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City of Bellaire v. Industrial Commission of Ohio6/27/2002
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
. Relator, city of Bellaire, has filed an original action in mandamus requesting this court to issue a writ of mandamus to order respondent, Industrial Commission of Ohio, to vacate its order that granted an additional award for a violation of a specific safety requirement and to enter an order denying such an award.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Section (M), Loc.R. 12 of the Tenth District Court of Appeals, who rendered a decision including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate decided the requested writ of mandamus should be denied. No objections have been filed to the magistrate's decision.
. Upon a review of the magistrate's decision and an independent review of the record, this court adopts the magistrate's decision as its own, as we find there is no error of law or other defect on the face of the decision. Therefore, the requested writ of mandamus is denied. Writ of mandamus denied.
BROWN and KLATT, JJ., concur.
APPENDIX A
MAGISTRATE'S DECISION
Rendered on March 27, 2002
IN MANDAMUS
In this original action, relator, city of Bellaire, requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order granting an additional award for an alleged violation of a specific safety requirement ("VSSR") and to enter an order denying a VSSR award.
Findings of Fact:
1. On June 5, 1998, Anita M. Smigill ("claimant') sustained an industrial injury while employed by relator. While mowing grass in Bellaire City Park, claimant stepped back onto a hole covering that tipped, causing her to fall and sustain an industrial injury.
2. The industrial claim is allowed for "unspecified contusion right shoulder; right rotator cuff tear" and is assigned claim No. 98-420940.
3. On April 18, 2000, claimant filed a VSSR application. On her application, she claimed that relator had violated several provisions of the Ohio Administrative Code. However, claimant did not cite a violation of any provision contained in Chapter 4121:1-5, which is captioned "Specific Safety Requirements for Workshops and Factories."
4. The VSSR application prompted the Ohio Bureau of Workers' Compensation ("bureau") to conduct an investigation of the accident. The bureau's special investigator took an affidavit from claimant stating in part:
* On the day of the accident I was mowing grass at the City Park. I was mowing under some hedges and I stepped back. There was a sewer lid or manhole cover that was over a hole. The sewer lid or cover was not large enough to cover the entire hole. As I stepped back onto the lid or cover, the lid or cover tilted to one side. I tried to catch my balance with my right foot, but I fell on my right forearm and elbow and twisted my right foot. I also injured by right wrist, neck and right shoulder.
5. The bureau's special investigator conducted an on-site investigation of the accident on July 19, 2000. According to his report, the investigator took seven photographs of the area where the accident occurred. Those photographs are reproduced for the record in this action.
6. Following a March 19, 2001 hearing, a staff hearing officer ("SHO") issued an order granting a VSSR award for a violation of Ohio Adm.Code 4121:1-5-02(C)(1)(a)(i), a code section not cited by claimant on her VSSR application. The SHO also found that the code sections cited by claimant were inapplicable. The SHO's order
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