Defend an Alleged Safety Violation Like You’re Playing LeBron James

In Ohio, injured workers can file what is known as an “Application for Additional Award for Violation of a Specific Safety Requirement” (“VSSR”). For an employer, an alleged Violation of a Specific Safety Requirement can be as intimidating as being a point guard, called up to the NBA, and immediately put into a  game to defend LeBron James.  Most times, for the employer, it is the first time they have been exposed to this particular type of issue arising from a workplace injury.

This post was prompted by a case I’m currently working on, in which one of the defenses we are asserting is known as the “impossibility defense”.  I’ll get into that later, but somehow the words “impossible” and “defense” called up an image of being on the basketball court in a game against LeBron James.  What better thing to post about?  First off, let’s start with the basics.

What is this game all about, anyway?

If you’re going to play LeBron James, you had better understand your basketball basics.  I have very little to share in the way of basketball tips, but I’m loaded with tips about defending a VSSR.

A VSSR award acts as a penalty against the employer. The award is separate from the claim allowance, and is in addition to any other compensation awarded. The basis of the VSSR application is that the employer allegedly violated safety regulations found in the Ohio Administrative Code, which resulted in the injury.

If the Industrial Commission makes a VSSR award, it will assign the award a percentage between 15% and 50%, based upon the severity of the violation.  To calculate the amount of the award, multiply the VSSR percentage by the number of weeks of indemnity compensation (temporary total disability, permanent partial disability, etc.) paid in the claim, at the maximum rate for the year of injury.  Because a VSSR award is a penalty, it is not affected by the fact that an injured worker has a low average weekly wage.  The greater number of weeks of indemnity compensation paid in the claim, and the greater VSSR percentage, the greater the award.

Get ready for the game

Before you even step on the court, you will need to do your homework, and figure out what you’re facing.  The same thing goes for defending an alleged Violation of a Specific Safety Requirement.  Shortly after the VSSR is filed, the employer receives a fourteen (14) point request for information from the BWC.  However, the employer needs to do its own investigation first, well before the request for information.

Come up with your defense strategy

There are any number of defense strategies you could employ, including:

My contract doesn’t allow me to defend LeBron (aka no authority to alter or correct): The employer must have the authority to alter or correct a VSSR Violation in order to be held to be liable for it. State ex rel. Grunau Fire Protection Systems, Inc. v. Industrial Commission (1992), 65 Ohio St.3d 320.

It’s my first NBA game, give me a break! (aka a one time event with no knowledge of the condition): If the employee was injured as a result of a single one-time event and the employer had no knowledge of the defective condition, a VSSR will generally not be found. (i.e., a pull back guard that failed for the first time resulting in injury to the claimant, with no knowledge of prior uncorrected failures by the employer). State ex Pressware Int’l., Inc. v. Industrial Commission (1999), 85 Ohio St.3d 294.

Maybe LeBron will go to the wrong arena (aka the employee cited the wrong code): Specific Safety Requirements are strictly construed in favor of the employer.  The claimant must prove: 1) that the machine or situation in question is one that is covered by the code section cited; 2) that the code section was violated; and 3) that the violation was the proximate cause of the injury. State ex rel. LTV Steel Corp. v. Industrial Commission (1990) 69 Ohio App.3d.  If this is not a machine or a situation that is covered by the cited code section, there can be no violation.

What do you mean, defend LeBron???? (aka the undefined or vague definition defense): Where the Administrative Code does not define the relevant apparatus and a cited provision refers to equipment that is not part of the machine in question, it is an abuse of discretion to apply that requirement to the employer. State ex rel. Borden v. Industrial Commission (2004) 101 Ohio St.3d 191.

Defending LeBron James is impossible (aka the impossibility defense): This is the prompt for this crazy basketball post.  A new defense, established by the Ohio Supreme Court in 2018, is that compliance with the cited code section was not possible.  In order to establish impossibility as an affirmative defense, the employer must show: 1) that it would have been impossible to comply with the specific safety requirement, or that compliance would have precluded performance of the work, and 2) that no alternative means of employee protection existed or were available.  State ex rel. Jackson Tube Serv. v. Indus. Comm., 154 Ohio St. 3d 180 (2018).

It’s the other guy’s fault that LeBron scored 45 points (aka the unilateral negligence defense): Unilateral negligence on the part of the employee is a defense to a VSSR. There must be no negligence and no fault to be assessed against the employer for the unilateral negligence defense to prevail. State ex rel. Frank Brown & Sons, Inc. v. Industrial Commission (1988) 37 Ohio St.3d 162.  If the employer is partly responsible for the accident in any way, the unilateral negligence defense will not apply.

LeBron is too old, this will be a breeze (aka the two year limitation): A VSSR application needs to be filed within two (2) years of the date of injury.  If you’re really lucky, the application will not be timely.  That’s about as likely as LeBron retiring next season however.

Best case scenario, you could just shut LeBron down in the game (if you’re Luka Doncic, that is) (aka compliance with the code): For you non-basketball fans, Luka Doncic is the hottest player in the NBA this season.  Obviously, if the employer can establish that there was no violation and that the machine or process in question met the requirements of the Ohio Administrative Code, there is no VSSR.  During the course of your investigation, you should be able to get a pretty good sense of whether the employer was clearly in compliance with all relevant code sections.  If so, congratulations, you’re in pretty good shape.  You shouldn’t forget about the other defenses however.

Takeaways

The good news is that defending a VSSR action is a lot easier than defending LeBron James.  In order to successfully assert an award for a violation of a specific safety requirement, an injured worker must prove all of the following:  1) that the specific safety requirement cited is applicable to the situation at hand; 2) that the employer violated that specific safety requirement; 3) that the injury sustained by the injured worker was the type of injury designed to be prevented by the specific safety requirement; and 4) that the claimant was injured as a direct and proximate result of the violation of the Specific Safety Requirement.

Special thanks this week to Jon Hyman at Ohio Employer Law Blog for including my post from last week in his Friday roundup Friday roundup, along with a great story about how Jack Ma, the founder of Alibaba (China’s answer to Amazon), says that he wants his employees to “shag” (as they would say in Britain) six times every six days.  Seriously, check it out for yourself here .

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