State ex rel. Zarbana Industries, Inc. v. Hayes

[Cite as State ex rel. Zarbana Industries, Inc. v. Hayes, 2020-Ohio-5200.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Zarbana Industries, Inc., :
Relator, :
v. : No. 19AP-71
Jeremy M. Hayes et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on November 5, 2020
On brief: Bugbee & Conkley, LLP, Mark S. Barnes, and
Gregory B. Denny, for relator.
On brief: Heller, Maas, Moro, & Magill, Co. LPA, and Patrick
J. Moro, for respondent Jeremy Hayes.
On brief: Dave Yost, Attorney General, and John Smart, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
NELSON, J.
{¶ 1} Jeremy Hayes "suffered severe injury to his right hand" when it was caught
in a punch press on June 28, 2013 during his employment with Zarbana Industries, Inc.
See May 12, 2016 staff hearing officer award for Violation of a Specific Safety Regulation
("VSSR order") at 2. Within two years, he applied to the industrial commission for a VSSR
award, alleging that Zarbana had violated certain safety requirements established through
the Ohio Administrative Code. See id. (detailing claims). Some months later, the
commission advised the parties that its preliminary, non-binding estimate was that the
application could result in an award to Mr. Hayes ranging in value from $20,866 to
$69,554. See Stip. at 8. A hearing then conducted on March 17, 2016 convinced a
No. 19AP-71 2
commission staff hearing officer that Zarbana had in fact failed to comply with a provision
of the Ohio Administrative Code that requires a foot pedal for a punch press of this sort to
have a front guard protecting against accidental activation. VSSR order at 10-11. Because
the violation, like the injury, was "serious," the staff hearing officer believed that Mr. Hayes
was due "an additional award of compensation * * * in the amount of 30 percent of the
maximum weekly rate" (which we understand would amount to an award somewhat toward
the middle of the estimated money range). Id. at 12.
{¶ 2} Before the staff hearing officer had issued his VSSR order, however, Zarbana
and Mr. Hayes proposed a settlement. See May 12, 2016 staff hearing officer order
regarding settlement at 2 (referencing proposed settlement agreement executed April 5,
2016 and filed with the commission April 8, 2016). The proffered settlement was for a total
sum of $2,000. Id.; see also Complaint at ¶ 8. Using language recommended on a form
from the commission, the proposed agreement recited in part:
The parties now desire to make a full and complete lump sum
settlement of the Injured Worker[']s [VSSR] application,
subject to the approval of the Industrial Commission. * * *
[T]his agreement shall be submitted to the Industrial
Commission of Ohio for approval, and Employer shall not pay
the agreed amount until this agreement shall have been
approved by the [] Industrial Commission and made a matter
of record in the Claim * * *.
Magistrate's Decision at 3 (citing Stip. at 119); Complaint at ¶ 10 (noting use of "VSSR IC-
10" settlement form).
{¶ 3} That language as adopted by the parties from the commission's suggested
form is informed, in turn, by Ohio Adm.Code 4121-3-20 regarding "[a]dditional awards by
reason of violations of specific safety requirements." Contemplating potential settlements,
the administrative rule provides for a commission staff hearing officer to consider joint
applications for settlement, either before or after adjudication of a VSSR application, and
specifies:
If the staff hearing officer finds that the settlement is
appropriate, the staff hearing officer shall issue an order
approving it. If the staff hearing officer does not find the
settlement to be appropriate in its present form, the staff
hearing officer shall schedule a hearing with notices to all
parties and their representatives where the matter of the
No. 19AP-71 3
proposed settlement is to be considered. Following the
hearing, the staff hearing officer shall issue an order either
approving or disapproving the settlement, and the order shall
be final.
Ohio Adm.Code 4121-3-20(F)(1).
{¶ 4} Here, the staff hearing officer did not approve the settlement as
"appropriate," and on May 11, 2016 conducted a hearing "for the purpose of adjudicating
the propriety of the Settlement of Claimed Violation of a Specific Safety Requirement."
May 12, 2016 staff hearing officer order regarding settlement at 1. He noted that upon
receiving the transcript of the VSSR hearing, he had "prepared a written decision
adjudicating" Mr. Hayes's application, but then received the settlement filing "prior to
publication of th[e] Merit Order." Id. at 1-2. Observing that the settlement agreement as
filed "seeks to settle the Injured Worker's V.S.S.R. claim for the total sum of $2,000 (two-
thousand dollars)," the hearing officer disapproved it as "neither fair nor equitable" in light
of what he had seen and determined from the merits hearing. Id. at 2. Having disapproved
the settlement proposal, the hearing officer also issued his VSSR award. May 12, 2016 staff
hearing officer order regarding settlement; May 12, 2016 VSSR order (mailed that day).
{¶ 5} Zarbana requested reconsideration of the settlement disapproval, but the
commission found that it lacked authority to exercise continuing jurisdiction over the
matter pursuant to R.C. 4123.52. Magistrate's Decision at ¶ 18-19; Complaint at ¶ 19-20.
After an unsuccessful attempt for declaratory judgment, see Zarbana Industries, Inc. v.
Hayes, 10th Dist. No. 18AP-104, 2018-Ohio-4965, Zarbana filed a mandamus action asking
us to issue a writ ordering the commission to vacate its May 12, 2016 disapproval of the
proposed settlement, approve the proposed settlement, and consequently vacate Mr.
Hayes's VSSR award. Magistrate's Decision at 20-21; Complaint at prayer.
{¶ 6} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
the court referred this matter to a magistrate. The Magistrate's Decision of April 9, 2020
made various findings of fact consistent with the description set forth above. In its
"Discussion and Conclusions of Law," the magistrate properly noted that to obtain a writ of
mandamus, "a relator must show a clear legal right to the relief sought, a clear legal duty on
the part of the respondent to provide such relief, and the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967)."
No. 19AP-71 4
Magistrate's Decision at 4; see also, e.g., Kinsey v. Bd. of Trustees of the Police & Firemen's
Disability & Pension Fund, 49 Ohio St.3d 224, 225 (1990). Concluding that the
commission had authority to disapprove the proposed settlement, and that Zarbana
therefore does not have a clear legal right to the relief it seeks and that the commission did
not have a clear legal duty to approve the settlement, the magistrate recommended that we
deny the writ. Id. at 4, 6.
{¶ 7} Zarbana has filed objections to the Magistrate's Decision, and we undertake
"an independent review as to the objected matters to ascertain [whether] the magistrate
has properly determined the factual issues and appropriately applied the law."
Civ.R. 53(D)(4)(d). He has.
{¶ 8} The gravamen of Zarbana's objections is that"[t]he magistrate suggests that
the Commission has reserved the right to overturn the will of the parties because of the
Commission's goal to promote safety and its general authority over VSSR claims. The error
in the magistrate's reasoning is there is nothing in Ohio Admin.Code 4121-3-20(F)(1)
reserving such a right to the Commission." Objections at 8-9. Well, nothing perhaps but
that provision's instruction that a joint settlement application "shall be considered by a staff
hearing officer" who is to determine whether "the settlement is appropriate" and who, if he
or she "does not find the settlement to be appropriate in its present form," is to "consider[]"
the matter at a hearing and then "issue an order either approving or disapproving the
settlement," with that order to be final. Ohio Adm.Code 4121-3-20(F)(1). Nothing except
that.
{¶ 9} Zarbana complains that "the magistrate fails to apply any sort of statutory
construction to the rule, rendering a conclusory decision." Objections at 2. Translated, the
objection seems to be that the magistrate read the plain language of the rule to mean what
it says. Zarbana indeed concedes that " 'appropriate' means 'especially [sic] suitable or
compatible: fitting.' " Objections at 7, quoting a Merriam-Webster's Collegiate Dictionary.
And the commission through its staff hearing officer found in essence that the proposed
$2,000 resolution of such a significant claim in this worker safety context was not suitable
or fitting: it was "neither fair nor equitable." May 12, 2016 settlement disapproval order at
2. This does not mean, as Zarbana argues, that "[t]he magistrate effectively found that
'appropriate' is synonymous with fairness and equity," compare Objections at 8: rather,
No. 19AP-71 5
while the commission concluded that the lack of fairness and equity rendered the
settlement inappropriate in this context, other considerations, too, could make a VSSR
settlement inappropriate (as when its terms contravene the law or regulatory safety
policies).
{¶ 10} But, Zarbana contends—and despite the commission's constitutional and
statutory authority to determine injury claims resulting from employer failure to observe
specific safety requirements, see Ohio Constitution, Article II, Section 35 and
R.C. 4121.35(B)(3)—the commission is precluded from taking "fairness or equity" or a "goal
to promote safety" into account in evaluating whether a proposed VSSR settlement is
"appropriate." Objections at 13, 8. Zarbana apparently reasons (at least in its briefing to
the magistrate, although not directly in its objections) that the phrase from Ohio
Adm.Code 4121-3-20(F)(1) triggering a hearing "[i]f the staff hearing officer does not find
the settlement to be appropriate in its present form" constricts the scope of the
commission's appropriateness determination to a question of whether a proposed
settlement is appropriate 'as to form.' See Magistrate's Decision at 5 (correctly
characterizing Relator's Brief at 21: "Zarbana proposes that the settlement agreement in
a VSSR matter is appropriate if it is 'structurally sound,' which Zarbana proposes is
limited to assessment of whether the agreement meets basic common-law concepts of
contractual formation and validity"). But the administrative code provision doesn't say
that. At all. And Zarbana acknowledges that we cannot add or subtract words from the
rule as adopted. Objections at 13,citing Armstrong v. John R. Jurgensen Co., 136 Ohio
St.3d 58, 2013-Ohio-2237, ¶ 12 (in reading statutes, courts "may not delete or insert
words, but must give effect to the words the General Assembly has chosen").
{¶ 11} Instead, again to use Zarbana's briefing, here "each word of the rule must be
read in context and according to its ordinary dictionary meaning." Objections at 5 (citations
omitted); see also Magistrate's Decision at 5 ([at least absent some specialized context,]
"words of an administrative rule are to be given their plain and ordinary meaning, as with
basic principles of statutory construction. Frisch's Restaurants, Inc. v. Ryan, 121 Ohio
St.3d 18, 2009-Ohio-2"; further citation omitted). The commission did not deem the
proposed settlement "appropriate in its present form" in that, as presented, it proposed to
liquidate Mr. Hayes's significantly more valuable claim for only $2,000. Notably, Zarbana
No. 19AP-71 6
does not argue that the staff hearing officer erred in finding that amount unfair and
inequitable and out of step with the commission's view that a "potential award" regarding
a "claim for such violation is in the range from $20,866.00 to $69,554.00." Compare
May 12, 2016 settlement disapproval order with Objections at 6-8 (urging that commission
lacks authority to consider fairness, equity, or safety considerations in this context);
compare also State ex rel. Inland Div., Gen. Motors Corp. v. Collins, 34 Ohio App.3d 80,
82 (10th Dist.1986) (purpose of VSSR statute is to penalize [and thus deter] employers who
have "failed to comply with a specific lawful requirement").
{¶ 12} Zarbana's other, tangential objections also are unavailing. It deplores the
magistrate's reference to its bootless declaratory judgment action, saying that the
magistrate's report there is "irrelevant and immaterial"—but not that it is incorrect. See
Objections at 3. Zarbana also asserts at page 3 of its Objections that the magistrate "omitted
a key fact," which Zarbana reveals at page 11 to be that the staff hearing officer "had notice
of the parties' desire to settle [but not the amount of the proffered agreement] on April 5,
2016," days before he finished drafting his VSSR order (on the day the settlement proposal
was submitted). Zarbana's point that this claimed omission "obscures the [staff hearing
officer's] potential bias in rejecting the settlement," id. at 13, strikes us as itself rather
obscure and not a basis for overruling anything. Zarbana's position that the commission
should have exercised continuing jurisdiction to correct what Zarbana perceives as a
"mistake of law" in its claim of "authority [under the Ohio Adm.Code] to approve or deny
VSSR settlements based on fairness or equity," id., fails in light of the administrative code's
grant of authority to approve or disapprove the appropriateness of a VSSR settlement. And
Zarbana's statement that its own (joint) use of the commission's recommended form to
apply for settlement approval as involving "merely a form" without the "weight of a law"
does not erase its own agreement that the tendered settlement was to be "subject to the
approval of the Industrial Commission." Compare id. at 10 with Magistrate's Decision at
3; see also Commission's Brief at 2 ("Zarbana has failed to demonstrate it has a clear legal
right to enforce a document that, by its own terms, is effective only upon the commission's
agreement").
{¶ 13} Just as administrative bodies are not empowered to reformulate their
regulations through "interpretation," neither are regulated entities entitled to amend the
No. 19AP-71 7
text of provisions duly promulgated in Ohio's Administrative Code. Even were we
otherwise inclined, we are not at liberty to re-write Ohio Adm.Code 4121-3-20(F)(1) to
direct that a VSSR settlement is to be submitted to the commission 'only as to form.' The
commission's review of a VSSR settlement is to determine whether it is "appropriate in its
present form." Here, pursuant to the processes envisioned by Ohio Adm.Code 4121-3-
20(F)(1), the commission staff hearing officer conducted a hearing and disapproved as
inappropriate the proposal that, as then before him, contemplated a payment of $2,000 on
what he saw as a much more significant specific safety requirement claim. Zarbana does
not provide us with any persuasive argument for why it has a clear legal right to have that
order set aside or why the commission has a clear legal duty to approve the proffered
settlement.
{¶ 14} We overrule Zarbana's objections. We adopt the magistrate's findings of fact
and conclusions of law (apart from a mis-citation to what should be Ohio Adm.Code 4121-
3-20(F)(1) in paragraph 39 of the appended decision), and we follow his recommendation
in denying Zarbana's requested writ.
Objections overruled; writ of mandamus denied.
KLATT and BEATTY BLUNT, JJ., concur.
No. 19AP-71 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Zarbana Industries, Inc., :
Relator, :
v. : No. 19AP-71
Jeremy M. Hayes et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on April 29, 2020
Bugbee & Conkley, LLP, Mark S. Barnes, and Gregory B.
Denny, for relator.
Heller, Maas, Moro, & Magill, Co. LPA, and Patrick J. Moro,
for respondent Jeremy Hayes.
Dave Yost, Attorney General, and John Smart, for respondent
Industrial Commission of Ohio.
IN MANDAMUS
{¶ 15} This original action is the culmination of administrative proceedings arising
from a claim involving a violation of specific safety requirements ("VSSR") related to a
workplace injury suffered by respondent, Jeremy M. Hayes, an employee of relator Zarbana
Industries, Inc. Zarbana seeks a writ of mandamus ordering respondent, Industrial
Commission of Ohio ("commission"), to vacate the commission's order declining to exercise
continuing jurisdiction over the matter and, thus, declining to set aside a staff hearing
officer's ("SHO") order that rejected an agreed VSSR settlement between the parties and
imposed a greater VSSR award.
Findings of Fact:
No. 19AP-71 9
{¶ 16} 1. Zarbana is a corporation doing business in Ohio and a compliant state-
fund employer.
{¶ 17} 2. Hayes, then employed by Zarbana as a punch press operator, sustained
severe hand injuries in the course of employment on June 28, 2013.
{¶ 18} 3. The allowance of Hayes' claim from the resulting conditions is not in
dispute.
{¶ 19} 4. On or about May 27, 2015, Hayes filed a VSSR application alleging that
Zarbana violated Ohio Administrative Code provisions governing specific safety
requirements pertaining to the press operated by Hayes at the time of his injury.
{¶ 20} 5. On October 29, 2015, the commission mailed the parties a "Claim Value
At Settlement" letter explaining the typical VSSR negotiation and adjudication process.
This communication included the commission's non-binding estimate that this VSSR
application could result in an award ranging between $20,866 and $69,554. (Stip. at 8.)
{¶ 21} 6. The commission's October 29, 2015 letter advised the parties that a
"substantial percentage of violations of specific requirement(s) cases are settled by
agreement between the parties. Whether to negotiate a settlement is a discretionary matter
between the Injured Worker and Employer * * *." (Stip. at 9.)
{¶ 22} 7. The October 29, 2015 letter further provided that "[i]f settlement is
reached, it is the policy of the Industrial Commission to assist in bringing the matter to a
rapid conclusion. Toward that goal, the Commission has developed a written Settlement
Agreement specifically for violation of specific safety requirement (s) matters. * * * This
form is not required by the Industrial Commission, but its use is recommended to assist in
expediating this process." (Stip. at 9.) This prepared settlement document is the
commission's IC-10 form.
{¶ 23} 8. An SHO notified the parties that the commission would hold a pre-hearing
conference pursuant to Ohio Adm.Code 4121-3-20(D)(4) on December 10, 2017.
{¶ 24} 9. After the pre-hearing conference took place on December 10, 2017, the
commission issued a notice summarizing the conference discussions and continuing the
VSSR merit hearing by 90 days to allow further settlement discussions:
The items on the pre-hearing conference checklist were
addressed, and additional time for the parties to pursue
settlement negotiations was requested. As a result, the hearing
No. 19AP-71 10
on the merits of the Injured Worker's IC-8/9 [VSSR]
application will be scheduled for Thursday, March 17, 2017
* * *. (Stip. at 40.)
{¶ 25} 10. The VSSR merits hearing duly went forward on March 17, 2016.
{¶ 26} 11. Before the SHO issued an order resulting from the VSSR merits hearing
adjudicating the merits of the VSSR application, Zarbana filed with the commission an IC-
10 settlement form signed by Zarbana and Hayes and setting forth the terms of a settlement
between the parties. The IC-10 settlement form was executed on April 5 and filed with the
commission on April 8, 2016. (Stip. at 119.)
{¶ 27} 12. The IC-10 settlement form contains the following language:
The parties now desire to make a full and complete lump sum
settlement of the Injured Workers' [VSSR] application,
subject to the approval of the Industrial Commission. * * *
[T]his agreement shall be submitted to the Industrial
Commission of Ohio for approval, and Employer shall not pay
the agreed amount until this agreement shall have been
approved by the [] Industrial Commission and made a matter
of record in the Claim * * *. (Stip. at 119.)
{¶ 28} 13. Also on April 8, 2016, the SHO prepared, but did not file, an order
resolving the merits of the VSSR application. The order concludes that Zarbana had
violated the pertinent safety requirements and ordered a 30 percent additional award of
compensation to Hayes.
{¶ 29} 14. On May 11, 2016, the same SHO who had conducted the VSSR merits
hearing conducted a hearing pursuant Ohio Adm.Code 4121-3-20(F) addressing the VSSR
settlement agreement. (Stip. at 124-32.)
{¶ 30} 15. At the May 11, 2016 hearing on the VSSR settlement agreement, the
hearing officer stated as follows:
We are here today because there was a settlement filed on
April 20 (sic), 2016 which attempted to settle the VSSR claim.
The difficulty with this situation is we had already had the
hearing on the merits, and the order was actually prepared but
not released at the time the settlement came in. And the issue
of settlement is now set before me under the provisions of
Administrative Code 4121[-]3-20(F), and that provision
provides an opportunity for the parties to present argument
in support of why the VSSR claim is being settled for the
amount that it is being settled. (Stip. at 128.)
No. 19AP-71 11
{¶ 31} 16. The parties do not dispute that the settlement agreement was filed on
April 8 not April 20, 2016 as stated by the SHO at the settlement agreement hearing.
{¶ 32} 17. Two separate orders issued on May 12, 2016, the first reflecting the
hearing officer's grant of an additional 30 percent VSSR award, and the second rejecting
the VSSR settlement agreement. (Stip. at 144, 147.)
{¶ 33} 18. Zarbana requested reconsideration of the May 12, 2016 order rejecting
the VSSR settlement agreement. (Stip. at 146.)
{¶ 34} 19. On September 22, 2016, the commission issued its notice that it lacked
authority to exercise continuing jurisdiction pursuant to R.C. 4123.52 and denied Zarbana's
reconsideration request. (Stip. at 160-64.)
{¶ 35} 20. Zarbana sought a declaratory judgment from the Franklin County Court
of Common Pleas to establish the commission's lack of legal authority to adjudicate a VSSR
settlement once agreed to by the parties. The Franklin County Court of Common Pleas
dismissed the complaint, and this court affirmed the dismissal for lack of jurisdiction.
Zarbana Industries, Inc. v. Hayes, 10th Dist. No. 18AP-104, 2018-Ohio-4965.
{¶ 36} 21. Zarbana filed its complaint in mandamus on February 4, 2019 seeking a
writ setting aside both of the commission's May 12, 2016 orders.
Discussion and Conclusions of Law:
{¶ 37} In order for this court to issue a writ of mandamus, a relator must show a
clear legal right to the relief sought, a clear legal duty on the part of the respondent to
provide such relief, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). The principal issue raised
in this original action is whether the commission has the authority to disregard a settlement
agreement signed by both parties and submitted to the commission in a VSSR matter, and
thereafter continue with a hearing to assess the merits of the VSSR matter. The magistrate
concludes that the commission has that authority, and that Zarbana does not have a clear
legal right to the relief requested, and a writ must be denied.
{¶ 38} Pursuant to the Ohio Constitution, the commission has exclusive jurisdiction
over VSSR claims and the special statutory proceedings pertaining thereto:
[The Industrial Commission] shall have full power and
authority to hear and determine whether or not an injury,
No. 19AP-71 12
disease or death resulted because of the failure of the
employer to comply with any specific requirement for the
protection of the lives, health or safety of employees.
Ohio Constitution, Article II, Section 35.
{¶ 39} R.C. 4121.35 and Ohio Adm.Code 4121-3-20(A) govern VSSR proceedings
and reflect the constitutional authority given to the commission in this respect. Ohio
Adm.Code 4121-30-20(A)(1) clearly gives the commission's SHO discretion to approve, and
more pertinently here disapprove, an application for settlement of a VSSR claim:
If the staff hearing officer does not find the settlement to be
appropriate in its present form, the staff hearing officer shall
schedule a hearing with notices to all parties and their
representatives where the matter of the proposed settlement
is to be considered. Following the hearing, the staff hearing
officer shall issue an order either approving or disapproving
the settlement, and the order shall be final.
{¶ 40} Zarbana asks that the commission be held to a restrictive interpretation of
the phrase "appropriate in its present form" in Ohio Adm.Code 4121-3-20(F)(1). Zarbana
argues that the SHO instead concluded that the submitted settlement was unfair and
inequitable. Zarbana points out that the language of this section contrasts with that of R.C.
4123.65, governing settlement of workers' compensation claims, pursuant to which an SHO
will determine "whether the settlement agreement is or is not a gross miscarriage of
justice," to be set aside if the SHO determines "that the settlement agreement is clearly
unfair * * *."
{¶ 41} Zarbana proposes that the settlement agreement in a VSSR matter is
appropriate if it is "structurally sound," which Zarbana proposes is limited to assessment
of whether the agreement meets basic common-law concepts of contractual formation and
validity. (Relator's Brief at 21.)
{¶ 42} The words of an administrative rule are to be given their plain and ordinary
meaning, as with basic principles of statutory construction. Frisch's Restaurants, Inc. v.
Ryan, 121 Ohio St.3d 18, 2009-Ohio-2; State ex rel. Richmond v. Indus. Comm., 139 Ohio
St.3d 157, 2014-Ohio-1604, ¶ 28. The magistrate sees no reason to limit construction of the
term "appropriate" in Ohio Adm.Code 4121-3-20(F)(1). The commission's application of
the term in this matter is usual and customary. The SHO had grounds to find that the
No. 19AP-71 13
settlement was inappropriate based upon all the factors regarding the circumstances of the
injury and pertinent safety requirements.
{¶ 43} Moreover, the IC-10 application that was submitted in this case contains
consistent boilerplate:
This agreement shall be submitted to the Industrial
Commission of Ohio for approval, and Employer shall not
pay the agreed amount until this agreement shall have been
approved by the [] Industrial Commission* * *.
(Emphasis added.)(Stip. at 119.) Such a review by the commission is consistent with the
goals of the VSSR award system, which is not only compensation for injured employees
or their survivors, but a deterrent penalty imposed on the employer to ensure correction
of workplace hazards. State ex rel. Inland Div., Gen. Motors Corp. v. Collins, 34 Ohio
App.3d 80 (10th Dist. 1986). The commission could conclude that an inadequate award
in this case would lack the desired deterrent effect.
{¶ 44} Nor does the magistrate consider that the commission abused its discretion
by finding that it lacked authority to exercise continuing jurisdiction. R.C. 4123.52 gives
the commission continuing jurisdiction to reconsider a matter, but that jurisdiction is
conditioned on specific criteria: (1) new and changed circumstances, (2) fraud, (3) clear
mistake of fact, (4) clear mistake of law, or (5) error by an inferior tribunal. State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998). None of those factors are present
here, and Zarbana is not entitled to a writ compelling the commission to exercise its
continuing jurisdiction.
{¶ 45} In summary, Zarbana does not have a clear legal right to the relief requested,
nor does the commission have a clear legal duty to provide it. It is the magistrate's decision
that the requested writ will not issue.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
No. 19AP-71 14
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).