Court rules on workplace negligence

By Justice Paul E. Pfeifer - Contributing columnist

For certain higher-risk industries, the state has established a list of specific safety requirements that employers must follow to reduce the risk of injuries. Given the potential on-the-job hazards, the construction industry is one of those industries.

Those safety requirements were at the center of a workers’ compensation claim that involved Frank P. Seidita, an ironworker employed by Armstrong Steel Erectors Inc. Armstrong was a subcontractor on a bridge project on U.S. Route 62 over Andrews Avenue in Youngstown.

On April 23, 2009, Seidita was working beneath the bridge decking on top of a concrete pier, welding bearing pads into place. The concrete pier was approximately 25 feet, 6 inches high, about 3 feet wide, and 25 feet long. Another subcontractor on the project had strung chain-link fencing between the bridge piers. The fencing was primarily designed to catch falling debris but also served as a safety net.

Seidita was working alone, out of the sight of other workers. He wasn’t wearing a safety harness or other fall-prevention equipment. He was kneeling on the concrete pier using a board to pry up a bearing pad when the board broke. Seidita lost his balance and fell to the ground through the gap between the concrete pier and the adjacent chain-link fencing.

Seidita’s workers’ compensation claim was allowed for numerous injuries, for which he was compensated. But that wasn’t the end of his case. About two years after the accident, he applied for an additional award known as a VSSR – a “violation of a specific safety requirement.” He alleged that his fall was caused by Armstrong’s violation of numerous specific safety regulations.

A hearing officer with the Industrial Commission of Ohio, which handles such matters, determined that several provisions of the Ohio Administrative Code regarding the use of safety nets applied to the facts of this case.

Based on Seidita’s statements, the hearing officer concluded that it was impractical for Seidita to have used personal protective equipment such as a safety line or harness when working atop the concrete pier. The hearing officer found that Seidita’s injuries were the proximate result of stepping off the concrete pier and falling through the gap, and that the gap violated two provisions of the code.

In response, Armstrong filed a complaint with the court of appeals seeking a writ that would compel the commission to vacate its order granting a VSSR award, and to refund all additional compensation that Armstrong had paid as a result of that award.

The court, however, concluded that evidence supported the commission’s finding that Seidita’s use of personal protective equipment to prevent a fall was impractical under the circumstances. The court accordingly agreed with the commission that Seidita was not unilaterally negligent in failing to use that equipment. The court further concluded that under the Ohio Administrative Code, safety nets must extend outward from the outermost projection of a work surface, that a gap is not permitted and violates the rule.

The court of appeals denied the writ. After that, the case came before us, the Ohio Supreme Court.

Provisions of the Ohio Administrative Code set forth requirements for personal protective equipment for employees exposed to hazards of falling. An employer must provide lifelines, safety harnesses and lanyards. It’s the employee’s responsibility to wear the equipment where the work being performed is more than six feet above the ground. An employer may use safety nets in lieu of lifelines and safety harnesses.

The Commission determined that Armstrong violated two provisions of the code. Those provisions state that where the use of safety lines or harnesses is impractical, safety nets must be provided when the workplace is more than 25 feet above the ground and that “safety nets shall extend outward from the outermost projection of the work surface.”

To obtain the writ it sought, Armstrong had to demonstrate that the commission’s decision to issue a VSSR award was an abuse of discretion. However, so long as “some evidence” supports the commission’s order, there is no abuse of discretion, and the court must uphold the commission’s decision.

Armstrong argued that it should not be liable for violating a specific safety requirement when Seidita failed to use the personal protective equipment that Armstrong provided to protect against falls. Armstrong maintained that it was the responsibility of the employee to properly use the equipment and that Seidita’s failure to wear it precluded placing any liability for a VSSR on Armstrong.

Armstrong did concede that conflicting testimony was presented as to whether it was necessary for Seidita to use protective equipment at the time he was injured. Several Armstrong employees stated that company policy required Seidita to use the equipment, while Seidita maintained that it was unnecessary for him to wear the equipment while he was working atop the concrete pier, because the safety net was in place to prevent falls.

Questions regarding the weight and credibility of the evidence are within the discretion of the commission as the exclusive fact-finder. The commission’s hearing officer stated that Seidita’s testimony established that “his work area was merely a crawl space” and that he was often required “to actually roll out onto the safety netting” in order to weld plates together.

The hearing officer also noted that just prior to falling, Seidita, while “in a squatting position…shifted his body to weld in a hard to reach area.” This constituted “some evidence” supporting the commission’s conclusion that it would have been impractical for Seidita to use a safety harness.

When the use of personal protective equipment is impractical, the employer must, in certain circumstances, provide a safety net for protection. In this situation, the employer cannot transfer its responsibility to the claimant under the unilateral-negligence defense.

That defense is available only if the employer has first complied with the applicable safety regulation.

Because Armstrong failed to demonstrate that the commission abused its discretion when it issued a VSSR award, our court, by a seven-to-zero vote, affirmed the court of appeals’ judgment denying Armstrong’s writ.

By Justice Paul E. Pfeifer

Contributing columnist

The writer is a justice on the Ohio Supreme Court.

The writer is a justice on the Ohio Supreme Court.