Ohio Fire Department Hit With Safety Penalty

In a case construing Ohio’s unique law and rules regarding the violation of a specific safety requirement, a state appellate court refused to overturn a decision by the state’s Industrial Commission that found a fire district violated a specific safety requirement (SSR) because the step-to-ground-level on a fire engine exceeded the maximum height requirement of 24 inches and the fire district had received a recommendation in 2009 that it consider installing steps into the vehicle cab for safety purposes [State ex rel. Madison Fire Dist. v. Industrial Comm’n of Ohio, 2020-Ohio-463, 2020 Ohio App. LEXIS 428 (Feb. 11, 2020)]. The court said the notice was was sufficient to put the fire district on notice that the step should have been inspected, which would have shown that it exceeded the 24-inch requirement.

Ohio’s Special Rule as to VSSRs

In order to establish a violation of a specific safety requirement (VSSR), a claimant must prove that:

1. There exists an applicable and specific safety requirement in effect at the time of the injury;
2. The employer failed to comply with the requirements; and
3. The failure to comply was the proximate cause of the injury in question.

The interpretation of a specific safety requirement is within the final jurisdiction of the Industrial Commission. Because a VSSR is a penalty, however, it must be strictly construed, and all reasonable doubts concerning the interpretation of the safety standard are to be construed against its applicability to the employer. Moreover, the question of whether an injury was caused by an employer’s failure to satisfy a specific safety requirement is a question of fact to be decided by the commission subject only to the abuse of discretion test. In addition, a safety requirement must be specific enough to plainly apprise an employer of its legal obligations to its employees.

Step Measured More than 25 inches

Here, claimant sustained a work-related injury while exiting the cab of the fire truck. He subsequently filed an application seeking an additional award for the employer’s alleged VSSR, citing Ohio Adm.Code 4123:1-21-04(H)(4)(c) and (c)(ii), and (iii). Those provisions provide, in pertinent part that the step-to-ground measurement may not exceed 24 inches. A subsequent measurement indicated the step-to-ground measurement exceeded 25 inches.

It is important also to note that the employer, subsequent to injury, sent the vehicle for a modification to have an additional step added below the original step in order to reduce the height of the step to ground level to less than 24 inches and remediate the violation.

2009 Report Sufficient to Put Employer on Notice

The appellate court agreed that a report it received after the department commissioned a master plan evaluation of every aspect of fire department operations was sufficient to put it on notice that it should have inspected the fire engine and determined if the step-to-ground distance exceeded the allowed limit. Here, it was certainly within the discretion of the Commission to determine that the 2009 report provided adequate notice of the potential defect.