To establish entitlement to a Violation of a Specific Safety Regulation (“VSSR) award, a Workers’ Compensation claimant must show that there is a specific safety rule (“SSR”) applicable to the employer, that the employer violated that SSR, and that the violation caused the injury. The Supreme Court of Ohio recently held that a one-time failure of an otherwise compliant safety system that resulted in employee injury is not a violation of a specific safety requirement (“SSR”) in the worker’s compensation system. State ex rel. Penwell v. Indus. Comm.
The case involved a hydraulic press equipped with a “pullback” safety system designed to keep an operator’s hands out of the press before closing. The employer reminded employees at monthly safety meetings not to rely on the safety system alone and to remove their hands before closing the press. The employer continually reminded employees that any mechanism can fail despite the pullback system operating properly for 38 years.
On the day of the injury, the pullback system was checked for hazards and used without incident by other employees. There appeared to be nothing wrong with the safety system. Later, Ms. Penwell’s left hand was crushed in the press. An investigation revealed that one of the pullback restraints malfunctioned. It was the one and only time the pullback system malfunctioned. Ms. Penwell filed for a VSSR award which was denied.
The Supreme Court of Ohio held that the pullback system complied with governing safety regulations upholding the denial of the VSSR award. The Court found the “one-time-malfunction” defense applicable, and further held that proof of a better safety mechanism being available within the specific safety requirements is insufficient to prove a VSSR. The Court explained, “[t]he purpose of specific safety requirements is to provide reasonable, not absolute, safety for employees.” Because this malfunction was the first of its kind in at least 38 years, and the company used an approved safety mechanism, the employer was not subject to VSSR liability.
Lesson for Employers: The Court emphasized the lack of a guard failure for 38 years coupled with the employer’s strong commitment to safety. The Court did state that had there been previous guard failures or the employer was on notice of a guard defect it would have found that the employer committed a VSSR. This case underscores that employers must be committed to follow applicable safety regulations and document their efforts including communicating and training employees on safety.
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