written on October 04, 2007 by Liz Crosby
Awards for Violation of Specific Safety Requirements ("VSSR")
The Ohio Workers' Compensation Act, codified under Ohio Revised Code §4123 et seq. was designed with two goals in mind: (1) to provide benefits to employees for medical expenses and lost wages associated with on the job injuries and (2) protect Ohio employers from tort suits that could otherwise jeopardize industrial growth in Ohio. Under the current system, Ohio employers are required to either subscribe to the state insurance fund for workers' compensation protection or self-insure those losses. In turn, injured workers are prohibited from suing their employees for work related injuries - with two exceptions.
In 1982 the Ohio Supreme Court determined that, where an employer acts with intent to injure an employee, those actions are not protected under the Act and civil suits are a permissible means of pursuing damages.[1] While this decision has resulted in years of litigation and generated substantial legislation to define "intent", the underlying decision initially was designed to distinguish acts of negligence or recklessness, which are protected under the Act, from intentional torts, which cannot be covered by insurance due to public policy concerns.
The other "exception" to covered costs lies directly within the language of the Ohio Workers' Compensation Act, Article II, Section 35 of the Ohio Constitution:
... Such board shall have full power and authority to hear and determine whether or not an injury, 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 employes [sic], ... When it is found, upon hearing, that an injury, disease or death resulted because of such failure by the employer, such amount as shall be found to be just, not greater than fifty nor less than fifteen per centum of the maximum award established by law, shall be added by the board, to the amount of the compensation that may be awarded on account of such injury, disease, or death, and paid in like manner as other awards;
These provisions are more fully set forth in Ohio Administrative Code §4121.47.
The "safety requirements" referenced in both the Constitution and Code are not, as one might expect, OSHA codes. Rather, they are requirements promulgated by a "Safety Code Steering Committee" and were last amended in 1986 under the nomenclature Safety Requirements of the Industrial Commission of Ohio. There are a number of different chapters within the Code setting forth specific safety requirements for Workshops and Factories (Chapter 5), Construction (Chapter 3) and so on.
Every Ohio employer is presumed to know the requirements set forth in the Code and is presumed to comply with it. If an injury results because of an employer's violation of a specific safety requirement, the injured worker is entitled to pursue an application for additional award for violation of specific safety requirements.
Because a VSSR is a penalty, the requirements for pursuing and establishing a valid application are strictly construed in favor of the employer. As a result, certain procedural requirements in pursuing the additional benefits must be observed:
- The VSSR application must be filed within two years of the date of injury
- Any amendments to the VSSR application must be made within two years of the date of injury
- The VSSR application must set forth the alleged safety requirement at issue, with specificity. For example, it is insufficient to state that an employer failed to comply with guarding requirements without fully describing both the apparatus or process at issue and the corresponding safety requirement.
Once a VSSR application has been filed, the Ohio Bureau of Workers' Compensation assumes responsibility for investigating the allegations set forth in it. The investigation is commenced when the Bureau forwards a copy of the application to the employer. At that point, the employer is invited to respond to the application, typically with a brief written denial. Thereafter, the Bureau forwards to the employer a questionnaire following which an onsite inspection is scheduled.
The onsite inspection usually consists of (1) a viewing and photographing of either the apparatus, equipment or processes at issue; (2) interview of responsible personnel or witnesses; (3) interview of the injured worker and any witnesses identified by the injured worker; (4) collection of other documents related to the allegations, which may include purchase orders, maintenance records, safety memos, operating manuals and manufacturer specifications.
At the conclusion of the onsite investigation, the Bureau prepares an investigation report that is provided to all parties and their respective representatives. At that time, either party is invited to respond to and supplement the investigation package. Thereafter, the Bureau forwards its investigation to the Industrial Commission for formal adjudication of the VSSR application.
It is important to note that the Bureau investigation is only a fact-finding procedure. The investigator makes no recommendations concerning the validity of the application or allegations set forth in it. Therefore, it is not necessary to provide the investigator with information that may be used in the adjudication process. For example, if an employee violated the safety requirements in place, the employer need not disclose this defense to the investigator at the time of the inspection. HOWEVER, unless one of the parties requests a record hearing on the application, it will proceed to hearing exclusively on the evidence contained in the investigation package.
A record hearing can be requested at any time prior to the Commission's scheduling of the hearing. If the request is timely made, the requesting party assumes primary responsibility for retaining a court reporter for the hearing, and for providing all parties, including the Commission, with a copy of the hearing transcript.
A record hearing also permits either party to introduce any additional evidence, including testimony. In either event, the Commission will schedule an initial pre-hearing conference, designed to select a hearing date convenient to all parties, ascertain the probable length of the hearing, and insure that all parties are properly receiving communications concerning the VSSR application. Absent emergencies or extenuating circumstances, the Commission will not continue hearings that have been scheduled at the pre-hearing conference.
The Commission's decision on the VSSR application is a final, non-appealable order. However, parties are entitled to file a Motion for Reconsideration if there are reasons that the Commission's order is improper. The Motion for Reconsideration must be filed within 30 days of receipt of the Commission decision on the merits of the application, and is essential to preserve any further rights on the VSSR. For example, although the Commission has exclusive jurisdiction over the VSSR application, the Commission is still responsive to the courts if it abuses its discretion. Therefore, if either party believes that the Commission has abused its discretion, it must file a Motion for Reconsideration to preserve its ability to challenge the Commission decision, on mandamus.
The Commission is not required to re-hear a Motion for Reconsideration. If it declines to hear the motion, it will issue an order accordingly. If the motion is accepted for hearing, the parties are not entitled to supplement the record. The reconsideration hearing is for the purpose of addressing apparent errors or abuses made at the previous hearing and are not intended as a forum to re-litigate the merits of the application.
If the Commission determines that the employer violated a specific safety requirement and that violation was the direct and proximate cause of injury to the employee, it can award additional compensation to the injured worker, consisting of 15% to 50% of compensation paid in the claim. Compensation includes temporary total disability compensation, wage loss compensation, permanent total disability compensation, permanent partial disability compensation, loss of use awards, amputation loss awards and death benefits. There are other important aspects to the additional award, including:
- The award is computed at the maximum state wide weekly wage rate is not based on the average weekly wage rate of the injured worker
- The award is payable directly by the employer (although the Bureau may make the actual payment and assess the employer separately to insure the injured workers' timely receipt of the award)
- The award is not part of the claims cost, is not subject to "maximum claim cost" caps imposed on standard claim activity and will not be included in the annual rate making process
- The award is based on the lifetime payment of cost in a claim and is not limited by a state fund employer's 5 year rating period.
Furthermore, if an employer is found to have two or more independent violations during a two year period of time, the Bureau can assess an additional penalty against that employer, up to $25,000. Finally, a finding by the Commission of a valid VSSR is prima facie evidence of an intentional tort, sufficient to preclude summary judgment in an intentional tort suit.
Clearly, safety requirement violations are not predictable and can seriously jeopardize the financial stability of a company. As in all cases of potential liability, the best defense is a good offense. Every employer should insure that its workplace is in compliance with the current codes. This can be done through a thorough safety audit, conducted by either an independent safety contractor or through the Bureau's Division of Safety and Hygiene.
If an employer becomes the target of a VSSR application, the employer should insure the following:
- The VSSR is timely filed, within two years of the date of injury.
- The VSSR clearly and unequivocally sets forth the alleged violation
- The safety requirement identified within the application applies to the employer's industry
- The safety requirement identified within the application applies to the operations performed by the injured worker
- The safety requirement was violated
- The violation of the safety requirement was the direct and proximate result of the employee's injury
- The employee did not circumvent required safety practices or procedures (i.e., did not remove the guard)
Finally, in cases where older equipment is at issue, the employer is required to comply with the safety requirement in place at the time the equipment was placed into service at the employer's place of business. The Industrial Commission Safety Requirements have been amendment many times since the 1920s. For example, if a piece of equipment was placed into service in the 1950s, was neither moved nor modified since that time, the employer is subject to the safety requirements in place at the time the equipment was placed into service. The VSSR application must therefore cite to those requirements. If the employer was in compliance with the requirements in effect at that time, no violation will be found. However, this "defense" is only available if the equipment has not been moved or modified.
The VSSR provisions are punitive, time intensive and costly to employers whether an award is supported by findings or not. All Ohio employers need to be aware of the contingent costs associated with the VSSR remedies and prepare ideally in a preventative measures-especially with documentation of compliance with the requirements of the safety regulations. The best defense is meeting industry safety requirements before an injury occurs. In sum, the safe workplace is always the ideal and the goal of the law.
[1] See Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572.