Normally, workers compensation is considered an exclusive remedy. The employee can not sue the employer and the employer can not deny a claim because of the negligence of the employee. In the monopolistic state of Ohio (meaning the state government is the provider of workers compensation, not private insurance companies) there is a unique law that allows the employee to make a claim directly against the employer for violation of specific safety requirements (VSSR).
Ohio state government, as the primarily insurer for workers compensation (Ohio does allow some large companies that have the financial resources to self insure) understands that safety rules and regulations prevent accidents. The Ohio Bureau of Workers Compensation and the Ohio Industrial Commission (two separate state agencies) promotes safe working conditions and provide hundreds of resources to Ohio employers on how to operate their business in a safe manner. It also awards employers with lower insurance premiums for having a good safety records.
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Ohio uses the carrot and stick approach to moving the donkey. If the carrot (lower insurance premiums) does not get the donkey (employer) to have a safe work place, there is the stick (VSSR Awards). Ohio employers are required to provide a safe workplace and to comply with the specific safety requirements set forth in the Ohio Administrative Code. The Ohio Administrative Code is too long to summarize adequately in this article, but it is somewhat similar to OSHA safety requirements. Much of the Ohio Administrative Code safety requirements are common sense – if you are high up on a scaffold you have protective railings, you don’t operate cranes under high voltage lines, you wear a hardhat at construction sites, you have machine guards to keep hands out of the hydraulic press, etc.
If an employee believes his/her injury was due to the employers failure to comply with a specific safety requirement set forth in the Ohio Administrative Code, the employee may apply for a VSSR Award – an additional award of compensation over and above what the Ohio Bureau of Workers Compensation will pay in indemnity benefits. If the employee contributes to their own injury by not following the safety guidelines for their job, or if the employee failed to use the safety equipment provided by the employer, the employee is not eligible for a VSSR Award.
In Ohio, the maximum weekly temporary total wage loss benefit for the year 2010 is $775.00 per week and the maximum in 2011 will be $783.00 per week, with minimums of $258.33 in 2010 and $261.00 in 2011. The VSSR award will be no less than 15% and no more than 50% of the maximum weekly compensation rate. It is paid weekly over the life of the claim. [For example, the VSSR award is 50% of the $775 weekly temporary total benefit or $387.50 per week. The employee is off work for 20 weeks, the VSSR Award is $7,750 ($387.50 X 20). The stick – the employer must pay the award to the employee, not the Ohio Bureau of Workers Compensation.
But wait, it gets worse. The Industrial Commission can impose an additional penalty against the employer of up to $50,000.00 if the employer has had two or more safety violations in the preceding 24 months.
Fortunately, the employee can not just make an accusation of a violation of a specific safety requirement and get a VSSR Award. The employee or the employees attorney must file state form IC-8/9 with the Ohio Bureau of Workers Compensation within two years of the injury. The Industrial Commission will send a notice to the employer after it has received the application for a VSSR award. The employer is required to file an answer within 30 days of notification.
The Bureau of Workers Compensation has a safety violations investigation unit (SVIU) which will assign the investigation to an impartial investigator. The SVIU sends a request to the employer listing common information requested. The employee is required to provide the SVIU with the names of people who can provide additional information about the alleged safety violation. The SVIU investigator will do an inspection of the accident site, interviews with fellow employees and supervisors, obtain affidavits and any additional information relevant to the investigation. The investigator then files a report with Industrial Commission.
The Industrial Commission forward copies of the SVIU report to all parties of interest. Everyone has 30 days for any additional information or documentation anyone wants to submit. After the 30 days, a hearing is held where the employer and the employee meet to discuss a possible settlement. If the employer and employee agree on what the VSSR Award will be, the VSSR Award is paid by the employer. If the employer and employee can not agree, the Industrial Commission schedules a hearing at which the Industrial Commission renders a decision based on the merits of the case of what the VSSR Award will be, if any award.
If you are an Ohio employer, now is a good time to review your safety program to be sure you are in compliance with all safety requirements for you industry. (Even if you are not an Ohio employer, now is a good time to be sure you are maximizing your safety procedures). Any employer who needs assistance with their safety program should contact us.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: [email protected].
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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