Introduction

In State ex rel. Berry v. Industrial Commission of Ohio, 2025-Ohio-4720, the Supreme Court of Ohio issued a precedential decision that recalibrates how Ohio courts review Violations of Specific Safety Requirements (VSSR) decisions. The Court held that while the Industrial Commission’s factual determinations in VSSR matters remain final (subject to mandamus review for abuse of discretion), courts owe no deference to the Commission’s legal interpretations of safety statutes and regulations. Applying TWISM Enterprises and Alamo Solar, the Court confirmed that legal interpretation is exclusively a judicial function.

Substantively, the Court also clarified that Ohio Adm.Code 4123:1-3-13(E)(7)—the excavation safety rule—applies not only when a “power shovel” is placed or operated above and near an excavation but also when “other heavy objects” are so situated. Thus, a large excavator can trigger the rule even if it is not technically a “power shovel.” However, the Court reversed the court of appeals’ decision to award a VSSR outright, holding that questions about whether equipment was “near” the trench and whether any violation proximately caused injury are for the Commission to decide in the first instance.

The ruling has significant implications for workers’ compensation litigation, agency deference in Ohio administrative law, and excavation safety compliance on construction sites.

• Parties: Relator-Appellee Curtis A. Berry (injured worker); Respondent-Appellants Industrial Commission of Ohio and Underground Utilities, Inc. (employer)
• Court: Supreme Court of Ohio (per curiam; unanimous on result)
• Disposition: Court of appeals reversed; limited writ granted remanding to the Commission for factual determinations related to the large excavator; motion for oral argument denied

Background and Key Issues

Berry, a utility worker, was injured in 2017 when a section of asphalt detached from the western edge of a trench (approximately 3.5 feet deep and 2 feet wide) and struck him. The trench had no shoring, bracing, or sloping. A large excavator straddled cut asphalt lines and dug in a northerly direction; a dump truck was parked to the west; mini-excavators were used for backfill; fill dirt was present at the site. Berry sought a VSSR award alleging, among other things, a violation of former Ohio Adm.Code 4123:1-3-13(E)(7).

The cited rule provided: “If it is necessary to place or operate power shovels, derricks, trucks, materials, or other heavy objects on a level above and near an excavation, the side of the excavation shall be sheet-piled, shored, braced or sloped as necessary to resist the extra pressure due to such superimposed loads.”

A Staff Hearing Officer (SHO) denied the VSSR claim, reasoning, as relevant here, that the large excavator did not qualify as a “power shovel” (using a Wikipedia definition) and that other equipment (dump truck and mini-excavators) was not “near” the trench edge. The Tenth District Court of Appeals disagreed, declined to defer to the Commission’s interpretation, and ordered a VSSR award based on the presence of the large excavator, dump truck, and fill dirt “above and near” the trench without shoring or sloping.

On appeal, the Supreme Court faced two central issues:

• Deference: Must courts defer to the Industrial Commission’s legal interpretations of VSSR rules?
• Application and Fact-Finding: Did the court of appeals err by deciding, in the first instance, that the rule applied and was violated, instead of remanding factual questions to the Commission?

Summary of the Opinion

• Deference: The Court held that courts do not defer to the Industrial Commission’s legal interpretations of specific safety requirements. Commission factual determinations remain final, but legal questions are for courts to decide independently. TWISM and Alamo Solar control.
• Rule Interpretation: The SHO erred in concluding the large excavator could not trigger former Adm.Code 4123:1-3-13(E)(7) solely because it was not a “power shovel.” The phrase “other heavy objects” is independent and can include a large excavator.
• Scope of Review: The Tenth District erred by reweighing the record and declaring a violation based on the proximity of the excavator, dump truck, and fill dirt. Whether equipment was “near” the trench and whether any violation proximately caused injury are factual matters reserved to the Commission.
• Dump Truck: Some evidence supported the SHO’s determination that the dump truck was not “near” the trench; the court of appeals improperly substituted its factual judgment.
• Fill Dirt: The court of appeals did not analyze whether “fill dirt” was a “heavy object” or whether it was “near” the trench; its conclusory reliance on “fill dirt” was error.
• Remedy: Judgment of the Tenth District reversed; limited writ granted directing the Commission to vacate only the misinterpretation of the rule as to the large excavator and to decide in the first instance (1) whether the excavator triggered the rule, (2) whether the rule was violated, and (3) whether any violation proximately caused Berry’s injury.
• Oral Argument: Motion denied; briefs sufficiently presented the legal issues.

Analysis

Precedents Cited and Their Influence

• TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677:
  The Court reaffirmed that courts never must defer to an agency’s interpretation of a statute it administers; clear text controls, and judicial interpretation is independent. In Berry, the Court imported TWISM’s principle to the VSSR context: legal interpretation of statutes and rules is judicial, not administrative.
• In re Application of Alamo Solar I, L.L.C., 2023-Ohio-3778:
  Clarified that courts need not defer to an agency’s interpretation of its own regulations. Berry extends that principle to the Industrial Commission: even where the Commission interprets safety rules promulgated by the BWC administrator, its legal interpretations are not owed deference. At most, they can be considered for persuasive value if the text is ambiguous.
• State ex rel. B & C Machine Co. v. Indus. Comm., 1992-Ohio-75:
  Recognized Commission’s exclusive and final jurisdiction over VSSR determinations, subject to correction in mandamus for abuse of discretion. Berry harmonizes this with TWISM/Alamo Solar by drawing a line between final factual determinations (Commission) and legal interpretations (courts).
• Slatmeyer v. Indus. Comm., 115 Ohio St. 654 (1926):
  Early pronouncement that the Commission’s “finality” pertains to factual causation determinations, not legal questions. Berry revitalizes Slatmeyer and clarifies ambiguities created by later formulations that had suggested broader deference.
• State ex rel. Winzeler Excavating Co. v. Indus. Comm., 63 Ohio St.3d 290 (1992):
  The Court previously sustained a finding of a violation of the same excavation rule where a backhoe was at ground level in the immediate vicinity of an excavation. Berry uses Winzeler to underscore that “other heavy objects” is an independent trigger and that applicability does not hinge on whether equipment is strictly a “power shovel.”
• State ex rel. Mobley v. Indus. Comm., 1997-Ohio-181; State ex rel. Levitin v. Indus. Comm., 2023-Ohio-3559; State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 2015-Ohio-4525; State ex rel. McBee v. Indus. Comm., 2012-Ohio-2678:
  These “some evidence” cases reinforce that as long as the Commission offers an adequately explained order supported by some evidence, reviewing courts do not reweigh credibility or draw competing inferences. Berry applies this to the dump truck and fill dirt analyses, chastising the appellate court for substituting its factual judgment.
• State ex rel. Camaco, L.L.C. v. Albu, 2017-Ohio-7569; State ex rel. Heilman v. Indus. Comm., 2024-Ohio-5518:
  Support the practice of issuing limited writs when the Commission has not reached dispositive factual issues. Berry uses this remedial tool to remand the excavator issues for first-instance fact-finding.
• State ex rel. Cassens Corp. v. Indus. Comm., 2024-Ohio-526; State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 2015-Ohio-4798; State ex rel. Newman v. Indus. Comm., 1997-Ohio-62:
  Establish VSSR elements and the penalty nature of VSSR awards—requiring specificity and proximate cause. Berry adheres to these principles and stresses proximate cause as part of the remand inquiry.
• State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967):
  Clarifies that in mandamus appeals from courts of appeals, the Supreme Court reviews as if originally filed. Berry applies this reviewing posture.
• Earlier dicta suggesting deference to the Commission’s interpretation (e.g., State ex rel. Arce v. Indus. Comm., 2005-Ohio-572; State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 (1983); State ex rel. Byington Builders, Ltd. v. Indus. Comm., 2018-Ohio-5086; State ex rel. Lamp v. J.A. Croson Co., 1996-Ohio-319):
  Berry narrows or disapproves any reading of these cases implying judicial deference to the Commission’s legal interpretations. After TWISM and Alamo Solar, Commission interpretations carry, at most, persuasive weight in ambiguous contexts.

Legal Reasoning

1) Deference Recalibrated: Finality Is Factual, Not Legal

The Ohio Constitution (Art. II, § 35) gives the Commission “full power and authority” to determine whether an injury resulted from a failure to comply with a specific safety requirement and states that its decision “shall be final.” Berry construes this finality as limited to fact-finding, consistent with Slatmeyer. Legal interpretation—whether of statutes or agency rules—is the province of courts. Clear regulatory text must be applied as written; ambiguous text may prompt courts to consider agency interpretations only for their persuasive value (TWISM; Alamo Solar).

2) Proper Reading of the Excavation Rule (Adm.Code 4123:1-3-13(E)(7))

The SHO erred by concluding the rule was inapplicable because the large excavator was not a “power shovel.” The rule lists multiple triggers—“power shovels, derricks, trucks, materials, or other heavy objects.” The last category is an independent catchall. A large excavator plainly can be an “other heavy object,” and the rule’s protections do not depend on whether equipment fits a specific label. Winzeler underscores that other excavation equipment can trigger the rule when placed or operated above and near an excavation.

3) Fact Questions Are for the Commission: “Near” and Proximate Cause

Whether any object was “near” the trench, whether the extra load increased lateral pressure on the trench wall, and whether any violation proximately caused Berry’s injury are factual questions. The Tenth District erred by resolving those issues itself. The proper remedy was a limited writ directing the Commission to address those questions in the first instance, after vacating the SHO’s erroneous legal interpretation that excluded the excavator as a matter of law.

4) Application of the “Some Evidence” Standard to the Dump Truck and Fill Dirt

• Dump Truck: The SHO relied on testimony from the excavator operator and the project foreman to find the dump truck was not “near” the trench when the asphalt failed. Berry’s own testimony placed the dump truck “maybe five feet away.” While the proximity could be debated, there was “some evidence” supporting the SHO’s finding; it was an abuse of the appellate court’s role to reweigh credibility and draw its own inferences.
• Fill Dirt: The appellate court invoked “fill dirt” as a basis to find a violation but did not analyze whether the fill dirt was a “heavy object” or whether it was “near” the trench where Berry was injured. The opinion also conflated two different materials: newly imported backfill and excavated spoils in the dump truck. The SHO had made findings suggesting the backfilling operation was approximately 20 feet away and “not near” where Berry was injured. In the absence of analysis and record support, the court of appeals had no basis to direct a VSSR award on this ground.

Impact

A. Administrative Law in Ohio: Deference Doctrine After Berry

• Berry cements a two-track review in VSSR mandamus cases:
  • Law: De novo by courts; no mandatory deference to the Commission’s interpretations of safety statutes or rules—even those drafted by the BWC administrator.
  • Facts: Final with the Commission; reviewed for abuse of discretion under the “some evidence” standard.
• Agencies should anticipate judicial scrutiny of legal interpretations across the administrative spectrum, consistent with TWISM and Alamo Solar.
• Prior dicta suggesting broader deference to the Commission’s legal views is effectively superseded by this clarified framework.

B. VSSR Litigation: Strategy and Proof

• Claimants and employers must separately brief legal interpretation and factual application. Courts will resolve pure legal disputes, but proof on “near,” “extra pressure,” and “proximate cause” must be built and preserved in the record for the Commission.
• Practitioners should present site-specific metrics:
  • Distances from trench edge to equipment or material stockpiles.
  • Equipment weights, dynamic loading characteristics, and vibration profiles.
  • Soil type and trench stability factors (e.g., sloughing, cohesion, surcharge loads).
• Hearing officers should avoid informal sources (e.g., Wikipedia) to define technical terms. Where definitions are necessary, parties should supply authoritative standards (e.g., OSHA, ANSI, engineering references) and expert testimony.

C. Substantive Safety Compliance for Excavations

• “Other heavy objects” is a broad category—non–power shovel excavators, compactors, loaded trucks, and material stockpiles can trigger the duty to shore, brace, sheet-pile, or slope.
• “Near” is not defined; prudent employers should adopt conservative stand-off distances from trench edges, taking into account equipment weight, soil conditions, and depth.
• Documenting compliance decisions (e.g., why sloping was sufficient versus shoring; engineering assessments for surcharge loads) will be critical evidence before the Commission.

D. Remedial Posture: Limited Writs as the Default When Legal Error Obscures Fact-Finding

Berry reinforces that where an SHO’s legal error forecloses necessary factual determinations, the Supreme Court will not decide facts itself but will issue a limited writ to permit the Commission to conduct first-instance fact-finding. This approach promotes institutional competence and preserves the Commission’s constitutional role.

Complex Concepts Simplified

• VSSR (Violation of a Specific Safety Requirement): An additional, penalty-like award when an employer violates a clear, specific safety rule and that violation proximately causes a workplace injury. It is separate from ordinary workers’ compensation benefits.
• “Some Evidence” Standard: A deferential review of Commission fact-finding. If the Commission’s order is adequately explained and supported by some evidence, courts will not reweigh credibility or substitute their own inferences.
• Limited Writ of Mandamus: A targeted remand order directing the Commission to resolve specific, unresolved issues, often used when legal error prevented necessary fact-finding.
• “Other Heavy Objects” in Adm.Code 4123:1-3-13(E)(7): A catchall that includes any heavy item placed or operated above and near a trench that can impose surcharge loads on the trench wall—e.g., excavators, loaded trucks, or material stockpiles.
• “Near” (Fact-Dependent): Not defined by the rule; depends on jobsite specifics such as distance, load magnitude, soil stability, and trench dimensions. The Commission decides this in context.
• Proximate Cause: A causal link between the violation (e.g., failure to shore or slope in the presence of surcharge loads) and the injury (e.g., trench edge collapse causing impact).

Issues Remanded to the Industrial Commission

The Commission must decide, in the first instance:

1. Whether the large excavator, as an “other heavy object,” was placed or operated “on a level above and near” the excavation within the meaning of Adm.Code 4123:1-3-13(E)(7).
2. If so, whether Underground Utilities violated the rule by failing to sheet-pile, shore, brace, or slope “as necessary to resist the extra pressure due to such superimposed loads.”
3. If a violation occurred, whether it proximately caused Berry’s injuries.

On the dump truck and fill dirt, the Supreme Court held that the SHO’s no-violation findings were supported by “some evidence,” or that the appellate court failed to analyze and support its contrary view. Thus, no remand directives were issued on those grounds.

Conclusion

State ex rel. Berry v. Industrial Commission changes the frame of reference for VSSR litigation in Ohio. The Supreme Court definitively held that courts do not defer to the Commission’s legal interpretations of safety statutes or regulations. Finality attaches to facts, not law. Applying that principle, the Court corrected an SHO’s legal error that excluded a large excavator simply because it was not a “power shovel,” clarifying that “other heavy objects” is an independent trigger under former Adm.Code 4123:1-3-13(E)(7). At the same time, the Court preserved the Commission’s fact-finding prerogative, rejecting the court of appeals’ attempt to decide proximity and causation questions on a cold record.

Key takeaways:

• No deference to the Commission’s legal interpretations of specific safety requirements; legal questions are decided de novo by courts.
• “Other heavy objects” in the excavation rule is an independent, capacious category that can include large excavators and other equipment.
• “Near,” “extra pressure,” and proximate cause are fact questions reserved to the Commission and reviewed under the “some evidence” standard.
• Limited writs are the correct remedy when legal error taints or truncates necessary fact-finding.
• For employers and practitioners, meticulous record-building on equipment placement, load effects, soil conditions, and protective measures is essential for VSSR adjudications.

Berry thus advances both rule-of-law values—by allocating legal interpretation to the judiciary—and institutional competence—by preserving the Commission’s constitutionally grounded primacy in fact-finding. It will shape the briefing, hearing strategies, and evidentiary showings in VSSR cases statewide.