Ohio Supreme Court Rules Against Injured Worker’s VSSR Claim

Employee Suffers Injury at Jackson Tube

Chad Thompson, an industrial electrician at Jackson Tube, was injured while re-installing a flywheel in a "cutoff machine." The crane sling holding the flywheel broke, causing the flywheel to drop and strike Thompson.

This accident resulted in both of Thompson's legs being broken.

Initial VSSR Claim Granted

The Industrial Commission approved Thompson’s Workers’ Compensation claim. They also granted his VSSR (Violation of Specific Safety Requirement) application.

The Commission based its decision on Thompson's testimony. He stated, “understood that there is a fixture for that application that is offered by the manufacturer, and that was only noted after the accident when we had gone back and taken a look”.

Employer Disputes VSSR Finding

The hearing officer concluded that this evidence supported a violation of Ohio Adm.Code 4123:1-5-15(D). However, Jackson Tube's maintenance supervisor and safety manager disputed this claim.

They testified that they were unaware of any alternative method to perform the job that would completely prevent an individual from being under the flywheel during its re-installation onto the cutoff machine.

Employer Files for Rehearing

Jackson Tube filed a motion for rehearing after the VSSR was granted. This motion was filed under Ohio Adm.Code 4121-3-20E(1)(b).

The company argued that the order granting Thompson’s application was based on an obvious mistake of fact or a clear mistake of law. To support their motion, Jackson Tube provided an affidavit from the maintenance supervisor.

Rehearing Motion Denied

The affidavit stated that the cutoff machine's manufacturer “did not manufacture or provide a device or mechanism to assist in removing or replacing the flywheel.” The hearing officer denied the motion for rehearing.

The officer determined that Jackson Tube did not meet the criteria for rehearing as outlined by Ohio Adm.Code 4121-3-20E(1).

Appeal to the Supreme Court

Jackson Tube then filed a complaint seeking a writ of mandamus in the 10th District Court of Appeals. They alleged abuse of discretion in rejecting their impossibility defense.

The Court of Appeals denied the writ, leading to an appeal to the Supreme Court of Ohio.

Ohio Supreme Court Reverses VSSR Decision

The Supreme Court reversed the lower court's decision. They held that there was no evidence to support the VSSR award and that the Commission abused its discretion.

The Court specified the requirements for an employer to establish impossibility as an affirmative defense to a VSSR application:

1. That it would have been impossible to comply with the specific safety requirement if that compliance would have precluded performance of the work.
2. That no alternative means of employee protection existed or were available.

Justice O’Connor’s Dissent

Justice O’Connor's dissent highlighted that the majority allowed Jackson Tube to introduce new arguments and evidence not presented to the commission during the initial hearing. He stated that this gave the employer a “second bite at the apple.”

This decision is seen as unfortunate for Ohio’s injured workers and introduces confusion where clarity is needed.