Chad Thompson was an industrial electrician in the maintenance department of Jackson Tube. While employed with Jackson Tube, he was in the process of reinstalling a flywheel in a “cutoff machine” when he was injured. The sling of the crane that held the flywheel broke, dropping the flywheel, which then struck Thompson and broke both of his legs.
Initial Ruling for Employee’s Workers Compensation and VSSR Claim
The Industrial Commission granted Thompson’s Workers’ Compensation claim and also granted his VSSR (Violation of Specific Safety Requirement) application. The Industrial Commission relied upon testimony from Thompson who “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”.
The hearing officer found that such evidence supported a violation of Ohio Adm.Code 4123:1-5-15(D). However, Jackson Tube’s maintenance supervisor and manager of safety and training refuted this claim, testifying that they were not aware of an alternative way to perform the job in a fashion that absolutely kept an individual from being under the flywheel while it was being placed back onto the cutoff machine.
Employer Seeks Rehearing for Violation of Specific Safety Requirement (VSSR)
Due to the VSSR being granted, Jackson Tube then filed a motion for rehearing under Ohio Adm.Code 4121-3-20E(1)(b), alleging that the order granting Thompson’s application was based on an obvious mistake of fact or clear mistake of law. In support of this motion, Jackson Tube offered an affidavit from the maintenance supervisor which stated that the manufacturer of the cutoff machine “did not manufacture or provide a device or mechanism to assist in removing or replacing the flywheel”.
The motion for rehearing was denied after the hearing officer determined that Jackson Tube did not meet the criteria for rehearing set forth by Ohio Adm.Code 4121-3-20E(1).
Jackson Tube filed a complaint seeking a writ of mandamus in the 10th District Court of Appeals alleging abuse of discretion in rejecting the impossibility defense. The Court of Appeals denied the writ and the matter was appealed to the Supreme Court of Ohio.
Ohio Supreme Court Decision on VSSR
The Supreme Court reversed, holding that there was no evidence to support the decision to grant the award for a VSSR and that the Commission abused its discretion. More specifically, the Court held that to establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement, an employer must show:
- That it would have been impossible to comply with the specific safety requirement if that compliance would have precluded performance of the work.
- That no alternative means of employee protection existed or were available.
Justice O’Connor’s dissent is well worth noting. He points out that the majority allowed Jackson Tube to have a “second bite at the apple”, by presenting new arguments and evidence not presented to the commission at the hearing. The decision is unfortunate for Ohio’s injured workers and creates confusion where clarity is needed.