State ex rel. DeMarco v. Indus. Comm., 2021 Ohio 1937

Background

Relator Christian DeMarco, an experienced ironworker, fell about 42–47 feet while connecting steel beams and was allowed multiple workers'‑compensation conditions. He sought an additional award alleging a violation of Ohio Adm.Code 4123:1‑3‑03(J)(1) (lifelines/harnesses must be securely fastened to the structure).
DeMarco and coworker Darren Peters testified beamers, tie‑off chokers, and bridge clamps were absent or unsuitable to anchor a harness to a floating (one‑end‑unconnected) beam; they said proper rigging (stanchions/cables) was required.
Foreman Michael Connell, owner Jerry Vitanza, photos, and an inventory later recovered by Heritage indicated beamers, chokers, and bridge clamps were on site and could be used (Connell and Vitanza gave testimony that they could serve as tie‑off means under some conditions).
OSHA investigated and issued citations finding anchorages and supplied chokers were not capable of supporting required loads and that connectors were not protected from falls.
A staff hearing officer and the Industrial Commission denied the VSSR application, finding the employer furnished suitable devices; a magistrate in this court recommended granting mandamus, concluding the commission ignored probative OSHA/industry evidence and the workers’ testimony.
The court of appeals sustained the commission’s objections to the magistrate: it held the commission had “some evidence” (Connell, Vitanza, photos) supporting denial of VSSR, so mandamus was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the commission abused its discretion by denying the VSSR for lack of evidentiary support	DeMarco: testimony of himself and Peters shows no available, legal anchorage for a floating beam — commission decision lacks any supporting evidence	Heritage/Commission: multiple witnesses and photos show beamers, chokers, bridge clamps were available and could be used as anchors	Court: No abuse of discretion — the record contains some evidence (foreman, owner, photos) to support commission's finding; magistrate improperly reweighed evidence
Whether OSHA findings required a VSSR award or barred reliance on employer testimony	DeMarco: OSHA citations show anchorage/chokers were inadequate and support VSSR	Commission: OSHA violations do not automatically establish or preclude a VSSR; OSHA is relevant but not dispositive	Court: OSHA facts may inform SSR interpretation but are not controlling; commission may consider OSHA/industry standards along with other evidence; here OSHA did not negate evidence relied on by commission

Key Cases Cited

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967) (mandamus requires relator show clear legal right and commission duty)
State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986) (mandamus where commission order is unsupported by any evidence)
State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987) (no mandamus where record contains some evidence supporting commission)
State ex rel. Lawson v. Mondie Forge, 104 Ohio St.3d 39 (2004) (commission has leeway in interpreting and drawing inferences from evidence)
State ex rel. Black v. Indus. Comm., 137 Ohio St.3d 75 (2013) (courts must not second‑guess commission’s evidence evaluation)
State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76 (2015) (VSSR is a distinct, penal award above ordinary workers’ compensation)
State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972) (elements required to prove VSSR)
State ex rel. Richmond v. Indus. Comm., 139 Ohio St.3d 157 (2014) (OSHA findings are not dispositive but may inform SSR interpretation)
State ex rel. Danstar Builders, Inc. v. Indus. Comm., 108 Ohio St.3d 315 (2006) (OSHA compliance/noncompliance does not automatically determine a VSSR)
State ex rel. Scott v. Indus. Comm., 136 Ohio St.3d 92 (2013) (commission may consider OSHA testing/industry evidence when assessing VSSR)