award for VSSR. (Compl. at ¶ 21.) In the application, she alleged Timkensteel
failed to comply with several relevant safety rules required by law, specifically: (1) Ohio
Adm.Code 4123:1-5-17(F), requiring employers to provide respiratory protection
equipment where air contaminants are present; (2) Ohio Adm.Code 4123:1-5-18(C),
requiring employers to minimize employee exposure to air contaminants through at least
one of six listed methods; and (3) Ohio Adm.Code 4123:1-5-22, requiring employers to
implement protocols where employees must enter a “confined space.” (Stipulation at 491.)
The VSSR application was later amended to include an additional claim alleging that
Timkensteel violated Ohio Adm.Code 4123:1-5-18(E)(2) through (4), which sets forth
structural specifications for exhaust systems that may be used to minimize air contaminant
exposure. (Compl. at ¶ 24.)
{¶ 6} At the hearing on the amended application, and prior to any discussion on
the merits, Ms. Culver withdrew her claims alleging violations of Ohio Adm.Code 4123:1-5-
22 and Ohio Adm.Code 4123:1-5-18(E)(2) through (4). (Stipulation at 491.) Consequently,
the hearing proceeded only on the claims alleging violations of Ohio Adm.Code 4123:1-5-
17(F) and Ohio Adm.Code 4123:1-5-18(C). (Id.) At the hearing, Ms. Culver alleged that two
specific safety requirements applied to Mr. Ray’s work duties at the time of his death and
Timkensteel failed to comply with either, causing Mr. Ray’s tragic death. First, she alleged
that Timkensteel failed to provide acceptable respiratory equipment, an effective exhaust
system, or equivalent or greater protection as mandated by former Ohio Adm.Code 4123:1-
5-17(F)1 where air contaminants are present. Second, she alleged Timkensteel did not
1 An amended version of Ohio Adm.Code 4123:1-5-01(B)(4) went into effect on June 1, 2016. The amended
rule, nearly identical to the version in effect at the time of publication, removed all references to “toxic” in
its definition of “air contaminants.” Regardless, the applicable safety requirements for purposes of VSSR
awards are the version in effect on the date of the injury. See State ex rel. DeMarco v. Indus. Comm., 10th
Dist. No. 19AP-227, 2021-Ohio-1937, ¶ 6. Unless otherwise noted, all subsequent discussion will refer to
this former version.
No. 22AP-292 4
comply with its obligation under former Ohio Adm.Code 4123:1-5-18(C) to implement one
of six approved methods for minimizing air contaminant exposure.
{¶ 7} In the order denying Ms. Culver’s VSSR application, the state hearing officer
(“SHO”) noted that “air contaminants” was defined as “hazardous concentrations of
fibrosis-producing or toxic dusts, toxic fumes, toxic mists, toxic vapors, or toxic gases, or
any combination of them when suspended in the atmosphere” in the version of Ohio
Adm.Code 4123:1-5-01(B)(4) in effect at the time of Mr. Ray’s death. (Stipulation at 492-
93.) Hazardous concentrations, in turn, are “concentrations of air contaminants which are
known to be in excess of those which would not normally result in injury to an employee’s
health.” Former Ohio Adm.Code 4123:1-5-01(B)(74).2 Thus, the threshold question in this
case is whether nitrogen gas is a “toxic gas.” “Toxic” is not defined in former Ohio
Adm.Code 4123:1-5-01.
{¶ 8} The evidence in the administrative record consisted of the report and hearing
testimony of Ms. Culver’s expert witness Dr. David Bizzak, scientific literature submitted
by Dr. Bizzak, copies of Occupational Safety and Health Administration citations issued on
April 8, 2020, several depositions, an internal Timkensteel manual about oxygen
deficiency, and a notice of corrective action. (See Stipulation Index.)
{¶ 9} In his report, Dr. Bizzak stated that nitrogen “comprises 78 percent of the air
that we breathe” and “is largely inert, nontoxic, and the average person may consider it to
be harmless.” (Id. at 378.) However, he explained that nitrogen “is dangerous because it
can rapidly displace oxygen in the air such that the oxygen level falls below the level needed
to sustain life.” (Id.) The SHO relied on Dr. Bizzak’s testimony, report, and supporting
materials to conclude that nitrogen—as a “primary component of the air we breathe”—is
not a “toxic gas.” (Id. at 492.) In relevant part, the decision states:
Rule 4123:1-5-17 (F) and rule 4123:1-5-01 (B) are clear. Air
contaminants, for the purposes of this claim, are defined as
toxic gases. No evidence has been presented to substantiate
nitrogen gas is a toxic gas. The evidence presented by the
Widow-Claimant expressly indicates nitrogen gas is not toxic.
2 Similarly, Ohio Adm.Code 4123:1-5-01(B)(74) was amended on June 1, 2016 to its current iteration, which
now defines hazardous concentrations as “concentrations of air contaminants which are in excess of
established occupational exposure limits.” Like previously noted, we are bound to apply the definition that
was in effect at the time the injury occurred.
No. 22AP-292 5
As such, the cited rule is not applicable. * * * Similarly, [Ohio
Adm.Code 4123:1-5-18(C)] deals with air contaminants, again
defined by rule 4123:1-5-01 (B) (4). As nitrogen has not been
established to be a toxic gas, this alleged violation of a specific
safety requirement is not applicable.
(Id. at 492-93.)
{¶ 10} This mandamus action followed. On August 18, 2023, the magistrate issued
a decision recommending we deny the requested writ. The magistrate concluded there was
evidence in the record supporting the SHO’s determination that nitrogen is not a toxic gas
and therefore not an air contaminant—a required element of the safety regulations Ms.
Culver alleged were violated in this case. (Aug. 18, 2023 Mag.’s Decision at 9.) Ms. Culver
timely filed objections, which are now before us on review. She did not object to the factual
findings in the decision, including the finding that “ ‘displacement of oxygen by nitrogen in
the elevator motor room’ caused [Mr. Ray] to perish.” (Sept. 1, 2023 Objs. to Mag.’s
Decision at 8-9, quoting Mag.’s Decision at 1.) Instead, Ms. Culver objects only to the
magistrate’s legal conclusion that “the nitrogen mixed with other gases that suffocated [Mr.
Ray] did not meet the definition of ‘air contaminants’ [found] in Ohio Adm.Code 4123:1-5-
01(B)(4).” (Objs. to Mag.’s Decision at 1.) Ms. Culver asserts that because nitrogen can kill
a person in significant concentrations, it is rendered toxic by this unquestionably lethal
property. (Id. at 10-11.) Both the commission and Timkensteel filed responses to the
objections.
II. Law and Analysis
{¶ 11} R.C. 4121.13 vests the authority to promulgate industry-specific safety
standards in the Bureau of Workers’ Compensation. State ex rel. Jeep Corp. v. Indus.
Comm., 42 Ohio St.3d 83, 84 (1989).
{¶ 12} “To be entitled to an additional award for a VSSR, a claimant must show that
(1) a specific safety requirement applied, (2) the employer violated that requirement, and
(3) the employer’s violation caused the injury.” State ex rel. Precision Steel Servs. v. Indus.
Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, ¶ 15. “A writ of mandamus will 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. Levitin v.
No. 22AP-292 6
Indus. Comm., __ Ohio St.3d __, 2023-Ohio-3559, ¶ 15. As the exclusive fact finder,
questions regarding the weight and credibility of the evidence rest exclusively within the
commission’s discretion. State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 144
Ohio St.3d 243, 2015-Ohio-4525, ¶ 16.
{¶ 13} A safety requirement must be specific enough to plainly apprise an employer
of its legal obligations to its employees. State ex rel. Frank Brown & Sons, Inc. v. Indus.
Comm., 37 Ohio St.3d 162 (1988). Because it is considered a penalty for the employer’s
conduct, “a safety standard ‘must be strictly construed, and all reasonable doubts
concerning the interpretation of the safety standard are to be construed against its
applicability to the employer.’ ” State ex rel. Strawser v. Indus. Comm., 10th Dist. No.
22AP-330, 2023-Ohio-4327, ¶ 18, quoting State ex rel. Cassens Corp. v. Indus. Comm.,
10th Dist. No. 21AP-93, 2022-Ohio-2936, ¶ 7. Nonetheless, “the application of the strict-
construction rule cannot justify an illogical result or one that is contrary to the clear
intention of the code.” State ex rel. Pennant Moldings, Inc. v. Indus. Comm., 10th Dist.
No. 11AP-942, 2013-Ohio-3259, ¶ 16, citing State ex rel. Maghie & Savage, Inc. v. Nobel,
81 Ohio St.3d 328, 331 (1998).
{¶ 14} A VSSR claimant must first establish that a specific safety requirement
applied in order to trigger its protections. See Precision Steel Servs. at ¶ 15. The parties do
not dispute that the high levels of nitrogen gas present in the control room air caused Mr.
Ray to asphyxiate, nor that under the definition of “air contaminant” in effect at the time of
injury, the claimant was first required to establish the presence of a toxic gas. See former
Ohio Adm.Code 4123:1-5-01(B)(4). The sole dispute is whether the commission abused its
discretion when it determined nitrogen is not a toxic gas.
{¶ 15} In her objections, Ms. Culver asserts “there is no doubt about when and how
nitrogen can quickly kill a person in significant concentrations.” (Objs. to Mag.’s Decision
at 10.) This statement does not appear to be seriously disputed by any party. But, as
described by both the commission and this court’s magistrate, nitrogen is not deadly in all
quantities. Rather, the danger arises from the amounts of other gases present in the
atmosphere relative to the concentration of nitrogen. (See Stipulation at 477 (“Nitrogen is
naturally occurring, but it is a hazardous chemical as defined by OSHA when the
concentration exceeds thresholds at which it starts to displace oxygen in the environment.
No. 22AP-292 7
So this is a hazardous gas because of the concentration levels that we were at.”).) As
described by Dr. Bizzak in his report, nitrogen “is largely inert [and] nontoxic,” but it “is
dangerous because it can rapidly displace oxygen in the air such that the oxygen level falls
below the level needed to sustain life.” (Id. at 378.) From such evidence, the SHO
concluded the air contaminant rules did not apply because nitrogen “is not per se toxic.”
(Id. at 492.)
{¶ 16} The interpretation of a specific safety requirement may only be corrected in
mandamus upon a showing that the commission abused its discretion. Precision Steel
Servs. at ¶ 21. “[T]he commission ‘has the discretion to interpret its own rules; however,
where the application of those rules to a unique factual situation gives rise to a patently
illogical result, common sense should prevail.’ ” State ex rel. Lamp v. J.A. Croson Co., 75
Ohio St.3d 77, 78-79 (1996), quoting State ex rel. Harris v. Indus. Comm., 12 Ohio St.3d
152, 153 (1984). Additionally, no deference is given to the commission’s interpretation
when it implicitly adds language to the text of a rule. Precision Steel Servs. at ¶ 21, quoting
Lamp at 79-80. Because the commission added a requirement to the text of Ohio Adm.Code
4123:1-5-01(B)(4) and excluded a reference to the concentration of the alleged toxic gas, we
find that the commission abused its discretion.3
{¶ 17} Former Ohio Adm.Code 4123:1-5-01(B)(4) defines “air contaminants” as
“hazardous concentrations of fibrosis-producing or toxic dusts, toxic fumes, toxic mists,
toxic vapors, or toxic gases, or any combination of them when suspended in the
atmosphere.” Therefore, the rule contains three elements: (1) hazardous concentrations of
the (2) toxic substance (3) when suspended in the atmosphere. “Hazardous
concentrations,” in turn, are those concentrations “which are known to be in excess of those
3 We acknowledge the Supreme Court of Ohio has recently spoken on administrative deference in contexts
different from the one we face here. See TWISM Ents., L.L.C. v. State Bd. of Registration for Professional
Engineers & Surveyors, 172 Ohio St.3d 225, 2022-Ohio-4677; see also In re Alamo Solar I, L.L.C., __ Ohio
St.3d __, 2023-Ohio-3778, ¶ 13. In its most recent decision reviewing the commission’s interpretation of
one of its own regulations in a VSSR matter, the court briefly stated in a footnote, “[W]e need not decide
the extent to which we should defer to the commission’s interpretation of a specific safety rule * * * because
the parties did not brief this point and the case can be resolved on other grounds.” State ex rel. Cassens
Corp. v. Indus. Comm., __ Ohio St.3d __, 2024-Ohio-526, ¶ 19, fn. 6. Because we are faced with a similar
situation, we follow the court’s lead. Here, as in Cassens, the parties did not raise this issue and the case
can be resolved on other grounds. Under either the historic standard or a de novo standard of review, the
outcome would be the same.
No. 22AP-292 8
which would not normally result in injury to an employee’s health.” (Emphasis added.)
Former Ohio Adm.Code 4123:1-5-01(B)(74). As evident, the modifier used by the SHO to
conclude that nitrogen is not toxic—“per se”—appears nowhere in the text of the rule.
Describing something as “per se” toxic implies some gases are intrinsically toxic while
others are not, regardless of their concentration and the environment in which they are
found. This heightened standard employed by the SHO renders the phrase “hazardous
concentrations” in the definition meaningless. Including a reference to the amount of the
substance makes clear that toxicity can only be understood in relation to its relative
concentration in the atmosphere. This is buoyed by the contemporaneous definition of
hazardous concentrations, which are amounts “known to be in excess of those which
would not normally result in injury to an employee’s health.” (Emphasis added.) Former
Ohio Adm.Code 4123:1-5-01(B)(74). In order for this definition to make sense, it must be
understood to mean a substance becomes toxic when it is present in the atmosphere at an
abnormal level. This is not a static amount, but a threshold relative to the unique properties
of each substance.
{¶ 18} The SHO relied on Dr. Bizzak’s report, materials, and testimony to find that
nitrogen is not inherently toxic but becomes dangerous and potentially lethal in large
quantities due to its ability to deplete oxygen in the air. (See Stipulation at 492.) Apart
from Dr. Bizzak’s report and testimony, the SHO specifically cited two materials Dr. Bizzak
submitted to support her finding—an article titled “Use Nitrogen Safely” and a safety
bulletin published by the U.S. Chemical Safety and Hazard Investigation Board titled
“Hazards of Nitrogen Asphyxiation.” (Id.) We do not find that either supports the SHO’s
interpretation of “toxic.” In “Use Nitrogen Safely,” the phrase cited by the SHO that
“[n]itrogen is * * * nontoxic and largely inert” is followed by “[i]nhalation of excessive
amounts of nitrogen can cause dizziness, nausea, vomiting, loss of consciousness, and death
(Table 2).” (Id. at 412.) The U.S. Chemical Safety and Hazard Investigation Board safety
bulletin describes nitrogen as “safe to breathe only when mixed with the appropriate
amount of oxygen.” (Emphasis deleted.) (Id. at 418.) “If the concentration of nitrogen is
too high (and oxygen too low), the body becomes oxygen deprived and asphyxiation
occurs.” (Id.) And another article submitted by Dr. Bizzak titled “Dangers of oxygen-
deficient atmospheres” states, “Asphyxiation is the greatest hazard associated with nitrogen
No. 22AP-292 9
and other inert gases, such as argon and helium. However, the addition of any gas, except
oxygen, to air reduces the oxygen concentration through displacement and dilution.” (Id.
at 407.)
{¶ 19} The Eighth District Court of Appeals recently considered the meaning of
“toxic” as it relates to tort law:
To properly evaluate the admissibility of these opinions, some
understanding of toxicology, as it relates to the law of torts, is
necessary. “All substances are poisonous — there is none which
is not; the dose differentiates a poison from a remedy.” David L.
Eaton, Scientific Judgment and Toxic Torts — A Primer in
Toxicology for Judges and Lawyers, 12 Journal of Law &
Policy 11 (2003). Alcohol, aspirin, sunlight, vitamins, and
minerals are not harmful, and may be beneficial at low levels,
but can cause harm in higher doses. Again, it is “the dose that
makes the poison.” Bernard D. Goldstein & Mary Sue
Henifin, Reference Guide on Toxicology, Reference Manual on
Scientific Evidence 401, 403 (West Group 2d Ed.2000).
The threshold at which a substance becomes poisonous is not
always easy to identify, but that does not mean it does not
exist. Unless the plaintiff is exposed to a toxic level of a
substance, the substance will not cause the plaintiff any
harm. Id.
Watkins v. Affinia Group, 8th Dist. No. 102538, 2016-Ohio-2830, ¶ 27-28. We find this
discussion especially relevant to the dispute here. It corroborates our understanding of
“toxic” as a characteristic intrinsically linked to its concentration and acknowledges that a
substance can be both beneficial in appropriate quantities but harmful in excess, an
understanding that manifests in the definition provided by former Ohio Adm.Code 4123:1-
5-01(B)(4) and (74).
{¶ 20} The SHO, presumably comparing nitrogen to other gases, found that
nitrogen, “in and of itself, is not toxic.” (Stipulation at 492.) But, again, that presumes
there are gases that are toxic in any quantity and in any environment, in contrast to the
manner in which nitrogen is dangerous. As the Eighth District Court of Appeals noted in
Watkins, “[u]nless the [person] is exposed to a toxic level of a substance, the substance will
not cause the [person] any harm.” Watkins at ¶ 28. Inhaling air with insufficient oxygen
is the corollary of inhaling air with excessive nitrogen. It is the concentration of nitrogen
No. 22AP-292 10
in the atmosphere that causes the harm. (See Stipulation at 418.) Nitrogen is only safe to
breathe when mixed with the appropriate amount of oxygen. (Id.) When Mr. Ray entered
the control room, the concentration of nitrogen was in excess of safe levels. In that moment,
the nitrogen in the room was toxic due to its concentration relative to oxygen.
{¶ 21} The evidence in the record established the safe levels of nitrogen and oxygen
under normal conditions and their unsafe concentrations at the time of Mr. Ray’s death.
The commission’s order added a requirement to the definition of “air contaminants” that
requires a claimant to prove a gas is “per se” toxic, ignoring the rule’s consideration of
relative concentration in its own definition. Finding that nitrogen is a nontoxic gas with
lethal properties at certain concentrations is an illogical result contrary to the intention of
the code. See, e.g., Pennant Moldings, Inc., 2013-Ohio-3259 at ¶ 16.
{¶ 22} Because the SHO erroneously added language to former Ohio Adm.Code
4123:1-5-01(B)(4), the SHO erred in concluding that nitrogen is not an air contaminant.
The record before the commission established the relative concentrations of nitrogen and
oxygen at the time of Mr. Ray’s death, and it was undisputed that those relative
concentrations caused his death. (See Sept. 29, 2023 Memo in Opp. at 2.) Therefore, we
must conclude that the commission abused its discretion in denying the application for a
VSSR award on that basis. Because neither the magistrate nor the commission completed
the VSSR analysis after concluding that nitrogen is not an air contaminant, we remand this
case to the commission with instructions to engage in the remainder of the VSSR analysis.
III. Disposition
{¶ 23} After an examination of the magistrate’s decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of Ms. Culver’s arguments, we
sustain her sole objection. Accordingly, we adopt the magistrate’s findings of fact and
modify the conclusions of law for the reasons discussed above. We grant a limited writ of
mandamus directing the commission to vacate its January 13, 2022 order and issue a new
order adjudicating Ms. Culver’s application consistent with law and this decision.
Objection sustained;
limited writ of mandamus granted.
BEATTY BLUNT and JAMISON, JJ., concur.
No. 22AP-292 11
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Sharmel J. Culver, :
Relator, :
v. : No. 22AP-292
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE’S DECISION
Rendered on August 18, 2023
Karp Steiger Co., L.P.A., and David J. Steiger, and Flowers &
Grube, and Louis E. Grube, Paul W. Flowers, and Melissa A.
Ghrist, for relator.
Dave Yost, Attorney General, and Andrew J. Alatis, for
respondent Industrial Commission of Ohio
Zashin & Rich Co., LPA, Jeffrey J. Wedel, and Scott Coghlan,
for respondent TimkenSteel Corporation.
IN MANDAMUS
{¶ 24} Relator, Sharmel J. Culver, seeks a writ of mandamus ordering respondent
Industrial Commission of Ohio (“commission”) to vacate its order finding that respondent
Timkensteel Corporation (“Timkensteel”) did not commit a violation of a specific safety
requirement (“VSSR”).
I. Findings of Fact
No. 22AP-292 12
{¶ 25} 1. Relator is the surviving spouse of Kenneth B. Ray, Jr., who perished in an
accident on March 20, 2016 in the course of and arising out of his employment with
Timkensteel. Ray died as a result of asphyxiation due to the displacement of oxygen by
nitrogen in the elevator motor room at the Timkensteel Faircrest Plant in Canton, Ohio.
{¶ 26} 2. The elevator motor room, also referred to as the elevator motor control
room or elevator control room, stored the motor to the freight elevator. The room was
accessed by a person-sized door. The room was designed to be enclosed and to maintain
a positive air pressure in order to minimize dust levels inside the room. An air handling
unit located one floor below the elevator motor room provided the air to the room. The
air handling unit’s fans pulled outside air through a filter into the elevator motor room.
Periodically, the fans would stop, and a brief burst of pressurized nitrogen gas would be
applied to the filters to dislodge particulates in order to help clean the filters. The flow of
nitrogen gas would then cease, and the fans would resume operation.
{¶ 27} 3. On the morning of March 20, 2016, Ray was completing his assigned task
of inspecting fire extinguishers at the Faircrest Plant. Ray proceeded alone to the elevator
motor room to inspect the room’s fire extinguisher. However, prior to Ray’s arrival in the
room, the air handling unit’s fans had malfunctioned and ceased operation. Additionally,
nitrogen had been leaking into the room, which displaced the room’s oxygen. Upon
entering the elevator motor room, Ray lost consciousness and died of asphyxiation within
seconds. Shortly following the discovery of Ray’s body, an evaluation of the elevator motor
room revealed that the oxygen level in the room was 4.7 percent. Oxygen levels below
approximately 19.5 percent produce adverse reactions in the human body.
{¶ 28} 4. A first report of injury, occupational disease or death form (“FROI-1”)
was filed with the Bureau of Workers’ Compensation (“bureau”) on April 21, 2016.
Timkensteel, as a self-insured employer, certified the claim for the allowed condition of
death by asphyxia on September 9, 2016. On January 20, 2017, relator filed an IC-8/9
application for additional award for violation of specific safety requirement in a workers’
compensation claim. Relator listed alleged violations of (1) Ohio Adm.Code 4123:1-5-22,
(2) Ohio Adm.Code 4123:1-5-18(C), and (3) Ohio Adm.Code 4123:1-5-17(F). Relator
subsequently amended the application to include an alleged violation of Ohio Adm.Code
4123:1-5-18(E)(2), (3), and (4).
No. 22AP-292 13
{¶ 29} 5. The bureau’s Safety Violations Investigations Unit released a report of
investigation dated April 11, 2017.
{¶ 30} 6. At the request of relator’s counsel, David J. Bizzak, Ph.D., produced a
report dated September 7, 2021 and testified at the VSSR hearing. Dr. Bizzak submitted
multiple articles in support of his opinion, including (1) “Dangers of oxygen-deficient
atmospheres,” (2) “Use Nitrogen Safely,” and (3) a safety bulletin from the U.S. Chemical
Safety and Hazard Investigation Board titled “Hazards of Nitrogen Asphyxiation.” (Stip.
at 407-27.)
{¶ 31} 7. A commission staff hearing officer (“SHO”) conducted a hearing on the
application for VSSR award on November 4, 2021. At the hearing, relator withdrew the
alleged violations of Ohio Adm.Code 4123:1-5-22 and Ohio Adm.Code 4123:1-5-18(E)(2),
(3), and (4). In an order mailed January 13, 2022, the SHO denied relator’s VSSR
application.
{¶ 32} In the order, the SHO rejected Timkensteel’s argument that the elevator
motor room was not a workshop or factory, finding that the room met the definition of
workshop because it contained power-driven machinery and manual labor was performed
therein. With regard to the alleged violation of Ohio Adm.Code 4123:1-5-17(F), the SHO
noted that it was first necessary to determine whether nitrogen was an air contaminant.
Under the version of the rule in effect on the date of Ray’s death, it was necessary to
determine whether nitrogen was a toxic gas. While the SHO found that nitrogen was
present in its gaseous form, the SHO concluded there was no evidence to support that
nitrogen was toxic. In support of this determination, the SHO relied on two of the
aforementioned articles submitted in support of Dr. Bizzak’s opinion. The SHO also relied
on the testimony of Dr. Bizzak as follows:
1. [Relator’s] expert, David Bizzak, Ph.D., P.E., testified
at the hearing nitrogen is not a toxic gas. (Transcript page 76).
He repeatedly stated his opinion that nitrogen was an air
contaminant because it is a “hazardous chemical.” (Transcript
pages 64, 78, 81). This is not the definition of the specific
safety requirement at issue.
(Emphasis sic.) (Stip. at 492.) Considering the evidence presented by relator expressly
indicating nitrogen gas is nontoxic and the requirement to construe all reasonable doubts
No. 22AP-292 14
concerning the interpretation of the safety requirement in favor of the employer, the SHO
found Ohio Adm.Code 4123:1-5-17(F) was not applicable.
{¶ 33} Next, with regard to the alleged violation of Ohio Adm.Code 4123:1-5-18(C),
the SHO found the use of the phrase “ ‘hazardous concentrations’ of air contaminants”
did not alter the definition of air contaminants. Because it had been determined that
nitrogen gas was not a toxic gas and, therefore, not an air contaminant, the SHO found
Ohio Adm.Code 4123:1-5-18(C) was also not applicable. On this basis, the SHO found
relator had not substantiated the violation of the cited specific safety requirements and
denied relator’s January 20, 2017 application for violations of specific safety
requirements.
{¶ 34} 8. On March 24, 2022, the commission denied a motion for rehearing filed
by relator.
{¶ 35} 9. On May 17, 2022, relator filed the instant mandamus action.
II. Discussion and Conclusions of Law
{¶ 36} Relator asserts entitlement to a writ of mandamus granting the VSSR
application on the basis that the commission erred in interpreting the definition of the
term “air contaminant” under the applicable provisions of the Ohio Administrative Code.
A. Violations of Specific Safety Requirements
{¶ 37} The Ohio Constitution provides the commission with authority to
determine VSSR claims, providing in pertinent part:
For the purpose of providing compensation to workmen and
their dependents, for death, injuries or occupational disease,
occasioned in the course of such workmen’s employment,
laws may be passed establishing a state fund to be created by
compulsory contribution thereto by employers, and
administered by the state, determining the terms and
conditions upon which payment shall be made therefrom.
* * * Such board 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 employ[e]es, enacted by the General Assembly or
in the form of an order adopted by such board, and its decision
shall be final.
No. 22AP-292 15
Ohio Constitution, Article II, Section 35. R.C. Chapter 4121 “reflects this constitutional
provision of authority and addresses VSSR violations.” Zarbana Indus. v. Hayes, 10th
Dist. No. 18AP-104, 2018-Ohio-4965, ¶ 17. R.C. 4121.47(A) provides that “[n]o employer
shall violate a specific safety rule adopted by the administrator of workers’ compensation
pursuant to [R.C. 4121.13] or an act of the general assembly to protect the lives, health,
and safety of employees pursuant to [Ohio Constitution, Article II, Section 35].” A specific
safety requirement is one that is (1) enacted either by the General Assembly or through
an order of the Industrial Commission; (2) is specific, not general; and (3) is made for the
protection of the lives, health, or safety of employees. State ex rel. Cotterman v. St. Mary’s
Foundry, 46 Ohio St.3d 42, 44 (1989), citing State ex rel. Trydle, v. Indus. Comm., 32
Ohio St.2d 257 (1972), paragraph one of the syllabus.
{¶ 38} “A ‘specific requirement’ is more than a general course of conduct or general
duty or obligation flowing from the employer-employee relationship; rather, it ‘embraces
such lawful, specific and definite requirements or standards of conduct * * * [that] are of
a character plainly to apprise an employer of his legal obligation toward his employees.’ “
State ex rel. Precision Steel Servs. v. Indus. Comm. of Ohio, 145 Ohio St.3d 76, 2015-
Ohio-4798, ¶ 17, quoting Trydle at paragraph one of the syllabus. Specific safety
requirements “must ‘forewarn the employer and establish a standard which [the
employer] may follow.’ ” State ex rel. G & S Metal Prods. v. Moore, 79 Ohio St.3d 471, 476
(1997), quoting State ex rel. Howard Eng. & Mfg. Co. v. Indus. Comm., 148 Ohio St. 165
(1947), paragraph one of the syllabus. “[S]pecific safety requirements are ‘ “intended to
protect employees against their own negligence and folly as well as to provide them a safe
place to work.” ’ ” State ex rel. Byington Builders, Ltd. v. Indus. Comm. of Ohio, 156 Ohio
St.3d 35, 2018-Ohio-5086, ¶ 40, quoting Cotterman at 47, quoting State ex rel. U.S. Steel
Corp. v. Cook, 10 Ohio App.3d 183, 186 (10th Dist.1983). Thus, a “VSSR award is intended
to penalize employers for failing to comply with [specific safety requirements], and only
those acts within the employer’s control should serve as the basis for establishing a VSSR.”
State ex rel. Ohio Paperboard v. Indus. Comm. of Ohio, 152 Ohio St.3d 155, 2017-Ohio-
9233, ¶ 20.
{¶ 39} “An award for a VSSR is ‘a new, separate, and distinct award’ over and above
standard workers’ compensation benefits. It is not covered by an employer’s workers’
No. 22AP-292 16
compensation premium.” Precision Steel at ¶ 15, quoting State ex rel. Newman v. Indus.
Comm., 77 Ohio St.3d 271, 272 (1997). In order to prove a VSSR claim, a claimant must
establish that (1) an applicable and specific safety requirement was in effect at the time
the injury occurred, (2) the employer failed to comply with the requirement, and (3) the
failure to comply was the proximate cause of the injury in question. State ex rel.
Scott v. Indus. Comm. of Ohio, 136 Ohio St.3d 92, 2013-Ohio-2445, ¶ 11.
{¶ 40} “Because a VSSR award is a penalty, a specific safety requirement must be
strictly construed and all reasonable doubts concerning the interpretation must be
resolved in favor of the employer.” State ex rel. 31, Inc. v. Indus. Comm., 152 Ohio St.3d
350, 2017-Ohio-9112, ¶ 21, citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170,
172 (1989). However, “the strict-construction rule does not apply in resolving factual
disputes,” and such rule “permits neither the commission nor a reviewing court to
construe the evidence of a VSSR strictly in the employer’s favor.” (Emphasis sic.) State ex
rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 70.
B. Requirements for Mandamus
{¶ 41} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, a relator must establish a clear legal right to the
requested relief, that the commission has a clear legal duty to provide such relief, and the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Belle Tire
Distribs. v. Indus. Comm., 154 Ohio St.3d 488, 2018-Ohio-2122; State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141 (1967). “ ‘The interpretation of a specific safety
requirement is within the final jurisdiction of the commission and may be corrected in
mandamus only upon a showing that the commission abused its discretion.’ ” State ex rel.
United States Tubular Prods. v. Indus. Comm. of Ohio, 165 Ohio St.3d 85, 2021-Ohio-
1174, ¶ 24, quoting Precision Steel, 2015-Ohio-4798, at ¶ 21. See State ex rel. Lamp v. J.A.
Croson Co., 75 Ohio St.3d 77, 79-80 (1996) (“While we are normally obligated to defer to
the commission’s interpretation of its own rules, we will not defer when the commission’s
interpretation implicitly adds language to the text of the rule.”).
{¶ 42} Where the commission’s factual determination is supported by some
evidence, it has not abused its discretion and this court must uphold the decision. State
No. 22AP-292 17
ex rel. Seibert v. Richard Cyr, Inc., 157 Ohio St.3d 266, 2019-Ohio-3341, ¶ 44, citing State
ex rel. Pass v. C.S.T. Extraction Co., 74 Ohio St.3d 373, 376 (1996); State ex rel.
Armstrong Steel Erectors, Inc. v. Indus. Comm., 144 Ohio St.3d 243, 2015-Ohio-4525,
¶ 13. The commission is “exclusively responsible for assessing the weight and credibility
of evidence.” State ex rel. George v. Indus. Comm., 130 Ohio St.3d 405, 2011-Ohio-6036,
¶ 11, citing State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (1987). Where the
commission’s decision is supported by some evidence, the presence of contrary evidence
in the record is immaterial. State ex rel. West. v. Indus. Comm., 74 Ohio St.3d 354, 356
(1996), citing Burley.
C. Application
{¶ 43} Ohio Adm.Code Chapter 4123:1-5 sets forth specific safety requirements
relating to workshop and factory safety. See Ohio Adm.Code 4123:1-5-01(A). Relator
alleged violations of Ohio Adm.Code 4123:1-5-17(F) and Ohio Adm.Code 4123:1-5-18(C).
At the time of the incident in question, Ohio Adm.Code 4123:1-5-18 provided as follows:
2. (C) Where employees are exposed to hazardous
concentrations of air contaminants, the air contaminants
shall be minimized by at least one of the following methods:
3. (1) Substitute a non-hazardous, or less hazardous
material;
4. (2) Confine or isolate the contaminants;
5. (3) Remove at or near source;
6. (4) Dilution ventilation;
7. (5) Exhaust ventilation; (for examples of exhaust
ventilation, see rule 4123:1-5-99.2 of the Administrative
Code).
8. (6) Using wet methods to allay dusts. Note: Good
housekeeping is of definite value in minimizing air
contaminants created by dusts.
Ohio Adm.Code 4123:1-5-18(C). Then-effective Ohio Adm.Code 4123:1-5-17 provided:
9. (F) Respiratory protection.
10. (1) Where there are air contaminants as defined in rule
4123:1-5-01 of the Administrative Code, the employer shall
provide respiratory equipment approved for the hazard. It
shall be the responsibility of the employee to use the
No. 22AP-292 18
respirator or respiratory equipment provided by the
employer, guard it against damage and report any
malfunction to the employer. Note: See appendix to this rule
for basic guides for the selection of respirators.
11. (2) This requirement does not apply where an effective
exhaust system (see rule 4123:1-5-18 and 4123:1-5-992 of the
Administrative Code) or where other means of equal or
greater protection have been provided.
Ohio Adm.Code 4123:1-5-17(F).
{¶ 44} Under the version of the Ohio Administrative Code in effect at the time of
Ray’s death, “air contaminants” were defined as “hazardous concentrations of fibrosis-
producing or toxic dusts, toxic fumes, toxic mists, toxic vapors, or toxic gases, or any
combination of them when suspended in the atmosphere.” Ohio Adm.Code 4123:1-5-
01(B)(4).4 At that time, the phrase “[h]azardous concentrations (as applied to air
contaminants)” was defined as “concentrations which are known to be in excess of those
which would not normally result in injury to an employee’s health.” Ohio Adm.Code
4123:1-5-01(B)(74).5
{¶ 45} The applicability of Ohio Adm.Code 4123:1-5-17(F) and Ohio Adm.Code
4123:1-5-18(C) depend on a finding that there existed “air contaminants” as defined under
Ohio Adm.Code 4123:1-5-01(B)(4). The SHO found the evidence did not support a finding
that nitrogen was an air contaminant because it was not a toxic gas. Relator asserts the
commission made a clear mistake of law in its interpretation of the term “air
contaminant.” Relator argues the commission should have applied the plain meaning of
4 Following the incident in question in this matter, Ohio Adm.Code 4123:1-5-01(B)(4) was amended
effective June 1, 2016, altering the definition of “air contaminants” to “concentrations of dust, mist, fume,
gas or vapor, or any combination thereof when suspended in the atmosphere.” Ohio Adm.Code 4123:1-5-17
and Ohio Adm.Code 4123:1-5-18(C) were also amended effective June 1, 2016. Because a claimant must
prove that “an applicable and specific safety requirement exists, which was in effect at the time of the
injury,” the former versions of the administrative code in place at the time of the incident on March 20,
2016 apply in this matter. (Emphasis added.) State ex rel. DeMarco v. Indus. Comm., 10th Dist. No. 19AP-
227, 2021-Ohio-1937, ¶ 6. Thus, all references in this matter to Ohio Administrative Code provisions
relating to the alleged specific safety requirement violations are to the versions of the code in effect at the
time of the incident.
5 Effective June 1, 2016, Ohio Adm.Code 4123:1-5-01(B)(74) was amended, altering the definition of
“[h]azardous concentrations (as applied to air contaminants)” to “concentrations of air contaminants which
are in excess of established occupational exposure limits.”
No. 22AP-292 19
the term “toxic” to find that a high concentration of nitrogen is toxic and an air
contaminant within the meaning of Ohio Adm.Code 4123:1-5-01(B)(4).
{¶ 46} In his report, Dr. Bizzak stated: “Nitrogen is a colorless, odorless gas that
compromises 78 percent of the air that we breathe. Because it constitutes such a large
percentage of the air that we normally breathe, [it] is largely inert, nontoxic, and the
average person may consider it to be harmless.” (Emphasis added.) (Stip. at 378.) Dr.
Bizzak explicitly agreed at the VSSR hearing that nitrogen was “nontoxic.” (Stip. at 480.)
Additionally, the article titled “Use Nitrogen Safely,” which was submitted in support of
Dr. Bizzak’s opinion, contains the following statements: “Nitrogen is sometimes
mistakenly considered harmless because it is nontoxic and largely inert.” (Emphasis
added.) (Stip. at 412.)
{¶ 47} Here, it is not necessary to resort to dictionary definitions of the word
“toxic,” because relator provided some evidence demonstrating that nitrogen gas is, in
fact, not a toxic gas. Relator bore the burden of presenting evidence establishing
Timkensteel violated the specific safety requirements at issue. State ex rel.
Gilbert v. Indus. Comm., 10th Dist. No. 05AP-777, 2006-Ohio-4484, ¶ 12; Scott, 2013-
Ohio-2445, at ¶ 31 (finding relator “did not discharge his burden of establishing that he is
entitled to a VSSR award”). The record contains some evidence supporting the conclusion
that nitrogen did not meet the definition of air contaminants because it is not a toxic gas,
which thereby precludes establishing violations of Ohio Adm.Code 4123:1-5-17(F) and
Ohio Adm.Code 4123:1-5-18(C). As there was some evidence to support its determination,
the commission did not commit an abuse of discretion.
{¶ 48} However, even if one were to resort to dictionary definitions of the term
“toxic,” as relator urges, relator’s position would be unchanged. “ ‘The [commission’s]
rules for specific safety requirements have the effect of legislative enactments’ and
therefore are ‘subject to the ordinary rules of statutory construction.’ ” (Brackets sic.)
State ex rel. Parks v. Indus. Comm., 85 Ohio St.3d 22, 25 (1999), quoting State ex rel.
Miller Plumbing Co. v. Indus. Comm., 149 Ohio St. 493, 496-97 (1948). See R.C. 1.42;
Dalton v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-827, 2014-Ohio-2658, ¶ 38
(“[A] court interprets an administrative rule in the same manner it would interpret a
statute.”). In interpreting an administrative rule, a court first looks at the rule’s plain
No. 22AP-292 20
language. Dalton at ¶ 38. If such language is unambiguous, the court applies the
administrative rule as written. Id. Where a term is not defined in the applicable division
of the Ohio Administrative Code, a court “must afford the word its common meaning.”
Byington Builders, 2018-Ohio-5086, at ¶ 23.
{¶ 49} Black’s Law Dictionary defines “toxic” as “[h]aving the character or
producing the effects of a poison; produced by or resulting from a poison; poisonous.”
Black’s Law Dictionary 1720 (10th Ed.2014). Similarly, the New Oxford American
Dictionary defines “toxic” in part as “poisonous” and “relating to or caused by poison.”
New Oxford American Dictionary 1833 (3d Ed.2010). Merriam-Webster’s Collegiate
Dictionary defines “toxic” in part as “containing or being poisonous material esp. when
capable of causing death or serious debilitation.” Merriam-Webster’s Collegiate
Dictionary 1323 (11th Ed.2014). Thus, toxic is commonly understood to mean having the
qualities of, producing the effects of, or resulting from poison, with poison being the
commonality between the definitions.
{¶ 50} The article “Hazards of Nitrogen Asphyxiation” by the U.S. Chemical Safety
and Hazard Investigation Board, which was submitted in support of Dr. Bizzak’s opinion,
contains the following statements: “Nitrogen is not a ‘poison’ in the traditional sense.”
(Stip. at 419.) Thus, even considering the common meaning of toxic, there exists some
evidence in the record to support that nitrogen is not a poison, and, therefore, is not toxic
as such term is understood and applied under the plain text of the Ohio Administrative
Code.
{¶ 51} Nevertheless, relator, citing another dictionary’s definitions of poisonous
and toxic, argues the SHO was “legally mistaken” in concluding that relator’s evidence
demonstrating nitrogen was a “hazardous chemical” was insufficient to establish that
nitrogen was toxic. (Relator’s Brief at 21.) Relator points to Dr. Bizzak’s testimony at the
VSSR hearing in arguing it was established that nitrogen is a hazard. At the VSSR hearing,
Dr. Bizzak described the effects of nitrogen displacing oxygen in breathable air as follows:
“So what happens is that as the nitrogen starts to come into the room, the amount of
oxygen in the atmosphere that is being breathed by people decreases * * * . As it comes
down, it gets to a point where it’s not habitable. For example, I believe at less than ten
percent or so, it -- we’re talking a matter of less than a minute of somebody losing
No. 22AP-292 21
consciousness.” (Stip. at 475.) When asked whether “too much nitrogen in an enclosed
room is dangerous,” Dr. Bizzak responded that “[i]t’s a hazard, yes.” (Stip. at 475.) This
testimony is consistent with the article titled “Use Nitrogen Safely,” which stated that
nitrogen “can act as a simple asphyxiant by displacing the oxygen in air to levels below
that required to support life.” (Stip. at 412.) Furthermore, the article “Hazards of Nitrogen
Asphyxiation” by the U.S. Chemical Safety and Hazard Investigation Board, which was
also submitted in support of Dr. Bizzak’s opinion, states that nitrogen “presents a hazard
when it displaces oxygen, making the atmosphere hazardous to humans.” (Stip. at 419.)
{¶ 52} Relator argues that “[t]he plain meaning of ‘toxic’ as poisonous, and the
ordinary meaning of ‘poisonous’ as ‘destructive’ and ‘harmful,’ demonstrates that a high
concentration of nitrogen is toxic and an air contaminant within the definition of Ohio
Administrative Code 4123:1-5-01(B)(4).” (Relator’s Brief at 21-22.) In order to reach this
conclusion, however, relator’s argument relies on the insertion of the phrase “high
concentration,” a phrase found nowhere in the dictionary definitions cited by relator.
{¶ 53} In the relevant portions of the Ohio Administrative Code in effect at the
time, various provisions addressed the phrase “hazardous concentrations.” The usage of
the phrase “hazardous concentrations” demonstrates that the rule’s drafters were aware
of how to address situations involving concentrations and also knew how to say hazardous
when that was what was intended. However, Ohio Adm.Code 4123:1-5-01(B)(4) required
a finding of a toxic gas in order to qualify as an air contaminant. There was evidence in
this matter that nitrogen is nontoxic, though hazardous in concentrations where it
displaces oxygen, thereby leading to unsafe levels of oxygen. Defining “toxic gas” to
include “high or hazardous concentrations of a nontoxic gas” gives rise to a redundant
and absurd result with respect to the definition of “air contaminants” under Ohio
Adm.Code 4123:1-5-01(B)(4). See State ex rel. Baroni v. Colletti, 130 Ohio St.3d 208,
2011-Ohio-5351, ¶ 18, quoting Morning View Care Ctr.-Fulton v. Ohio Dept. of Human
Servs., 148 Ohio App.3d 518, 2002-Ohio-2878, ¶ 36 (10th Dist.) (“ ‘The interpretation of
statutes and administrative rules should follow the principle that neither is to be
construed in any way other than as the words demand.’ ”); State ex rel. Haines v. Rhodes,
168 Ohio St. 165, 170 (1958) (stating that “a construction which results in a ridiculous or
absurd situation must be avoided if reasonably possible”). The text of the rule is not
No. 22AP-292 22
ambiguous and must therefore be applied as written. Dalton, 2014-Ohio-2658, at ¶ 38.
As a result, the magistrate cannot find the SHO erred in rejecting relator’s preferred
construction of the relevant Ohio Administrative Code provisions. Furthermore, this
finding is in line with the rule of strict construction and resolving all reasonable doubts
concerning the interpretation in favor of the employer. Burton, 46 Ohio St.3d at 172.
{¶ 54} Finally, relator argues the SHO made an obvious mistake of fact by focusing
on the toxicity of nitrogen as it occurs naturally in air as opposed to in the concentration
present in the elevator motor room on March 20, 2016. Although described in terms of a
mistake of fact, this is merely a restatement of the argument that the definition of toxic
should include circumstances in which a nontoxic gas has hazardous or lethal effect due
to its concentration. Relator disagrees with the SHO’s conclusion that “[n]o evidence has
been presented to substantiate nitrogen gas is a toxic gas.” (Stip. at 492.) However, as
previously described, relator’s expert, Dr. Bizzak, showed through his testimony and the
articles in support of his opinion that nitrogen is nontoxic. Although relator attempts to
distinguish this evidence, the record clearly reflects that some evidence supported the
SHO’s factual conclusion.
{¶ 55} In reaching this conclusion, the magistrate in no way intends to minimize
the seriousness of the circumstances leading to and resulting in Ray’s untimely death.
This conclusion is made more difficult by the removal of the term “toxic” in the
administrative code’s definition of “air contaminants” shortly after the incident in
question. However, it is well-established that the law in effect at the time of the injury or
death applies when determining whether a violation of a specific safety requirement was
established. State ex rel. DeMarco v. Indus. Comm., 10th Dist. No. 19AP-227, 2021-Ohio-
1937, ¶ 6. Therefore, based on the foregoing, the magistrate concludes the commission
did not err in determining relator did not establish violations of the specific safety
requirements at issue. As a result, relator has not established a clear legal right to the
requested relief or that the commission was under a clear legal duty to provide it.
D. Conclusion
{¶ 56} Accordingly, it is the decision and recommendation of the magistrate that
the requested writ of mandamus should be denied.
No. 22AP-292 23
/S/ MAGISTRATE
JOSEPH E. WENGER IV
NOTICE TO THE PARTIES
12. Civ.R. 53(D)(3)(a)(iii) provides that a party shall not
assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b). A party may file written objections to
the magistrate’s decision within fourteen days of the filing of
the decision.