Dealing with an alleged Violation of a Specific Safety Requirement (“VSSR”) is, fortunately, not something employers have to deal with very often. In fact, a client with whom I’ve worked for several years wasn’t even aware of the issue until it recently came up. In the event that you or your client is faced with this situation, here are a few defenses to remember.
Timely? Was the Application filed within two (2) years of the date of injury?
Compliance with the code: 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.
Unilateral negligence. Unilateral negligence 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.
Inappropriate code section cited. 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
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 and no notice 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.
Undefined or vague definition. 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.
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.