VSSR Violation Where Employer Does Not Make Equipment Available
State, ex rel. Greco v. Conrad (3/7/01), 91 Ohio St.3d 105.
Issue: Was safety equipment which was not at the job site where the accident occurred “available” as required by the safety code?
Background: The employer assigned Greco to clean the gutters of a church. He did so by leaning over the edge of the roof and removing debris by hand. He did not wear a safety belt or line.
He fell from the roof and was severely injured. The distance from the top edge of the gutter to the ground was approximately 24 feet and 11 inches.
The Commission denied the VSSR award, finding that O.A.C. 4121:1-3-03(L) did not apply since the distance was less than 25 feet above the ground. The Commission also found that photographs taken by the investigator show the safety equipment was soiled from usage and therefore the employer complied with O.A.C. 4121:1-1-3-03(J).
Greco filed a mandamus in the Court of Appeals, which denied the writ. Greco appealed to the Supreme Court.
Decision: Supreme Court finds a violation of 4121:1-3-03(J)(1). This provision requires the employer to provide lifelines, safety belts and lanyards. All parties agree the equipment was not at the accident/job site. The code defines “provided” as “to make available.” The Commission found “availability” based on pictures showing soiled equipment in the employer’s storeroom and invoices for purchase of safety equipment. The Court is troubled by equating possession with availability.
The Commission points to soilage on the equipment as evidence of use, and therefore, accessibility. The Court says the flaw in this logic is that the photos were taken fourteen months after the accident. The soilage could have occurred since the accident. In addition, the equipment purchase invoices before the date of the accident only establish that the employer owned some safety equipment on the date of injury, not that it was available.
The Court finds the Commission’s denial of VSSR not based on “some evidence” of equipment availability on the date of injury and finds that the Commission abused its discretion in finding no violation of O.A.C. 4121:1-3-03(J)(1). The Court finds analysis of O.A.C. 4121:1-3-03(L)(1) unnecessary because of the violation of O.A.C. 4121:1-3-03(J)(1).