Ohio Supreme Court Chalks Up Victory for Employer in VSSR Case

Kegler Brown Construction Newsletter

In an important case for construction companies doing business in Ohio, the Ohio Supreme Court recently vacated a Franklin County Court of Appeals decision and reinstated an administrative decision finding that a company is not liable for violation of any specific safety requirements.

In State, ex rel. Mahoney v. Team America III and Wanner Metal Worx, the general contractor, Sherman Smoot Company, subcontracted work on the renovation of the future Supreme Court building in downtown Columbus to Wanner Metal Worx. Smoot had erected two scaffolds on the outside of the building, adjacent to each other, with one being four to six floors above the other. Smoot employees were working on the upper scaffold while Mahoney, who was working for Team America, a staff leasing agency for Wanner, was working on the lower scaffold. He was injured when a piece of stone, chipped off the side of the building by an employee on the upper scaffold, struck Mahoney on the back of the neck. Mahoney's workers' compensation claim was allowed against Team America. He then filed an application for an additional award for violation of specific safety requirements, known as a VSSR, against both Team America and Wanner.

A provision in the Ohio Constitution provides that an employee who is injured in the course of his/her employment can request a VSSR award, which is a penalty levied against an employer if it is found that the worker's injury occurred because of the employer's violation of some specific safety requirement. These safety requirements are typically found in the Ohio Administrative Code. Mahoney cited provisions in the Administrative Code concerning overhead protection, safety belts and lifelines, and protective railings on scaffolds.

After the hearing, at which Dave McCarty represented Wanner, the Industrial Commission denied Mahoney's request for a VSSR award. First, it found that Wanner, rather than Team America, would be liable for any VSSR because Wanner actually supervised and controlled Mahoney's work. However, it found no safety violation. The Commission found that Wanner provided safety belts and lifelines and all of the open sides of the scaffold were properly guarded. The Commission also found that Wanner provided sufficient overhead protection for Mahoney. Mahoney appealed the matter to the Franklin County Court of Appeals. Though a Magistrate recommended denial of Mahoney's appeal, a three judge panel of the appellate court rejected that recommendation and found that Wanner did not provide overhead protection. Wanner then appealed the matter to the Ohio Supreme Court.

Dave McCarty represented Wanner in the Supreme Court action and Don Gregory represented the American Subcontractors' Association, an amicus (friend of the court) party to the action. After briefing and oral arguments, the Ohio Supreme Court agreed with Wanner and reinstated the Industrial Commission's decision. The Court first noted that, because a VSSR is a penalty, the safety requirements must be strictly construed in favor of the employer. The Court noted that the term "overhead protection" is not defined in the Administrative Code. The Court then found that the safety measures Wanner implemented were sufficient to satisfy its obligation to provide overhead protection. The Court found that Wanner satisfied that obligation when it:

  • provided Mahoney with a hard hat;
  • directed Smoot to erect a vertical plywood barrier at the end of the upper scaffold adjacent to the near side of the lower scaffold;
  • created a "safe zone" mandating that, when Smoot employees were working on the adjacent side of the upper scaffold, there was to be no work done on the near side of the lower scaffold; and
  • it ensured that the upper scaffold had toe boards.

Mahoney urged the Court to find a violation because there was no protection directly overhead of the workers. The Court rejected that interpretation and found that the overhead protection rule affords discretion to the employer to determine the means by which to protect its employees. Finally, the Court rejected Wanner's argument that, because Wanner is not a party to the underlying workers' compensation claim with the ability to contest it, Wanner's due process rights were violated.

This is a significant victory for employers in the construction industry. Had the Supreme Court not reversed the Court of Appeals, employers virtually would have struggled with uncertainty and been compelled to drastically modify scaffolding to include roofing, canopies and/or nets, at tremendous cost. The Supreme Court resisted the apparent attempt by the Franklin County Court of Appeals to "legislate from the bench" and create safety requirements that simply are not contained in the Administrative Code.