State ex rel. Johnson v. Indus. Comm. of Ohio (2009) 122 St.3d 289, 910 N.E.2d 1030, 2009-Ohio-3453
Injured workers may recover awards, known as VSSR (Violations of Specific Safety Requirements) awards, if an employer violates a specific safety requirement enacted by the General Assembly or Industrial Commission. Such an award is in addition to other workers’ compensation benefits to which the injured worker is entitled. The amount of the VSSR award varies significantly depending on the claim; the total recoverable is based on fifteen to fifty percent of the maximum rate of compensation for any benefits awarded to the claimant, regardless of the actual rate paid to the claimant, for the lifetime of the claim.
The Supreme Court of Ohio recently imposed VSSR liability on an employer whose employee was injured while in the process of building a scaffold. This is significant in that the Supreme Court found that the safety provisions of Ohio Administrative Code §4123:1-3-10 do not apply exclusively to completed scaffolds.
Employee Johnson was in the process of installing safety rails on a scaffold that was being erected when a gust of wind tipped the scaffold causing Johnson to fall approximately six to sixteen feet. Johnson’s workers’ compensation claim was allowed. He then alleged that his employer violated three specific safety requirements related to bracing and anchorage of a scaffold as set forth in Ohio Administrative Code §4123:1-3-10.
A commission staff hearing officer denied Johnson’s VSSR claim, finding that the rules at issue applied only to completed scaffolds. The decision indicated that to hold otherwise would subject employers to safety standards that would be premature as the required safety rules contemplate a review of existing and completed scaffolds only.
Johnson filed a complaint in mandamus in the Court of Appeals for Franklin County, arguing that the hearing officer impermissibly inserted the “constructed” requirement into the safety code. The assigned magistrate recommended denial of Johnson’s writ, finding that the three safety rules allegedly violated were inapplicable to the scaffold at issue because it collapsed while undergoing further stabilization by installation of safety poles, essentially also finding that the safety requirements are to protect those employees who work on completed scaffolds. The court of appeals adopted the magistrate’s findings of fact and conclusions of law.
However, the Supreme Court reversed the court of appeals’ decision, finding that these safety requirements applied to unfinished structures because “workers on or around unfinished assemblies need appropriate protection just as much as workers on finished assemblies.” The Supreme Court determined that in such cases it will be necessary to make fact specific determinations. The decision further states that safety regulations applicable to scaffolds should be evaluated in light of the stage of construction, reasonableness, and practicality of being able to comply with the safety provisions considering the stage of installing the scaffolding.
Given the highly subjective test the Supreme Court provides in this decision, it is important to constantly evaluate scaffolding safety and protection at all stages of construction and not just at the time of final construction.
To request a copy of this decision, or to discuss concerns as to how the Supreme Court’s Johnson ruling may affect a present or future case, please feel free to contact one of our Workers’ Compensation or Construction Liability Group Attorneys.
