State ex rel. McKinney v. Indus. Comm.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5767

Case Date: 12/06/2012

Plaintiff: State ex rel. McKinney

Defendant: Indus. Comm.

Preview:[Cite as State ex rel. McKinney v. Indus. Comm., 2012-Ohio-5767.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Teresa A. McKinney,                                                     :
Relator,                                                                                      :
v.                                                                                            :                                                                   No. 10AP-1170
[CSP of Ohio, LLC] and                                                                        :                                                                   (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                                                              :
Respondents.
                                                                                              :
D    E    C    I    S    I    O    N
Rendered on December 6, 2012
Gallon,  Takacs,  Boissoneault  & Schaffer Co.,  L.P.A., and
Theodore A. Bowman, for relator.
Vorys,  Sater,  Seymour  and  Pease,  LLP,  and  Carl  D.
Smallwood, for respondent CSP of Ohio, LLC.
Michael DeWine, Attorney General, and Colleen C. Erdman,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1}  Relator, Teresa A. McKinney ("relator"), commenced this original action
alleging that her employer, respondent CSP of Ohio, LLC ("company"), violated a specific
safety  requirement                                                                           ("VSSR")  entitling  her  to  an  additional  award  of  workers'
compensation  benefits.  Relator  requests  that  this  court  issue  a  writ  of  mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
that denied her a VSSR award and to enter an order granting her a VSSR award.

No.                                                                                                10AP-1170                                    28
{¶ 2}  This court assigned the matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals.  The magistrate issued a decision that
included findings of fact and conclusions of law and a recommendation that this court
deny the requested writ.  The magistrate's decision is appended to this decision.
{¶ 3}    For the reasons that follow, we adopt as our own the magistrate's decision,
including the findings of fact and conclusions of law, and deny the requested writ of
mandamus.
Relator's Objections
{¶ 4}  Relator  has filed two  objections to  the magistrate's  decision.  Both the
commission and the company have filed memoranda contra.   We summarize relator's
objections as follows: (1) the magistrate should have found that the commission abused its
discretion in finding that Ohio Adm.Code 4123:1-5-11(E)(1) through (6) did not apply to
her claim, and (2) the magistrate should have applied the precedent established in State
ex rel. Advanced Metal Precision Prods. v. Indus. Comm., 111 Ohio St.3d 109, 2006-Ohio-
5336, and found that her injury occurred in violation of Ohio Adm.Code 4123:1-5-11(E).
{¶ 5}  In considering relator's objections, we are mindful that the Supreme Court
of Ohio has characterized a VSSR award as a penalty.   State ex rel. Glunt Industries, Inc.
v. Indus. Comm., 132 Ohio St.3d 78, 2012-Ohio-2125, ¶ 12, citing State ex rel. Burton v.
Indus. Comm., 46 Ohio St.3d 170, 172 (1989).   The commission must, therefore, strictly
construe a specific safety regulation in the employer's favor and all reasonable doubts
concerning  the  applicability  of  a  specific  safety  regulation  must  be  resolved  in  the
employer's favor.  Id.
{¶ 6}  Moreover, the commission has the discretion to interpret its own rules,
including Ohio Adm.Code 4123:1-5-11(E).                                                            State ex rel. Devore Roofing & Painting v.
Indus. Comm., 101 Ohio St.3d 66, 2004-Ohio-23, ¶ 22, citing State ex rel. Harris v. Indus.
Comm., 12 Ohio St.3d 152, 153 (1984).   If, however, the application of those rules to a
unique factual situation gives rise to a patently illogical result, common sense should
prevail.  Id.  This court may not issue a writ of mandamus in the absence of a finding that
the commission abused its discretion.   State ex rel. V & A Risk Servs. v. Ohio Bur. of
Workers' Comp., 10th Dist. No. 11AP-742, 2012-Ohio-3583, ¶ 18 ("Mandamus will not lie

No.                                                                                                 10AP-1170   28
to  substitute  a  court's  discretion  for  that  of  an  administrative  official  unless  the
administrative official's refusal to perform the act constitutes an abuse of discretion.").
{¶ 7}  Consistent   with   this   precedent,   the   magistrate   opined   that   the
determinative question in this case is whether the commission's interpretation of the
specific safety regulation at issue gives rise to a patently illogical result.
{¶ 8}  In this case, the specific safety regulation at issue is Ohio Adm.Code 4123:1-
5-11(E), which provides that every hydraulic or pneumatic press must be designed to
prevent a worker's hands or fingers from entering the "danger zone" during the press's
"operating cycle."   As noted by the magistrate, Ohio Adm.Code 4123:1-5-01(B)(34) and
(102) provide definitions for the terms "danger zone" and "press."   In Advanced Metal,
the court judicially defined the term "operating cycle" to include "both intentional and
accidental press activation by the machine's operator."  (Emphasis added.) Advanced
Metal at ¶ 1.
{¶ 9}  In  its  first  objection,  relator  argues  that  the  commission  produced  an
illogical result when it determined that a die or mold, when installed in a press for the
purpose of forming or shaping a specific object, is a separate and distinct machine rather
than a part of the press.  The commission determined that the operating cycle of press #5
to create the completed product was separate from the mold's operating cycle, which used
the foot pedal to activate the ejection pin to allow removal of the completed product.
Therefore, the commission determined that the mold was not operating as a press at the
time of the injury.   That conclusion was consistent with the employer's explanation as
detailed in the December 17, 2008 investigative report of the Ohio Bureau of Workers'
Compensation, Safety Violations Investigation Unit.   That report described relator as
stating that the accident occurred just after the press had finished its cycle and had come
open, whereupon relator stepped on a foot pedal to activate the ejector that raised the
completed product.  The ejector failed to properly stay in the raised position until released
by another worker, but instead slammed down on her hand as she reached in to remove
the completed product.
{¶ 10} It is our responsibility to resolve all reasonable doubts concerning the
applicability of Ohio Adm.Code 4123:1-5-11(E) in the employer's favor, and to defer to the
commission's  interpretation  of  its  own  specific  safety  regulations.    In  light  of  that

No.                                                                                             10AP-1170   28
responsibility, we adopt the magistrate's conclusion that it was not patently unreasonable
for the commission to determine that the operating cycle of the press was "separate and
distinct" from the operating cycle of the ejector mechanism of the mold. We therefore
overrule relator's first objection.
{¶ 11} In her second objection, relator contends that the precedent established in
Advanced Metal controls this case.   We disagree, as did the magistrate.   The court in
Advanced Metal defined the term "operating cycle" for purposes of Ohio Adm.Code
4123:1-5-11(E) to include "all operator-activated press activity." (Emphasis added.)   Id. at
¶ 20.   As discussed above, the commission found that operation of the press is distinct
from operation of the ejector mechanism, and the commission's determination was not
patently illogical or contrary to common sense.    Accordingly, it was not unreasonable for
the commission to determine that relator's injuries were not the result of operator-
activated press activity, but rather the result of operator-activated ejector activity.   We
therefore overrule relator's second objection.
Conclusion
{¶ 12} We have independently reviewed the record and overrule relator's two
objections.    Unless  and  until  the  commission  adopts  a  specific  safety  regulation
concerning hydraulic presses that includes within its scope separate equipment inserted
into a press, or changes its interpretation of its current regulation in that manner, we are
required to defer to the commission's current interpretation.   That interpretation was
within the range of a sound exercise of discretion.
{¶ 13} Having, therefore, found no errors on the face of the magistrate's decision,
we adopt that decision as our own, including the findings of fact and conclusions of law
contained in it, and deny the requested writ of mandamus.
Objections overruled; writ of mandamus denied.
BROWN, P.J., and CONNOR, J., concur.

No.                                                                                            10AP-1170                                                                                          28
                                                                                                                                           APPENDIX
                                                                                                                                           IN THE COURT OF APPEALS OF OHIO
                                                                                                                                           TENTH APPELLATE DISTRICT
                                                                                               State of Ohio ex rel. Teresa A. McKinney,   :
                                                                                               Relator,                                    :
v.                                                                                                                                         :                                 No. 10AP-1170
                                                                                               Continental Structural Plastics, Inc. and   :                                 (REGULAR CALENDAR)
                                                                                               Industrial Commission of Ohio,
                                                                                                                                           :
                                                                                               Respondents.
                                                                                                                                           :
M A G I S T R A T E ' S     D E C I S I O N
Rendered on May 17, 2012
Gallon,  Takacs,  Boissoneault  &  Schaffer  Co.  L.P.A.,  and
Theodore A. Bowman, for relator.
Vorys,  Sater,  Seymour  and  Pease  LLP  and  Carl  D.
Smallwood, for respondent Continental Structural Plastics,
Inc./CSP of Ohio, LLC.
Michael DeWine, Attorney General, Colleen C. Erdman and
John Smart, for respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 14} In this original action, relator, Teresa A. McKinney, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
its order denying her application for an additional award for alleged violations of specific

No.                                                                                            10AP-1170   28
safety requirements ("VSSR"), and to enter a VSSR award against respondent CSP of
Ohio, LLC.
Findings of Fact:
{¶ 15} 1.  On August 13, 2007, relator sustained traumatic amputations of the tips
of her right third and fourth fingers while employed as a "de-flasher" on press number five
at a plant operated at the time by Continental Structural Plastics, Inc.  Apparently, CSP of
Ohio, LLC ("CSP") is the successor to Continental Structural Plastics, Inc.
{¶ 16} 2.  Relator, whose name at the time of the injury was Teresa A. Long, filed a
claim for workers' compensation benefits.    The industrial claim  (No.  07-851101) was
allowed by the commission.
{¶ 17} 3.  On June 6, 2008, relator filed an application for a VSSR award.
{¶ 18} 4.  The  application  prompted  an  investigation  by  the  Safety  Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
{¶ 19} 5.  On September  30,  2008, the SVIU investigator conducted an on-site
investigation at the plant operated by CSP.    On that date, the investigator obtained
photographs of the press which he observed on that date.
{¶ 20} 6.  On October 15, 2008, the investigator obtained an affidavit from relator
which she executed on that date.  The affidavit states:
[Two] I began my employment with Continental Structural
Plastics on March 3, 2006[.] I was hired as a de-flasher and I
was employed as a reliever at the time of my injury. I had
been performing the job of reliever for approximately one
year at the time of my injury[.] My job duties as a reliever
involved relieving coworkers for their breaks[.] I relieved
coworkers from various machines throughout the company
during my normal work day[.] I received on-the-job training
for my job duties as a reliever[.]
[Three] On August 13, 2007[,] I reported to work for third
shift and checked the board for my job assignment[.] I saw
that I would be relieving other coworkers throughout my
shift[.] At approximately 12 00 a.m., I reported to Press #5 to
relieve Nona Booze,  de-flasher[.]  Press  #5 is a hydraulic
press  used  in  the  compression  molding  of  fenders  for  a
Mercury Mountaineer[.] Nona only mentioned to me not to
use the top cooling rack because of missing screws before she
left for her break[.] Jeff Sheldon was assigned to the press as

No.                                                                                      10AP-1170   28
the press operator and he was placing the raw material into
the press[.] My job was to remove the completed part from
the press[.]
[Four] The press had just finished its cycle and came open[.]
I stepped on the foot pedal to activate the ejector that raised
the completed part[.] The ejector was supposed to stay in the
raised position until the press operator hit a button on the
control stand[.] I stepped off the foot pedal and as I was
reaching into the press with both of my hands to remove the
completed part, the ejector came slamming down and my
middle and ringer fingers on my right hand were smashed
between the part and the mold[.] I instinctively pulled my
hand free from the press and Jeff Sheldon called for help[.] I
saw another coworker driving by in a golf cart and I asked
him to drive me to the first aid room[.] An ambulance was
called and I was transported to Blanchard Valley Hospital for
medical treatment.
[Five] The ejector on the press was supposed to stay in the
raised position until the press operator hit a button on the
control stand[.] The press was not setup this way at the time
of my injury[.] The ejector stayed up like it was supposed to
when  I  removed  my  foot  from  the  foot  pedal  and  then
slammed down on my hand as I was removing the part[.] I
had been relieving coworkers on press #5 for months and
this was the first time the ejector then slammed down after
removing my foot from the foot pedal[.] I found out after my
injury that they were having problems with the setup of press
#5 before I relieved the de-flasher[.] I was not warned of the
problems with the setup of the press prior to my injury.
[Six] The press was not equipped with guards to prevent my
hand from being trapped in between the part and the mold
in the press[.] The press is equipped with safety lights and
the press should not move when the light beam is broken[.]
However, the safety lights failed to prevent my injury from
occurring[.]
{¶ 21} 7.  The investigator also obtained a so-called "incident report" that was
prepared by CSP's Human Resources Supervisor Mark Senecal.  The incident report states
in part:
At approximately 12 30am on August 13th, 2007, I received a
phone  call  from  Jim  Steele  at  the  CSP  North  Baltimore

No.                                                                   10AP-1170   28
location. He was calling to inform me that Teresa Long had
cut some fingers off at press 5 and he was requesting that I
come to the plant[.]
I arrived at the plant shortly after 1 am[.] I inquired as to the
status of the injured worker[.] She had been transported by
EMS to Blanchard Valley Regional Hospital[.] Her boyfriend
had been notified and her belongings taken care of[.] I spoke
with Brett Smith who provided the initial first aid to the
injured worker[.] He stated that he was able to keep the
employee  fairly  calm  while  they  waited  for  the  EMS  by
keeping her involved in the treatment he was administering,
such as holding cold compresses over the injury[.]
Brett, Jim Steele and I walked over to press 5[.] It had been
secured with caution tape and I was told that no one had
been allowed near it since the time of the injury[.] The mold
in the press at the time was a Mountaineer fender[.] That
particular mold has a slide mechanism on it that is used to
eject the parts[.] I asked Brett to go up to the press and
operate the foot pedal[.] When he depressed the foot pedal
the slide came up[.] When he took his foot off of the pedal
the slide came back down[.] I immediately recognized that
this was not how the ejection system should have been set
up[.] The slide should not come back down until a signal is
sent from the T-stand which is farther away from the mold[.]
As part of the investigation, I took statements from Mike
Greene,  Nona  Booze,  Brett  Smith,  Jeff  Sheldon  and  Jim
Steele[.]
Nona Booze - I spoke with Nona shortly after the incident[.]
She was assigned to the press as a Deflasher[.] She was
feeling very bad and guilty about the injury[.] She stated that
she had not mentioned to Teresa that the ejection on the
press wasn't operating properly when Teresa came to relieve
her[.] She did mention to her that she was not using the top
cooling stand because the mounting screws were missing and
she feared that it might fall and cause an injury[.] Nona
stated that she recognized immediately, as she was pulling
the first part out of the press at the start of the shift, that the
ejection  system  was  not  set  up  properly[.]  She  also
mentioned that there was an issue with the deflash stand
which was taken care of by the production tender[.] She
noted that she contacted her supervisor, Brett Smith about
the ejection system and the cooling nest[.] He told her that

No.                                                                  10AP-1170                                        28
he would get to her as soon as possible because he was
working on an issue at press 1[.] While waiting for Brett, she
and Jeff continued to run the press[.] After running several
parts,  Brett  showed  up  and  Nona  pointed  out  the  loose
cooling  nest.  Brett  told  her  not  to  use  it  until  it  was
repaired[.] She states that as she went to show Brett how the
ejection system was working that he got another call and as
he walked away he told her he'd contact maintenance to
check it out[.] The press continued to run[.] Brett did not tell
her to stop running and she did not ask if the press should be
stopped[.]
Brett Smith - Brett states that he was notified by Nona early
in  the  shift  that  the  ejection  system  at  press               5  wasn't
operating properly because she had to hit the foot pedal for
the ejectors to stay up[.] He states that he called Jim Steele
on the radio to see if there was something Jim could do
about it[.] Jim told him that he would take a look at it[.] Jim
was already working on an issue at press 10[.] Brett states
that the press was running when he went to talk to Nona
about her concerns and that he observed numerous times, as
he walked by, that the press continued to run[.] He stated to
me that he did not recognize Nona's concern as a safety
issue[.] He thought it was more of a convenience issue, that
she was requesting the use of the T-stand over the use of the
foot  pedal[.]  He  states  that  he  had  observed  the  press
running both ways in the past[.]
Observation                                                          -   After   reading   their   statements   and
interviewing both Nona and Brett, I do not feel that either
one of them had an understanding of the seriousness of the
issue  identified  by  Nona[.]  I  do  not  think  that  Nona
identified her concern as a serious safety issue, but more as a
programming issue based upon her previous experience in
running that particular job in that particular press[.] If she
had recognized the seriousness of the issue more from a
safety standpoint than from a programming standpoint then
I'm sure she would have chosen to stop running[.] She is
thought of as a very safety conscious employee[.] By the
same token when Brett was notified of the programming
issue by Nona it never crossed his mind that an employee
safety was a part of the issue[.] Had he recognized it as a
safety issue he would have stopped production[.] He only
thought of it as an employee convenience issue[.]

No.                                                                  10AP-1170                                                 28
As part of this investigation I collected the mold change
documents from press 5 consisting of the Mold Setup Sheet
and a Mold Change Checklist[.] The Mold Setup Sheet is
specific to the LH Mountaineer Fender being set in press 5[.]
Item                                                                 6  on  this  sheet  addresses  the  Ejection  Actuation
setup[.] Lifters are up by foot activation (and) down by safety
stand[.] This is not how it was set up[.] It was set up with the
lifters up by foot pedal and down by foot pedal[.] That is how
the employee's fingers were injured[.] She released the foot
pedal prior to having the part freed from the mold[.] As a
result, her fingers were caught as the slide closed[.] Although
the Mold Setup Sheet addresses the Ejection Setup, the Mold
Change  Checklist  does  not  go  into  detail  regarding  the
ejection system on molds with slides[.] It is generic to all
mold changes[.] There is one item to check indicating only
that the ejector pins are operational[.]   In the case of the
Mountaineer  Fenders,  and  other  fender  jobs,  that  is  not
sufficient[.]
I also reviewed the Level 3 Tool Change Work Instruction[.]
Under  6  0  of  this  work  instruction  regarding  Mold  Set
responsibilities  there  are  specific  responsibilities  for  the
maintenance supervisor and mold technician to sign off on[.]
The maintenance supervisor has responsibility for the overall
safety evaluation of the mold set and is required to do the
safety  sign-off[.]  This  did  not  occur[.]  The  sign-off  was
performed  by  the  production  supervisor  for  the  items
listed[.]  The  maintenance  personnel  who have  previously
performed the safety sign-off are no longer employed with
CSP[.]  The mold technician has  shared  responsibility for
press programming and referencing[.] It appears that the
press was prepared by the production tender and signed
off[.]
Root Cause It is my belief that the change that should have
been made to the ejection system on press 5, prior to it going
into  production,  did  not  occur  because  the  people  who
normally make that type of change were not present[.] The
maintenance  supervisor  who  used                                   [sic]  to  review  mold
setups has left the company[.] The mold technician was not
present on Saturday to ensure the proper programming of

No.                                                                                     10AP-1170   28
the press prior to startup, nor was a process engineer[.]
Simply put, none of the right people were present to ensure
the proper setup of the ejection system[.]
The default setting for press #5 has been changed to the "on"
position in the press setup screen[.] Prior to this, the default
was in the "off" position requiring it to be changed to activate
the proper setup - the slide remains up until activated to go
down by the safety stand[.] If the light curtain is broken, the
slide immediately returns to the up position[.]
(Emphasis sic.)
{¶ 22} 8.  On  December  17,  2008,  the  SVIU  investigator  issued  his  report  of
investigation.  The report states in part:
[Two]  According  to  the  information  obtained  during  the
investigation of this VSSR claim, Injured Worker Teresa A[.]
Long was employed by Continental Structural Plastics as a
reliever and the incident of record occurred on August 13,
2007[.]  Ms[.]  Long  was  in  the  process  of  removing  an
automotive fender from a press when her middle and ring
fingers on her right hand were smashed between the part
and the mold[.]
[Three] This Investigator observed and obtained additional
photographs of the involved Williams-White Moline 750-ton
press. It is a Model SH750-108-60 with Serial Number G-
4244-A. The press is hydraulically powered and it is located
in Department  0150[.] According to records submitted by
the employer, the involved press was put into service in 1978
and has been labeled  press  #5. The employer stated the
involved press was being utilized to form left hand fenders
for Mercury Mountaineers at the time of  the incident of
record.
[Four] The employer stated the mold in the press at the time
of  the  incident  of  record  was  equipped  with  a  slide
mechanism to raise the completed part for manual removal.
The  employer  further  stated  the  slide  mechanism  was
originally configured to be activated by a foot pedal and
lowered by activating a button on a T-stand. The employer
indicated it was discovered during the internal investigation
of the incident that the press had been improperly setup[.]

No.                                                                       10AP-1170                                         28
The employer further indicated the setup of the press at the
time of the incident permitted the slide mechanism to lower
once an employee removed their foot from the foot pedal,
which was the root cause of the injury of record.
[Six] On October 15, 2008 this Investigator met with Injured
Worker Teresa A. Long and obtained an affidavit. Ms. Long
stated   she   began   her   employment   with   Continental
Structural Plastics on March 3, 2006. She further stated she
was hired as a de-flasher and had been performing the job of
reliever for approximately one year at the time of her injury.
Teresa A. Long indicated her job duties as a reliever involved
relieving coworkers for their breaks. Ms. Long continued she
relieved coworkers from various machines throughout the
company  during  her  normal  work  day[.]  She  further
indicated she received on-the-job training for her job duties
as a reliever.
{¶ 23} 9.  On June 9, 2009, Mark Senecal executed an affidavit stating:
[Two] I am responsible for providing direction and support,
evaluating compliance with company policy and regulatory
standards  for  all  Continental  Structural  Plastics  and
subsidiary locations, including the North Baltimore (Ohio)
Plant.
[Three] I make this affidavit in response to the application
for  benefits  for  Violation  of  Specific  Safety  Requirement
(VSSR) filed by Teresa A. Long-McKinney  ("claimant"). I
have  personal  knowledge  of  the  facts  contained  in  this
affidavit and if called will so testify.
[Four] I am familiar with the North Baltimore facility where
claimant  was  employed  in                                               2007.    I  have  reviewed  the
claimant's   VSSR   application,   the   VSSR   Report   of
Investigation Letter dated December  17,  2008  ("Report of
Investigation")   containing   claimant's   affidavit   dated
October 15,                                                               2008,  wherein  claimant  describes  an  injury
occurring on August  13,  2007, while she was working at
Press No. 5.
[Five] As the Report of Investigation demonstrates, Press
No. 5 is a Williams-White Moline 750-ton hydraulic press
bearing Model SH750-108-60 with a Serial No. G-4224-A

No.                                                                  10AP-1170                                          28
[sic]. Press No. 5 is located at the North Baltimore (Ohio)
Plant, and was placed in service in 1978.
[Six] At the time of this accident in August 2007, Press No. 5
was constructed and guarded to prevent the hands or fingers
of the operator from entering the area where material is
actually positioned and work is being performed during the
closing cycle of the press.   Press No. 5 was then and remains
equipped with a "Two-hand control" - an actuating device
which requires the simultaneous use of both hands outside
the "danger zone" during the entire closing cycle of the press.
The two-hand control is the subject of Photograph 16, and is
clearly visible on Photograph No. 3; and on Photograph 31
attached  to  the  Report  of  Investigation.  The  two-hand
control required the operator to depress and hold buttons
depressed until the press closed.
[Seven] In August 2007 Press No. 5 was also equipped with a
light curtain guard on the front and rear of the press. The
light curtain guard is a second means or method which will
provide safeguards, preventing the hands or fingers of the
operator from entering the danger zone during the operating
cycle. A part of the light curtain is visible on Photograph No.
15 attached to the Report of Investigation.
[Eight]  At  the time of  claimant's accident  on August  13,
2007, Press No. 5 contained a separate tool, a compression
mold,  for  a  Ford  2001  U152  Mountaineer  Front  Fender
(Mountaineer  Front  Fender  Mold)  supplied  by  Weber
Manufacturing Ltd. To my understanding, the term "mold" is
not defined separately in the Code governing workshops and
factories.  The  term  mold  is  defined  as  "a  cavity  that  is
designed to form desired final shapes and sizes." A mold can
be a sophisticated piece of machinery with multiple parts.
This mold was manufactured in August 1999 and acquired in
approximately July 2000, or roughly twenty (20) years after
Press  No.                                                           5  was  placed  in  service.  This  mold  is  an
independent  piece  of  machinery;  molds  are  placed  in  or
removed from various hydraulic presses depending upon the
production requirements. The mold had an ejection system
designed to raise and detach the part from the mold cavity so
the part could be removed from the mold.
[Nine] From time to time, and on August  13,  2007, this
Mountaineer Front Fender Mold would have been located in
Press No. 5. The mold was removed from Press No. 5 on

No.                                                                 10AP-1170   28
September 3, 2008, so that it was not part of Press No. 5 on
the  date  the  investigator  visited  Continental  Structural
Plastics on December 17, 2008.
[Ten] I understand that claimant was injured after Press No.
5 had "finished its cycle" and returned to an open position.
Claimant's injury was not caused by the Press moving.  Press
No. 5 was open when the claimant reached in to remove the
part. The press did not move, and the ram did not descend,
while claimant was removing the part.
[Eleven] Instead, as claimant described her injury, she was
injured when an ejector, a part of the mold, descended and
injured her fingers.
[Twelve] I understand that claimant also has cited certain
portions of Ohio Administrative Code Section 4121:1-13-04
related to "Other rubber and plastic processing machines."
This Ford 2001 U152 Mountaineer Front Fender Mold was a
compression mold. I have reviewed this section. The hazard
sought to be prevented by these guarding requirements is the
hazard  presented  by  the  press  closing  and  injuring  an
operator. As noted above, Press No. 5 was equipped with a
"Two-hand control" - an actuating device which requires the
simultaneous use of both hands to depress buttons during
press  closing.  The  two-hand  control  is  clearly  visible  on
Photograph Nos. 16, 3 and 31 attached to the Investigation
Report.  The  two-hand  control  required  the  operator  to
depress both buttons until the press closed.
[Thirteen] Neither Press No.  5, nor the Ford  2001 U152
Mountaineer Front Fender Mold, was involved in injection
molding or blow molding at the time of claimant's accident.
This was not an injection or blow molding process; the Ford
2001  U152  Mountaineer  Fender  was  manufactured  in  a
compression molding operation.
[Fourteen] Photographs 7 through 11 and 27 th[r]ough 30
attached to the Report of Investigation depict the mold. On
the date of the investigation, Continental Structural Plastics
supplied to the Investigator a copy of the Asset Inventory
Sheet that shows the Mountaineer Front Fender Mold was
first   acquired,   installed   and   placed   in   service   in
approximately July 2000.

No.                                                                                           10AP-1170                   28
{¶ 24} 10.  Following a June 10, 2009 hearing which was recorded and transcribed
for the record, a staff hearing officer ("SHO") issued an order granting a VSSR award.  The
SHO's order of June 10, 2009 states:
It is the order of this Staff Hearing Officer that the Injured
Worker was employed on 08/13/2007 by the Employer as a
reliever for a deflasher and that she sustained an injury in
the course and scope of her employment while she was in the
process of removing an automotive fender from a press when
her middle and ring fingers on her right hand were smashed
between a part and the mold.
It is further the finding of the Staff Hearing Officer that the
Injured Worker's injury was the result of the failure of the
Employer to properly guard the mold portion of the press as
required  by  Ohio  Administrative  Code  Chapter  4123:1-5-
11(E), the Code Section relating to Hydraulic or Pneumatic
Presses.
The Injured Worker was injured on 08/13/2007 when she
was in the process of removing an automotive fender from a
press when her middle and long [sic] fingers on her right
hand were smashed between the part and the mold. The
press involved was a Williams-White Moline 750-ton press,
model SH750-108-60 with serial number G4244-A (referred
to as press number 5). The press is hydraulically powered
and  it  is  located  in  department                                                          0150.  According  to  the
records submitted by the Employer, the involved press was
put into service in 1978. The press was being utilized to form
left hand fenders for Mercury Mountaineers at the time of
the incident of record. The mold in the press, at the time of
the incident, was equipped with a slide mechanism to raise
the   completed   part   for   manual   removal.   The   slide
mechanism was originally configured to be activated by a
foot pedal and lowered by activating a button on a T-stand.
The uncontroverted evidence indicates that the press had
been improperly set-up at the time of the incident of record.
The set-up of the press at the time of incident permitted the
slide mechanism to lower once an employee removed their
foot from the foot pedal, which was the root cause of the
injury of record.   The Employer indicated that the involved
press was immediately taken out of service after the incident
of  record  and  the  mold  set-up  sheet  and  mold  change
checklist  were  reviewed  and  revised  before  the  involved
press was placed back into service.

No.                                                                 10AP-1170                                             28
There  is  no  dispute  that  the  injury  occurred  due  to  the
improper set-up of the mold set-up.
The Employer's sole argument is that the Code Section cited
by  Injured  Worker,  Section                                       4123:1-5-11(E)  pertaining  to
Hydraulic  Presses,  is  inapplicable  in  this  case  as  the
Employer contends that the press was properly guarded and
that  the  Code  Section  cited  does  not  pertain  to  molds
specifically.
The Hearing Officer finds the 1977 version of 4121:1-5-11(E)
is applicable as the machine Injured Worker was injured on
was placed into service in 1978.
Section (E) of 4121:1-5-11 indicates that every Hydraulic or
Pneumatic (air-powered press) shall be constructed or shall
be guarded, to prevent the hands or fingers of the operator
from entering the danger zone during the operating cycle.
Accepted  methods  of  guarding  are  listed:  a  fixed  barrier
guard, a gate guard, a two-hand control, a pull guard, a
restraint or hold back guard or other practices, means or
methods  which  will  provide  safeguards,  preventing  the
hands or fingers of the operator from entering the danger
zone during the operating cycle and which are equivalent in
result to one of the types already specified.
The Hearing Officer finds that if the mold portion of the
machine was properly set-up, the applicable Code Section
would have been met and the machine would have been
properly guarded. The uncontroverted evidence is that press
number 5 is a hydraulic press and that the press is equipped
with   a   two-hand   control   device   that   required   the
simultaneous use of both hands outside the danger  zone
during the entire closing cycle of the press. Further, the press
was equipped with a light curtain that guarded the machine
and insured that the press would not close during the closing
cycle of the press. If the beam was interrupted, the press
would  reverse  itself.  The  Employer's  contention  is  that
because the press complied with Ohio Administrative Code
Section                                                             (E)(3)  of  having  a  two-hand  control  and  Ohio
Administrative Code Section (6) providing other practices,
means or methods proving safeguards that the Code Section
has been met. The Hearing Officer finds however, that the

No.                                                                 10AP-1170                                  28
press number 5 was equipped, at the time of injury, with a
mold.
The Hearing Officer finds that the mold was not separate and
apart from the press as contended by the Employer. The
facts supporting this are: (1) [T]he press and the mold were
not  separate  pieces.  There  were  no  separate  operating
manuals submitted to the file. The mold and press were
physically  attached  and  found  to  be  part  of  a  single
integrated  system.                                                 (2)  All  the  evidence  in  the  record
described the mold as being a "component of the press" and
not a separate machine. (see affidavit of Mark K.J. Senecal,
number 8, wherein he indicates "at the time of claimant's
accident on August  13, 2007, press number  5 contained a
separate tool, a compression mold…"). (3) [T]the Employer's
own incident report describes the injury occurring on "press
number 5" (as opposed to occurring on a molding machine)
and describes the problem as occurring due to "the ejection
system"  of  the  press  being  set-up  improperly.  (4)            [T]he
ejector  mechanism  that  raised  the  completed  part  was
supposed to  be controlled by both deflasher  (who would
depress  the  foot  pedal  to  raise  the  mold)  and  the  press
operator (who would hit the button on the control stand of
the press to lower it). When the press was properly set-up,
the mold was not to be an independent piece of machinery
controlled  by  one  person.  According  to  these  facts,  the
Hearing Officer finds the weight of the evidence supports
that  the  mold  was  part  of  the  press.  As  such,  the  Code
Section pertaining to hydraulic or pneumatic presses applies.
According to the mold set-up sheet and the mold change
checklist and the incident report created by Mr. Senecal, the
uncontroverted evidence is that the ejection activation set-up
was supposed to be set-up with "lifters up by foot activation
and down by safety stand." It was not set-up this way at the
time of the injury.    Rather, the machine was set-up with
lifters up by foot pedal and down by foot pedal. This is how
the Injured Worker's fingers were injured. She released the
foot pedal prior to having the part freed from the mold. As a
result, her fingers were caught as the slide closed. Therefore,
the  Hearing  Officer  finds  that  if  the  mold  were  set-up
properly, Ohio Administrative Code Section (E)(6) providing
that "other practices, means or methods which will provide
safeguards preventing the hands or fingers of the operator
from entering the danger zone during the operating cycle…"
would have been met.   Specifically, the deflasher would have

No.                                                               10AP-1170                                                 28
activated the lifting mechanism by depressing the foot pedal
and after she got the part out, a second person would have
activated a second control to lower the mechanism.
The Hearing Officer finds that no violation can be found for
an [sic] one time malfunction of safety equipment when such
was not foreseeable. State ex. rel MTD Products v. Stebbins
(1975) 43 Ohio St.  2d 114. The Court found that in safety
equipment malfunction cases the decision depends upon the
factual  determination  of  whether  there  was  a  one  time
malfunction that the Employer had no reasonable basis to
expect, whether or not the evidence showed a prior history of
malfunctions and/or problems with Employer and that they
should [have] been aware of the problems, and whether or
not, for some other reason, the Employer should have [been]
aware that there was a good chance that a malfunction would
occur. The Hearing Officer finds that the evidence contained
in the record supports that there was an awareness on the
part  of  the  Employer  that  the  machine  was  set-up
improperly.   Further,   the   evidence   supports   that   the
Employer  was,  in  fact,  aware  of  the  malfunction  of  the
machine.
According to the incident report completed by Mr. Senecal
(Human Resource General Supervisor), the mold in press
number 5 was changed out on Saturday, August 11th, and ran
production on second shift under the same improper set-up.
Further, Jim Steele informed Brett Smith, on the date of
injury,  that  "the  press                                        6  (sic)  ejectors  were  not  working
properly" (see statement Jim Steele, exhibit 9, SVIU report).
Further, the evidence from Nona Booze (deflasher) was that
she informed Jeff Sheldon (press operator) that the ejection
system was not set-up right  (see statements Nona Booze,
exhibit                                                           7,  SVIU  report).  The  incident  report  goes  on  to
implicate that the improper set-up occurred because "the
people  who  normally  make  the  type  of  change  were  not
present."  The  maintenance  supervisor  who  used  [sic]  to
review  mold  set-ups  had  left  the  company.  The  mold
technician was not present on the date of injury to ensure
proper programming of the press prior to start up, nor was
the  process  engineer.  The  Hearing  Officer  finds  the
preponderance of the evidence, therefore, indicates that * * *
the Employer should have been aware that there was a good
chance that a malfunction would occur.
(Emphasis sic.)

No.                                                                               10AP-1170                                           28
{¶ 25} 11.  CSP moved for rehearing pursuant to Ohio Adm.Code 4123-3-20(E).
{¶ 26} 12.  On October 28, 2009, another SHO mailed an order denying rehearing.
{¶ 27} 13.  On  November  10,                                                     2009,  CSP  moved  for  reconsideration  and  the
exercise of continuing jurisdiction.
{¶ 28} 14.  On  August                                                            28,                                                 2010,  the  three-member  commission  mailed  an
interlocutory order stating:
It  is  the  finding  of  the  Industrial  Commission  that  the
Employer  has  presented  evidence  of  sufficient  probative
value   to   warrant   adjudication   of   the   request   for
reconsideration  regarding  the  alleged  presence  of  a  clear
mistake of fact in the orders from which reconsideration is
sought,  and  clear  mistake  of  law  of  such  character  that
remedial action would clearly follow.
Specifically, it is alleged that the Staff Hearing Officer order,
issued                                                                            08/12/2009,  impermissibly  expanded  the  safety
requirements  to  include  a  separately  controlled  "mold"
within the definition of "press," and by doing so failed to
strictly construe requirements in favor of the Employer.   It is
further alleged that the Staff Hearing Officer order, issued
08/12/2009, specifically found that the press complied with
the safety requirements, and that the injury did not result
from any violation of any safety provision that applied to the
press.
Based on these findings, the Industrial Commission directs
that  the  Employer's  request  for  reconsideration,  filed
11/10/2009, is to be set for hearing to determine whether the
alleged mistakes of fact and law as noted herein are sufficient
for  the  Industrial  Commission  to  invoke  its  continuing
jurisdiction.
In  the  interest  of  administrative  economy  and  for  the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issue(s).
The Industrial Commission will thereafter issue an order on
the matter of continuing jurisdiction under R.C. 4123.52. If
authority  to  invoke  continuing  jurisdiction  is  found,  the
Industrial  Commission  will  address  the  merits  of  the
underlying issue(s).

No.                                                                                     10AP-1170   28
This order is issued pursuant to State ex rel. Nicholls v.
Indus. Comm. (1988), 81 Ohio St.3d 454, State ex rel. Foster
v.  Indus.  Comm.                                                                       (1999),     85  Ohio  St.3d   320,  and  in
accordance with Ohio Adm.Code 4121-3-09.
{¶ 29} 15.  On September  21,  2010, the commission heard CSP's November  10,
2009 motion.  The hearing was recorded and transcribed for the record.
{¶ 30} 16.  Following the September 21, 2010 hearing, on November 18, 2010, the
commission mailed its unanimous decision that exercises continuing jurisdiction and
then denies the VSSR application.   The commission's September 21, 2010 order (mailed
November 18, 2010) explains:
09/21/2010 - After further review and discussion, it is the
finding of the Industrial Commission that the Employer has
met  its burden of  proving  that  the Staff Hearing  Officer
order, issued 08/12/2009, contains a clear mistake of fact.
Specifically,   the   Staff   Hearing   Officer   erroneously
determined that the injury allowed herein was proximately
caused  by  inadequate  guarding  of  a  hydraulic  press.
However,  as  more  fully  explained  below,  the  evidence
supports  that  the  injury  was  proximately  caused  by  the
improper set-up of a mold and the movement of the mold's
slide  mechanism/ejector  pin  during  the  mold's  operation
cycle,  and  not  during  the  operation  cycle  of  the  press.
Therefore, the Commission exercises continuing jurisdiction
pursuant to R.C. 4123.52 and State ex rel. Nicholls v. Indus.
Comm. (1998),  81 Ohio St.  3d 454, State ex rel. Foster v.
Indus. Comm. (1999), 85 Ohio St. 3d 320, and State ex rel.
Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-
5990, in order to correct this error. The Employer's request
for reconsideration, filed 11/10/2009, is granted. The Staff
Hearing Officer orders issued 10/28/2009 and 8/12/2009,
are vacated.
It  is  the  order  of  the  Commission  that  the  IC-8/9,
Application for Additional Award for Violation of Specific
Safety    Requirement  in a  Workers'  Compensation Claim,
filed 06/06/2008, be denied.
The Injured Worker sustained amputation injuries to the tips
of her right third and fourth fingers on 08/13/2007.   The
Injured Worker was employed as a reliever and she had just
assumed the duties of a co-worker on hydraulic Press #5, a

No.                                                                10AP-1170   28
Williams-White Moline 750-ton Press SH750-108-60, Serial
No. SN G-4244-A  ("Press  #5"). Press  #5 was placed into
service in 1978 and was used, on the date of injury, to form
left hand Mercury Mountaineer fenders with a Mountaineer
Front Fender Mold. This mold was placed into service in
July, 2000, and weighed 36,830 pounds.
Press #5 is equipped with a two-hand control, which requires
the simultaneous use of both hands outside of the danger
zone during the closing cycle of the press. Press #5 is also
equipped with a light  curtain guard, which will  stop the
operation cycle of the press if the plane is broken. The mold
is equipped with a hydraulic ejection system designed to
raise and detach the completed fender from the mold cavity.
Press #5 is operated by two employees - a press operator
and a de-flasher. The press operator places material into the
press and activates the press' closing cycle via a two-hand
control. A timer mechanism determines the length of the
operating cycle and opens the press upon its completion. The
de-flasher then steps on a foot pedal to activate the mold's
ejector slide mechanism, which raises the fender, and the de-
flasher reaches into the press to remove the fender. Ideally, if
set up correctly, the ejector pin would have remained in the
up position until activated to descend by the press operator,
who pushes a button on a T-stand.
On the date of injury, however, the mold in Press #5 was
improperly  programmed.  After  completion  of  the  press'
operating cycle and its full ascension to the open position,
the Injured Worker, working as the de-flasher, stepped on
the foot pedal to raise the fender for removal. Rather than
remaining  up  until  activated  by  the  T-stand  button,  the
mold's  ejector  pin  descended  when  the  Injured  Worker
removed her foot from the foot pedal. As a result, the Injured
Worker's third and fourth fingers on her right hand were
smashed between the fender and the mold.
The IC-8/9 alleges the Employer violated Ohio Adm.Code
4123:1-5-11 (E) (1) through (6), Ohio Adm.Code 4123:1-13-04
(E) (4) (a) (i) and (ii), and Ohio Adm.Code 4123:1-13-04 (E)
(4) (b) (ii). The Injured Worker withdrew from consideration
those allegations pertaining to Ohio Adm.Code 4123:1-13-04
(E) (4) (a) (i) and (ii) and Ohio Adm.Code 4123:1-13-04 (E)
(4) (b) (ii) and they are accordingly dismissed.

No.                                                                  10AP-1170              28
The  only  remaining  allegation  concerns  Ohio  Adm.Code
4123:1-5-11  (E), which pertains to hydraulic or pneumatic
presses and provides:
Every  hydraulic  or  pneumatic                                      (air-powered)  press
shall be constructed, or shall be guarded, to prevent
the hands or fingers of the operator from entering the
danger zone during the operating cycle. Acceptable
methods of guarding are:
[One] Fixed barrier guard - an enclosure to prevent
hands or fingers from entering the danger zone;
[Two] Gate guard - a movable gate operated with a
tripping  device  to  interpose  a  barrier  between  the
operator and the danger zone and to remain closed
until the down stroke has been completed;
[Three] Two-hand control - an actuating device which
requires the simultaneous use of both hands outside
the danger zone during the entire closing cycle of the
press;
[Four] Pull guard - attached to hands or wrists and
activated by closing of press so that movement of the
ram will pull the operator's hands from the danger
zone during the operating cycle;
[Five]   Restraint   or   hold-back   guard                          -   with
attachments to the hands or wrists of the operator to
prevent hands or fingers entering the danger zone
during the operating cycle;
[Six] Other practices, means or methods which will
provide safeguards, preventing the hands or fingers of
the operator from entering the danger zone during the
operating cycle and which are equivalent in result to
one of the types specified above.
It is undisputed that Press #5 is a hydraulic press and that it
contains appropriate guards to protect the operator's hands
and fingers from the danger zone during the operating cycle,
down  stroke,  and  closing  cycle.  It  is  the  finding  of  the
Commission that the Mountaineer Front Fender Mold had
an operating cycle separate and distinct from the operating
cycle of  Press  #5. Specifically, Press  #5's operating cycle
began with the press operator's use of the two-hand control,
and ended when the press returned to the opened position.
The mold's operating cycle began with the de-flasher's use of
the foot pedal, and ended when the ejector pin returned to
the  down  position.  It  is  further  the  finding  of  the

No.                                                                10AP-1170                          28
Commission that Ohio Adm.Code 4123:1-5-11 (E) (1) through
(6) only require protection from the press' operating cycle,
and  not  from  the  mold's  operating  cycle,  so  no  safety
violation exists.
Accordingly, it is the Commission's finding that the mold was
not operating as a press at the time of injury, and therefore is
not subject to the safety provision applicable to a press. This
finding  is  based  upon  the  Safety  Violations  Investigation
Unit (SVIU) report, dated 12/17/2008, and particularly the
video and pictures depicting the operation of Press #5 and
the  Mountaineer  Front  Fender  Mold.  The  Commission
further bases this decision upon the affidavit from Mark
Senecal, dated  06/09/2009, and Mr. Senecal's testimony.
Specifically, Mr. Senecal explained that Press  #5 and the
Mountaineer Front Fender Mold were produced by separate
manufacturers;  that  the  Mountaineer  Front  Fender  Mold
was placed into service approximately twenty (20) years after
Press  #5; and that molds are placed in or removed from
various presses depending upon production requirements.
Mr.   Senecal   further   described   the   ejection   pin/slide
mechanism of the Mountaineer Front Fender Mold. While
most  molds  do  not  contain  a  removal  mechanism,  Mr.
Senecal  indicated  the  Mountaineer  Front  Fender  Mold
contained a hydraulic ejection system, which was separate
from Press  #5 and remained with the Mountaineer Front
Fender Mold.
A safety requirement violation is in the nature of a penalty
against the Employer and must be strictly construed, with
any reasonable doubts to be construed against applying it to
the Employer. State ex rel. Burton v. Indus. Comm. (1989),
46  Ohio  St.3d                                                    170.  Ohio  Adm.Code               4123:1-5-11(E)                                        (1)
through                                                            (6)  neither  applies  to  molds   (as  such  is  not
enumerated therein) nor protects operators from dangers
separate from the operating cycle, down stroke, or closing
cycle of a press. Because the injury was proximately caused
by the movement of the ejection pin, which was part of the
Mountaineer Front Fender Mold, and not any operation of
the press which remained unmoved in the open position, the
IC-8/9, filed 06/06/2008, is denied.
{¶ 31} 17.  On  December                                           20,                                2010,  relator,  Teresa  A.  McKinney,  filed  this
mandamus action.

No.                                                                                             10AP-1170   28
Conclusions of Law:
{¶ 32} The  main  issue  is  whether  the  commission  abused  its  discretion  in
determining that the injury was not caused by a violation of Ohio Adm.Code 4123:1-5-
11(E) which required that the hydraulic press shall be guarded to prevent the hands or
fingers of the operator from entering the danger zone during the operating cycle.
{¶ 33} At issue is the commission's order of September 21, 2010 that exercises
continuing  jurisdiction  and  then  denies  the  VSSR  application  on  the  merits  of  the
application.   However, relator does not challenge the commission's exercise of continuing
jurisdiction.  Only the commission's merit determination is under review in this action.
{¶ 34} It is undisputed that the injury was caused by a descending mold ejector pin
when relator removed her foot from the foot pedal.
{¶ 35} The commission  determined that  the operating  cycle of  the mold was
"separate and distinct" from the operating cycle of the press and, thus, relator was not
injured by the operating cycle of the press.   On that basis, the commission held that CSP
did not violate Ohio Adm.Code 4123:1-5-11(E) which pertains only to hydraulic and/or
pneumatic presses.
{¶ 36} Finding no abuse of discretion with the commission's decision, it is the
magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
{¶ 37} Ohio  Adm.Code  4123:1-5  sets  forth  specific  safety  rules  applicable  to
workshop and factory safety.
{¶ 38} Ohio Adm.Code 4123:1-5-01(B) sets forth the following definitions:
(34) "Danger zone": the point of operation where a known
hazard exists.
(70) "Guarded": means that the object is covered, fenced,
railed,  enclosed,  or  otherwise  shielded  from  accidental
contact.
(102)  "Press":  a  powered  machine  that  shears,  punches,
forms, or assembles metal or other material by means of

No.                                                                                  10AP-1170   28
cutting, shaping, or by combination dies attached to slides. A
press consists of a stationary bed or anvil, and a slide (or
slides) having a controlled reciprocating motion toward and
away  from  the  bed  surface,  the  slide  being  guided  in  a
definite path by the frame of the press.
{¶ 39} Ohio  Admin.Code  4123:1-5-11  is  captioned:    "Forging  machines,  other
power machines and machine tools, hydraulic and pneumatic presses, and power press
brakes."
{¶ 40} Ohio Admin.Code 4123:1-5-11(E) is captioned:   "Hydraulic or pneumatic
presses."  Thereunder, it provides:
Every hydraulic or pneumatic (air-powered) press shall be
constructed, or shall be guarded, to prevent the hands or
fingers of the operator from entering the danger zone during
the operating cycle. Acceptable methods of guarding are:
(1)   "Fixed barrier guard" - an enclosure to prevent hands or
fingers from entering the danger zone;
(2) "Gate guard" - a movable gate operated with a tripping
device to interpose a barrier between the operator and the
danger zone and to remain closed until the down stroke has
been completed;
(3) "Two-hand control" - an actuating device which requires
the simultaneous use of both hands outside the danger zone
during the entire closing cycle of the press;
(4) Pull guard - attached to hands or wrists and activated by
closing of press so that movement of the ram will pull the
operator's hands from the danger zone during the operating
cycle;
(5) Restraint or hold-back guard - with attachments to the
hands or wrists of the operator to prevent hands or fingers
entering the danger zone during the operating cycle;
(6) Other practices, means or methods which will provide
safeguards, preventing the hands or fingers of the operator
from entering the danger zone during the operating cycle
and  which  are  equivalent  in  result  to  one  of  the  types
specified above.

No.                                                                                             10AP-1170   28
{¶ 41} Here, the commission was called upon to interpret the safety rule that
requires guarding of hydraulic presses.    That is, the commission was called upon to
determine whether the mold became a press when it was used with the press under the
circumstances here.   Upon analysis set forth in its order of September 21, 2010, the
commission determined that the mold was not a press subject to the Ohio Adm.Code
4123:1-5-11(E) guarding requirement for presses.
{¶ 42} In  reviewing  the  commission's  interpretation  of  the  safety  rule,  a  few
principles should guide this court.
{¶ 43} Specific safety requirements must be sufficiently specific to "plainly * * *
apprise an employer of his legal obligation toward his employees."   State ex rel. Lamp v.
J.A. Crosen Co., 75 Ohio St.3d 77, 78 (1996), quoting State ex rel. Trydle v. Indus. Comm.,
32 Ohio St.2d 257, 261 (1972).
{¶ 44} Because a VSSR award results in a penalty, specific safety requirements
must be strictly construed in the employer's favor.  Lamp at 78, citing State ex rel. Burton
v. Indus. Comm., 46 Ohio St.3d 170 (1989).
{¶ 45} The application of the strict construction rule cannot, however, justify an
illogical result or one that is contrary to the clear intention of the code.   State ex rel.
Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 47,
citing State ex rel. Maghie & Savage, Inc. v. Nobel, 81 Ohio St.3d 328, 331 (1998).
{¶ 46} The 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.  Supreme Bumpers at ¶ 53, citing Maghie &
Savage and State ex rel. Harris v. Indus.  Comm., 12 Ohio St.3d 152, 153 (1984).
{¶ 47} Relator cites to a line of cases in which the courts have had to determine
whether the use of a device at the time of injury or the device's design or construction
governs the applicability of the specific safety rule.   State ex rel. Cleveland Wrecking Co.
v. Indus. Comm., 35 Ohio St.3d 248 (1988) (the commission properly found that the
boom of a crane was being used as a scaffold at the time of the injury); State ex rel Volker
v. Indus. Comm., 75 Ohio St.3d 466 (1996); (the commission properly found that the
ladder at issue was a stepladder and its construction controlled); State ex rel. Dibble v.

No.                                                                                           10AP-1170                                                28
Presrite, 85 Ohio St.3d 275 (1999); (in addressing how the interlock was supposed to
work, the commission ignored how it did work on the date of injury).
{¶ 48} In Volker, the court states:
In   some   cases,   equipment   use   has   determined   the
applicability of a specific safety requirement. See, e.g., State
ex rel. Cleveland Wrecking Co. v. Indus. Comm. (1988), 35
Ohio St.3d  248,  520 N.E.2d  228; State ex rel. Pre Finish
Metals, Inc. v. Indus. Comm. (1988), 39 Ohio St.3d 314, 530
N.E.2d 918; and State ex rel. Weich Roofing, Inc. v. Indus.
Comm.  (1990),  69 Ohio App.3d  281,  590 N.E.2d  781. In
others, the commission has been guided by the equipment's
construction.  See, e.g., McArthur Lumber & Post Co., Inc. v.
Indus. Comm.  (1983),  6 Ohio St.3d  217,  6 OBR  289,  452
N.E.2d                                                                                        1269.  We  cannot,  therefore,  state  that  a  single
standard governs all questions of specific safety requirement
applicability.
In this instance, the commission found that construction was
a better indicium than use in determining whether the ladder
in question was a "stepladder." We do  not find that the
commission's decision was abuse of discretion.
Id. at 469.  Citing the cases, relator posits:
What the commission's order fails to address or appreciate is
that a mold is inoperable outside a press.   Of course molds
are made independently of presses and are installed and
removed as production requires. Without being installed and
in  use  in  a  press,  however,  a  mold  cannot  perform  any
function in the manufacturing process. A press is likewise
incapable  of  production  activity  without  a  mold  or  die
installed in it corresponding to the part being produced.  As a
matter  of  function,  a  mold  necessarily  becomes  and
functions as a part of a press when it is installed and used in
that press for the purpose of producing a product. It is its use
or function in the process for whi

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