In a 4-3 decision, the Ohio Supreme Court recently decided a case with potentially far-reaching implications for Ohio Workers’ Compensation Violation of a Specific Safety Requirement (VSSR) Law. State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., 154 Ohio St.3d 180 (2018), held that the “impossibility defense” to violation of an OSHA standard could be imported into Ohio Workers’ Compensation Law as an affirmative defense to an alleged VSSR where an employer shows: (1) it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work; and (2) that no alternate means of employee protection existed or were available.
The alleged VSSR in question involved a worker being required to work
under a suspended load – in this case, the flywheel of a cutoff machine to be replaced. When the sling securing the flywheel broke, the flywheel fell on the worker breaking both of his legs. In the VSSR Hearing before the Staff Hearing Officer, Jackson Tube argued it was impossible to comply with the specific safety requirement. The injured worker testified to his understanding that an alternative means was available to perform the task without suspending the flywheel. The Staff Hearing Officer found a VSSR. Jackson Tube moved for rehearing supported by an affidavit from the machine manufacturer stating that there were no alternative means to accomplish the necessary change.
After the rehearing was denied, Jackson Tube sought a writ of mandamus arguing that the Industrial Commission had abused its discretion when it had rejected the
impossibility defense. The Franklin County Court of Appeals denied Jackson Tube’s requested writ. Jackson Tube then appealed to the Ohio Supreme Court. Interestingly, neither the injured worker nor the Industrial Commission filed an appellee brief opposing Jackson Tube’s appeal.
The Ohio Supreme Court majority found two previous cases had attempted to borrow the impossibility defense to violation of an OSHA standard and utilize it as a defense to an alleged VSSR. The employer failed to succeed in either case because there had been “some evidence” contrary to the assertion of impossibility. The Jackson Tube majority essentially re-weighed the evidence that had been before the Industrial Commission. It concluded that the injured worker’s supposition that alternative means were available had been mistaken. At the VSSR Hearing, Jackson Tube witnesses had testified that
they were not aware of alternative means for changing the flywheel. The motion for rehearing had relied on a further affidavit from a Jackson Tube witness confirming the machine manufacturer’s conclusion that no alternative means of performance existed. The majority concluded that the Industrial Commission had abused its discretion in granting the VSSR “…because it relied on speculative testimony regarding the existence of alternative means of performance (which) proved wholly nonexistent.” The high court ordered the Industrial Commission to vacate its previous order and to find no VSSR.
Chief Justice O’Connor, joined by two other justices, provided a spirited dissent which essentially accused the majority of undermining settled VSSR jurisprudence. First, she observed that the abuse-of-discretion standard only requires “some evidence” for the Industrial
Commission’s determination, a requirement which had been met here because the Industrial Commission heard evidence from both the injured worker and the employer. Second, she indicated Jackson Tube sought relief from the VSSR not based on evidence heard by the Industrial Commission. Instead, Jackson Tube sought to use new evidence to support arguments already rejected by the Commission. The majority, she wrote, was unfairly allowing “…a second bite at the apple.” Finally, the Chief Justice was highly critical of the process used by the majority in creating a new Ohio legal rule by borrowing from federal case law without it having been briefed or argued. “[I]t is unwise,” she wrote “for us to announce a new rule of law in this case where there is no need to do so.”
Just how far-reaching the implications of Jackson Tube will prove to
be remains to be seen. Employers are well advised to assert “impossibility” as an affirmative defense to a VSSR whenever possible. Much like the affirmative defense of “unilateral employee negligence,” it may prove useful in certain unusual circumstances. Moreover, there has been some commentary in the injured worker community that importing OSHA concepts into Ohio Workers’ Compensation Law may have the beneficial effect of revising outdated Ohio safety regulations. To the extent that OSHA concepts are introduced in workers’ compensation claims, it may be that employers may experience more separate OSHA claims from injured workers and their counsel. Finally, it is worth noting that the Jackson Tube 4-3 Ohio Supreme Court was composed of all Republicans. Two of the Republican Justices have been replaced by Democrats for the term starting January 2019. One of the
replaced Justices was in the majority. The other dissented. Thus, it remains uncertain whether Ohio’s Supreme Court, as currently constituted, will continue to embrace federal OSHA standards in addressing cases under Ohio’s workers’ compensation laws.