Author: J. Miles Gibson
If I’ve heard it once, I’ve heard it one-hundred times. “Workers’ compensation is a no-fault system.” While generally that is true, there are circumstances where fault does matter and can preclude compensation from being awarded.
For example, if the instigator of horse play is injured at work his injuries are not compensable. In addition, if a work place injury was proximately caused by the worker’s intoxication or being under the influence of some drug the injuries are not compensable.
In April 2014 the Ohio Supreme Court decided the case of State L. Richmond v. Ind. Com., 139 Ohio St.3d 175 (2014). The Court affirmed the denial of an additional award for a Violation of Specific Safety Requirement (VSSR). Darrin Richmond was an employee of Lamar Advertising of Youngstown, Inc. Mr. Richmond was injured when he fell from a ladder as he was working on a billboard. In his affidavit, Mr. Richmond stated that on the date of his accident he secured the ladder and attached a fall protection lanyard to the tie-off point on the ladder. However, in a post-accident inspection immediately after the accident, the lanyard was found to be hooked to a rung on the ladder and not to the ladders tie-off point. In other words, the failure to comply with the fall protection requirements of the code was caused by Mr. Richmond’s unilateral action.
The Supreme Court noted that the concept that an employee may not receive a VSSR award where his unilateral negligence caused the accident goes back to State ex rel. Frank Brown and Sons, Inc. v. the Ind. Com., 37 Ohio St.3d 162. In that case the VSSR was precluded by the claimant removing the top cross brace from a scaffolding support structure without first installing a corresponding cross brace beneath. Mr. Brown’s actions were in violation of the Ohio Administrative Safety Code and contrary to the employer’s instructions. The Court also relied on its previous decision of State ex rel. Quality Tower Service, Inc. v. Ind. Com., 88 Ohio St.3d 190 (2000). A full disclosure; I represented Quality Tower Service, Inc. in this case. In the Quality Tower case an employee used light weight nylon straps to do some rigging despite receiving a direct instruction by the Company’s President to use the heavy steel cables that were in the truck. When the nylon strap rigging failed the employee that did the rigging was killed and a co-worker was very seriously injured. The difference between this case and that of State ex rel. Frank Brown and Sons was in that case the employer was in compliance with the code until the employees unilateral action took them out of code. In Quality Tower Service arguably the employer was never in compliance with the codes since the heavy steel rigging was never affixed to the tower. However, the Court ruled that where an employer gives a direct instruction to an employee that would put the employer in compliance with the code that is sufficient compliance to bar payment of a VSSR award.
In summary the Supreme Court’s decision in State ex rel. Richmond makes it clear that employers are subject to VSSR penalties only for those acts within the employer’s control. An employee may not take an employer out of compliance with a safety code and be rewarded for doing so.