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Appellate Court Upholds VSSR Award Despite Claimant’s Failure to Use the Personal Fall Protection Available to Him

In State ex rel. Armstrong Steel Erectors, Inc. v. Indus. Comm., 10th Dist. No.  13AP-190, 2014-Ohio-2616 claimant fell from a concrete bridge while employed as an iron worker.  A chain link fence was installed aside the pier top where he was working but there was a six inch to one foot gap between the fence and his work space.  He lost his balance and fell through the gap.  Claimant was not wearing personal fall protection even though it was available at the job site.  The 10th District Court of Appeals held there was some evidence to support the VSSR award finding personal fall protection was impractical because claimant was required to work on his hands and knees and crawl in a small space and Ohio Admin.Code 4123:1-3-03(J)(7) required the employer to use a safety net.  Although the company argued the Commission abused its discretion by not finding claimant unilaterally negligent in failing to tie off with personal fall protection, the Court held the unilateral negligence defense is available only if the company first complies with the applicable safety requirement.  Because the safety net had a gap it was inadequate under the code.  To read the full case click here.

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