Violation of Specific Safety Requirements Authority to Conduct VSSR Investigations In 1923, the Worker s Compensation section of the Ohio Constitution (Article 2, Section 35) was amended to establish Violations of Specific Safety Requirements or VSSR s (Injury, Disease or Death) The applications, investigations and adjudication process are governed by Ohio Administrative Code (OAC) 4121:3-20 1
VSSR Employers have a legal duty to provide employees with a safe work environment. Section 4101 ORC requires employers to protect the life, health, safety and welfare of employees and frequenters. Examples of VSSR s: Falling to provide safe & necessary tools Falling to train employees in the safe use of equipment Failing to properly maintain equipment Allowing defective or damaged equipment to remain in service Altering equipment to remove safety protection & guards Ex[posing employees to hazardous materials without proper safety equipment Requiring employees to handle dangerous materials without proper safety training What is a VSSR & Elements of Violation 1. There must be an applicable and specific safety requirement enacted by the Industrial Commission or the General Assembly. 2. The employer must fail to comply with the specific safety requirement. 3. The condition created by the employer s failure to comply must be the cause of the compensable injury. 2
Who Can File a VSSR? Any injured worker with an allowed BWC claim Widow/dependents Legal representative on behalf of the inured worker or widow/dependent Application available online Can be filed up to two (2) years from the incident date BWC s Safety Violations Investigation Unit (SVIU) Housed within BWC s Special Investigations Department Eight (8) SVIU investigators assigned throughout the state Investigators experience of over 150 years Conduct 300-1000 investigations per year 3
SVIU Investigates Self-insured employers State fund employers (manufacturing, retail, service industry, trucking, etc) Public employers (city, county, state) Employers engaged in mining industries Out-of-state employers including injury/fatality sites outside Ohio Civil Penalizes for Repeat Violations Were Establish in Senate Bill 307 (1986) If there are two (2) or more VSSR s within a 24 month period, additional civil penalties can be assessed up to $50,000.00 The violation does not need to be of the same type if occurring in the same workplace. 4
Where are the Codes Found? Ohio Specific Safety Requirements are found within the Ohio Administrative Codes 4123:1-5 Workshop and Factories 4123:1-3 Construction 4123:1-21 Firefighting These can be accessed on-line as well at http://codes.ohio.gov/oac or BWC/IC websites The Investigation Cases assigned by geographic occurrence or employer location The investigator is neutral Fatality investigations take priority, otherwise the oldest investigation is worked first Investigations typically are completed within 70-90 days from initial assignment 5
The Investigation Injured Worker Investigator schedules an appointment Obtains formal affidavit Background employment information Specific accounting of incident Machinery, equipment, worksite description Precautions, protection, training provided Witnesses Sworn and notarized Identify potential witnesses Collect and review other documents Employer Receives Documents Request Form Copy of employers accident or injury report all statements and photographs Copies of maintenance records for equipment or machinery involved Copy of OSHA records or other reports pertaining o investigation Written description of injury site, including equipment involved Date of purchase of equipment/machinery. Must be documented. List of equipment supplied by the employer to the injured worker and equipment supplied by worker Provide training documents of decedent/injured worker Names, address and phone numbers of witnesses Manufacture model/serial number of equipment Written description of use/operation of equipment or machinery involved Employer BWC certificate Employers Federal Tax Identification Additional information/documentation Written description of construction site/area where injury occurred 6
Report of Investigation Once completed the report is forwarded to Industrial Commission (IC) in both hard copy and CD All parties receive a copy of report 30 days from mailing, the case is scheduled for prehearing and possibly a full hearing with IC Hearing Officer 7
Pre-Hearing Emphasized that a settlement between both parties is favored Hearing date is set If you want a record of the hearing, you must pay for the recorder and provide copy s of the record to the IC and the employee at no cost Hearing Hearing Officer from IC Testimony is presented Witnesses are kept separate Setting is similar to court room; however, all rules of law do not necessarily apply VSSR is deemed a penalty to the Employer; therefore, all reasonable doubts concerning the interpretation of a claim to be construed in favor of the Employer. 8
Report from Hearing Officer VSSR Ramifications Additional awards may be rendered against employer (15% to 50% of Average Weekly Wage/AWW, IC s discretion) Injury severity egregiousness of violation Machine's inherent dangerousness How blatant a violation Safety experiences Maintenance records Extent of the claimant s injury Filing/adjudication of VSSR can disqualify employer from group premium program Increase in premium Lost time and lost productivity VSSR billing attaches to underlying comp claim for life of claim 9
VSSR Ramifications IC correction order is included * You have 30 days to correct!!!! No right of appeal of an unfavorable VSSR (Can file for judicial relief with a Writ of Mandamus) Good Luck! The additional award IS NOT COVERED by your liability insurance nor is a settlement. The additional award comes from your budget!!!!!!!! Ohio Administrative Code Chapter 4123:1-21 Fire Fighting 4123:1-21-02 Personal Protective Clothing and Equipment for Structural Firefighting 4123:1-21-04 Automotive Fire Apparatus 4123:1-21-05 Ground Ladders 4123:1-21-06 Fire hose, Coupling and Nozzles 4123:1-21-07 Fire Department Occupational Safety and Health 10
4123:1-21-02 Personal Protective Clothing & Equipment for Structural Firefighting Personal protective clothing and equipment shall be properly sized for the wearer. Personal protective clothing and equipment that is damaged or otherwise defective to the point of voiding its intended protection shall be removed from service. Employer shall develop and require use of written plan covering the safe use, limitations, care, inspection, maintenance and replacement of the clothing and equipment required by this rule, and all affected employees be trained in accordance with such plan. Shall develop and retain records for the life of the protective clothing and equipment. 4123:1-21-02 Personal Protective Clothing and Equipment for Structural Firefighting Employer shall provide for the cleaning of personal protective clothing. Employee responsibility to properly use equipment. Protective clothing for structural firefighting shall be repaired in accordance with manufacture s requirements. 11
4123:1-21-02 Personal Protective Clothing and Equipment for Structural Firefighting Respiratory Protection: Shall adopt and maintain a respiratory protection program that addresses the selection, inspection, safe use, and maintenance of respiratory protection equipment, training in its use and the assurance of air quality testing. All members who might be required to use respiratory protection equipment shall be medically certified by a physician, or be a state of Ohio licensed health care professional who can perform medical evaluations under the supervision of a physician, on an annual basis. Medical certifications can be obtained by a medical examination, or by using the medical questionnaire as referenced in CFR 1910.34 Appendix C. The face piece seal capability of each member qualified to use SCBA shall be verified by quantitative fit testing on an annual basis and whenever new types of SCBA or face pieces are issued 4123:1-21-02 Personal Protective Clothing and Equipment for Structural Firefighting Respiratory equipment shall be inspected, maintained and repaired in accordance with manufacture recommendations. A written record of such inspection and maintenance of each piece of equipment. Regulator calibrations performed by a manufacture-authorized person at no more than twelve-month intervals. 12
4123:1-21-07 Fire Department Occupational Safety & Health Incident Management Must be written Must be utilized at all emergencies Must utilize concepts of risk management Accountability Shall be responsibility of all employees to participate in personnel accountability system IC shall be responsible for accountability and shall initiate an accountability and inventory worksheet 4123:1-21-07 Fire Department Occupational Safety and Health Operating at Emergency Incidents Employer shall provide an adequate number of personnel to safely conduct emergency scene operations In interior structural fires a minimum of four employees shall be required Exception actions could prevent serious injury or loss of life (However, when such actions are taken, the employer shall thoroughly investigate the actions) 13
4123:1-21-07 Fire Department Occupational Safety and Health Operating at Traffic Accidents Shall establish a written standard operating procedures regarding emergency operations at traffic incidents Fire apparatus shall be positioned in a blocking position One or more warning devices must be used to warn oncoming traffic Employee operating at traffic incident shall wear a garment that meets ANSI/IEA 107-2010 Class 2 or 3 Safety vest 4123:1-21-07 Fire Department Occupational Safety and Health Technical Rescue Shall be defined by employer according to risk management plan Shall develop and require use of a written plan covering the safe use, limitations, care, inspection, maintenance, and replacement of the equipment and all affected employees shall be trained in accordance of such plan. 14
4123:1-21-07 Fire Department Occupational Safety & Health Risk Management Shall adopt a comprehensive written risk management plan. Shall consider all FD policies and procedures Shall include goals and objectives to ensure risks are identified and effectively managed. Employee Fitness Shall establish and provide a health-related fitness and wellness program that enables members to develop and maintain a level of health and fitness to safely perform assigned functions. Program will not be punitive Shall be the responsibility of all employees to actively participate Case History VSSR - 30 April 2014 Northeast, Ohio Fire Department Fire Chief Assistant Chief 3 Line Lieutenants 18 Line Firefighters 1 Fire prevention Lieutenant 10 Part-time firefighters 15
Case History VSSR - 30 April 2014 Northeast, Ohio Fire Department Firefighter participating in SCBA agility course. Performed annually, 8 stations, physically demanding. Full gear and SCBA Vital signs monitored at beginning and end of each rotation. Case History End of first rotation, injured worker/decedent sat on back of truck. Before second rotation, he removed his gear and walked to dorm area of station. Department dispatched to simultaneous calls requiring all hands. Upon returning to station, decedent found unresponsive. 16
Case History Alleged employer violated: 4123:1-21-02 (P)(3) All members who might be required to use respiratory protection equipment shall be medically certified by a physician, or by a State of Ohio licensed health care professional who can perform medical evaluations under the supervision of a physician, on an annual basis. Medical certification can be obtained by a medical examination, or by using the medical questionnaire as referred in CFR 1910.134 Appendix c. Case History Employer alleged that an annual fire fighter respiratory fit testing questionnaire was provided and signed by decedent. Doctor testified that decedent had multiple risk factors for cardiovascular disease and completion of the medical respiratory questionnaire would have identified the issues and resulted in comprehensive medical evaluation. Decedent was obese, hypertensive and hyperlipidemia Hearing officer concluded that fit testing questionnaire does not meet the specific requirements stated in 4123:1-21-02(P)(3). 20 percent award or $8000.00 a year for life 17
Final Thoughts Ohio employs a carrot and stick approach. If the carrot (lower insurance premiums) does not get employers to have a safe work place There is the stick (VSSR Awards) For Fire Departments specifically, the safety requirements are spelled out in OAC 4123:1-21 Failure to comply can result in the organization suffering: Emotional cost Financial cost Public cost Internal cost If I Can Help Mark Martin, Fire Chief Perry Township Fire Department 330-573-7783 cell phone mmartin.fire1@yahoo.com 18