State ex rel. Koch v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State, ex rel. Koch, Appellant, v. Industrial Commission
of Ohio et al., Appellees.
[Cite as State, ex rel. Koch, v. Indus. Comm. (1992), Ohio
St.3d .]
Workers' compensation -- Application for additional award
alleging violation of specific safety requirements denied --
Mandamus not available when party did not request a rehearing
available under Ohio Adm. Code 4121-3-20(G).
(No. 91-15 -- Submitted March 16, 1992 -- Decided June 3, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
89AP-867.
Appellee United Signs, Inc. ("United") repairs and maintains
billboards. There is a two-sided billboard one hundred and twenty-
five feet above its Cincinnati office. Between the signs is a
metal grate platform. During the time of injury herein, access
to the platform was via a permanent ladder which was attached to
the sign assembly at the top and the roof of United's office
below. The ladder opening onto the platform was approximately
two and one-half feet by three feet. No guard railings, cover or
other device protected the hole.
On April 11, 1986, claimant-appellant, Kenneth E. Koch, fell
through the ladder opening while in the course of and

arising from his employment with United. Claimant landed on the
office roof below and was severely injured. After his workers'
compensation claim was allowed, claimant sought an additional
award, alleging numerous violations of specific safety
requirements ("VSSR").
An Industrial Commission hearing officer denied claimant's
application. She denied all violations alleged under safety code
Chapter IC-5 after finding the chapter inapplicable. She further
denied all violations claimed under safety code Chapter IC-3 after
concluding that none of the named specific safety requirements
required protection around an unguarded ladder opening. The
commission confirmed the hearing officer's finding and order.
The record does not reflect that rehearing was requested.
Claimant filed a complaint in mandamus in the Court of
Appeals for Franklin County, contending that the commission
abused its discretion by denying his application. The court of
appeals disagreed and denied the writ.
This cause is now before this court upon an appeal as of
right.
Harris F. Jacobs and Daniel B. Startsman, Jr., for appellant.
Lee I. Fisher, Attorney General, Dennis L. Hufstader and Cheryl J.
Nester, for appellees Industrial Commission and Bureau of Workers'
Compensation.

Richard J. Schimpf and J. Kent Breslin, for appellee United
Signs, Inc.
Per Curiam. Our review of the record indicates that claimant
did not seek administrative rehearing of the commission's order
as permitted by Ohio Adm. Code 4121-3-20(G). As a general rule,
failure to exhaust available administrative remedies precludes
issuance of a writ of mandamus in a VSSR action. State, ex rel.
Bailey, v. Indus. Comm. (1991), 62 Ohio St.3d 191, 580 N.E.2d 1081.
Cf. State, ex rel. Cotterman, v. St. Mary's Foundry (1989), 46 Ohio
St.3d 42, 544 N.E.2d 887.
For this reason, the judgment of the court of appeals is
affirmed.

Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and
Resnick, JJ., concur.