Ohio: Employer Did Not Violate Safety Rule Where Compliance Was “Impossible”

Acknowledging that it was possible for an employer to establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement (“VSSR”), the Supreme Court of Ohio held that in order to take advantage of such a defense, the employer must show (1) that it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work and (2) that no alternative means of employee protection existed or were available. Here, an industrial electrician was injured while in the process of reinstalling a heavy flywheel in a cutoff machine. A crane held the suspended flywheel in a sling as the electrician and a coworker worked beneath it, trying to move the flywheel into position. The sling broke, dropping the flywheel onto the electrician, breaking both his legs. His workers' compensation claim was allowed for bilateral femur fracture and right femoral shaft nonunion. The electrician contended that there were alternative means that could have been utilized to move and reinstall the flywheel. The employer indicated there were no such alternatives, but the Commission agreed with the electrician and found that it was possible for the employer to comply with the SSR. The high court disagreed, noting that there was no evidence to support the commission’s decision. The electrician’s “evidence” was speculative. The employer had established the “impossibility” defense.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See State ex rel. Jackson Tube Serv. v. Indus. Comm'n of Ohio, 2018-Ohio-3892, 2018 Ohio LEXIS 2330 (Sept. 27, 2018)

See generally Larson’s Workers’ Compensation Law, § 105.06.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law