Larry's Legal Lessons: Lack of Seat Belts can be Costly

If you are injured in a motor vehicle crash, through no fault of your own, a 2005 law will adversely impact your jury verdict if you were not wearing a seat belt.

Dr. Burt Clark of the National Fire Academy, kindly asked me to share with you the financial penalties that can be imposed on a fire department in Ohio if a firefighter is ejected and killed in a rollover accident, and subsequent investigation shows that the fire chief or the department's officers do not strictly enforce the seat belt policy. This is a "hypothetical" case - the good news is that while there have been several safety violation claims filed against Ohio fire departments, we are not aware of any claim arising from failure to wear a seat belt.

Hypothetical: A 40-year-old, full-time firefighter, driving a water tanker to a structure fire, loses control and is ejected and killed when the tanker rolls. His widow, also age 40, with two children, learns from fellow firefighters that few firefighters or officers wear seat belts on this department. While there is a written policy requiring seat belts be worn, no one has ever been disciplined and the seat belt policy is simply ignored by most, including her late husband.

Ohio VSSR Penalties ($630,000 first offense; $315,000 second offense, plus $50,000 if within two years): Under Ohio law, a VSSR ("Violation of Specific Safety Requirement") claim can result in an added award to an injured employee, or to their survivor. Every dollar paid to the employee or survivor is billed back to the employer, as a "penalty" for violating the safety requirement. The VSSR program is designed to "encourage" employers to avoid penalties by enforcing the safety regulations.

Under the hypothetical, the widow of the deceased firefighter can file a VSSR claim online with the Industrial Commission of Ohio(click on forms "Application for Additional Award for Violation of Specific Safety Requirement in a Workers' Compensation Claim - form IC-8/9). The VSSR award can be from 15 to 50 percent of the Ohio Average Weekly Wage (AWW) and the AWW is currently $751 per week. In death cases, VSSR claims typically result in the maximum 50 percent award. The widow will receive payments for the rest of her life, so long as she does not remarry. If she does remarry, then the children receive the payments until age 18, or until age 23 if still in school full-time. The employer is then invoiced by the Industrial Commission of Ohio, dollar for dollar for each payment to the widow.

Seat Belt Requirement: Ohio has a specific safety requirement on firefighters wearing seat belts. The employer can be penalized for failure to enforce. The individual employee is not subject to any State of Ohio penalties by these regulations.

Ohio Administrative Code 4123:1-21-04(5)(b) provides:

"Employees shall be required to be seated and belted while the apparatus is in motion, except while loading hose."

Effective Nov. 1, 2003, Ohio issued a completely updated set of specific safety requirements for firefighting. These regulations were drafted with the assistance of representatives from the Ohio Fire Chiefs Association, the Ohio Rural Fire Council, and the Ohio Professional Firefighters Association.

VSSR Investigation: Paragraph 6 of the IC-8/9 form asks for the names, addresses, and phone numbers of witnesses. The widow should list as many firefighters as possible who will confirm that they do not wear seat belts on emergency runs, and also the names of fire department officers who also do not wear seat belts and don't enforce the department's seat belt written policy.

Ohio VSSR investigators will privately contact these firefighters and get their sworn affidavits and in some cases they will also conduct group and individual videotaped interviews. The VSSR investigators will then come to the fire department, unannounced, and seek to interview the fire chief and the officers.

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