A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident.  His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

What do you think about the ruling? Let us know in the Comments section below.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10.

OSHA has issued $257,500 in fines to Worthen Industries, a manufacturer of adhesives in Nashua, NH, and S.L. Chasse Welding and Fabrication, a contractor in Hudson, NH.

The bulk of the fines, $225,400, went to Worthen, including a single willful citation of $63,000.

The explosion occurred when flammable vapors ignited while Chasse workers were installing a new motor on a vessel used in the plant’s manufacturing process.

OSHA says Worthen hadn’t cleaned or vented the vessel thoroughly enough to make sure there were no flammable vapors inside before welding took place.

The explosion injured four workers. Two received serious burns and had to be flown to a regional burn center for treatment. Company officials say all four workers will or have recovered.

Worthen says it will contest the fines. Chasse says it will meet with OSHA officials and hasn’t decided how to respond.

Chasse was issued fines totaling $32,100 for inadequately training its employees to recognize possible chemical, fire, explosion or toxic release hazards and for allowing welding to be performed in a flammable atmosphere.

One way is to correct the problem quickly, as a recent case before the independent Occupational Safety and Health Review Commission (OSHRC) shows.

An OSHA inspector visited a worksite in Tarrytown, NY, where MVM Contracting Corp. was hired to perform construction and renovation work.

After the inspection, OSHA issued a willful violation to MVM, saying it failed to protect employees working in an excavation from a cave-in. Employees had been working in an excavation without shoring that was more than five feet deep. The penalty: $21,000.

MVM didn’t contest the citation itself, just its classification as willful. An OSHRC law judge heard the appeal and reclassified the violation as serious. The fine dropped to $2,100.

OSHA appealed to the full commission, which reinstated the willful classification and the $21,000 fine.

This is how OSHRC came to its decision: The first time he visited the MVM worksite, the inspector provided the superintendent with detailed information about OSHA’s excavation standards and told him the company was in violation.

The inspector returned four days later to find no additional protection provided in the excavation. The inspector testified that the superintendent told him employees had worked in the excavation after the first inspection without cave-in protection.

OSHRC says the superintendent’s knowledge of the excavation standard and his conscious failure to bring the worksite into compliance amounted to a willful violation.

In a nutshell: The company would have faced a fine only 1/10th the size if it would have corrected the violation before the inspector’s next visit or barred employees from entering the excavation until corrections were made.

(Secretary of Labor v. MVM Contracting Corp., OSHRC, No. 07-1350, 7/20/10.) Click here for a PDF of the OSHRC decision.

OSHA is investigating how a crane boom crashed into the second floor of a residential house in Akron, OH.

A crew was removing a 125-foot tree from Tracy Brubaker’s backyard, when a crane tipped and fell onto her home. She was just arriving home when the crane hit her house.

No one was injured, but these photos show the significant damage to the second story of her house. Her two cats escaped during the incident. No report on whether they’ve been found.

It took almost six hours for crews to stabilize the crane and remove it from the house.

The National Institute for Occupational Safety and Health (NIOSH) has a free publication, Preventing Worker Injuries and Deaths from Mobile Crane Tip-Over, Boom Collapse, and Uncontrolled Hoisted Loads (click here).

… the judge presiding over a lawsuit he’d filed in connection with the alleged incident.

Steven Harder of Woodland, CA, claimed he’d fallen from an excavator on May 5, 2004, causing a severe brain injury. But authorities say he was actually injured in a non-work auto crash.

Harder said he became very sensitive to light and his overall vision was poor.

He was awarded workers’ comp benefits and collected $414,171 from State Fund Insurance.

He also sued the manufacturer of the excavator. That lawsuit was settled for $20,000.

But Harder’s alleged fraud was uncovered during the lawsuit against the excavator manufacturer. Harder had shown up for court using a wheelchair. At a lunch recess, the judge witnessed Harder walking to a restroom with a normal gait, without using the wheelchair or any other device.

An investigation followed. Undercover video was obtained of Harder showing him wearing a wet suit and engaging in mining activities.

Harder turned himself in. He faces one felony count of knowingly making a false or fraudulent material statement or material misrepresentation for the purpose of obtaining compensation. If convicted, he could receive up to five years in prison and a $50,000 fine.

A newly added two-hour component focuses on workers’ rights. Among the topics it covers in detail:

• how to file complaints about your employer
• your right to refuse any work you think is too dangerous, and
• assurances that if you do either of the above, you’ll be protected by whistleblower provisions.

The workers’ rights component is now a required part of every 10- and 30-hour class.

“For too long, workers have avoided making claims of unsafe work conditions out of fear of losing their jobs,” OSHA head David Michaels said in a release. “We are confident that this new training will embolden workers to speak up when they find work practices that endanger their lives and the lives of their co-workers.”

Is OSHA opening a can of worms by trying to “embolden” workers, or is this needed to address chronic under-reporting of injuries. Tell us what you think in the comments section below.

The cries for less government have become more frequent these days, including in reader comments on this website when OSHA ramps up enforcement or rulemaking. One frequent argument is that OSHA’s regulations hurt the U.S. economy.

A recent article in the Idaho Statesman by an economist takes a look at the question: Would we be better off if we got rid of “job-killing OSHA?”

Economist Ed Lotterman sums up the situation this way: We don’t want people to be killed at work. But many people are willing to take certain risks in their personal lives every day. And companies often don’t have difficulty finding people willing to do dangerous jobs.

Therefore, should government intrude into the private agreement between employer and employee?

Lotterman suggests an answer to his own question. First, he admits that OSHA regulations raise the cost of labor, at least somewhat. That could cause some companies to hire fewer workers.

The costs to business vary greatly, according to Lotterman, and are smaller than many people think.

For Lotterman, the question then becomes, what is the value of lives saved and injuries avoided relative to the cost of regulation?

While it’s difficult for most to put a price on human life, Lotterman suggests it is neither small nor infinitely large.

Coming up with the exact figure may be difficult, but Lotterman says society clearly is better off if a life is saved for every $10,000 spent on workplace safety. However, should that amount rise to $10 billion per life, we would be worse off.

But, what about the free-market argument that it’s up to employees to decide whether the risks involved with a particular job are worth the offered wages? If it becomes difficult for employers to hire workers to do dangerous jobs, they either have to raise wages or reduce the risks.

Lotterman says there’s one problem with that viewpoint: an information gap. Many employees don’t have accurate information about the risks involved. With bad or incomplete information, they can’t make reasoned decisions when comparing risks to wages.

Lotterman concludes that the free market doesn’t lead to “a social optimum.” He says government action may make things better.

For those who think, “OSHA is out of control,” Lotterman offers these thoughts. He’s not saying that everything the agency has done in the past 40 years has made total sense. Example: He doubts requiring dairy farms to post signs that manure may make floors slippery has generated any “net benefit for society.”

On the other hand, Lotterman cites shoring requirements for trench walls as a worthwhile OSHA regulation. Requiring trench walls or boxes has greatly reduced the number of construction worker deaths each year, and that’s worth the cost to business, according to Lotterman.

And he concludes that, no matter which candidates are elected to office, OSHA isn’t going anywhere anytime soon.

Is the new leadership at OSHA going too far? Where do you draw the line between good OSHA regulation and bad? Let us know what you think in the Comments Box below.

Witnesses say 39-year-old Kenneth Ray Rockwell of Grand Rapids, MI, was thrown from a front-end loader when he lost control of the vehicle. The loader ran over him after he was thrown. He was pronounced dead at the scene in Garfield Township, MI.

Rockwell had been removing trees with the loader when it tipped over on a steep hill.

Rockwell worked for Anderson Tree Service, which is owned by his father.

ERA Valdivia Contractors, Inc., of Chicago, faces $130,300 in OSHA fines for exposing workers to dangerous materials containing lead.

Following a November 2009 inspection, OSHA cited the company with two willful violations ($112,000 in fines) for failing to provide adequate personal protective equipment to employees working in and around lead while performing abrasive blasting and painting.

The company also faces eight serious citations ($18,300 in fines) for failure to:

• ensure workers use respirators in accordance with the conditions of certification
• prohibit use of respirators by employees with facial hair, and
• provide a clean changing area for employees.

ERA Valdivia has 15 days to decide whether to contest the fines.

OSHA has inspected the company 25 times since 1991 and issued numerous willful, serious and repeat violations, including ones for lead hazards.

Christopher Dupree fell about 150 feet while painting a water tank in Hurtsboro, AL.

Paramedics tried to revive him, but he was pronounced dead at the scene.

The local sheriff’s department said Dupree was suspended from a rope on top of the water tower and was wearing a harness, but it appeared there might have been some malfunction of the safety equipment that caused the fall. Dupree was one of three workers at the tank that day.

At first, Dupree’s wife sued her husband’s employer, a general contractor, the Russell County Water Authority and an engineering firm. However, the lawsuit was later amended to focus on Robinson and Sons Construction Services, because it was responsible for workplace safety on the project.

In closing arguments, the lawyer for Dupree’s wife asked jurors to return a verdict that would send a message to all employers that they must provide a safe working environment for employees.

Safety videos without blood: Will they work?

About a year ago, we wrote about five safety videos produced by the Ontario, Canada, Workplace Safety and Insurance Board.

Each half-minute story addresses workplace safety topics in a variety of settings, including construction, manufacturing and retail.

They don’t sugar-coat the subject. One shows a restaurant worker’s scalded face after she slips and spills a large pot of boiling water on herself. They are disturbing — but they got more than 580,000 views on YouTube.

Now, several Canadian provinces, including Nova Scotia and Alberta, have released a new series of public service ads, “Before it’s an injury.”

These videos show workplace hazards, too, such as a bucket of water left in the middle of a hallway and a ladder with a rung that’s ready to break.

But in each one, the screen quickly cuts to black as the painful workplace injury is about to take place. In the one involving a nail sticking out of a piece of wood, you hear the sickening sound of the nail piercing flesh as a worker stands up and bumps into it. But you don’t see the incident. The last thing heard on the ad is someone saying, “Somebody get help.”

They leave more to the imagination. But they’re done in such a way that you can’t avoid thinking about what happens next.

So here’s the question: Do you need blood in safety videos for them to make an impact? Let us know what you think in the Comments Box below.

The other worker wasn’t hurt.

Newton awoke three weeks after the March 2003 incident. A TV was on in his hospital room. He could hear it, but he couldn’t see it. He was blind.

He’d lingered between life and death for weeks. Doctors performed several surgeries to save his left arm and hand.

Newton had to relearn how to walk, speak and do other things that had been automatic in the past.

Doctors restored some of his vision, but he can only see shadows and silhouettes.

He fell into depression and took his anger out on his family. Somehow his marriage survived. The divorce rate for people in these situations in around 90%.

Newton was fortunate to survive. With the help of a local center for the blind, he’s learned new skills and gone back to school.

But he’ll never be able to regain the rest of his vision. His life has been changed forever.

Alejandro Valladares was killed after falling head-first into a trench from the forks of a forklift at a construction site in Hermosa Beach.

Valladares was buried beneath excavated soil that caved in on top of him.

Workers for a contractor, David B. Shaw Concrete and Block, were installing a temporary shoring beam into a 12-foot-long trench.

Valladares was standing on a plywood platform that had been placed on the fork of the forklift. He was using a handheld compactor to drive a beam into a hole. The lift carrying him was about 15 feet from the base of the trench. He lost his balance due to heavy vibration from the compactor.

Workers couldn’t rescue Valladares because the ground in the area wasn’t stable.

Emergency workers used cranes to recover his body, a task that took four hours.

Cal-OSHA stopped work at the site and is investigating.

Valladares was just 29-year-old.

Trenches more than five-feet deep must be properly shored. Also, workers should not ride on the forks of a forklift unless a specialized platform is used.

In the first year of the Obama administration, OSHA was busy handing out fines the likes of which hadn’t been seen for eight years. Here’s our rundown of 10 significant fines from the last 12 months, and what they mean for businesses:

1. OSHA issues largest fine ever: $87.4 million to BP. This fine demonstrates OSHA’s intent to check up on companies once they’ve made serious safety mistakes. The agency evaluated BP’s progress after the 2005 fire and explosion that killed 15 people and injured 170 more at its Texas City, TX refinery. OSHA issued 270 “notifications of failure to abate” and identified 439 new willful violations at the plant.
2. Two executives face prison time and huge fines in deaths of five workers. Phillipe Goutagny and James Thompson, executives with RPI Coating, each face 2.5 years in prison and a fine up to $1.25 million if convicted. On Oct. 2, 2007, vapor from a solvent ignited inside a tunnel at a hydroelectric plant in Colorado. Workers survived the blast but were overcome by smoke and fumes and died of asphyxiation. OSHA says it will work more closely with the Justice Department in cases like these to bring criminal charges against executives with penalties that include prison time.
3. OSHA wastes no time in using new per-employee citations, issues $1.2 million fine. G.S. Robbins & Co. of St. Louis, MO, was hit with 21 egregious willful citations for hazardous chemical handling. Each citation was on a per-instance basis. Even during this period of difficult economic recovery, OSHA won’t hesitate to use per-instance, per-employee fines to hike total fine amounts. This wasn’t the only instance in which OSHA used per-instance citations in 2009 (see item #7 below).
4. Company hit with $1.14 million fine following employee complaint. Are the big fines relegated only to incidents involving deaths or multiple serious injuries? Hardly. OSHA began a December 2008 inspection at Milk Specialties in Whitehall, WI, in response to an employee complaint. Willful citations were issued for the employer’s failure to comply with OSHA’s confined space and lockout/tagout regulations. OSHA is taking employee complaints seriously.
5. After two similar incidents, owner and manager go to jail. ANC Roofing of Santa Rosa, CA, owner Kenneth Alton pleaded no contest to failing to protect employees from a hazard. He was sentenced to nine months in jail and a $248,000 fine. Supervisor Robert McAfee pleaded no contest to one misdemeanor violation and was sentenced to 30 days in jail. On May 11, 2006, an ANC employee backed into an unguarded skylight and fell 21 feet to his death. Four months later, another ANC employee suffered major head trauma when he fell 19 feet from an unprotected skylight.
6. OSHA fines Wal-Mart $7,000 for worker trampling incident. A Wal-Mart worker was trampled to death by a crowd of 2,000 shoppers on the day after Thanksgiving in 2008. OSHA said Wal-Mart should have recognized that its employees were exposed to being crushed by the crowd based on previous experience. Wal-Mart fought the fine. OSHA used the General Duty Clause to issue the fine and has said it will use the GDC in similar situations where safety was compromised but a specific regulation wasn’t violated.
7. Company faces $1.09 million OSHA fine for 202 willful violations. OSHA didn’t really need anyone’s permission to start issuing per-instance fines (see item #3 above), but it got the go-ahead in the form of a decision from the Occupational Safety and Health Review Commission (OSHRC). The appeals panel ruled OSHA properly cited Smalis Painting Co. on a per-employee basis for violations of the lead-in-construction regulations, in connection with a project near Pittsburgh, PA. OSHA monitored six Smalis employees for lead exposure. Based on that data, OSHA issued violations for all employees who would have been exposed to the same hazards.
8. OSHA is getting companies to agree to implement safety and health improvements above what’s required by regulations. A-1 Excavating of Bloomer, WI, agreed to make numerous changes in its work processes in exchange for lowering fines from almost $900,000 to $470,000. A-1 has to hire a full-time safety director, develop and implement site-specific safety and health plans for all major projects, identify all job sites to OSHA before work begins for the next three years, reduce the salary of job superintendents and project managers who fail to comply with OSHA requirements, and retain a third-party safety consultant.
9. Cintas agrees to pay $3 million in fines and to comply with other conditions. In some cases, it hasn’t been an either-or situation between fines and strict safety improvements. After a worker was killed when he fell onto an unguarded conveyor and was dragged into a 300-degree industrial dryer, Cintas agreed to the huge fine and to retain a team of independent experts to develop permanent fixes and review interim controls. Cintas also agreed to hire additional safety staff, conduct more frequent internal safety inspections, and establish new systems to examine employee complaints.
10. A construction company agrees to pay $750,000 in fines and cut the pay of unsafe supervisors. Broadway Concrete of New York, NY, agreed to reduce the salaries of senior job superintendents who failed to comply with job safety practices. Broadway also agreed to hire a full-time corporate safety director, develop a new corporate safety plan, and provide OSHA with information on major projects and access to all job sites for the next four years.

What do you think of OSHA’s recent enforcement tactics? Let us know in the Comments Box below.

Dallas Wiens’ head touched a high-voltage power line while he was standing in a cherry picker making repairs to a church window in Fort Worth.

Wiens doesn’t remember the incident. He awoke three months later in the hospital.

Doctors didn’t expect him to live. But after more than 20 surgeries, he’s living with his grandparents. The Dallas News describes his face now as “a smooth, featureless melon of skin and muscle harvested from elsewhere on his body.”

A photo shows what Wiens looks like today. His mouth is the only feature left on his face. (Note: The photo is disturbing.)

Wiens will make two trips to Brigham and Women’s Hospital in Boston where one successful face transplant was done last year, to determine if he is a candidate for a similar operation. Only two such transplants have ever been done in the U.S.

His other option is facial reconstruction using prosthetic or artificial parts.

As is, his story of survival is inconceivable. But even more incredible is Wiens’ positive attitude toward life.

Regarding the possibility of the facial transplant, Wiens said, “If that’s the route I go, God’s going to lead me and take care of me.”

The number of violations in the top 10 increased almost 30% over the same time period in 2008.

The violations are:

1. Scaffolding: 9,093
2. Fall protection: 6,771
3. Hazard communication: 6,378
4. Respiratory protection: 3,803
5. Lockout/tagout: 3,321
6. Electrical (wiring): 3,079
7. Ladders: 3,072
8. Powered industrial trucks (forklifts): 2,993
9. Electrical: 2,556
10. Machine guarding: 2,364.

OSHA will update these numbers later in 2009. The preliminary list was released at the National Safety Council’s annual congress.

The agency has cited Sealcoating, Inc., of Hingham, MA, for $38,100 in violations after a nighttime inspection on its bridge restoration work.

The contractor was cited for 11 alleged repeat and serious violations as part of OSHA’s Boston North Area Office’s efforts to inspect construction projects where silica is generated.

“Employers should not assume that OSHA will not conduct inspections because much of their work is done at night,” said Paul Mangiafico, an OSHA area director.

Among the citations:

• employees exposed to excess silica levels while jack hammering concrete
• no controls to lower exposure levels
• failure to evaluate employees’ exposure levels
• inadequate respirator protection program and training, and
• no fit-testing of respirators.

The company has 15 days to decide whether to appeal the citations.

Francisco Moreno Garcia died as the result of an incident at the ADM facility in Decatur, IL, when a waste compression system malfunctioned. He was insulating pipes 15 feet in the air when he was sprayed with steam and hot caustic chemicals.

He struggled to free himself from his harness and tumbled to the ground. Third degree burns covered 90% of his body.

He lived in excruciating pain for a day and a half before doctors decided there was nothing more they could do to save him.

Workers’ comp awarded $60,000 to Garcia’s family in Mexico. Most of that will be returned to an insurance company after the family receives payment from the jury trial.

In many workplace deaths, the family can’t sue because workers’ comp prohibits it – it’s the “exclusive remedy.”

But in this case, Garcia was working for a contractor, so the family could sue ADM. The jury award was one of the largest such judgments in Illinois history for a single man with no spouse or children.

Starting this week, a group of 10 inspectors will be monitored. By the end of this month, all 379 will be tracked, according to The New York Times.

The tracking program is partially due to the case of former inspector Edward Marquette. He was charged last year with faking a report that he inspected a tower crane in response to a complaint. Authorities said he never visited the site, and 11 days later, the crane fell, killing seven people.

Officials have said it was unlikely the missed inspection had any relation to the incident.

Marquette has pleaded not guilty to charges. He also allegedly filed false inspection reports for cranes at two other sites.

A Buildings Department official said the agency doesn’t believe there are widespread reporting problems by inspectors. The monitoring system will also allow supervisors to dispatch the closest inspector to a building-related emergency and locate inspectors who lose contact with the department during hazardous inspections.

The union representing most inspectors doesn’t like the plan.

However, one inspector quoted by the Times said, “If you are where you’re supposed to be, you’ve got nothing to fear.” Inspectors will only be monitored while they’re on duty. When an inspector’s shift ends, the tracker will be turned off.

So, what do you think? Do safety inspectors need to be monitored? Let us know in the Comments Box below.

Accident lawyer David Perecman put out a press release this week, Attorneys in New York Baffled at how Construction Related Deaths Continue to Occur. The statement is in response to the news that a 42-year-old working on a luxury apartment building fell to his death after a scaffold suddenly gave way.

The press release starts, “New York construction accident lawyers were left scratching their heads as they heard the news of a construction worker who died after falling four stories in Brooklyn, NY.”

The statement goes on to say, “New York construction accident lawyers like David Perecman continue to fight for more safety regulations on construction sites … there is a lack of proper safety precautions being taken on the job site.

“Until we ensure all bases are covered, like the proper equipment is available and people are trained appropriately, accidents like this won’t stop.”

What do you think about his point of view? Let us know in the Comments Box below.

Texas had the highest number of workplace deaths in 2008: 457. However, that’s a 13% decrease from 528 deaths in 2007. (Note: The decrease may turn out to be lower. These figures from the Bureau of Labor Statistics are preliminary and usually go up.)

California ranks second with 404 fatalities, also a decrease from the previous year. Florida is third with 290, once again, a decrease.

Overall, the number of workplace deaths nationwide fell from 5,657 in 2007 to 5,071 in 2008. However, 14 states had increases: Alaska, Delaware, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota and Virginia.

Texas ranked first in deaths due to contact with objects and equipment, and falls. OSHA recently started a special emphasis program on construction in Texas to prevent the number of construction fatalities there.

Texas also ranked first in deaths due to fires and explosions. Georgia ranked second in 2008 due to the Imperial Sugar Co. explosion and fire that killed 14 employees.

California had the most deaths due to assaults and violent acts, and exposure to harmful substances or environments.

To find out more about how your state ranks, click here.

The construction worker was trapped in a flooded tunnel under a highway.

Four workers were in a 24-inch diameter tunnel being dug for a water main according to Conroe, TX, police.

When a heavy downpour moved through the area, a supervisor told the employees to get out of the tunnel. Three employees were able to escape, one was not.

The employee’s body was found just more than two hours later, 50 feet from the tunnel’s opening.

The deceased employee worked for Boring and Tunneling Co. of America for 9 years.

The company’s president called the incident “a freak flood event.”

OSHA is investigating.

OSHA has issued a directive that cancels focused inspections for general industry for now. Focused inspections will continue in the construction and maritime industries.

The agency is in the process of considering a new Annual Operating Plan that will change the General Industry Inspection protocol.

OSHA developed guidelines for its inspectors to conduct focused inspections in the construction and maritime industries in 1994 and 1998, respectively. The agency says focused inspections allow it to use its resources more efficiently.

Focused inspections primarily address the predominant hazards of the industry. Comprehensive inspections look at a wide range of potential hazards.

In 2008, focused inspections were extended to general industry.

Information on focused inspections for the construction industry is here. Click here for information about the maritime program.

Dan Kavanaugh, vice president and general manager with Turner Construction Co. in Oregon, told the Daily Journal of Commerce, “Money is not the motivator. A fine doesn’t mean anything to us.”

Dan Johnson, vice president of operations for Sakanska USA, agrees. “If they raised fines, would that become a motivation? I’m thinking ‘no.’”

However, Johnson says higher fines could be big financial hits for small and mid-sized construction companies.

Oregon OSHA administrator Michael Wood realizes that the fines he’s proposing still wouldn’t have a significant impact on the largest companies.

Wood is considering setting the cap for the most severe violations at $7,000. Now, it’s $5,000.

When a state OSHA inspects a company after a fatality, even the $5,000 fines can add up.

Recently, Oregon OSHA announced penalties totaling $90,000 against ConAgra Foods and a company performing repairs at a ConAgra plant in connection with an incident in which a welder was killed.

Wood acknowledges that ConAgra’s portion of the fine, $65,000, won’t be a big hit for such a large company. Besides raising fines, he’s considering a sliding scale based on company size.

Do you think OSHA fines are real motivation for companies to improve their safety? Is it different for larger vs. smaller companies? Should fines be higher for larger companies? Let me know in the Comments Box below.

A construction worker in Corpus Christi, TX, died of heat stroke.

On Aug. 5, 32-year-old Guadalupe Liscano was part of a home-building crew.

Co-workers found him slumped over, lying in the sun at about 2:30 p.m.

He was taken to the hospital where he later died. The medical examiner said he died of heat stroke.

What are some employers doing to help their outdoor workers stay safe from extreme heat?

MCO Construction in Miami puts a safety flier in employees’ paycheck envelopes to remind them of the dangers of heat stress, and also provides extra water and holds regular safety meetings when temperatures rise.

MCO’s crews also change from their company red to white shirts, which are more comfortable in the heat.

Florida Power & Light C. incorporates a “buddy system” asking co-workers to watch each other for signs of heat stress.

How do you help your outdoor workers cope with extreme heat? Let us know in the Comments Box below.

A 12-year-old boy died and his 8-year-old brother was injured after they got stuck in sand where their father was working in Azle, TX.

Edwin Gomez and his brother had climbed into the bed of a truck that was filled with sand.

They were playing there for a while when workers, who were installing a swimming pool, noticed a host used to pump the sand became jammed.

The workers found the 8-year-old buried up to his waist in the sand. The boy told the workers his brother was buried underneath the sand.

Workers dug the 12-year-old out and called 911.

Edwin was pronounced dead at a local hospital. The 8-year-old suffered a broken leg.

The local sheriff said the father won’t face any charges for bringing his children to a dangerous work site.

Do you have safety rules for children of employees at your company? Let us know in the Comments Box below.

Last week, a worker was killed when he fell more than 20 stories from a high-rise construction site in Dallas.

Jose Aguila, 37, was installing metal louvers on the side of the building. A scaffold collapsed, and the worker’s safety harness failed, according to a report by NBC-5 in Dallas.

In June, OSHA announced an increase in construction-site inspections in Texas due to the high rate of worker fatalities and serious injuries.

Raleigh Roussell, with contractor organization TEXO, complains that some OSHA inspectors arriving at construction sites are transfers from other OSHA areas who don’t have construction experience. “The hazards are much different than those in a plant,” he said.

Personal injury attorney Mark Werbner is also critical of OSHA’s inspections, but for a much different reason.

Werbner says the agency is still far too easy on contractors and the fines for violations aren’t high enough.

What do you think? Let us know in the Comments Box below.

The Las Vegas Sun reports that Labor Department officials and officials from other states have descended on Nevada to scrutinize how it investigates workplace accidents.

The Sun ran a series of articles last year — for which it won a Pulitzer Prize — detailing serious problems with worker safety in Nevada. During an 18-month stretch, 12 construction workers were killed on the Las Vegas Strip.

Acting OSHA head Jordan Barab had warned state officials that the feds planned to intensify their monitoring of state plans.

OSHA’s only enforcement tool is complete takeover of a state agency, something it’s never done. But OSHA observers say this intervention is the most dramatic in a state plan since 1991, when the feds strongly considered taking over North Carolina’s state plan.

A report is expected to be issued in about a month.

A lawyer representing the three men said the message to businesses is clear: If a company employs an illegal immigrant and that person gets hurt on the job, the employer is still responsible financially.

All three were in construction but working on different projects.

An illegal immigrant from Mexico was scalded over large portions of his body by an exploding pipe at a Wall Street construction site and settled his case for $2.5 million.

A second undocumented Mexican worker suffered severe injuries to his left foot and other parts of his body when a beam fell on his lower body at a building site in Manhattan. The worker settled his case for $750,000.

The third worker, from Ecuador, was injured at a construction site in Queens when three 44×10-foot trusses, each weighing 200 pounds, fell on him. He suffered a fractured hip and other injuries. His settlement is for $600,000.

This worker said at a news conference, “The contractor tried to blame me.” When asked what message he would give to other workers, he said, “Don’t be afraid to talk to a lawyer.”

Joel Magallan of Asociacion Tepeyac, an immigrant advocacy group, said, “They [undocumented immigrants] have to know today that they have rights — the same rights as other workers who are U.S. citizens or permanent residents.”

Let us know what you think of this story in the Comments Box below.

Employee Noel Collins was injured due to a fall while installing ceiling tile in a movie theater owned by West 13th Street Owners Corp. He sued, claiming he wasn’t provided with an appropriate safety device, in this case a scaffold.

Collins had constructed a makeshift scaffold consisting of one piece of plywood on top of an A-frame ladder with the other end of the plywood resting on a wall that was the same height as the ladder.

The company argued that Collins was the sole cause of his injuries because he didn’t use materials on hand to construct a proper scaffold.

But the court said expecting the employee to build his own scaffold from scratch “improperly shifted the responsibility for creating a proper safety device” from the employer to the employee.

Now a jury will decide on damages.

Cite: Collins v. West 13th Street Owners Corp., Supreme Court, Appellate Division, First Dept., NY, 6/30/09.

Between October 1, 2008 and May 31, 2009, OSHA has conducted 24,075 inspections, according to data released at the American Society of Safety Engineers’ Safety 2009 conference. At that rate, OSHA should match the number of inspections performed in 2008: 38,450.

So far in the 2009 fiscal year, 63% of inspections have been the result of OSHA programs that target industries or facilities with high incident rates.

The rest, 37% are due to fatalities, injuries or an employee complaint.

Six out of ten inspections have been in the construction industry.

In 2008, 121 inspections resulted in fines of more than $100,000. From Oct. 1, 2008 through June 26, 2009, there have been 72 six-figure or larger fines.

Sometimes, OSHA inspectors don’t find any problems. That’s been the case 22% of the time so far in FY ‘09.

OSHA finds an average of 3.1 violations per inspection. Of those, it classifies 81% in categories that mean higher fines for companies: serious, willful, repeat and failure to abate.

“Make no mistake about it: The Department of Labor (DOL) is back in the enforcement business,” Solis told an audience of safety professionals in San Antonio, TX, attending Safety 2009.

She acknowledges that in these difficult economic times it’s more difficult for safety professionals to sell employee safety and health to their companies. For that reason, Solis said the agency wants to work with more companies to help them provide safer workplaces so that mothers and fathers can return home, uninjured, to their children each day.

But the current recession isn’t stopping OSHA and its parent department, DOL, from stepping up enforcement.

Solis noted that OSHA’s 2010 budget request calls for 130 more inspectors. In comments to reporters after her speech, Solis said, “I’d like to have more [inspectors], but we’re not in that position,” due to the economy.

The Secretary was asked about the lack of a permanent administrator for OSHA. Jordan Barab is the acting administrator and will assume the No. 2 position at the agency once a permanent head is confirmed. Solis expressed frustration with the U.S. Senate confirmation process. She noted that there are other nominees to DOL positions who have been in the pipeline for four months without being confirmed. She said it was important to have a new leader of OSHA, and that’s why Barab was appointed interim administrator, which doesn’t require Senate confirmation.

Solis said she hasn’t yet read the Government Accountability Office (GAO) report that found deficiencies with OSHA’s Voluntary Protection Program. She said she agrees with the concerns expressed by the GAO and by members of the House and Senate regarding OSHA’s enforcement capabilities.

The Secretary also took the opportunity during her speech in front of thousands of safety professionals in San Antonio to announce a new initiative to decrease construction fatalities and injuries in Texas. Since 2007, there have been 145 construction fatalities in Texas, a number Solis called “intolerable.”

Beginning in July, OSHA will increase the number of inspectors in Texas for a concentrated effort aimed at construction sites. If an inspector sees scaffold, fall, trenching or other hazards, they’re empowered to launch an immediate investigation.

Check back with SafetyNewsAlert.com often this week for updates from the ASSE Safety 2009 conference.

Leonidas Gomez was performing demolition work on a building in New York City.

The building was already partially demolished, and he had to remove a window from the remaining structure.

The only way for him to do that was to stand on a fire escape.

While he was trying to remove the window, the fire escape detached from the building, and Gomez fell to the ground.

The worker sued for his injuries, claiming that the fire escape should be considered a scaffold under New York law.

The court agreed. It said the fact that a fire escape is usually a permanent structure and a scaffold is a temporary one didn’t matter in this case.

Since a scaffold couldn’t be erected on the partially demolished building, the fire escape acted as a scaffold and the law applied.

New York’s unique scaffold law requires building owners and general contractors to provide workers with proper scaffolds, hoists, harnesses and other appropriate PPE for use when working at elevations.

Cite: Gomez v. City of New York et al, New York Supreme Court, 6/11/09.

In the last two weeks, three undocumented workers have reached settlements totaling $3.85 million for workplace accidents in New York.

A lawyer representing the three men said the message to businesses is clear: If a company employs an illegal immigrant and that person gets hurt on the job, the employer is still responsible financially.

All three were in construction but working on different projects.

An illegal immigrant from Mexico was scalded over large portions of his body by an exploding pipe at a Wall Street construction site and settled his case for $2.5 million.

A second undocumented Mexican worker suffered severe injuries to his left foot and other parts of his body when a beam fell on his lower body at a building site in Manhattan. The worker settled his case for $750,000.

The third worker, from Ecuador, was injured at a construction site in Queens when three 44×10-foot trusses, each weighing 200 pounds, fell on him. He suffered a fractured hip and other injuries. His settlement is for $600,000.

This worker said at a news conference, “The contractor tried to blame me.” When asked what message he would give to other workers, he said, “Don’t be afraid to talk to a lawyer.”

Joel Magallan of Asociacion Tepeyac, an immigrant advocacy group, said, “They [undocumented immigrants] have to know today that they have rights — the same rights as other workers who are U.S. citizens or permanent residents.”

Let us know what you think of this story in the Comments Box below.

Building Austin, Building Injustice, released by the group Workers Defense Project that’s based in the Texas city, says construction companies are shifting the burden of caring for injured workers to the public because low-wage workers often depend on government support, hospitals and charities.

The study found that violations of workplace regulations are common in the industry, including lack of PPE such as harnesses and hard hats.

Of more than 300 construction workers interviewed, 20% reported suffering an injury that required medical attention at some point during their careers. The report also claims 45% earned poverty-level wages and 64% received no OSHA safety training.

Construction representatives defended their industry in the Austin American-Statesman.

“We employ a full-time safety director to assist members with safety services and offer classes in both Spanish and English,” said Phil Thoden, president of the Austin chapter of Associated Contractors of America.

The report is available online here.