of Specific Safety Requirement (VSSR)
4121.13 and 4121.47; O.A.C. 4121-3-20
resources: Industrial Commission Memos
Chief of Operational Policy, Analytics & Compliance (Signature on File)
# CP-22-01, effective 06/09/2015
06/09/2015; New 12/04/2013
of this policy is to ensure that BWC appropriately processes VSSR applications
to transfer to the Industrial Commission of Ohio (IC), investigates allegations
of VSSRs when requested to do so and executes an IC order when the IC
determines a VSSR has occurred.
policy applies to Field Operations staff and the Safety Violations
Investigation Unit (SVIU).
fine, separate from the VSSR award, levied against the employer and generally
punitive in nature.
purposes of this policy, a client-employer is the employer to whom a worker was
assigned by a temporary agency (not a professional employer organization) and
that controls the actual place of employment or work site including, but not
limited to, the labor, safety devices, safeguards and other means of protection
for the workers, who may or may not be actual employees, as defined in R.C.
of a specific safety requirement: for purposes of this policy, violations of
labor, safety devices, safeguards, or other means or methods of protection
adapted to render the employees of every employment and place of employment and
frequenters of every place of employment safe, or violations that fail to
enforce reasonable orders for the adoption of the above.
A. It is the policy of BWC
to process applications for VSSR by ensuring the IC receives VSSR applications
filed directly with BWC, investigating the VSSR when the IC requests, and
executing any order when the IC determines a VSSR has occurred.
B. VSSR Awards:
1. Attach to any type of
compensation paid to the IW;
2. Are paid from the
3. Are direct-billed to
the employer for Surplus Fund reimbursement, unless the employer settles the
VSSR liability; and,
4. Are not included in the
C. Applications for VSSR
1. Injured workers (IW) or
claimants seeking a VSSR award should complete an Application for Additional
Award for Violation of Specific Safety Requirement in a Workers’ Compensation
Claim (IC/ 8-9).
2. An IW or claimant must
file an IC-8/9 within two years of the date of injury, death or disability
caused by an occupational disease.
3. An IC-8/9 may be filed
with BWC, but the Industrial Commission (IC) has jurisdiction over the
application and determination process.
4. Amendments to
a. An IW or claimant may
amend the application to include an additional or alternative violation.
b. Time Requirements for
to the application must be filed within two years of the date of injury, death
or disability caused by occupational disease.
An IW or
claimant may file an amendment beyond two years from the date of injury,
disability or death, only if the request is:
a) Made within 30 days of
the IW’s, claimant’s, or IW or claimant representative’s receipt of BWC’s
report of investigation; and
b) Is only a clarification
of the previously alleged violation(s) and not a new allegation.
D. VSSR Investigation
If the IC determines
that additional investigation is needed, the IC may notify the BWC SVIU. The
SVIU will conduct an impartial investigation.
1. BWC SVIU will:
a. Notify parties of the
investigation in writing;
b. Complete an impartial
c. Submit a Report of
Investigation to the IC.
2. SVIU may discontinue an
investigation for the following reasons:
a. The IC grants an
abeyance period at the request of all parties;
b. The parties voluntarily
settled the application;
c. The IW withdraws the
3. The IC is responsible
for sending copies of the report to the parties, and the parties have 30 days
to review and provide supplemental information to the IC, or request an
extension. In addition, the IC may hold a pre-hearing conference to review
information, discuss settlement possibilities or set a date for a merit
hearing. Parties should refer to the Industrial Commission website for further
direction regarding VSSR hearings.
E. Calculating a VSSR
1. The VSSR award is based
on the maximum statewide average weekly wage (SAWW) in effect on the date of
injury (DOI), and the percentage of the award is determined by the IC in an
amount between 15 and 50 percent.
2. BWC uses the following
formulas to calculate a VSSR:
a. For percent permanent
partial (%PP) awards:
VSSR% x 1/3 maximum SAWW x weeks = Award which is the maximum rate for %PP
listed on the rate chart under PP “A”.
Example: IW is granted a 4%PP
award, equating to 8 weeks of compensation. The IW was also granted a 40% VSSR
award. The SAWW %PP max is $279.33. Take 40% x $279.33 x8 = $893.94.
b. For all other awards
that do not have a maximum statutory limit (including death claims): VSSR% x
Maximum SAWW = Award that is the weekly rate.
Example: IW died in
2013, with a maximum death rate of $837. The IC grants a 40% VSSR award. Take
40% x $837 = $334.80.
c. For awards with a
maximum statutory limit (e.g., facial disfigurement, scheduled loss): VSSR % x
maximum award allowable by law, regardless of the actual amount of the award.
The maximum depends on the DOI.
Facial disfigurement award with a DOI on or before 6/29/2006 has a maximum
award of $5000. The IC issued a 40% VSSR award. The IW actually received a
$3000 facial disfigurement award. The calculation is 40% x $5000, equaling a
VSSR payment of $2000.
Facial disfigurement award with a DOI on or after 6/30/2006 has a max award of
$10,000. The IC issued a 40% VSSR award. The IW actually received a $3000
facial disfigurement award. The calculation is 40% x $10,000, equaling a VSSR
payment of $4000.
F. Paying a VSSR Award
1. VSSR awards are paid
based on the compensation previously and/or currently awarded to the IW.
a. When an IW receives a
VSSR award in a claim that the IW is not currently receiving compensation, the
VSSR is applied to all previously paid compensation on that claim.
b. When the IW has not
received any compensation in a claim, the VSSR will be applied to any
compensation the IW is awarded in the future.
c. VSSR awards do not
attach to any employer-incentive compensation paid to the employer (e.g.,
gradual return to work incentive, on-the-job-training).
2. The VSSR award may be
larger than the actual award of compensation being paid in the claim.
3. VSSR awards are paid
concurrently with the compensation the IW or dependent is receiving from a
claim at the time the award is granted.
4. If a VSSR award is made
in a claim where the employer is or was paying salary continuation, BWC will
calculate the VSSR award based on the SAWW for the period of time BWC would
have paid TT to the IW.
5. BWC will release VSSR
payments when compensation is paid to the IW.
a. However, in limited and
extenuating circumstances, BWC may release a payment in another manner (e.g.,
lump sum) on a case-by-case basis.
b. BWC will consider the
following when determining whether it can pay pursuant to IV.F.4, above:
iii. Administrative costs in
executing payments to the IW.
6. BWC will not issue the
initial VSSR award payment until at least 30 days after the IC Order is issued
to ensure a request for rehearing is not filed.
G. Holding or Stopping
Payment of a VSSR Award
will hold or stop payment of a VSSR when:
1. A request for rehearing
is pending with the IC;
2. The BWC receives notice
that the parties are settling the claim in which the VSSR is being paid (Refer
to the Lump Sum Settlement policy); or
3. The BWC receives notice
that the parties are settling liability for the VSSR award in the claim, but
not the source claim itself (Refer to the Lump Sum Settlement policy).
H. VSSR Awards in claims
where a temporary agency is the employer
1. The Industrial
Commission may differentiate liability between the temporary agency employer
and the client-employer. While an IW may be deemed the employee of a temporary
agency, for purposes of a VSSR award or for any penalty assessments, the IC
may, and most likely will, designate the client-employer as liable rather than
the temporary agency.
2. If the Industrial
Commission deems the client-employer liable, the client-employer’s policy will
be charged for the VSSR award and any penalties, if applicable.
3. If an IW is receiving
compensation in the claim, BWC will issue two separate payments:
a. One check for the claim
benefits, billed to the temporary agency; and
b. One check for the VSSR
award, billed to the client-employer.
I. VSSR Overpayments
1. IC declares an
a. If an IW is found
overpaid on any type of compensation for which a VSSR award was also paid, the
VSSR payments, as well as the compensation payments, are an overpayment.
b. VSSR overpayments shall
be collected at 100% from future VSSR awards, including VSSR awards in other
claims the IW has.
c. The IC does not have to
declare the VSSR award as overpaid if it has declared the compensation
d. Overpayments are
collected in accordance with 4123.511 (K).
2. Court overturns VSSR
a. When a court overturns
an IC decision to pay a VSSR, BWC shall not recoup the resulting overpayment
from the IW.
b. Overpayments resulting
from court decisions are charged to the State Insurance Fund’s surplus account.
J. If an IW settles an
employer’s VSSR liability and then the IW subsequently dies, the dependents do
not have entitlement to a VSSR award even if death benefits are awarded.
BWC staff may refer to
the corresponding procedure for this policy entitled “Violation of Specific
Safety Requirement” for further guidance.