Posted: December, 2011
Eyewitness Testimony Not Required for VSSR
State ex rel. Donohoe v. Indus. Comm. (10/4/11), 130 Ohio St.3d 390, 2011-Ohio-5027.Issue: Is eyewitness evidence required for the Commission to find a VSSR occurred?
Background: Donohoe died due to an accident at work. A death claim was allowed and his widow filed for a VSSR award.
Donohoe was working as a laborer, helping two co-workers who were constructing a brick wall. Construction of the wall required the workers to work from a 13 foot high platform. Behind the platform was an exterior wall which at one spot only extended a foot or two above the platform. Next to that wall was a partially assembled scaffold which lacked guardrails.On the day of Donohoe’s injury, his co-workers called for him but he did not respond. When they went to find him, they found him lying on the ground where he had obviously fallen and hit his head. Donohoe died due to the resulting injuries.
At the hearing on the VSSR application, although there was agreement that Donohoe had died due to a fall, there was disagreement about the nature of the fall. Some evidence indicated that the fall was greater than 12 feet; some evidence indicated that the fall was 2-3 feet. The height of the fall is important because it affects what safety code provisions would apply. The Industrial Commission denied a VSSR award, finding that Donohoe:
fell and hit his head, thereby causing his death. The facts indicate that no one saw the decedent fall, no one has knowledge where he was when he fell ie. [sic], did he fall from the scaffold or did he fall climbing up/down the scaffold. Furthermore, no one knows why he was where he was at the time of his fall.As a result, the Industrial Commission stated that the widow
can not prove by a preponderance of the evidence that there& was a violation of a specifc safety requirement, if there was a violation, which section was violated and whether that violation caused the decedent’s death. . .The widow filed a mandamus challenge to this decision. The Court of Appeals found that the Industrial Commission’s statement that there was no way she could prove a VSSR claim without eyewitness testimony is legally incorrect. Therefore, the Court of Appeals granted a limited writ ordering the Industrial Commission to issue a new order after applying the proper legal standard. Both the employer and the widow appealed.
[Emphasis added.]
Decision: Supreme Court affirms.
The Supreme Court finds two possible interpretations of the Commission's order. Because the order contains boilerplate language stating that “all evidence” was considered, it could be interpreted to mean that the Industrial Commission considered the evidence and accepted the employer’s version of what happened over the widow’s version.
However, because the order focused on the lack of eyewitnesses and stated that the widow “can not” establish a VSSR claim (instead of stating that the widow “did not” establish a VSSR claim), it is also possible that the order was based on a finding that eyewitness testimony is necessary for a VSSR claim. Legally, this is incorrect because the Commission is entitled to draw inferences from the evidence and there is no requirement for eyewitness testimony to establish a VSSR.
Since there are two possible interpretations of the order, the order is ambiguous and the Court of Appeals properly returned the matter to the Industrial Commission.
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