Knowing About, and Preparing to Defend, a VSSR

In Employment Law by Coolidge Wall

In the midst of the “alphabet soup” of regulations and regulators that could affect your business, Ohio has an ingredient all its own…the VSSR.

The acronym stands for “violation of specific safety requirement.” The safety requirements involved are located in the Ohio Administrative Code, and are separated under classifications for “workshops and factories” and “construction.” The regulations are akin to OSHA regulations, but not always parallel or consistent with OSHA regulations. The regulations are enforced through processes supervised by the Industrial Commission of Ohio (the adjudicating body handling administrative hearings in workers’ compensation claims).

If an employee believes that his or her injury was a proximate result of a violation of one of the specific safety requirements, he or she can file an application for a VSSR award within two years of the date of injury. Once an application is filed, the Industrial Commission of Ohio assigns an investigator to the case, who will meet independently with the claimant, the employer, and any witnesses that either party wishes to present. The investigator prepares a detailed report regarding the outcome of the investigation in a completely independent, unbiased fashion. The matter is then referred to the Industrial Commission for a two-step process.

First, the staff hearing officer of the Industrial Commission to whom the case is assigned will schedule a prehearing conference, where attorneys for both parties meet to review evidentiary issues, questions, or problems with the processing of the claim, and ultimately, to schedule a hearing date on the merits. Potential for settlement of the claim will also be discussed at the prehearing conference.

If settlement cannot be achieved, the second part of the process is the hearing on the merits, where witnesses often testify live regarding key issues.

If a violation of a specific safety requirement is found by the staff hearing officer conducting the proceedings, an award is made to the claimant of between 15% and 50% of the maximum rate for compensation payments for the year in which the injury occurred. For instance, for every week of temporary total disability received by the claimant, an additional award is made between 15% and 50% of the maximum rate of payment of temporary total disability for the year that the injury occurred. Moreover, that award is ultimately going to be paid by the employer itself.

An additional consideration should be given to the fact that, if a second VSSR is found regarding the same regulation within a two-year period, the employer can be assessed a separate, additional penalty of $50,000.

Employers should keep in mind that if an employee is injured as a result of a problem with a piece of equipment or safety guards for same, it would be wise to notify your attorney as soon as possible to assist in seeking and preserving the evidence that might be critical for the defense against the VSSR that could be filed by the employee within the next two years.

As always, the Workers’ Compensation practice group at Coolidge Wall is prepared to assist employers in every aspect of Ohio Workers’ Compensation, including claims management, administrative hearing defense, initial injury investigation, and court appeals.

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