State ex rel. Hamlin Steel Prods., L.L.C. v. Indus. Comm.

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Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2012 » State ex rel. Hamlin Steel Prods., L.L.C. v. Indus. Comm.

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-6019

Case Date: 12/20/2012

Plaintiff: State ex rel. Hamlin Steel Prods., L.L.C.

Defendant: Indus. Comm.

Preview:[Cite as State ex rel. Hamlin Steel Prods., L.L.C. v. Indus. Comm., 2012-Ohio-6019.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel.                                                                     :
Hamlin Steel Products, LLC, an Ohio LLC,
f/k/a Hamlin Acquisition, Inc., LLC,                                                          :
Relator,                                                                                      :
No. 10AP-1172
v.                                                                                            :
                                                                                              (REGULAR CALENDAR)
Industrial Commission of Ohio and                                                             :
Christopher J. Bickett,
                                                                                              :
Respondents.
                                                                                              :
D    E    C    I    S    I    O    N
Rendered on December 20, 2012
Roth,   Blair,   Roberts,   Strasfeld   &   Lodge,   LPA,   and
Christopher P. Lacich, for relator.
Michael DeWine, Attorney General, Charissa D. Payer, and
Stephen D. Plymale, for respondent Industrial Commission
of Ohio.
Marsh &  Mittas  Law  Office, LLC,  Bobbie  L. Marsh,  and
William G. Mittas, for respondent Christopher J. Bickett.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, P.J.
{¶1} Relator, Hamlin Steel Products, LLC, an Ohio LLC, f/k/a Hamlin Acquisition,
Inc., LLC, has filed an original action requesting that this court issue a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order
granting  the  application  of  respondent,  Christopher  J.  Bickett                         ("claimant"),  for  an

No. 10AP-1172                                                                                       2
additional award for a violation of a specific safety requirement ("VSSR"), and to enter an
order denying the application.
{¶2} The matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R.  13(M) of the Tenth District Court of Appeals.    The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending that
this court deny relator's request for a writ of mandamus.
{¶3} Relator has filed objections to the magistrate's decision, asserting that (1) the
malfunction at issue was the result of a "first time failure," and therefore does not support
a VSSR award under Ohio law, and (2) the doctrine of unilateral negligence precludes
VSSR liability.  Relator first contends that the single failure exception to the specific safety
requirement rule applies to excuse any alleged failure of compliance with Ohio Adm.Code
4123:1-5-10(c)(5)(e)(vi).    Relator argues that the commission abused its discretion by
ignoring the fact that this was a first time event, and that relator had no knowledge of the
latent defect.   In support, relator relies upon State ex rel. M.T.D. Prods., Inc. v. Stebbins,
43 Ohio St.2d 114 (1975).
{¶4} The commission and magistrate distinguished the facts of this case from
M.T.D. Prods., in which the Supreme Court of Ohio held that "[t]he fact that a safety
device that otherwise complies with the safety regulations failed on a single occasion is not
alone sufficient to find that the safety regulation was violated."   Id. at 118.   In the present
case, the evidence before the commission indicated that the continuous reset button had
been intentionally bypassed (by installation of an extra wire) and did not work.   Thus, the
commission found that, because the safety device had apparently never worked properly
from the time it was bypassed, the continuous reset button did not "otherwise comply"
with the rule (i.e., the facts did not indicate a one-time malfunction of a properly working
safety device).   We find no abuse of discretion by the commission in finding this case
distinguishable from the line of cases applying the M.T.D. Prods. single failure exception.
{¶5} Relator also contends that claimant was unilaterally negligent in causing his
injuries.   Relator argues that claimant's co-worker accidentally placed the machine into
"inch-mode," thinking that it was "manual mode," and that claimant accidentally placed
the press into "continuous mode," thinking it was in "manual mode."   Relator maintains
that neither claimant nor his co-worker had authorization to perform those actions absent
a supervisor's approval.

No. 10AP-1172                                                                                   3
{¶6} Under Ohio law, "[e]mployee negligence bars a VSSR award only where an
employee deliberately removes a safety device or otherwise renders a compliant device
noncompliant."   State ex rel. Kenton Structural & Ornamental Iron Works, Inc. v. Indus.
Comm., 91 Ohio St.3d 411, 416 (2001), citing State ex rel. Frank Brown & Sons, Inc. v.
Indus. Comm., 37 Ohio St.3d 162 (1988).   The question of unilateral negligence "does not
apply where the employee simply makes a mistake that results in injury."  Id. at 417.
{¶7} The commission argues that the unilateral negligence rule is inapplicable to
this case because there is no evidence that claimant disabled a working safety feature, i.e.,
there is no evidence claimant deliberately caused the reset button to be bypassed by means
of a "hot wire."   The commission further argues that, even if claimant and his co-worker
had summoned a supervisor to reset the press, the same injury could have occurred
because the continuous reset button on the press, having been intentionally bypassed, did
not work.
{¶8} We agree with the commission that the doctrine of unilateral negligence is not
applicable to the facts of this case.   The unilateral negligence defense is viable when an
employee "removes or ignores equipment or instruction that complies with a specific
safety requirement."   State ex rel. Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio
St.3d 190, 193 (2000).   Thus, "unless a claimant deliberately circumvented an otherwise
complying  safety  device,                                                                      *   *   *  an  employee's  conduct  is  not  relevant  to  a  VSSR
determination."   State ex rel. Pressware, Internatl., Inc. v. Indus. Comm., 85 Ohio St.3d
284, 288 (1999).  Here, where there is some evidence that the continuous reset button did
not otherwise comply with the applicable rule, the commission did not abuse its discretion
in failing to invoke the unilateral negligence doctrine.
{¶9} Based upon a review of the magistrate's decision, and an independent review
of the record, we find that the magistrate has properly determined the facts and applied
the pertinent law to them.   Accordingly, we adopt the magistrate's decision as our own,
including the findings of fact and conclusions of law contained therein, and relator's
objections are overruled.   In accordance with the magistrate's recommendation, relator's
request for a writ of mandamus is hereby denied.
Objections overruled; writ of mandamus denied.
CONNOR and DORRIAN, JJ., concur.

[Cite as State ex rel. Hamlin Steel Prods., L.L.C. v. Indus. Comm., 2012-Ohio-6019.]
APPENDIX A
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel.                                                                      :
Hamlin Steel Products, LLC, and Ohio LLC,
f.k.a. Hamlin Acquisition, Inc., LLC,                                                          :
Relator,                                                                                       :
No. 10AP-1172
v.                                                                                             :
                                                                                               (REGULAR CALENDAR)
Industrial Commission of Ohio and                                                              :
Christopher J. Bickett,
                                                                                               :
Respondents.
                                                                                               :
M A G I S T R A T E ' S     D E C I S I O N
Rendered on May 29, 2012
Roth,   Blair,   Roberts,   Strasfeld   &   Lodge,   LPA,   and
Christopher P. Lacich, for relator.
Michael DeWine, Attorney General, and Charissa D. Payer,
for respondent Industrial Commission of Ohio.
Marsh &  Mittas  Law  Office, LLC,  Bobbie  L. Marsh,  and
William G. Mittas, for respondent Christopher J. Bickett.
IN MANDAMUS
{¶10}   In this original action, relator, Hamlin Steel Products, LLC, and Ohio LLC,
f.k.a. Hamlin Acquisition, Inc., LLC, requests a writ of mandamus ordering respondent
Industrial Commission of Ohio ("commission") to vacate its order granting the application
of respondent Christopher J. Bickett ("claimant") for an additional award for a violation of
a specific safety requirement ("VSSR") and to enter an order denying the application.

No. 10AP-1172                                                                                 5
Findings of Fact:
{¶11}                                                                                         1.  On February 22, 2006, claimant sustained a crushing injury to his left
hand and forearm when the ram of a mechanical power press unexpectedly cycled while he
and a co-worker were operating the press in a plant operated by Hamlin Steel Products,
LLC ("Hamlin Steel").
{¶12}                                                                                         2.  The industrial claim (No. 06-315872) was allowed by the commission.
{¶13}                                                                                         3.  On July 5, 2007, claimant filed an application for a VSSR award.
{¶14}                                                                                         4.  The VSSR application prompted an investigation by the Safety Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation.
{¶15}                                                                                         5.  On September 18, 2007, the SVIU investigator conducted an on-site visit
at Hamlin Steel's plant located in Akron, Ohio.   On that date, the investigator viewed and
photographed the press where the injury occurred.
{¶16}                                                                                         6.  On September 18, 2007, during the on-site visit, the SVIU investigator
interviewed Lal Teckchandani, the president and CEO of Hamlin Steel.   The investigator
obtained from Teckchandani an affidavit executed September 18, 2007:
[One] Although I did not observe Mr. Bickett's injury occur, I
do have pertinent information.
[Two] I am the President / CEO of Hamlin Steel Products.
The   company   purchased   Hamlin   Acquisition   Inc.
approximately seven (7) years ago and changed the name to
Hamlin Steel Products.
[Three] Mr. Bickett was employed at Hamlin Steel Products
as a utility worker at the time of his injury. Mr. Bickett was
first  employed  at  Hamlin  Steel  Products  in  February 25,
2002  until  March 5,                                                                         2002.  Mr.  Bickett  was  let  go  in
March 2002 because he had failed the post job offer drug
test. Mr. Bickett was rehired at the company November 7,
2005.  Mr.  Bickett's  job  duties  as  a  utility  worker  were
operating the various presses, sorting parts, and grinding.
[Four] Mr. Bickett was provided with on the job training
which was provided by the shift supervisor Jeff Sherman.
Mr. Bickett was explained how to operate the press, how to
operate the palm controls, and how to move the product
from station to station. This training lasts approximately ten
(10)  minutes as this is an unskilled position. Mr. Bickett
understood his job duties at the time of his injury and was

No. 10AP-1172                                                         6
competent in performing the duties. Mr. Bickett was also
provided  with  lock  out                                             /  tag  out  affected  training  and
machine  guarding.  This  training  was  provided  by  Safety
Services  in                                                          2002.  The  training  consisted  of  classroom
lecture, discussion, video, and a question and answer period.
Mr. Bickett received a certification at the completion of this
class.
[Five] Mr. Bickett was required to wear hearing protection,
safety  glasses,  cotton  gloves,  and  steel  toes  shoes.  It  is
believed Mr. Bickett was wearing these items at the time of
his injury.
[Six]  Mr.  Bickett's  injury  involved  the  Danly  mechanical
power  press                                                          (model:  S2-800-84  x                            48,  serial  number
7934101). This press was purchased by the former owner of
Hamlin Acquisition Inc. in approximately 1984. The press is
a part revolution press, was operated in a continuous mode,
and  approximately  six  (6)  months  prior  to  Mr.  Bickett's
injury a second set of palm buttons was added to the press so
it could be operated in the manual mode.
[Seven]  Since  Mr.  Bickett's  injury  a  second  set  of  light
curtains have been added to the back of the press. At the
time of Mr. Bickett's injury there was a light curtain on the
front of the press; however it was only functional during the
continuous mode. Now both light curtains on the front and
back of the press are operational during the manual mode.
[Eight] When Mr. Bickett's injury occurred the press had two
operators; Mr. Bickett and Phillip Hickman. Both employees
had a set of dual palm controls. Both sets of palm controls
had to be pressed simultaneously in order for the press to
actuate. If one employee let off of the palm buttons the press
would stop immediately in its cycle. The dual palm controls
are located on a movable T-stand. The T-stand was observed
approximately five (5) to six (6) feet from the press bed after
the  injury  occurred.  The  dual  palm  controls  also  were
equipped with an emergency stop button located between
the dual palm controls. This button would stop the press
immediately when pressed. This emergency stop button was
within reach of Mr. Bickett at the time of his injury. The
emergency stop button and both of the dual palm controls
functioned correctly during the post incident inspection of
the press.

No. 10AP-1172                                                       7
[Nine]  The  brake  and  anti-repeat  feature  was  inspected
during the post incident investigation. Both the anti-repeat
feature and the braking system function[ed] correctly at that
time.
[Ten] The press did not have any additional guarding at the
time of Mr. Bickett's injury. This would include interlocked
press barrier guard, die enclosure, point of operation device,
fixed barrier guard, gate or movable guard, pull out device,
or hold out / restraint device.
[Eleven]  During  the  post  incident  investigation  it  was
learned either Mr. Bickett or Mr. Hickman let off of the palm
buttons, this stopped the press. The press was then placed
into the inch mode by Mr. Bickett to bring the ram up. Mr.
Bickett  then  placed  the  press  into  the  continuous  mode
instead of the manual mode. Mr. Bickett and Mr. Hickman
then pressed the palm buttons and the press cycled. Mr.
Bickett then went into the die area to move the part to the
next station and the press came down on his left hand. Mr.
Bickett confirmed these events during visits at the hospital
and at his residence.
[Twelve] Also during the post incident investigation it was
learned there was a malfunction with the Arm Button. When
the press is placed into the inch mode the arm button needs
to be pressed prior to the press operating in the continuous
mode. Mr. Bickett had not pressed the arm button prior to
the press being actuated in the continuous mode. It was
learned there was a loose wire in the relay which allowed the
press to actuate in the continuous mode from the inch mode
without the arm button being pressed. The only way this
could happen is when the press [was] in the inch mode and
was placed into the continuous mode. Hamlin Steel Products
was not aware of this issue prior to Mr. Bickett's injury and
not aware of this happening prior to Mr. Bickett's injury.
This issue has been remedied since Mr. Bickett's injury. The
press  was  shut  down  after  Mr.  Bickett's  injury  until  the
company completed the investigation and made the proper
repairs.
[Thirteen] Mr. Bickett was not provided with any tool to
place, remove, or remove stuck work from the press as none
was required.
[Fourteen]  The  modes  of  the  press  are  switched  at  the
control panel. This area has a key which may be locked and

No. 10AP-1172                                                                                  8
taken out to prevent the mode to be changed. Mr. Bickett had
been instructed not to touch the control panel or the mode
buttons.  He  was  specifically  instructed  to  have  a  set  up
person make these changes. At the time of his injury the key
was  in  the  control  panel.  Since  Mr.  Bickett's  injury  the
company locks the control panel and takes the key out of the
control panel.
{¶17}                                                                                          7.  On September 18, 2007, during the on-site visit, the SVIU investigator
interviewed  David  J.  O'Neill  who  is  a  safety  consultant.     An  affidavit  executed
September 18, 2007 was obtained:
[One] Although I did not observe Mr. Bickett's injury occur, I
do have pertinent information.
[Two] I am a safety consultant with Safety Services. I started
consulting with Hamlin Steel Products in late 2000. I help
Hamlin  Steel  Products  with  safety  issues  and  workers'
compensation issues. I conduct post incident investigations.
I conducted the post incident investigation after Mr. Bickett's
injury along with safety management and labor employees
from Hamlin Steel Products.
[Four]  I  provided  Mr.  Bickett  with  lock  out  tag  out  for
affected employees and machine guarding training when he
was hired at the company in 2002. This is conducted in a
classroom setting and lasted approximately one (1) hour. The
training  consisted  of  a  lecture,  discussion,  question  and
answer period, and  watching an approximate fifteen  (15)
minute video. Mr. Bickett received a certification which I
have provided a copy to Investigator Riley.
{¶18}                                                                                          8.  On  September 20,                                                        2007,  following  an  interview  with  the  SVIU
                                                                                               investigator, claimant executed an affidavit:
[One] I am the injured worker in this VSSR claim.
[Two]   Hamlin   Steel   Products   Inc.   hired   me   in
November 2005 as a utility; this was my position at the time
of my injury. My job duties included operating the press,
welding, grinding parts, checking parts, and cleaning.

No. 10AP-1172                                                      9
[Three] I received approximately five (5) minutes of on the
job training from another employee. At the time of my injury
I understood how to perform my job duties.
[Four] I was required to wear safety glasses at the time of my
injury. I was wearing safety glasses and cotton gloves at the
time of my injury.
[Five] My injury occurred on press 77. I am not sure of the
make or model of this press. I do not know how this press is
powered. Phil Hickman and I were operating the press. The
press stopped in mid cycle. Mr. Hickman brought the press
back to the top. We then both pressed the palm buttons, the
press went down and then came up to the top and had
finished the cycle. I reached into the press to move the parts
to the next stage and the press came down on my left hand.
[Six]  Prior  to  my  injury  when  the  press  stopped  Mr.
Hickman turned the key on the control panel to inch, pushed
on   a couple of buttons, and inched the press down and back
up  to  the  top.  Mr.  Hickman  told  me  to  press  my  palm
controls and nothing happened. He then told me to hit his
palm controls and nothing happened. Mr. Hickman came
over to the platform and I noticed he had not turned the key
to where it was supposed to be. I turned the key to the
middle for single stroke. Both of us hit the palm buttons at
the same time and the ram came down and went back up.
Then I went into move the parts to the next stage and the
injury occurred.
[Seven] I am sure when I turned the key it was in the single
stroke mode. The key was straight up and down.
[Eight] The selector switch key was always left in the control
panel. I had never seen the key out of the selector switch. I
was shown  how to  move the selector switch key from  a
couple of the die setters (Jeff Sherman JR and I am not sure
of the other die setters name). I was told by the die setters to
move the selector switch to inch in order to move the ram
back up to the top. Once the ram was at the top I was to
move the selector switch to single stroke. I was never told not
to move the selector switch and to get a die setter.
[Nine] When the press stopped in mid cycle one of us moved
our hands. The palm buttons needed to be pressed until the
die completely closed and someone had moved their hands
prior to the die completely closing.

No. 10AP-1172                                                       10
[Ten] Both Mr. Hickman and I had dual palm controls. The
palm  controls  had  an  emergency  stop  button  located
between the palm buttons. The emergency stop button was
not within reach when my  injury occurred.  The  incident
happened  so  fast  I  did  not  get  a  chance  to  press  the
emergency   stop   button.   The   palm   buttons   were
approximately one (1) to two (2) feet in front of the press
when   my   injury   occurred.   The   palm   buttons   were
approximately one  (1) step to my right and one  (1) step
behind me when the injury occurred[.]
[Eleven] I am not aware of any problems with the palm
controls prior to my injury occurring. If the press stopped in
mid cycle on the day of my injury it was because of either Mr.
Hickman  or  I  moved  our  hands.  There  were  not  any
problems with the palm controls.
[Twelve] Mr. Hickman and I had to press the palm buttons
simultaneously and the buttons had to remain pressed until
the press completed its cycle. If one or both of us let up off of
the buttons the press would stop. Mr. Hickman was standing
beside  me  when  my  injury  occurred  and  neither  Mr.
Hickman nor I had pressed the palm buttons.
[Thirteen] The press did not have any guarding to prevent
my  hands  from  entering  the  area  in  which  my  injury
occurred. The press was in the single stoke mode when my
injury occurred. The press does have a light curtain however
this was not turned on at the time of my injury. I believe the
light  curtain is only turned on when the press is in the
continuous mode. I have never observed the light curtain
operating when the press was in the single stroke mode. I am
not aware of any problems with the light curtain prior to my
injury occurring.
[Fourteen]  After  my  injury  occurred,  Rob  Bullock  (plant
manager), told me the wires to the light curtain had been cut
and some other wires (unknown what wires) had been cut or
were burned. I was not aware of this prior to my injury
occurring. I do not know if management was aware of these
issues prior to my injury occurring. Mr. Bullock also told me
the press malfunctioned; however Mr. Bullock did not say
what the malfunction was.
[Fifteen] Approximately a couple of weeks to one (1) month
prior to my injury occurring the company did some rewiring
on the main control. I am not sure what was done.

No. 10AP-1172                                                     11
[Sixteen] I was not provided with any type of tool to place,
remove, or remove stuck work from the press.
[Seventeen] I am not aware of any problems with the press
prior to my injury occurring. I am not aware of any near
misses or injuries prior to my injury occurring.
{¶19}                                                             9.  On  September                                      20,   2007,  following  an  interview  with  the  SVIU
                                                                  investigator, Phillip Hickman executed an affidavit:
[One] I am a witness in this VSSR claim.
[Two]  Hamlin  Steel  Products  hired  me  in  approximately
2005. At the time of Mr. Bickett's injury I was assembly. I
would go where ever the foreman needed me to work; I was a
helper.
[Three] Mr. [Bickett] and I were working at press 77 on the
day of his injury. We were working side by side. We hit the
palm buttons and the machine cycled. The ram went up to
the top, we went into the press to the [sic] move the parts to
the next station and the ram came down on Mr. Bickett's
hand. I was able to get out of the way.
[Four]  The press  had  stopped in mid cycle prior to  Mr.
Bickett's  injury  occurring.  I  believe  the  press  stopped
because I sneezed and took my hands off the buttons once
the cycle had started. Mr. Bickett placed the press in the inch
mode I inched the ram back to the top at the control panel.
Mr. Bickett put the press in the inch mode because he was
standing right there. Once the ram was inched to the top, Mr.
Bickett switched the press to the manual mode. We pressed
the palm buttons, the press cycled, and his injury occurred as
we were moving the parts to the next station.
[Five] I am pretty sure Mr. Bickett had the press in the
manual mode. Prior to the injury occurring I saw the press in
the manual mode.
[Six] There was a problem with the reset button for the
continuous mode. I became aware of this problem after Mr.
Bickett's  injury  occurred.  The  maintenance  man               (Keith
Swisher), said the reset button was not wired correctly. I
believe he said the wires were crossed. I do not know if
anyone was aware of  this problem prior to Mr. Bickett's
injury occurring.

No. 10AP-1172                                                         12
[Seven] Both Mr. Bickett and I had our own set of palm
buttons. We were at the front of the press, I was on the right
side of the press and Mr. Bickett was on the left side of the
press. The palm controls were located approximately one
and one half  (1  1/2) to two  (2) feet from the front of the
press. The blanks which were being placed on a pallet to
[the] left of where we were standing. The blanks were not in
between the palm buttons and the press.
[Eight] The press had a light curtain on the front of the
press. The light curtain was not working and was turned off
at the time of the injury. The light curtain had been messing
up  through  out  the  day  on  the  first  shift.  I  believe  Mr.
Swisher turned the light curtain off during the first shift.
When Mr. Bickett and I started the second shift the light
curtain had already been turned off; the light curtain was not
on during our shift prior to the injury occurring.
[Nine] Normally the light curtain would be on when the
press was in the manual mode. The light curtain was not only
used in the continuous mode but also in the manual mode.
[Ten] The key for the selector switch was left in the press at
the time of the injury. This key was never taken out of the
selector switch. Now the selector switch has a combination
lock and only the die setters and the maintenance personnel
have the combination.
[Eleven] There was not any additional guarding for the press
at the time of the injury other than the two palm controls.
The press was not equipped with an interlocked press barrier
guard, point of operation device, die enclosure, fixed barrier
guard,  adjustable  barrier  guard,  gate  or  movable  barrier
device, pull out device, or hold out / restraint device.
[Twelve] There was an emergency stop button located on
both  of  the  palm  controls.  The  emergency  stop  buttons
stopped  the  press  immediately.  I  did  not  press  the
emergency  stop  button  when  the  injury  occurred;  I  was
trying to pull Mr. Bickett out of the press.
[Thirteen] Since Mr. Bickett's injury the company has added
a light curtain to the back of the press. The company now
places cages on the front and back of the press when the
press is running in the continuous mode. Also a sensor has
been added; if the part is not in the press correctly the press
will not cycle.

No. 10AP-1172                                                                                  13
[Fourteen] On the day of Mr. Bickett's injury there were
times where we would hit the palm buttons at the same time
and the press would not cycle. We would have to take our
hands off of the palm buttons and start again. I estimate this
happened four (4) to five (5) times on the day of Mr. Bickett's
injury prior to the injury occurring.
{¶20}                                                                                          10.  After  the  accident,  Plant  Manager  Robert  Bullock  assembled  an
investigative team to investigate the accident.   On February 24, 2006, two days after the
accident, the investigative team issued a five-page "Accident Investigation" report, stating
in part:
Investigation Summary
Reviewed   how   the   press   should   have   been
operating.
The press was running a "manual" die with two operators.
Therefore the light curtains were bypassed and it was set up
with  two  manual  palm  button  pedestals  (each  with  two
switches, one for each hand). The press is set so that it
cannot come down unless all operators hands are on the
palm buttons when in "manual" mode, also known as "single
stroke" mode.
The press should have had the "mode" selector switch set to
"single".
The press should not have started in "continuous" mode
unless  the  press  is  "armed"  by  pressing  the  "continuous
reset"  button  immediately  before  activating  the  palm
buttons.
Reviewed how the press was operating.
The  press  mode  selector  switch  was  in  the  "continuous"
mode. Pictures of the control panel taken right after the
incident  indicate  the  "mode"  selector  switch  was  in
"continuous". The switch was still in "continuous" when the
accident team observed the press.
The  accident  investigation  team  powered  on  the  press.
Attempted  to  activate  the  press  by  pressing  the  palm
buttons, which did not activate the press into continuous
mode (as expected).
The accident investigation team changed the mode to "inch"
and moved the ram to the top of stroke. The "mode" was
switched back to "continuous" engaged the palm buttons
without activating the "continuous reset" button (also known

No. 10AP-1172                                                       14
as  ["]arming" button) and the palm buttons engaged. The
press started and went into continuous mode and cycled
several times until the stop button was engaged. This was not
as  expected  because  it  should  not  have  started  without
pressing the "continuous reset" button immediately before
activating the palm buttons.
The  accident  investigation  team  changed  the  mode  to
"single" and engaged the palm buttons. The press cycled
once and stopped at the top of the stroke as expected.
The  accident  investigation  team  tested  all  of  the  palm
buttons by attempting to start the press with only 3 buttons.
All palm buttons were operating correctly.
The accident investigation team tested that the press did stop
when in "single stroke" mode if one of the palm buttons was
released  prior  to  the  bottom  of  the  stroke.  When  tested
several times and this function operated correctly.
Recreated the accident circumstances.
After reviewing the statements and the current functioning
of  the  press,  the  accident  investigation  team  successfully
recreated what it believed to events of the incident.
[One]  One of  the operators hands came  off  of  the palm
buttons before it completed the stroke. (This necessitated the
need to use the inch mode to restart the press.)
[Two] Operator put the mode selector switch to "inch" and
raised the ram.
[Three]  Both  Operators  moved  the  parts  to  their  next
stations.
[Four] Primary operator leaned over and moved the selector
switched the "mode" selector switch to what he thought was
"single" but went over to "continuous".
[Five] Both operators engaged their palm buttons and the
press started to cycle.
[Six] After the ram reached bottom, both operators let go [o]f
their palm buttons and got ready to move the parts along the
die.
[Seven]  As  the  die  reached  the  top  of  the  stroke,  the
operators were in the point of operation to move the parts
along the die.
[Eight] The Ram continued to cycle downward.
[Nine] The primary Operator's left hand would have been
furthest into the die when it cycled down.

No. 10AP-1172                                                                  15
Review of probable and possible root causes of the
incident.
[One] The "mode" selector switch was placed in "continuous"
instead of "single" by the operator.
[Two] The "continuous reset" function of the press was not
operating  correctly.  The  press  should  not  have  run  in
"continuous" even if incorrectly placed in this mode unless
the operator "arms" the press by pressing this button. This
circuit failed.
[Three] Current practice allows the Operators to enter the
area near the point of operation as the ram is going up, but
before the press stopped.
11.  On  September 20,  2007,  the  SVIU  investigator  issued  a  four-page
report with exhibits.  The report of investigation states:
[One]  Mr.  Teckchandani  stated  the  company  purchased
Hamlin Acquisition Inc. approximately seven (7) years ago
and changed the name to Hamlin Steel Products Inc. At the
time of Mr. Bickett's injury the company was named Hamlin
Steel Products Inc.
[Two] During the on-site investigation, Investigator Riley
viewed and photographed the Danly mechanical power press
* * *. The press was purchased in approximately  1984 by
Hamlin  Acquisition  and  has  not  been  moved  since  the
purchase. When Mr. Bickett's injury occurred the press had
two  operators                                                                 (Mr.  Bickett  and  Phillip  Hickman),  was
actuated  via  two  sets  of  dual  palm  controls,  and  was
stamping  parts.  According  to  Mr.  O'Neill  both  operators
were on the front side of the press performing their duties.
Since Mr. Bickett's injury a light curtain has been added to
the back of the press and a loose wire for the arm button on
the control panel has been repaired * * *.
[Three] The two operators (Mr. Bickett and Mr. Hickman)
had to press the dual palm controls simultaneously and the
controls  had  to  remain  pressed  until  the  ram  raises,
according to Mr. O'Neill * * *. If one of the palm controls is
released the press would stop immediately  * * *. The post
incident  investigation  revealed  both  sets  of  dual  palm
controls  to  be  working  correctly                                           * * *.  The  press  was
equipped with a light curtain located on the front of the
press; however the light curtain was not operational when
the injury occurred * * *. When Mr. Bickett's injury occurred
the light curtain was only activated when the press was in the
continuous mode * * *. Investigator Riley asked if there was

No. 10AP-1172                                                       16
any additional guarding in place at the time of Mr. Bickett's
injury;  such  as  an  interlocked  press  barrier  guard,  die
enclosure, point of operation device, fixed barrier guard, gate
or movable guard, pull out device, or hold out  / restraint
device. Mr. O'Neill responded there was not any additional
guarding as it is not required with the dual palm controls
* * *.
[Four]  During  the  incident  investigation  the  employer
learned one of the operators had let off of the dual palm
controls causing the press to stop in mid cycle  * * *. Mr.
Bickett placed the press in the inch mode and brought the
ram to the top. Mr. Bickett then placed the press in the
continuous mode instead of the manual mode. Mr. Bickett
and Mr. Hickman pressed the dual palm controls and the
press cycled. Mr. Bickett entered the die area to move a part
to the next station and the press came down on his left hand
* * *.  During  an  exhaustive  inspection  of  the  press  the
employer  learned  there  was  a  malfunction  with  the
continuous arming button. A loose wire allowed the press to
operate in the continuous mode when the press was switched
from the inch mode to the continuous mode without the
continuous  arming  button  being  pressed                          * * *.  When  in
proper condition the press would be placed in the continuous
mode and the continuous arming button would need to be
pressed prior to the machine actuating when the dual palm
controls were pressed. Investigator Riley inquired if there
was any type of work performed on the control panel in the
month prior to Mr. Bickett's injury. Both Mr. Teckchandani
and Mr. O'Neill denied any such work being performed. Mr.
Tec[k]chandani informed Investigator Riley the second set of
dual palm controls had been added approximately six  (6)
months prior to the injury occurring; however no work had
been performed on the control panel * * *.
[Five] The press is equipped with a selector switch which
places the press in the inch, single stroke  (manual), and
continuous  mode.  The  selector  switch  is  located  on  the
control panel * * *. These modes may be locked into position
and a key removed to prevent the selector switch from being
moved. At the time of Mr. Bickett's injury it was a common
practice to leave the key in the selector switch * * *. Since Mr.
Bickett's injury the company has removed the key and the set
up person changes the mode * * *.
[Six] Mr. Bickett was not provided with any tool to place,
remove, or remove stuck work at the time of his injury,

No. 10AP-1172                                                                                 17
according  to  Mr.  Teckchandani                                                              * * *.  Mr.  Teckchandani
explained during the incident investigation the company did
not find any problems with the anti-repeat feature or the
braking system * * *.
[Seven] Mr. Bickett was hired as a utility at [Hamlin] Steel
Products February 25, 2002 and let go March 5, 2002. Mr.
Bickett was rehired November 7, 2005 as a utility. His job
duties  included  operating  the  various  company  presses,
sorting parts and grinding, Mr. Teckchandani advised * * *.
Mr. Bickett was provided with classroom training for lock
out / tag out and machine guarding in 2002 * * *. Mr. Bickett
was  provided  with  on  the  job  training  in                                               2005  which
consisted of a shift supervisor explaining the press, showing
Mr. Bickett how to operate the press, and how to move the
product from station to station. Mr. Teckchandani estimated
this training lasted approximately ten (10) minutes * * *.
{¶21}                                                                                         12.  On the date of injury, i.e., February 22, 2006, Clinton G. Hoover was
employed by Hamlin Steel as an electrician millwright in the maintenance department at
the plant where the injury occurred.  Hoover had been employed in this capacity for about
two and one-half years prior to the injury.   Hoover was one of the 12 members of the
investigative team assembled by Bullock to investigate the accident.  Hoover was asked by
Bullock to do a trouble shooting examination of the press.
{¶22}                                                                                         13.  On November 20, 2007, Hoover was deposed on cross-examination by
counsel for plaintiffs in a civil action filed in the Summit County Court of Common Pleas.
Christopher J. Bickett was one of the plaintiffs who brought the action.   Hamlin Steel was
the defendant in the civil action.   Presumably, the action was an intentional tort action
involving the accident at issue here.
{¶23}                                                                                         14.  Hoover's deposition was recorded and transcribed.   The transcript was
filed by claimant as evidence to be considered by the commission in the VSSR matter.
{¶24}                                                                                         15.  During Hoover's deposition, the following exchanges between Hoover
and plaintiffs' counsel were recorded:
Q. When you went over to the press that next morning to do
the troubleshooting, tell me how you went about doing that.
A. I can't remember all the particulars of that particular
morning. We verified what was -- what went on, and then we

No. 10AP-1172                                                    18
proceeded to try to find the problem causing this  -- this
particular problem to happen.
Q. And how did you go about doing that?
A. We used the electrical schematic and our meters and
started checking out circuitry.
Q. And did you find something that was not correct?
A. Yes, sir.
Q. What did you find?
A.   We found a wire that was -- had been attached to the
automatic circuitry and it did not belong there.
Q. Anything else?
A. That's -- that was the -- what we found.
Q. Okay. Now, when you say you found a wire, describe the
wire to me.
A. It was what we call the hot wire.
Q. And what does that mean?
A.   Best way I can explain it, like you have a light switch
going to these lights. When you flip that switch on, you send
a hot wire up to the bulb to turn it on, okay? That's -- when
we  turned  the  --  energize  the  power,  this  wire  became
energized in the circuitry.
Q. And what did the wire look like?
A. It was a red wire.
Q.   When you say, "Red," was the metal of the wire red or
was there a insulating --
A.  Insulating.
Q. -- casing over it?
A. Pardon?
Q. There was an insulation casing over it?

No. 10AP-1172                                                        19
A. The insulation was red.
Q. Okay. And how long was the wire?
A. That I can't really -- I wish I could answer that properly
because I can't.
Q. I'm just trying to get an idea. I mean, is this a piece of wire
that's 1 inch long or it is 6 inches or 18 inches or what is it?
A.  I'm  going  to  say  between  12  and  15  inches,  in  that
proximity, if my memory serves me right.
Q. Now, if I understood what you told me, you determined
that -- let me back up.
Where you saw that wire attached, both at the power supply
end  and  at  the  automatic  circuitry  end,  was  the  wire
appropriately attached in the sense that it was tightened
down?
A. Yes.
Q.  All  right.  So  it  appeared  to  you  as  if  it  had  been
intentionally put in that location at both ends.
MR. O'NEIL[L]: Objection.
Go ahead.
THE WITNESS: Yes.
BY MR. ROYER:
Q. In other words, it was attached; everything was tight.
A. Yes, everything…
Q. All right. Did you determine that at one end or the other
of that wire that it wasn't supposed to be in that location?
A. Yes.
Q.  Which  end  did  you  determine  was  not  where  it  was
supposed to be?

No. 10AP-1172                                                       20
A. The wire was on the switch, the end on the switch.
Q. Okay. So you're saying that that wire was not supposed to
be attached to the automatic circuitry switch.
A. Right.
Q. Was that wire supposed to be attached someplace else or
should the whole wire not have been there?
A. It should not have been there.
Q. All right. Was there any proper place for that wire to be in
this --
A. Not that -- my observation.
Q.  So  by  just  removing  this  wire  completely  and  not
replacing  it,  you  were  able  to  get  the  press  functioning
properly?
A. Best of my knowledge, yes.
Q. So this was not a loose wire?
A. No.
Q. This was not a wire that was just connected at the wrong
place and should have been connected at a different place?
A. Say that again. I'm --
Q. That was not a wire that was connected at the wrong place
and just should have been connected someplace different?
A. Right.
Q. That's not what this was.
A. No.
Q. This was an entirely extra wire that had been added into
the wiring that should not have been there at all.
A. Right.

No. 10AP-1172                                                                             21
Q. Okay. Do you know who put the red wire in that press?
A. No, sir, I do not.
Q. Do you know why the red wire was put into the press?
A. No, sir, I do not.
Q. What did -- did Keith Swisher, did he see that red wire
with you?
A. Yes.
Q. Was it you and Keith Swisher that determined that that
red wire should not have been there?
A. If my memory serves me right, yes.
Hoover deposition, 9-11, 15-17, 27.
During Hoover's deposition, the  following exchange occurred between
Hoover and defendant's counsel:
Q. Do you know how long that wire was in that location,
hooked up that way?
A. No, sir, I do not.
Q. Do you know how it got hooked up like that?
A. No, sir, I do not.
Q. Had anyone complained to you before that the continuous
arming button did not work properly?
A. No, sir.
Hoover deposition, 34, 37.
{¶25}                                                                                     16.  On the date of injury, i.e., February 22,  2006, Keith A. Swisher was
employed by Hamlin Steel as a mechanic/master electrician.   In that capacity, he was
involved in maintenance at the plant where the injury occurred.   Swisher's supervisor,
Marion Stokes, asked him and Hoover to examine the press to determine what happened
on the date of injury.

No. 10AP-1172                                                                                 22
{¶26}                                                                                         17.  On December 14, 2008, Swisher was deposed on cross-examination by
counsel for plaintiffs in the civil action filed in the Summit County Court of Common Pleas
mentioned earlier.  Swisher's deposition was recorded and transcribed.  The transcript was
filed by claimant as evidence to be considered by the commission in this VSSR matter.
{¶27}                                                                                         18.  During Swisher's deposition, the following exchange between Swisher
and plaintiffs' counsel was recorded:
Q. Okay. So tell me what you and Clint Hoover did.
THE WITNESS: I know we started the press up, and we
cycled the press. I don't remember if it was in inch or single
stroke or what it was. I also think we ran it in continuous
mode also. At that point, everything seemed to be working
like it should.
We -- boy, I just don't remember. Somehow we ended up in
back of the press, there's a -- a big cabinet back there up
against the wall where all the relays and controls, contactors,
are located. We ended up back there looking at some relays,
related to  the continuous run circuit.  Somehow,  some  --
something caught one of our eyes, I don't recall who it was,
but something caught our eye, either a wire just hanging
there or a different wire number on a relay or something that
-- that told us to trace it out.
And we traced it out, and that particular wire went back over
to the press to a junction box. And I don't remember if the
wire was numbered wrong or if it had the right number on it
and it was on the wrong terminal. I do believe it was a
completely different wire. But it went to a terminal in that
terminal box which stayed hot all the time, no matter where
the selector switch for the inch, single stroke and continuous
was located.
Q. Okay. So if I understand what you were telling me, you
found a problem in the wiring of the controls on Press No.
77?
A. Yes.

No. 10AP-1172                                                       23
Q.  And  the  problem  that  you  found was  something  that
would make the continuous operation hot, as your phrased
it, all the time?
A. That's correct.
Q. So that if the press -- if the -- I'm sorry. So that if the
mode selector switch was turned to the continuous mode, the
press would operate in the continuous mode, even if the
continuous reset arming button was not pushed?
A. That's correct.
Q. The problem that you identified with the change in the
wiring to the press controls removed the need to push the
continuous reset button for the press to go into continuous
mode?
MR. O'NEIL[L]: Objection.
BY MR. ROYER:
Q. Correct?
MR. O'NEIL[L]: Go ahead.
THE WITNESS: Yes, you're right. You did not have to push
the button. But nobody knew that, nobody knew that the
wiring was changed somewhere along the lines, so anybody
that ever run that press, and that press did used to run in
continuous  mode,  it  just  automatically  flipped  it  over  to
continuous, pushed the button, hit the palm buttons, and
away it went.
Q. Okay. And was that piece of wire inside that hole in the
terminal strip?
A. Yes.
Q. And was the screw tightened down?
A. Yes.

No. 10AP-1172                                                      24
Q. And the wire was crimped tight the way you would if you
tightened the screw down?
A. Yes.
Q. So that end of it was all affixed the way you'd want it to be
if it was intentionally put in there?
A. Right.
Q. As part of any maintenance work that you had done on
Press 77 before the injury to Chris Bickett, did you ever do
any of that after the second T-stand had been added?
A. Other than the lubricating, physically looking at the press
to make sure everything's in the proper place, and to make
sure that the press operates the way it should operate, that's
-- that's about it.
Q. What were the circumstances by which you made sure
that the press operated the way it should operate?
A. Start the press up, and then put it in -- in the mode, and
hit the palm buttons --
Q. What would --
A. -- to cycle the press.
Q. What brought about you doing that?
A. Just to make sure that the controls and stuff worked. They
do all their PMs on the off shift.
Q. All right. That would have been preventative maintenance
that you were doing on Press 77?
A. That is correct.
Q. Is there -- is there anything that you did -- during that
preventative maintenance inspection that you're just telling
me about, is there anything you did that would have tested
whether that continuous reset arming button was properly
performing its function?

No. 10AP-1172                                                                            25
A. I would have to say no, 'cause how I always did it, I just
followed the procedure of how everybody else has done it,
and that's not on that particular press but the other presses,
and I never -- I never ran that press in continuous, I just
cycled it in inch and cycled it in single stroke.
Swisher deposition, 17-18, 20-21, 22-23, 27-28, 63-64.
{¶28}   During  Swisher's  deposition,  the  following  exchange  occurred  between
Swisher and defendant's counsel:
Q. Were you able to determine how long it may have been
hooked up that way?
A. No.
Q. Could have been hooked up for a year, 10 years, 20 years,
as far as you know?
MR. ROYER: Objection.
THE WITNESS: That's right.
Swisher deposition, 75.
{¶29}                                                                                    19.  On  July 27,  2010,  a  staff  hearing  officer  ("SHO")  heard  the  VSSR
application.    The hearing was recorded and transcribed for the record.    Hoover and
Swisher did not testify at the July 27, 2010 hearing.
{¶30}                                                                                    20.  Following the July 27,  2010 hearing, the SHO mailed an order on
September 10, 2010 granting the VSSR application.  The SHO's order explains:
Findings of Fact
By way of history, the Staff Hearing Officer finds that on the
date  of  injury  the  Injured  Worker  was  operating  a
mechanical power press with a co-worker, producing parts
for automobiles. This press, driven by an electric motor, was
designated as "Press 77" by the Employer. The press could be
operated in an automatic or "continuous" mode, whereby it
continuously cycled and produced parts unless stopped by
the operators. It could also operate in manual or "single-
stoke" mode whereby it would only cycle one time, stopping
after each cycle. This mode would be used when parts were
to be manually moved in the press by the operators after
each cycle.

No. 10AP-1172                                                       26
On the date of injury, the press was operating in the single-
stroke mode. To run the press in this mode, the operators
were   each   required   to   push   two   palm   buttons
simultaneously.  These  buttons  were  located  on  two  "T-
stands" on a platform in front of the press. All four palm
buttons had to be pushed simultaneously before the press
would cycle. When the press had cycled, it would stop, the
operators would move the parts to different positions in the
lower die, and the process would begin again when the palm
buttons were pushed. If an operator stopped pushing a palm
button  for  any  reason  during  the  cycle,  the  press  would
immediately stop. This safety feature prevented an operator
from placing his hands in the danger area of the press while
it cycled.
Palm buttons were not used when the press was operating in
continuous mode. Instead, a second safety device known as a
"light curtain" would be armed on the press when it was set
up  for  continuous  mode  operation.  The  light  curtain
produced a series of light beams that covered the entry area
of the press. If an object such as an operator's hand broke the
beams of light, the press would automatically stop. On this
particular press, the light curtain was installed vertically. As
such, the light curtain could not be used in single-stroke
mode because the operator would break the light beam and
stop the press every time he reached in the press to insert or
remove a part. Therefore, the vertical light curtain was not
activated on the date of injury. After the injury, a horizontal
light curtain was installed that would be operational in either
single-stroke or continuous mode.
If the press stopped for any reason during its operation, the
press would have to be placed into "inch mode." This would
move ("jog") the slide inch by inch back to the top of the
press, where it would then be ready to start a new cycle. To
place the press into inch mode, a mode selector dial would be
turned until the indicator pointed to that mode. A button
would then be pressed until the slide reached its top "dead
center" position. Once it reached this position, the dial would
be switched back to the previous operating mode. If it was
operating in continuous mode, a "continuous reset" button
had to also be pressed to "arm" the continuous mode. The
press would then be ready to resume operations.
The dial that allowed the operating mode to be selected was
in an area of the press to the right of the operators, off of the
platform where the operators stood. The press also had a key

No. 10AP-1172                                                       27
that could be used to lock the dial so that only an individual
with the key could change the operating mode. There was
testimony that operators had been trained not to change the
mode operation and were supposed to get a supervisor or die
setter if a malfunction occurred and the press needed to be
reset. However, the Injured Worker testified that he had
been  instructed  or  permitted  to  perform  this  function
himself,   although   others   disputed   this   testimony.
Nonetheless, it is undisputed that the Employer's practice
before the injury was to leave the key in the machine where
any employee could access it.
The mode selector dial is set up with "off" to the far left, inch
mode to the middle left, single-stroke mode to the middle
right, and continuous mode to the far right. Mr. Regal, the
Employer's  former  Vice  President,  testified  that  if  an
operator stood on the platform in front of the press and
reached to change the selector switch, he could mistakenly
place the press into an incorrect mode because the dial is so
hard  to  read  from  that  position.  The  Injured  Worker
confirmed this in his testimony.
When the press has been set up in the single-stroke mode,
the palm buttons are the active safety feature of the press. If
the dial is switched to the continuous mode, the light curtain
does not automatically become active to protect the operator
from placing his hands in the die area. Instead,  a setup
person  must  activate  the  light  curtain.  In  addition,  as
indicated previously, the press was not supposed to run in
continuous  mode  until  the  continuous  reset  button  was
pushed after the mode selector was switched to continuous
mode.
On the date of injury, the Injured Worker and a coworker,
Mr.  Hickman,  were  operating  the  press  in  single-stroke
mode. During one cycle, while they were pushing their palm
buttons, Mr. Hickman sneezed and one of his hands came off
a palm button. This caused the press to stop, as it is designed
to do. Mr. Hickman indicated in his deposition testimony
that he called for their supervisor to reset the machine, but
no one came after approximately ten minutes. When no one
came to reset the press, they decided to do it themselves. The
Injured Worker testified in his deposition that they did not
call for a supervisor but rather decided themselves to reset
the press. Nonetheless, at some point Mr. Hickman exited
the platform, walked to the control box, and placed the press
into inch mode by turning the mode selector dial to the left.

No. 10AP-1172                                                     28
He then jogged the slide back to the top, where it was ready
to begin a new cycle.
Mr. Hickman then went back to his position on the platform.
He and the Injured Worker individually pressed their palm
buttons to be sure the press would not cycle with only one set
of palm buttons engaged. When the press did not run with
only one set of palm buttons depressed, they believed it was
ready to run in single-stroke mode. However, the press was
still in inch mode, so the Injured Worker leaned over from
his position on the platform and reached to the selector
switch. There is some confusion in the Injured Worker's
account of what he did, at one time indicating that he was
locking  the  key  for  the  selector  switch,  another  time
indicating that he moved the switch from inch to single-
stroke.  Regardless,  both  the  Injured  Worker  and  Mr.
Hickman believed the press was placed into single-stroke
mode and was ready to begin operations again. They pressed
their palm buttons simultaneously and the press cycled. The
Injured Worker reached into the press to move his parts, but
Mr. Hickman was momentarily delayed when his shirt sleeve
caught on his T-stand. While the Injured Worker was moving
his parts, the press  cycled  again, crushing his left  hand.
Following  the  injury,  Mr.  Hickman  and  other  employees
looked at the mode selector dial and saw that it had been
turned to continuous mode, not single-stroke mode as the
Injured Worker had intended.
Subsequent  investigation  by  the  Employer's  maintenance
men, Clinton Hoover and Keith Swisher, revealed that the
continuous reset button had been bypassed by a "hot wire"
that allowed the press to run without pushing the continuous
reset  button  when  switched  to  the  continuous  mode.
Accordingly, when the press was accidentally switched to the
continuous mode, it was ready to run even though neither
the  Injured  Worker  nor  Mr.  Hickman  had  pushed  the
continuous reset button. Thus, when the Injured Worker and
Mr. Hickman pushed their palm buttons to start the press,
they were unknowingly starting it in continuous mode.
Conclusions of Law
Finally,   with   regard   to                                     [Ohio   Adm.Code   4123:1-5-
10(C)(5)(e)](vi), the press at issue apparently was placed into
continuous  operating  mode  accidentally  by  the  Injured

No. 10AP-1172                                                       29
Worker when he reached over to turn the mode selector dial
from inch mode to single stroke or to turn the key to the
locked position. However, this alone should not have placed
the press into continuous operating mode, as the press was
designed  with  another  safety  feature  that  would  prevent
continuous mode operation in such an instance. Specifically,
a "continuous reset" button was to be pushed before the
press would operate in that mode. If that button was not
pushed  by  the  operator,  it  was  not  supposed  to  run  in
continuous mode. The requirement that an operator turn the
mode selector  to  "continuous" AND push the continuous
reset button conforms to this portion of the rule that requires
setting the press into continuous mode AND "a separate
action by the operator" before it will so run. Turning the dial
to "continuous" and pushing the continuous reset button are
separate actions on this press.
However, in this instance this safety device failed and the
press operated in continuous mode WITHOUT the operator
pushing the continuous reset button. This led directly to the
Injured Worker's injury as he believed the press was in single
stroke mode and therefore had his hands in the point of
operation following the first stroke, not knowing that it was
in continuous mode and another stroke was imminent.
Subsequent    investigation    by    the    Employer's    own
maintenance personnel revealed that the continuous reset
button had been intentionally bypassed by the installation of
an  extra  wire  that  allowed  the  press  to  be  operated  in
continuous  mode  without  pushing  the  continuous  reset
button. With this alteration, all that was necessary to operate
in continuous mode was for the operator to select that mode
-  intentionally  or  accidentally                                  -  and  start  the  press  as
normal. Of note, although the Employer at various times
referred to a "short circuit" as the cause of the failure of the
continuous reset button, it is clear that the continuous reset
button  was  intentionally  bypassed  at  some  point  by  the
installation of an extra wire. This is clear from the testimony
of Mr. Hoover and Mr. Swisher. Where this wire came from
and who installed it has never been proven. The press was
purchased by the Employer from another manufacturer in
used condition in 1980. Regardless, there is no doubt that
the  installation  of  this  wire  caused  the  continuous  reset
button  to  be  ineffective  in  preventing  the  accidental
operation of the press in continuous mode.

No. 10AP-1172                                                        30
Mr. Regal testified that the Employer did not know that the
continuous  reset  button  had  been  bypassed  because  the
start-up procedures for operating the press in the continuous
mode  always  required  the  setup  person  to  select  the
continuous  mode  and  press  the  continuous  reset  button
prior to beginning continuous mode operations. However,
the ease with which the Injured Worker accidentally placed
the press into continuous mode casts doubt on the assertion
that press  77 had never been accidentally placed into the
continuous mode in the 26 years the Employer owned this
machine before the date of injury.
Nonetheless, even if this was a first-time event that had
never happened before, this fact does not excuse the rule
violation that occurred. It is true that generally a one-time
failure  of  an  otherwise  complying  safety  device  does  not
result in a finding that a specific safety requirement was
violated.  State  ex  rel.  M.T.D.  Products,  Inc.  v.  Stebbins
(1975), 43 Ohio St. 2d 114. Had there been an unexpected
short circuit that defeated a properly functioning continuous
reset button, perhaps there would be no rule violation under
M.T.D. This is not the case, however, as the continuous reset
button had been intentionally bypassed and did not work. In
fact, this safety device apparently had never worked from the
time that it was first bypassed, whatever the date. Only sheer
luck had prevented such an accident from occurring before
the  date  of  injury  in  this  claim.  Thus,  the  bypassed
continuous reset button did not "otherwise comply" with the
rule and the Injured Worker's accident does not qualify as a
"one-time failure" that can be excused.
The Staff Hearing Officer concludes that the Employer has
violation Ohio Adm. Code 4123:1-5-10(C) (5) (e) (vi).
Conclusion
The Staff Hearing Officer finds that the Employer violated
Ohio Adm. Code 4123:1-5-10(C) (5) (e) (vi) which led directly
to the Injured Worker's injury. Further, the Injured Worker
sustained  a  serious  injury  to  his  left

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