Workers’ compensation laws in Ohio are based on Article II, Section 35 of the Ohio Constitution. The constitution recognizes two primary purposes of workers’ compensation. The first is to provide for the payment of compensation to workers and their families for injury, occupational disease, or death caused by hazards of the employment. The second, and less well-known, purpose is to promote workplace safety.
The constitution authorizes BWC to adopt specific requirements “for the protection of the lives, health or safety of employees” and authorizes the Industrial Commission to award additional compensation when it is found that an injury, disease or death was caused by the employer’s failure to comply with those requirements. Additional awards for violation of specific safety requirements, commonly called VSSR awards, must be equal to at least 15% of the maximum compensation rate in effect at the time of the injury, and can be as high as 50% of the maximum rate. VSSR awards are added to the normal compensation for every week during which the injured worker is entitled to a disability benefit. The minimum VSSR award for a 2010 injury is $116.50 per week, and the maximum VSSR award is $387.50 per week.
The employer is required by law to reimburse BWC in full for VSSR award payments. Therefore, a VSSR award not only provides additional compensation to the injured worker, but also acts as a penalty on the employer. By making the employer ultimately responsible for VSSR awards, a financial incentive to comply with safety requirements is created. Because of the penalty aspect, however, court decisions have held that the safety requirements adopted by BWC must be interpreted narrowly, and the benefit of the doubt regarding their meaning or applicability given to the employer.
BWC has adopted eleven separate safety codes. These cover a variety of industries, including Construction, Workshops and Factories, Elevators, Steel Mills, Laundry and Dry Cleaning, Rubber and Plastics, Potteries, Window Cleaning, Electrical Supply Lines, and Firefighting. While proving a claim for a VSSR award can be challenging, in appropriate cases VSSR awards can provide a source of additional compensation while at the same time serving to hold an employer accountable for failing to take appropriate measures to ensure a safe work place.
In my years of practice, I have handled close to a thousand VSSR claims. While these cases are a make up a relatively small percentage of the total number of workers’ compensation claims, there is little question that the liability employers face for violating safety requirements plays an important role in promoting safe practices in the workplace.
Commonly encountered situations which might give rise to a VSSR claim include missing or malfunctioning guards on machinery, failure to provide personal protective equipment such as safety glasses, breathing protection or fall protection, and damaged or improperly set up ladders or scaffolds. If you have been injured as a result of unsafe conditions, you may be entitled to a VSSR award. If you have questions about VSSR awards or workplace safety, the lawyers at Gallon, Takacs, Boissoneault & Schaffer will be happy to assist you.