VSSR awards


By Paul Pfeifer - Court of Appeals



In the realm of workers’ compensation, an employee injured on the job is covered for lost wages due to the injury. For certain jobs – especially those involving heavy equipment – the state has established a list of specific safety rules (“SSRs”) that provide required measures employers must take to make the workplace as safe as possible.

If an employer violates a required SSR, the injured worker can file an additional claim for a “violation of a specific safety rule” (“VSSR”). To establish entitlement to a VSSR award, a claimant must show that there is an applicable SSR, that the employer violated that SSR, and that the violation proximately caused the injury.

That’s what Cathy S. Penwell tried to do after she was injured at her job operating a 75-ton hydraulic press for Amanda Bent Bolt Company (“ABB”), a metal processing company.

The press Penwell was operating had a “pullback restraint system.” Two cables – one for each hand – are attached to the top of the press, with a safety bar on each side of the press. The operator wears wrist restraints attached to the cables, and a pulley system pulls the operator’s hand out of the danger zone.

On May 18, 2007, Penwell was injured when her left hand was crushed in the press. Earlier that day, another worker ran the machine for two hours and detected nothing wrong with the equipment. A supervisor later asserted that he couldn’t remember any trouble with that machine.

When Penwell began her shift, the pullback restraint system was adjusted specifically for her by a “set-up man.” He watched Penwell run two parts on the machine to make sure all was well, and noted nothing unusual with the safety devices on her machine.

After Penwell ran five parts she performed a required quality-control inspection of the parts, which meant she had to unhook her wrist restraints from the cables. After completing the quality-control check, she rehooked and ran a number of parts through the machine. At some point, the ram descended on Penwell’s left hand, causing the injuries.

ABB’s personnel director later testified that it was the first time in her 38 years at ABB that there had ever been a malfunction of the safety guards on that machine.

Penwell’s workers’ compensation claim was allowed for various serious injuries to her hand, including multiple fractures and the amputation of fingers, and for posttraumatic stress and depression. Penwell also applied for a VSSR award. The Ohio Industrial Commission – which handles such matters – considered her application. Based on testimony from ABB, the Commission found that the accident was a one-time malfunction of the pullback system. The Commission concluded that there was no evidence of a VSSR.

Penwell then filed a complaint with the court of appeals. She asked whether the Commission’s application of the “single failure” exception to VSSR liability is precluded by evidence that ABB, in monthly safety meetings, repeatedly informed its operators not to rely on the pullback guards.

The court of appeals concluded that the single-failure exception was not precluded by ABB’s safety meetings and its warnings that employees not rely solely on the pullback system. Those warnings, the court said, were components of a good safety policy, not evidence that ABB either knew that the system would fail or had such concerns about the system that it should’ve explored other methods of protecting the operators.

Penwell also asked whether ABB failed to guard the press by not providing a set-up person to assist in unhooking and rehooking during quality-control inspections. But the court determined that a set-up person did not have to be present whenever an operator unhooked and rehooked, because the initial adjustment would remain the same. Plus, the SSR doesn’t require it.

After that, Penwell brought her appeal before us – the Ohio Supreme Court.

The SSR at issue in Penwell’s case states that every hydraulic press shall be guarded to prevent the hands or fingers of the operator from entering the danger zone during the operating cycle. One of the acceptable methods of guarding is a “pull guard” of the type on Penwell’s press. Therefore, according to the SSR, the machine was properly guarded.

Penwell’s primary argument was that the Commission’s decision was based solely on the “one-time malfunction” defense. The one-time-malfunction defense comes from a 1975 decision by our court in which we observed that a safety rule “does not purport to impose absolute liability for an additional award whenever a safety device fails. The regulation does not forewarn the employer that…the safety device must also be completely failsafe.”

Thus, “the fact that a safety device that otherwise complies with the safety regulations failed on a single occasion is not alone sufficient to find that the safety regulation was violated.”

The question, then, is whether there was evidence of a prior history of malfunctions such that ABB should have been aware that a malfunction would occur. There wasn’t. The pullback system was in good working order on the date of the accident and hadn’t malfunctioned in decades.

Safety regulations do not impose strict liability on employers whenever a safety device fails. The purpose of SSRs “is to provide reasonable, not absolute, safety for employees.” We have acknowledged the “practical impossibility of guaranteeing that a device will protect against all contingencies or will never fail.”

We also rejected Penwell’s argument that a set-up person should’ve supervised her after performing the quality-control check. The SSR doesn’t impose a duty of constant surveillance over the equipment. The Commission reasonably concluded that the set-up person did not need to be present when Penwell unhooked and rehooked the restraints.

Therefore, by a seven-to-zero vote we determined that ABB was correctly allowed to use the one-time-malfunction defense because there was no indication of any malfunction on the day of the injury and no evidence of similar devices malfunctioning in nearly four decades. We also concluded that the Commission did not abuse its discretion in denying Penwell a VSSR award.

By Paul Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Ohio Court of Appeals.

Paul E. Pfeifer is a judge in the Ohio Court of Appeals.

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