Worker entitled to additional award because employer violated safety law: CourtReprints
An ironworker who wasn't wearing the personal protective equipment provided by his employer when he fell more than 25 feet is entitled to an additional award on top of workers compensation because his employer violated a specific safety requirement, an Ohio appeals court has ruled.
Frank P. Seidita was employed by Newark, Ohio-based Armstrong Steel Erectors Inc., in April 2009 when he fell through a gap about six to 12 inches wide between his work surface and a chain link fence safety net, court records show. Mr. Seidita said he sustained multiple fractures and other injuries as a result of falling from the concrete bridge pier he was working on in Youngstown, Ohio.
Mr. Seidita filed an application for violation of a specific safety requirements benefits in July 2011, which prompted the Ohio Industrial Commission's Safety Violations Investigation Unit to investigate, according to records. Mr. Seidita told the investigator that he started working for Armstrong Steel three weeks prior to his injury and “was not provided with any training.” He also said he “was not required to wear fall protection at the time of my injury because of the safety net,” despite the gap, records show.
The Ohio Industrial Commission subsequently granted an additional award on top of a workers compensation award based on results of its investigation.
At Armstrong Steel's request, the jobsite foreman issued an affidavit stating that “one of Armstrong's safety rules requires the use of fall protection equipment. This rule requires us to be tied off with the use of a body harness and lanyard whenever work is being performed at a height of six feet or more,” according to records.
The company president also issued an affidavit stating that it's “part of Armstrong Steel's safety program to provide ongoing training, supervision, and oversight covering the safety requirements associated with the performance of steel erection activities in accordance with OSHA's Subpart R,” records show.
According to records, Armstrong Steel filed a mandamus action to the 10th District Court of Appeals of Ohio challenging the Industrial Commission of Ohio's decision to grant Mr. Seidita an additional award for violation of a specific safety requirement.
10th District Magistrate Kenneth W. Macke concluded that the Industrial Commission of Ohio did not abuse its discretion in granting an additional award for violation of a specific safety requirement and recommended that 10th District Court of Appeals deny Armstrong Steel's request for a writ of mandamus, records show.
The 10th District Court of Appeals agreed and on June 17 denied Armstrong Steel's request on the grounds that the use of personal fall protection was “impractical”, saying that Mr. Seidita was not negligent for failing to wear personal fall protection, and the gap between his work surface and the safety net is prohibited by the Ohio safety rule, the ruling states.
“A claimant's negligence bars a (violation of a specific safety requirement) award only where the claimant deliberately renders an otherwise complying device noncompliant,” according to the ruling. “Safety nets shall be provided when workplaces are more than 25 feet above the ground, water, or other surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts or harnesses is impractical.”