Can An Outdoor Space Be Considered A “Workshop” For The Purposes Of A VSSR Claim?

Donald G. Drinko By Donald G. Drinko

Ohio Revised Code 4101.12 provides that it is the responsibility of every employer in Ohio to provide a safe workplace and adhere to all safety rules. A violation of a specific safety requirement (“VSSR”) is an additional award an injured worker can receive when an employee violates a specific safety rule, as provided in the Ohio Administrative Code (“OAC”), and this violation causes the worker’s injuries. Chapter 4123:1-5 of the OAC provides safety requirements for employees that work in “workshops” and “factories.” But what constitutes a workshop or factory for the purposes of this section? Could workshop or factory include an outdoor or public space?

The Tenth District Court of Appeals recently addressed this issue in State ex rel. Taylor v. Indus. Comm., 2022-Ohio-2598. This case involved an injured worker’s request for an additional award for a VSSR after he was injured when he fell inside a bus parked on a public street, while working as a bus attendant. The injured worker’s request alleged violations of two subsections under OAC 4123:1-5. An SHO heard the matter and issued an order denying the VSSR application due to the incident not occurring in a workshop or factory. The SHO order, citing State ex rel. Petrie v. Atlas Iron Processors, 85 Ohio St.3d 372 (1999), noted that a “workshop” includes an “outside area that is enclosed,” and that the common definition of a “factory” is a building or group of buildings where goods are manufactured. The injured worker filed a mandamus action in the Tenth District Court of Appeals on, October 1, 2021 requesting that the SHO order be vacated. A magistrate recommended the Court deny the injured worker’s mandamus action, concluding that the SHO properly determined that the OAC sections did not apply to the circumstances of this case. The Tenth District Court issued its ruling on July 28, 2022, adopting the magistrate’s decision and denying the injured worker’s request.

The Tenth District Court noted that the interpretation of a specific safety requirement is within the final jurisdiction of the Industrial Commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 (1983). The Tenth District also cited the Petrie court’s holding which explained that a scrapyard’s perimeter fencing is a structural enclosure sufficient to classify the area as a “workshop”, and the fencing set forth the boundaries of work activity and kept unauthorized nonemployees out. Petrie at 373. The Tenth District contrasted the facts of Petrie with the present case, as the location the injury occurred here was on a public street with no set forth boundaries. The Tenth District also noted that there was nothing to keep unauthorized persons out, as opposed to the scrapyard in Petrie. The Tenth District concluded that there was evidence to support the commission’s conclusion that the bus was not a “workshop” for the purposes of the OAC provisions. The Tenth District Court denied the injured worker’s request for a writ of mandamus.

When assessing potential VSSR claims, definitions matter. Also, for VSSR claims, the safety requirements are strictly construed in favor of employers. It is important for employers to be aware of whether or not the stated OAC sections are applicable to the specific work environments of the employment, such as the case in Taylor. If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.