Ohio Commission Erred in Assessing Penalties Against Employer for Safety Violations

A worker, who sustained severe injuries, including a left-hand amputation and major depressive disorder, while performing routine maintenance on the employer’s conveyor belt system, is not entitled to additional compensation for his employer’s alleged violation of a specific safety requirement (“VSSR”) since the proximate cause of his injuries was the worker’s own unilateral negligence, held the Supreme Court of Ohio [State ex rel. Ohio Paperboard v. Indus. Comm’n, 2017-Ohio-9233, 2017 Ohio Lexis 2748 (Dec. 28, 2017); see Larson’s Workers’ Compensation Law, § 105.06]. The Court said the record showed that the employer had complied with the relevant VSSRs at the time of the accident. It indicated further that, in accordance with their training, maintenance workers had removed safety guards on the belt system only after shutting down the conveyor belt. Shut-off switches were located at strategic positions and the VSSRs did not apply, because the conveyor had been shut down by the workers.

Background

The employer operated a recycled-paper mill, utilizing a conveyor belt to move wire-bound bales of paper weighing approximately 900 pounds each. During the normal operation of the conveyor belt, baling wire would sometimes get caught in the conveyor and it had to be removed by hand. The injured worker performed various duties for the employer, including regular, weekly maintenance on the employer’s conveyor belt system.

On the day of the worker’s injury, the belt system had been shut down and the worker and a co-worker had removed baling wires that had become wrapped around the chains and sprockets. At some point, the co-worker left the area to get oil for the conveyor and the injured worker, in an attempt to removed additional wires stuck underneath a gear, unlocked and activated the conveyor and then reached in to grab the wires. His hand was caught and crushed in the engaged conveyor belt system.

The worker’s claim was allowed, but the worker also sought additional compensation, alleging that the employer had violated Ohio Adm.Code 4123:1-5-05(C)(2), (C)(4), and (D)(1), which require guards and emergency-shut-off buttons on power-driven conveyors, and that those violations were the proximate cause of his injuries.

Hearing Officer Awarded 40 Percent Penalty

A staff hearing officer concluded that the worker’s injury was a result of his employer’s failure to comply with the three specific safety regulations. The officer rejected the employer’s contention that the injury had actually been caused by worker’s unilateral negligence in failing to follow the safety procedures that his employer required. Accordingly, the hearing officer awarded an additional award of compensation in the amount of 40 percent of the maximum weekly rate. An intermediate appellate court denied the employer’s request for a writ.

Worker Was an “Operator”

As to the employer’s contention that the VSSRs did not apply to the incident because the injured worker did not have status as an “operator,” the high court disagreed. The definition of “operator” was quite broad, said the Court; it only required that one be “assigned or authorized to work at the specific equipment.” Here the injured worker clearly met that criteria.

Employer Complied With VSSRs

The Court agreed, however, that the employer had complied with the relevant VSSRs. The conveyor had emergency-stop buttons located within reach of the operator in the control shack and at the front and back of the conveyor and “pinch points” were guarded to prevent contact during normal operation of the conveyor. The only time the guards were not in place was while the machine was undergoing maintenance and during that time, the safety regulations did not apply, because the conveyor was shut down.

Unilateral Negligence of Worker Caused the Injuries

The Court continued by noting that the record contained evidence that the the injured worker and his co-worker were required to shut down the machine to perform preventive maintenance. The evidence showed that the employer had provided training on its safety policy that the conveyor had to be locked out and tagged out before maintenance was performed on it and that the worker’s failure to follow the employer’s policy was the proximate cause of the injury.

The Court concluded that a VSSR award was intended to penalize employers for failing to comply with specified safety rules and only those acts within the employer’s control should serve as the basis for establishing a VSSR. The Court held that here the commission abused its discretion when it rejected the employer’s argument that the worker’s unilateral negligence exposed him to the hazards that caused his injury.

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