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OAC 4123:1 Compliance: Injuries Happen… But Don’t Get Penalized!

Thursday, April 07, 2011

Workers’ Compensation and OSHA

OAC 4123:1 Compliance: Injuries Happen… But Don’t Get Penalized!

Injuries happen. In Ohio’s “no-fault” workers’ compensation system, even the safest shop is not impervious to the occasional sprain/strain, contusion or laceration injury on its experience rating. However, in order to limit the financial repercussions of a work-related injury, Ohio employers must understand and adhere to the applicable State safety requirements or risk potentially harsh penalties.

Article II, Section 35 of the Ohio Constitution, which created workers’ compensation in Ohio in 1912, also established a claimant’s right to file an Application for Additional Award for Violation of a Specific Safety Requirement, or “VSSR,” where the workplace injury or occupational disease was due to the employer’s failure to adhere to certain safety requirements. The industry-specific safety requirements are designated in Chapter 4123:1 of the Ohio Administrative Code and cover a wide range of industries ranging from Construction to Metal Casting to Laundering and Dry Cleaning. These requirements are separate from, and in addition to, the federal Occupational Safety and Health Administration (OSHA) requirements, but similarly carry significant penalties for violations, on an out-of-pocket and dollar-for-dollar basis. This penalty is independent of other compensable workers’ compensation benefits which, by way of contrast for a state-funded employer, are paid by the Ohio Bureau of Workers’ Compensation (Ohio BWC) and may or may not result in an adverse effect on premium obligations and group-rating status.

Ohio BWC is required to review its safety rules every five years in order to update, retain “as is,” or abolish the rules contained in OAC 4132:1. It is important for employers to stay apprised of regulations and amendments affecting their industries to avoid costly penalties. On March 10, 2011, Ohio BWC filed amendments to OAC 4123:1-5 — Workshops and Factories, which will go into effect on April 10, 2011. These amendments will have a broader impact than it may seem. Some employers, while not operating a “workshop” or a “factory” per se, may be subject to the provisions of OAC 4123:1-5 because the section also acts as a “catch-all” category that governs employers that do not fit squarely within any other major industry heading in OAC Chapter 4123:1. Indeed, certain safety rules under OAC 4123:1-5 may include operations not traditionally employed in a workshop or a factory. A more complete summary of recent amendments can be found here. However, particularly notable amendments are as follows:

Protection From Falling Material

A major issue addressed in the amendments is protection against injuries due to falling material. OAC 4123:1-5-02(E)(3) heightens requirements for toe boards on guard railings for openings in floors, runways, platforms and ramps. Previously, a toe board at least four inches tall was all that was required, as long as it had no more than one-half inch of clearance between the bottom of the toe board and the floor or platform level, to prevent loose material from passing through and falling below. As recently amended, there now may be no more than one-quarter inch of clearance below the toe board through which material may pass, and in fact, if material is piled to such a height that a standard toe board does not provide protection, paneling must be provided from floor level to the intermediate rail or top rail. Furthermore, OAC 4123:1-5-03(D)(1)(d) amends the prior scaffolding requirement that side screens only need be provided on scaffolds more than ten feet tall, where employees are employed within ten feet of the base of the scaffold and where material is piled adjacent to and higher than the toe boards. Effective April 10, 2011, side screens must be provided between the toe board and guard rail on all scaffolding, regardless of height, where workers are required to work or pass underneath them.

Protection From Worker Falls

The amendments also place particular onus on protecting workers from dangerous falls. OAC 4123:1-5-17(I)(6), governing safety belts, harness, lifelines and lanyards, previously made no mention of individual responsibility for providing and using such devices, and only ambiguously required that they be used “where required.” OAC 4123:1-5-17(I)(6) now provides that lifelines, safety belts or harnesses and lanyards shall be provided “by the employer” and the employee is responsible for wearing the equipment when exposed to hazards of falling more than six feet. With new delineation of responsibility comes additional concerns for employers, such as budgeting, personal protective equipment (PPE) training and PPE vendor supply issues.

Protection During Trenching and Excavation

Finally, likely due to recent deaths and serious injuries sustained as the result of cave-ins, the amendments address regulations on trenching and excavation projects. OAC 4123:1-5-26(C) formerly required that terrain support systems such as piling, cribbing and shoring be “substantially constructed to prevent cave-in and sliding.” Now such support systems present on trenching and excavation jobs must be “designed by a qualified person and shall meet accepted engineering requirements.” All sides, slopes and faces of excavations formerly had to be “made safe” by means such as scaling, benching, barricading or wire meshing. Under the amendments, those means must be achieved in a manner that meets “accepted engineering requirements.” While possibly raising an issue as to whether job sites are properly staffed with “qualified” workers, the effect of this new language remains to be seen.

As evident by the more than 104,000 new workers’ compensation claims filed and allowed in Ohio in 2010, injuries certainly happen. Most of the time, they are unforeseen, employers are unable to prevent them, and so they go unpenalized. The same cannot be said for an injury sustained because of an employer’s violation of a specific safety requirement.

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For additional information and discussion on this topic, please get in touch with your regular Calfee contact or one of the Workers’ Compensation and OSHA attorneys listed below:

William L. S. Ross

William B. McKinley

This alert is provided by Calfee, Halter & Griswold LLP for education and information purposes only. This alert is not intended to provide legal advice on specific subjects. The resolution of legal issues depends upon the specific facts of a particular situation and the laws involved. This alert may be considered advertising under applicable laws.