Ohio employers have a legal obligation to protect the safety of workers at the place of employment by implementing specific safety standards. The Ohio Revised Code (ORC) requires the use of safety devices and safeguards, the adoption of safe work methods and processes and maintenance of a safe workplace. Employers are also to adhere to all safety rules. Likewise, Ohio workers are responsible to properly use any provided safety equipment.
When an on the job injury occurs, applying for benefits through the Ohio Bureau of Workers’ Compensation (BWC) is the injured worker’s sole remedy. This means the employer may not be sued if negligent (nor, for that matter, may a claim be denied if it resulted from the negligence of the employee who is injured). However, if the employee’s injury, disease or death resulted from the employer’s violation of a “lawful safety requirement”, an injured worker with a BWC claim may be eligible to receive an additional award of compensation. Such awards are known as “VSSR claims” as they result from the violation by the employer of a specific safety requirement.
Ohio authorizes the Industrial Commission of Ohio (IC) to grant this additional award to an injured worker when a workers’ compensation injury, illness or death results from an employer’s VSSR. This additional award ranges from 15 percent to 50 percent of the maximum allowable weekly compensation rate granted to the injured worker.
Such claims are difficult to win. Although an award of benefits given for a VSSR is in the nature of compensation for the injured worker, it is also intended to impose a penalty upon the employer. Because payment of such an award penalizes the employer, all reasonable doubts in the interpretation of the specific safety requirements are to be resolved in favor of the employer.
To prevail before the Industrial Commission, the injured worker must show that the safety requirement was both specific and applicable, that the employer was not in compliance when the accident occurred and that the non-compliance contributed to the injury, illness or death. Proof of an OSHA (Occupational Safety and Health Administration) violation does not equate to a valid VSSR claim.
Applications for VSSR awards must be filed within two years of the injury, death or initial diagnosis of illness. The VSSR allegation is assigned to a special investigator from the BWC’s safety violations investigation unit. After the investigation has been completed and the parties have had an opportunity to provide supplemental information, the IC schedules the matter for a pre-hearing conference to review new information, to determine whether the parties may be discussing settlement of the matter and/or to set a date for hearing on the application.
The ORC allows the IC to impose a penalty of up to $50,000 for two or more VSSR violations occurring with a 24-month period. Actions, such as intentional tort or third-party lawsuits, may also be filed in civil courts.