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Ohio Supreme Court Recognizes “Impossibility” as an Affirmative Defense to VSSR Claims

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By Bethanie R. Murray

March 5, 2019

Employees injured at work may be entitled to workers’ compensation benefits as well as an additional award if the underlying incident was the result of a Violation of a Specific Safety Requirement (“VSSR”).  To successfully obtain a VSSR award, an injured worker must prove that: 1) a safety statute or regulation is specific, not general, 2) the statute or regulation was enacted by the General Assembly or Industrial Commission for the protection of employees rather than for the general public, 3) the statute or regulation is applicable to the circumstances, which may include type of facility, machinery, or devices at issue, 4) the employer was not in compliance with that safety statute or regulation, and 5) the employer’s non-compliance proximately caused the injury or death.  Recently the Supreme Court of Ohio in State ex rel. Jackson Tube Serv. v. Indus. Comm., 154 Ohio St. 3d 180 (2018), created a new VSSR “impossibility” defense.

The injured worker, an industrial electrician for Jackson Tube, was repairing a flywheel on a cutoff machine.  While conducting this repair, he was under the flywheel, which was suspended by a sling.  The sling broke, causing the flywheel to fall and break both of his legs.  Thereafter, the injured worker filed a VSSR application against the employer for his injuries.

At the VSSR hearing, the injured worker testified that it was his belief that the manufacturer of the cutoff machine offered a fixture that would permit the same work to be done without working under a suspended load.  Jackson Tube’s maintenance supervisor and its manager of safety and training both testified that they were not aware of an alternative way to perform the job that prevented someone from being under the flywheel while it was placed back onto the cutoff machine, and that no such device described by Thompson existed at the time of his injury.  The Staff Hearing Officer found that the employer violated Ohio Adm. Code 4123:1-5-15(D) by requiring Thompson to work under a suspended load, relying on Thompson’s testimony that a device existed that would have prevented this incident from occurring.  Following the hearing and decision by the Staff Hearing Officer finding a valid VSSR claim, Jackson Tube filed a motion for re-hearing.  In its motion for re-hearing, Jackson Tube attached an affidavit from its maintenance supervisor noting that the manufacturer of the cutoff machine indicated that no such device existed to assist in removing or replacing the flywheel.

Thereafter Jackson Tube filed a request for a writ of mandamus.   The employer’s appeal was denied by the Tenth District Court of Appeals. However, on appeal to the Supreme Court, the decision was reversed.  The Supreme Court found that the commission erred by relying on injured worker’s speculation as opposed to any actual evidence presented by the injured worker of the existence of a fixture or device that would have provided an alternative means of fixing the flywheel. 

The Supreme Court thereby established an “impossibility” defense for employers, citing to cases supporting the impossibility defense in OSHA cases.  In doing so, the Supreme Court concluded that 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.

This decision from the Supreme Court of Ohio is significant for Ohio employers for several reasons.  First, it establishes the “impossibility” defense when there is otherwise no way for the employer to comply with the specific safety requirement.  The “impossibility” defense, however, should be viewed as a defense of last resort.  Additionally, this decision is important in that the Supreme Court looked to OSHA standards and defenses as a means by which to create this new affirmative defense for Ohio employers in the VSSR context.   Should you have any questions regarding this decision or a VSSR allegation, please contact one of the members of our Workers' Compensation Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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