Beware: Violations Of State Safety Requirements Bring Penalties For Both State Fund and Self-Insured Employers
Recently, Dinsmore has noticed an uptake in claimant allegations that an employer has caused an accident due to violation of a specific safety requirement (VSSR). A VSSR award is an additional award paid to the employee by the Bureau of Workers’ Compensation (BWC) billed directly to state fund employers or paid directly by a self-insured employer.
Who Is Eligible to File a VSSR?
An injured worker with a BWC claim may be eligible to receive an additional award of compensation if the injury occurred as a result of the employer’s violation of a specific safety requirement (VSSR) as outlined in the Ohio Administrative Code. A VSSR occurs when a safety rule or statute (other than the statutes requiring an employer to maintain a safe work place) is violated.
What Does the Claimant Need to Prove?
The injured claimant must meet a three-part test:
(1) There is a specific safety rule applicable to the employer;
(2) The employer failed to comply with the safety rule; and
(3) That violation caused the injury.
The claimant must meet all three prongs of this test to receive a VSSR award.
How Much Can the Claimant Receive?
The award is based on 15 percent to 50 percent of compensation paid in the claim. The size of the award can be based on the severity of the injury, egregiousness of the violation, and inherent dangerousness of the device.
This award is continuing. It will be applied to any future periods of disability compensation.
If a violation is found, it is applied to the employee’s maximum compensation rate whether or not the employee received the maximum rate.
What Is the Application Process?
Form IC-8/9 is filed by the claimant with specific code sections alleged to have been violated. Specific facts must be alleged on the application, and it is filed with the Industrial Commission. The employer has to answer the application within 30 days of receipt. This can be done with a general denial. The application is sent by the Industrial Commission to the BWC Division of Safety and Hygiene, where an investigator is assigned. An Employer Information Request form is sent directly to the employer. It requests detailed information such as OSHA records, equipment purchase dates, manufacturer, model and serial numbers, witnesses, and accident descriptions. An investigator will make an appointment with the employer to inspect the equipment or premises and conduct the investigation where the injury occurred.
What Occurs at the On-Site Investigation?
Employer’s legal counsel may (and should) be present during the on-site visit. There will be an opening conference, and the investigator will want to view the accident site and/or machinery if applicable. He/she will take photographs/video. The investigator may request employee interviews and affidavits and may have questions regarding relevant documentation.
How Does the Employer Prepare to Defend a VSSR Claim?
As with any accident, evidence should be gathered immediately.
Consider the impact of an OSHA investigation.
Assemble critical documents, such as maintenance/training records.
Be prepared for on-site investigation.
Engage a safety expert.
Be careful: A worker who is injured while working for a customer of a temporary staffing agency can bring the VSSR claim against the customer company.
What Happens After the Investigation?
The investigator will file a Report of Investigation and place it in the VSSR claim folders before any Industrial Commission hearing occurs.
The report will contain a summary, affidavits, color photographs with written explanation or description, video, pertinent documents submitted to the investigator by the employer and injured worker. Materials are forwarded in written form and/or on CD.
A pre-hearing conference will be conducted where a hearing date will be selected and other issues will be discussed. This is the last chance to request a record hearing so evidence can be additionally submitted at the merit hearing.
What Happens at a VSSR Hearing?
Pre-hearing briefs are often helpful. Assuming a record hearing was requested, affidavits will be submitted and witness testimony will be heard. Expert witness testimony may be needed. Objections may need to be made.
What Are Key Defenses to a VSSR?
1. Employer has complied with regulation, e.g., personal protective equipment (PPE) was provided.
2. Code applicability is controlled by the date a machine is put into service, not by date of injury.
3. Grandfather clause applies.
4. Safety requirement is unconstitutionally vague or general.
5. Employer does not engage in activities within the scope of the specific safety code.
6. Violation was not the “proximate cause” of the accident.
7. Employer did not have appropriate control over machinery or process.
8. No known hazard claim involves personal protective equipment (PPE).
9. Violation would create an unreasonable or patently illogical result.
10. Accident was caused by employee’s unilateral negligence.
11. The “exposed to contact” defense: Machinery must be guarded where the machine operator is exposed to contact.
12. The “within easy reach” defense. Emergency shut-off controls required by O.A.C. Rule 4123:1-5-05(D)(1) need not be “within easy reach of every position in which operator could find himself around machine.” State, ex rel. Harris v. Indus. Comm. (1984), 12 Ohio St. 3d 152; State ex rel. Scott v. Uniroyal, Inc. (1986), 25 Ohio St.3d 35.
The VSSR process can be complicated. Be prepared.