Safety and OSHA News

Did injured worker prove employer violated safety reg and get additional comp benefits?

An employee says his employer could have taken steps to prevent his injury, therefore he deserves additional workers’ comp benefits. How did a court rule? 

Chad Thompson, an industrial electrician employed by Jackson Tube Service Inc. in Ohio, was injured when he and a co-worker were reinstalling a flywheel in a cutoff machine. A crane held the suspended flywheel in a sling as they worked beneath. The sling broke, dropping the flywheel which struck Thompson and broke both his legs. He received workers’ comp benefits for his injuries.

Thompson also applied for an additional workers’ comp award due to the violation of a specific safety requirement (VSSR). Ohio law says, “Employees shall not be required to work or pass under suspended loads, nor shall the crane operator be required to carry a suspended load over employees.”

At a hearing, Thompson testified:

“It’s my understanding that there is a fixture for that application that’s offered by the manufacturer, and that was only noted after the accident when we had gone back and taken a look.”

A staff hearing officer of the Ohio Industrial Commission granted the VSSR. Jackson Tube appealed and offered an affidavit which stated that the manufacturer of the cutoff machine verified it “does not manufacture or provide a device or mechanism to assist in moving or replacing the flywheel.”

A state appeals court upheld the hearing officer’s ruling. Jackson Tube appealed to the Ohio Supreme Court.

Impossibility defense

Jackson Tube used what’s called an “impossibility” defense – when compliance with a specific safety reg is impossible, VSSR shouldn’t be granted. To prove this, the employer must show:

  • compliance with the standard’s requirements is impossible or would have precluded performance of the work, and
  • no alternative means of employee protection had been available.

The company says there was no way to repair the cutoff machine without requiring employees to work under the suspended flywheel.

The Ohio Supreme Court found the Industrial Commission erred by relying on Thompson’s claim that the machine’s manufacturer offered a fixture that would have made changing the flywheel safer. Jackson Tube presented evidence (not just a claim) that no such fixture existed. The manufacturer’s own engineer said he was unaware of any such device.

Therefore, Jackson Tube successfully used the impossibility defense. It showed it was impossible to comply with the regulation under the circumstances.

The Ohio Supreme Court ruled Thompson shouldn’t receive VSSR.

(Jackson Tube Service Inc. v. Industrial Commission of OhioOhio Supreme Court, No. 2018-Ohio-3892, 9/27/18)

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