VSSR rules are a subset of workers’ compensation administrative code that covers particular employees, in particular industries, in particular circumstances. These rules are intended to promote the health and safety of these employees. Where an employer violates a rule and the violation gives rise to a compensable workplace injury, the injured worker is not only entitled to workers’ compensation benefits but also to a VSSR award.
Recently, the Supreme Court had the opportunity to consider an appeal of VSSR case. The injury arose after a plant experienced a facility-wide power failure. The claimant, an electrician by trade, was told to investigate the power failure. He checked the facility’s main electrical breaker which consisted of two separate panels; one of which had extremely high voltage running to it. While working, an explosion occurred and the claimant was injured. At the time of the accident, the claimant was not using any electrical safety equipment. One of the applicable VSSR provisions required that “the employer shall provide protective equipment” to its employees working on such equipment.
In an effort to avoid liability, the employer argued that the claimant never asked for safety gear. Moreover, the employer stated that even if the claimant had asked for safety gear, it was likely that the claimant would not have used it. The Court rejected these arguments. Because the scenario that gave rise to the injured was covered by a VSSR rule, the employer had a clear duty to provide appropriate safety gear to its employee. Whether the claimant asked or requested the safety gear was relevant.
This scenario outlines one example of how a VSSR works in a particular industry under particular conditions. However, it also highlights a fundamental limitation on employer defenses in VSSR situations. Although an employer can try to defend a VSSR on the grounds that the employee was somehow negligent or circumvented a safety procedure, that defense only exists where the employer has complied with its portion of the safety regulation. If the employer had provided the claimant with safety gear suitable to the situation and the claimant decided he did not want to use it, the employer’s argument would be more sustainable.