• Industry Standards and OSHA Redefining VSSR Regulations
  • October 9, 2014 | Authors: Nicholas E. Davis; Lawrence C. Davison; Samuel M. Duran; Christopher B. Ermisch; Cynthia C. Felson
  • Law Firms: Taft Stettinius & Hollister LLP - Cincinnati Office ; Taft Stettinius & Hollister LLP - Cleveland Office ; Taft Stettinius & Hollister LLP - Columbus Office
  • The Ohio Supreme Court recently held that industry standards and OSHA laws may be considered by the Industrial Commission in the interpretation of VSSR (Violation of a Specific Safety Requirement) regulations. In State ex rel. Richmond v. Indus. Comm., Slip Opinion No. 2014-Ohio-1604, the claimant was injured when he fell from a ladder while working on a billboard. The ladder was a 14 foot ladder with a double hook at the top. Billboards are equipped with ladder stops at each point to prevent the hook ladder from slipping off the side of the billboard. Under OAC 4123:1-3-03(J)(1), safety harnesses and lanyards are to be provided by the employer to employees. It is the responsibility of employees to wear them when working more than six feet off the ground and to securely fasten the safety equipment to the structure when in use.

    The claimant testified that the employees were trained to attach a lanyard to a tie-off point on the ladder as opposed to the billboard itself. He argued this was a violation of the regulation, as a portable ladder is not considered a structure. The SHO denied the claimant’s VSSR application since industry standards and OSHA regulations show that when the hook ladder is secured properly it becomes part of the structure. On appeal, the Supreme Court held there was no error by the SHO in considering industry standards and OSHA regulations in determining whether a VSSR occurred. In other words, the Industrial Commission did not improperly adopt another agency’s rules merely by considering industry standards or another administrative agency’s treatment of the same industry or equipment.

    Although the ruling might seem a double edge sword to employers in that a claimant could likewise argue that OSHA and industry standards should apply to extend the reach of a violation of a specific safety requirement, the court noted that because a VSSR award is a penalty against the employer all reasonable doubts concerning the interpretation of VSSR regulations must be resolved in favor of the employer. In other words, while an employer can look to industry standards and OSHA regulations in the interpretation of VSSR regulations, a claimant cannot rely on industry standards or OSHA to establish a violation of a specific safety requirement.