State Ex Rel. Smith v. Industrial Comm., Unpublished Decision (11-12-1999) ( 1999 )

MEMORANDUM DECISION Relator, Ernest Smith, Jr., commenced this original action requesting a writ of mandamus which orders respondent Industrial Commission of Ohio to vacate its order denying an additional award for an alleged violation of a specific safety requirement ("VSSR"), and to enter a VSSR award based upon the evidence stipulated by the parties from the commission's claim file.

Pursuant to Civ.R. 53 and Section M, Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law. In his decision, the magistrate concluded the commission's interpretation of Ohio Adm. Code 4121:1-5-13(C)(7) is reasonable.

Specifically, the commission held that the employer had complied with the rule by equipping the motor vehicle or tug at issue with a warning device or horn which would sound if activated by the operator. The magistrate found the commission's interpretation to be reasonable because the rule fails to specifyhow the activation of the warning device is to occur. Moreover, the magistrate noted that strict construction required the commission to reject relator's interpretation of the rule even if relator had presented an alternative reasonable interpretation, as all reasonable doubts concerning the interpretation of the rule are to be construed against applicability to the employer. Accordingly, the magistrate decided the requested writ should be denied.

Relator has filed objections to the magistrate's conclusions of law, rearguing those matters adequately addressed in the magistrate's decision. For the reasons set forth in that decision, the objections are overruled.

Following independent review pursuant to Civ.R. 53, we find the magistrate has properly determined the pertinent facts and applied the salient law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained in it. In accordance with the magistrate's decision, the requested writ is denied.

Objections overruled; writ denied.

BOWMAN and PETREE, JJ., concur.