The second most common question I hear from potential clients is “Can I sue my employer, I would not have gotten injured had they not done X.”
In the Beginning
In general, the primary remedy available to an injured worker is to file an Ohio BWC claim. The Ohio BWC does not consider the negligence of the employer leading to the work injury, nor the injured worker’s own negligence. To understand why we have to get into our DeLorean and look at what was going on in the world and Ohio around the 1920’s and 1930’s. When we go back there, the world was reeling from the financial excesses of the teens and twenties. In typical fashion, the pendulum swung in the opposite direction and the world went a little socialist, some countries more than others. Russia went full on socialist, imagine collectivized farms, centralized planning. The United States implemented its own flavor of socialism via social security disability and retirement. Various states implemented other “socialist ” measures, and Ohio specifically created the Bureau of Workers Compensation.
The funny thing is, is that the State of Ohio is so interested in moving away from the “socialist” roots of the BWC, the bureau has explored rebranding. Why they haven’t yet, I’d imagine a nontrivial amount of money would be involved, whereby the cost of re-branding would outweigh the benefits of doing so.
Nevertheless, back in the 1930’s, the Ohio Legislature setup the Ohio BWC as the sole remedy for work injuries. The ability to sue an employer in tort was removed. But the employer’s ability to use tort defenses was also removed: contributory negligence, assumption of the risk, etc. The idea was that it would be easier for the injured worker to recover compensation and medical treatment, they wouldn’t have to prove a full tort case at trial. The employer would be shielded from being sued into oblivion from a massive trial judgment. In essence, the injured worker can pursue economic damages only, non-economic damages like pain and suffering, and punitive damages are not available to them.
The “value” of a workers’ comp claim is limited to economic damages: compensation and medical benefits being paid out in the claim for the allowed conditions in the claim, and the likely compensation and medical benefits which will very likely be paid out in a claim in the future.
“So, you’re telling me I can’t sue my employer ? ” Yes, but let me tell you about VSSRs. (I’ll talk about Intentional Torts in another article.
Violation of Specific Safety Requirements – VSSR
VSSR’s have been written about in other parts of the Malek Law Firm website. But in essence, the state of Ohio has recognized common ways folks have suffered very serious injuries. They’ve identified that an employer can minimize the risk of the serious injury occurring by doing x, y, and z things. When an injured worker gets injured when an employer has done x, y, and z things, then that injured worker may be able to file a VSSR. This is a punitive award in that it is taxed directly against the employer; the employer pays it dollar for dollar.
The list of potential VSSR violations can be found in the Ohio Administrative Code 4123:1 Division of Safety and Hygiene. These are “specific” safety requirements. The injured worker must match the industry she’s in to the section. For example lets say Martha works in a foundry, and she was burned by molten metal that splashed out of ladle due to the presence of moisture in the ladle. The specific safety violation that would be cited as having been violated would be 4123:1-7-05(A)(1) which says that Ladles shall be thoroughly dry before use.
How would Martha know that the ladle was not thoroughly dry before use. Typically the Occupational Safety and Health Administration, (“OSHA”) investigate injury events that are of a certain magnitude, otherwise an individual can request an OSHA investigation. OSHA will do an after accident investigation involving site visits and interviews with various folks. If there’s be a safety violation, a fine will be assessed against the employer. Typically the employer can take remedial measures to reduce or eliminate the fine. The purpose of OSHA is to make sure the workplace is safe. No relationship to Ohio VSSR, oftentimes an OSHA violation will correlate to a VSSR violation. But what’s helpful for the Ohio injured worker is that he can submit a FOIA request, Freedom of Information Act, for a copy of the OSHA investigation report. The injured worker and or her attorney will go to the Establishment Search part of the OSHA website and input the appropriate search criteria. If successful, they’ll get an investigation number, then they can request for that report via the foia.gov website.
After a number of months your attorney will receive a copy of the OSHA investigation report. Some parts of the OSHA report may be redacted. Some of these redactions may be related to trade secrets, some of the redactions may related to hiding personal identifying information of witnesses.
Your attorney will take the information gleaned from the OSHA report, information gleaned from you the injured worker, and information gathered from the employer and complete a VSSR application, the IC 8/9 form. They’ll file this application with the Industrial Commission. There will be an investigation by the BWC, then a VSSR hearing will be scheduled before the Industrial Commission. If a VSSR is deemed to have been violated, then the IC will attribute a percentage violation between 15 % and 50 %. I’ve previously shown how this might look, you can read that article here.
Now bringing this back to the grand bargain of the workers comp system i.e. the notion that negligence is not relevant. With VSSR’s negligence may be relevant. The VSSR violation itself is a kind of negligence, the employer neglected to do a thing, that negligence led to your injury. The employer’s negligence defenses can also be brought back into the mix. For example, if Martha was injured because the pouring ladle was not completely moisture free, well if Martha neglected skipped a pre-pour procedure like putting the ladle on torch heat for x number of hours before the pour, then she might be contributorily negligent. Her own actions, contributed to the ladle not being moisture free, which in turn lead to her serious injury.
You see this contributory negligence arise in situations where a worker falls from a roof because he wasn’t wearing fall protection. The injured worker claims he was not provided fall protection, the employer produces witnesses and evidence that there was fall protection gear but the worker did not avail himself of that gear.
I’ll talk about Intentional torts in exquisite detail in a future article. Fundamentally though the employer must have knowledge of a danger, he must have knowledge to a substantial certainty that an injury will result if a worker is exposed to the danger, the employer exposed that worker to that danger and he/she was injured. The employer can be negligent, he be can be recklessness, but that still would not rise to a knowledge of a substantial certainty.
For example , I had an injured worker who was adamant on suing an employer. This individual was working in a fast food restaurant, a wire shelf came loose and struck and injured the worker’s hand. The worker insisted that the employer knew that the shelf was loose and did nothing about it. The truth is, the injured worker may be able to prove that the employer did know the shelf was loose, but the worker in this instance will not be able to prove that the employer had knowledge to a substantial certainty that the shelf would come loose and strike the injured workers hand. The employer may have been negligent and recklessly so, but that’s not enough.
Thus that injured workers’ remedy was limited to a workers comp claim. Intentional Tort lawsuits are pretty rare, they are typically seen when a guarding mechanism is removed from a machine.
Nevertheless VSSR’s and Intentional Tort Lawsuits are complicated beasts. You also have a limited window they can be filed, before the anniversary of the injury date. A year. If you have sustained a work injury and believe you may have suffered a VSSR or Intentional Tort, call an attorney Doug Malek or Jim Malek for a free consultation. Don’t mess around with these type of work injury situations on your own, too many ways you can make a mistake.