In some states, when workers are placed on permanent partial disability, it’s expected that injured employees will make a “good-faith effort” to find alternate employment they can perform. However, one state court just found a reason to overturn that 15-year precedent and allow a worker to keep collecting.

Carolyn Bergstrom worked for Spears Manufacturing Co. as a production janitor. One day, after lifting a garbage can and setting it back down, she felt pain in her back.

The next day the pain became severe, and she was reassigned to sorting parts. She was unable to do that because standing in one place caused her too much discomfort.

An orthopedic surgeon directed her to stop working and file for disability benefits. Initially, she was awarded permanent total disability by an administrative law judge (ALJ).

But the state workers’ comp board set aside that decision, and the ALJ suggested Bergstrom try to return to work. She did, and she was again assigned to the parts sorting job.  She said she wasn’t able to perform the job for more than 3 hours because of pain and went home. The company fired her.

Then her award was reduced to permanent partial disability. The state’s workers’ comp board found that Bergstrom “didn’t exercise good faith” when she failed to perform alternate job duties that her company offered her after her injury.

Bergstrom appealed.

An appeals court upheld the reduction of her award based on the “good-faith effort” doctrine that appeals courts in Kansas had applied to such cases for 15 years. In other words, a workers’ comp award could be reduced if the injured employee didn’t make a good-faith effort to seek out and accept alternate employment.

But a majority on the Kansas Supreme Court ruled that the state’s workers’ comp law contained no such good-faith provision. It ruled that appeals courts in the state had ruled incorrectly for years on the matter. So in this case, it reversed the lower court’s ruling and sent it back for further consideration.

The upshot: It appears until this is corrected by an act of the Kansas legislature, employees can decide they suffer too much pain after a workplace accident, leave their job and collect benefits without looking for alternate employment.

Let us know what you think about this case in the Comments Box below.

Cite: Bergstrom v. Spears, Supreme Court of KS, No. 99,369, 9/4/09.

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.

Toys R Us faces $69,000 in fines for 10 violations at one of its stores in Brooklyn, NY.

OSHA’s inspection found hazards that could impede employees’ exit during a fire or other emergency. These included:

• obstructed exit access
• missing or defective exit doors
• an exit door that was painted over and couldn’t be opened
• improper or inadequate exit signage
• employees not trained in fire extinguisher use, and
• all fire extinguishers not kept in their required locations.

OSHA also cited the company for other violations, including damaged storage racks that were prone to collapse.

Three of the citations, for the obstructed exit route, blocked aisle and damaged storage racks, were categorized as repeat and came with $50,000 in fines. But the Brooklyn store wasn’t fined for these problems before.

OSHA had cited Toys R Us stores in Ohio and New Jersey for similar hazards, and that triggered the more expensive repeat citations. The other seven violations were categorized as serious for a total of $19,000 in fines.

The workers’ comp premium rate in Oregon will decrease 1.3% for 2010. The state had 21,660 accepted disabling claims in 2008, a decrease of 1,773 from 2007. The claims rate is 1.2 per 100 workers, down from 1.3 in 2007.

The report from Oregon also notes that 30.4% of claims were filed by workers in the first year with their employer.

The average age of workers making claims was 41. If you assume most workers are between the ages of 18 and 64, 41 is the average age of workers overall.

So it’s not how old workers are that matters, it’s how long they’ve been with your company.

Some other statistics from Oregon’s report:

• The most common injuries were sprains, strain and tears (47%); fractures, 12%
• The top events causing injuries: overexertion (24%); struck by or against an object (14%); and bodily reaction (14%)
• The biggest sources of injuries: bodily condition or motion (24%); floors, walks or ground (17%); and containers (8.5%), and
• The body parts most commonly affected: back (21.5%); trunk, except back (16%); and knees (11%).

That’s what happened to Sims Bark Co. and Sims Stone Co. in Alabama, Georgia and Mississippi.

OSHA received a complaint about safety at one of Sims’ locations and determined that similar hazards might exist at its other locations.

Result: $576,750 in OSHA fines after inspectors visited six Sims facilities.

Willful citations were issued for:

• allowing workers to service, unjam and clean machinery without procedures to ensure they wouldn’t be caught in or struck by equipment or burned by machines’ heat strips, and
• exposing workers to dangers associated with being caught in fast moving machinery.

OSHA issued serious citations for:

• lack of employee training
• exposure to electric shocks
• lack of fall protection
• lack of machine guards
• exposure to noise hazards
• struck-by dangers, and
• accumulation of combustible dust.

Sims also faces other-than-serious citations for failing to keep injury/illness logs according to OSHA rules.

The company has 15 business days to comply with or contest the citations.

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.

And the case hasn’t been settled.

The fact that the appeal is dragging on is significant.  But how it turns out may be even more significant.

When the fine was announced, company CEO John Sheptor said he hoped the whole thing would be settled “in a few weeks,” according to an article in the Augusta (Ga.) Chronicle.

In the same article, plantiffs lawyer Mark Tate explains why that hasn’t happened: “(OSHA’s) pressing its case as doggedly as private lawyers would. Proposed OSHA fines used to get settled for pennies on the dollar. But not this time.”

This chart, posted by probublica.org, lends credence to the “pennies on the dollar” comment. Many of OSHA’s largest proposed fines eventually withered into small fractions of their original figures.

Does this mean OSHA is now overreaching? Or is developing a bite that matches its bark long overdue? Let us know what you think in the Comment Box below.

A recent Newsweek article, written by a small-business owner, addresses the proposed “Employee Free Choice Act” and the self-described paranoia he feels at the thought of having his company become unionized.

The author raises some interesting points about wages and benefits. And he expresses concern that OSHA is a lot more likely to come calling on companies where unions have either waged successful campaigns, or are hoping to.

But what about safety? Do unions make it easier or harder to keep employees safe? Do they fulfill the promise of promoting safer working conditions, or do they promote a counterproductive us-vs.-them attitude and make it tougher to get rid of unsafe employees?

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

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.

The National Safety Council (NSC) is advocating legislation to ban all types of cell phone use on the road, including hands-free usage.

Now, six states have bans on driving while talking on a hand-held cell phone: California, Connecticut, New Jersey, New York, Utah and Washington. It’s also banned in the District of Columbia, and at least five other states have cities and towns with bans.

The organization acknowledges that it’ll take a long time to get all states to pass such legislation, so it’s also urging businesses to enact policies prohibiting the practice.

The NSC notes results of several studies to back up its call, including:

• Drivers are at a four times greater risk of a crash
• Cell phone use contributes to 6% of crashes, and
• The annual financial toll of cell phone-related crashes is $43 billion.

Anticipating some of the arguments against cell phone bans, the NSC admits other in-car activities are more dangerous than using cell phones. However, the group says as cell phone use has become so prevalent, it has become more dangerous overall.

Also, studies show that hands-free devices don’t make cell phone calls while driving safe.

What’s the difference between talking on a hands-free phone and speaking with someone else in a car? Unlike the passenger sitting next to you, the person on the other end of the call is oblivious to what’s happening around the driver on the road. The passenger provides another pair of eyes and can help keep the driver alert.

Do you think a total ban on cell phone use while driving is necessary? Does your company have a policy banning your employees from using cell phones while driving for business? Does that ban include hands-free usage? Let us know in the Comments Box below.

The NSC has set up a Web page with resources and data at http://distracteddriving.nsc.org.

South Carolina legislators have introduced a bill that would bar illegal immigrants from collecting disability benefits when they’re hurt on the job.

State Sen. Tom Davis (R) said there’s a lot of frustration that illegal immigrants enjoy public benefits to the same extent as citizens or immigrants with proper paperwork.

However, Sen. Brad Hutto (D) feared that doctors and hospitals would be left with unpaid bills if this legislation is passed.

Diana Salazar, president of the Latino Association of Charleston said it’s unfair that these illegal immigrants can care for children, build houses and hold other jobs but not get benefits if they’re hurt on the job.

The state senate committee considering the bill set it aside for the time being to collect more testimony.

Should illegal immigrants get workers’ comp if they’re hurt on the job? Let us know what you think in the Comments Box below.

Explosions at the plant killed 14 people and injured many more.

Interviews conducted by OSHA with plant workers uncovered the alleged lack of training, according to The Savannah Morning News.

OSHA is seeking $8.8 million in fines for alleged safety violations at two Imperial plants. Imperial is appealing.

About 40 workers said they didn’t receive training on how to get out of the building in an emergency. Only about 30 people said they were shown how to leave.

Just 5 people ever recalled a fire drill at the plant.

Former corporate safety manager Michael Lastie said in a sworn statement that the company lacked a document that “clearly spelled out … the roles and responsibilities of the first responder team.”

Creating such a document was a recommendation made to the company after a 2004 safety evaluation.

Imperial also faces lawsuits from victims’ families.

1. When it comes to safety, training and prevention are a lot less expensive than the alternative.

2. Even when workers’ compensation laws are unwieldy and a nuisance, there’s a lot to be said for “exclusive remedy” provisions.

3. You never want any case to end up in the hands of a jury.

It happened in Texas, the only state where workers’ comp participation is still voluntary. An industrial worker lost most of the vision in one eye after being sprayed by acid.

He sued, claiming the acid-addition system he was working on had been negligently designed because it lacked a pressure ventilator and failed to properly vent.

The trial lasted two weeks. But the sympathetic jury took less than two days. Its verdict: a $9.6 million award to the partially blinded employee.

The jury assigned 75% of the blame to the company that designed the system, 20% to his employer and only 5% to the employee himself.

A Texas drilling company will pay $16 million to the family of a woman who was killed when equipment fell off its tractor trailer and onto the victim’s SUV.

Pioneer Drilling Co. of San Antonio, TX, agreed to the settlement after three days of trial in a Texas court.

On Sept. 11, 2008, Rhonda Henson was driving her Ford Explorer with her husband in the passenger seat. A large piece of oil field equipment fell off a passing tractor trailer, crushing the driver’s side of the SUV.

According to the Times-Review, jurors heard a 911 call in which an eyewitness tells an emergency center operator that she yelled to see if anyone was in the SUV. Thomas Henson, who was out of the truck, told the eyewitness his wife was dead in the vehicle.

The equipment, weighing more than 15 tons, was secured with two chains, not four as required by law.

A local police department report also said the driver, 21-year-old Daniel Armstrong, failed to control his speed.

The attorney for Henson’s family said sworn testimony showed at least one Pioneer employee was aware that Armstrong had several traffic tickets, a suspended license and wasn’t qualified to drive the tractor trailer.

The attorney said other company employees forged, backdated and fabricated Armstrong’s records after the accident. A company employee eventually came forward with that claim.

A statement from Pioneer said all but $1 million of the $16 million settlement will be covered by insurance.

If you guessed the Casino Control Board fine, you’re right. It’s actually 2.75 times larger than the OSHA fine.

That’s the comparison made in a Las Vegas Sun article. Earlier this year, the Sun won a Pulitzer Prize for Public Service for its investigation of construction deaths on the Las Vegas strip.

Two years ago, two workers died and a third was seriously injured in a maintenance accident at the Orleans casino. After negotiations, the Orleans settled the case for $184,000.

Recently, the Gaming Control Board fined Planet Hollywood $500,000 for problems at its nightclub including underage drinking, leaving dangerously drunk patrons unattended, drug use, and physical and sexual assault of patrons by nightclub employees.

Casinos regularly agree to pay the fines the board issues rather than allowing the board to prosecute the cases.

On the other hand, companies almost always get OSHA penalties lowered through appeals. Sometimes citations are thrown out altogether.

The average OSHA fine for a serious violation in Nevada is $1,400. Federal OSHA’s average serious fine is between $900 and $1,000.

Do you think OSHA fines need to be increased? Let us know 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.

At the American Society of Safety Engineers’ (ASSE) Safety 2009 conference, Jordan Barab noted that the last time OSHA fines were restructured was in 1990.

Right now, the average fine for a serious violation is between $900 and $1,000. Barab says that’s not enough of a disincentive to force companies to address safety hazards.

It would be up to Congress to change OSHA’s penalty structure, and there is a bill introduced to do just that.

Ultimately, Barab says he’d like OSHA fines to be comparable to those EPA is able to issue for environmental violations.

He’d also like Congress to make it easier for OSHA to bring criminal penalties for egregious violations.

Check back with SafetyNewsAlert.com all this week for news from ASSE’s Safety 2009 conference.

“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.

Michael Coleman, Manufacturing Specialty Administrator for the American Society of Safety Engineers (ASSE) says the company he works for knows that by not cutting safety and health programs during the economic downturn, U.S. companies are holding onto and gaining in market share worldwide.

“However, those that reduce their safety and health budgets and programs are looking at losing that competitive edge,” Coleman said.

Coleman will discuss how safety programs help manufacturers stay competitive at this year’s ASSE Professional Development Conference and Expo, June 28-July 1 in San Antonio, TX.

Check in with SafetyNewsAlert.com next week for stories from the conference.

Other key presenters include acting OSHA administrator Jordan Barab and U.S. Department of Labor Secretary Hilda Solis.

Milk Specialties Co. of Whitehall, WI, faces $1.14 million in OSHA fines in connection with a Dec. 2008 inspection. Inspectors visited the facility in response to a complaint alleging a variety of hazards at Milk Specialties’ whey processing plant.

OSHA issued 17 willful violations, totaling $1.07 million, for confined space and control of hazardous energy (lockout/tagout) requirements.

The citations say untrained employees entered confined spaces and performed maintenance and cleaning on powered equipment without protection from various hazards.

The company also faces 4 repeat and 17 serious citations that account for the balance of the total fine. Among the other citations:

• combustible dust hazards
• lack of exit route lighting and signage
• uninspected fire extinguishers, and
• deficiencies in guarding floor and wall openings.

Milk Specialties has been inspected by OSHA 15 times since 1974, including 4 inspections in Wisconsin between 2006 and 2008.

The company has 15 days to accept or appeal the citations.

You can read more about OSHA’s citation here.

OSHA wielded its more expensive willful, repeat and serious citations against this company that has a history of safety violations.

But, is a million-dollar citation enough, or should OSHA take further steps against the company such as closing this particular facility until safety improvements are made?

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

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.

The employee got comp. Here’s what happened:

Clinton Dwyer was working at a Circuit City when a co-worker asked him to help her get a stuck bag of chips out of a vending machine.

There was a history of snacks not dropping down from the machine’s spindles. Employees would shake the machine to dislodge the stuck snack.

Dwyer shook the machine twice, but no luck.

Then, he took a step back and gave a hockey-player-like check to the machine with his shoulder.

Next thing, Dwyer was on the ground in pain. He fractured his hip in the process of trying to retrieve the snack.

Doctors operated on him that day for the fractured hip. Years after the incident he still feels pain in humid weather and after a certain amount of exertion.

He filed for workers’ comp, and Circuit City fought it.

Did personal comfort doctrine apply?

The state Workers’ Comp Commission awarded him comp, saying the personal comfort doctrine applied.

That doctrine says at-work employee actions for personal comfort — such as eating or using the restroom — are covered by workers’ comp.

Circuit City took the case to the state appellate court.

The court said Dwyer should get comp, but not because of the personal comfort doctrine.

Instead, the court said the good Samaritan doctrine applied.

That doctrine says when an employee leaves his work duties to help someone else, whether that is “in the course of work” hinges on whether the employee’s action was reasonably foreseeable.

The court said, since there were previous problems with the snack machine, and the company had no stated policy against shaking it, it was foreseeable that Dwyer would help his co-worker. For that reason, he got comp.

This isn’t an isolated case. An Oregon court has also ruled that an employee who injured his foot while helping a co-worker dislodge candy from a machine should also receive comp.

Did the court extend the good Samaritan doctrine too far? Do you think Dwyer should get comp? Let us know in the Comments Box below.

Cite 1: Circuit City v. Dwyer, Appellate Court of Illinois, 5/21/09.

Cite 2: Washington Group International v. Barela, Oregon Court of Appeals, 8/22/07.

An employee helps a co-worker get a stuck bag of chips out of a workplace vending machine and in the process fractures his hip. Does he get workers’ comp or not?

The employee got comp. Here’s what happened:

Clinton Dwyer was working at a Circuit City when a co-worker asked him to help her get a stuck bag of chips out of a vending machine.

There was a history of snacks not dropping down from the machine’s spindles. Employees would shake the machine to dislodge the stuck snack.

Dwyer shook the machine twice, but no luck.

Then, he took a step back and gave a hockey-player-like check to the machine with his shoulder.

Next thing, Dwyer was on the ground in pain. He fractured his hip in the process of trying to retrieve the snack.

Doctors operated on him that day for the fractured hip. Years after the incident he still feels pain in humid weather and after a certain amount of exertion.

He filed for workers’ comp, and Circuit City fought it.

Did personal comfort doctrine apply?

The state Workers’ Comp Commission awarded him comp, saying the personal comfort doctrine applied.

That doctrine says at-work employee actions for personal comfort — such as eating or using the restroom — are covered by workers’ comp.

Circuit City took the case to the state appellate court.

The court said Dwyer should get comp, but not because of the personal comfort doctrine.

Instead, the court said the good Samaritan doctrine applied.

That doctrine says when an employee leaves his work duties to help someone else, whether that is “in the course of work” hinges on whether the employee’s action was reasonably foreseeable.

The court said, since there were previous problems with the snack machine, and the company had no stated policy against shaking it, it was foreseeable that Dwyer would help his co-worker. For that reason, he got comp.

This isn’t an isolated case. An Oregon court has also ruled that an employee who injured his foot while helping a co-worker dislodge candy from a machine should also receive comp.

Did the court extend the good Samaritan doctrine too far? Do you think Dwyer should get comp? Let us know in the Comments Box below.

Cite 1: Circuit City v. Dwyer, Appellate Court of Illinois, 5/21/09.

Cite 2: Washington Group International v. Barela, Oregon Court of Appeals, 8/22/07.

An official says UCLA is appealing the citations so that they can’t be used against the university in any future proceeding, such as a lawsuit or criminal prosecution, according to the Los Angeles Times.

Lab assistant Sheri Sangji was transferring about 2 ounces of t-butyl lithium from one sealed container to another when a plastic syringe came apart in her hands.

The chemical ignited when it was exposed to air, setting her rubber gloves and synthetic sweater ablaze. She was burned over about half of her body and died 18 days later.

Part of the fine, $18,000, was for Sangji’s lack of a lab coat. UCLA was also fined for lack of proper employee training.

UCLA’s fear of further action against it is quite real. Cal-OSHA regularly refer workplace fatalities to district attorneys for review.

Sangji’s sister is calling for a DA investigation, and more than 1,300 people have signed an online petition calling for one.

Another possibility is a lawsuit by a labor union. Sangji’s family may be prevented from filing a lawsuit because of laws that make workers’ comp the exclusive remedy for relatives of a killed employee.

As part of its investigation, Cal-OSHA noted UCLA had not addressed deficiencies found in its own internal safety inspection two months before the fatal fire, including a finding that workers weren’t wearing lab coats.

Lesson for other companies: If your own internal safety audit finds deficiencies, not taking quick action can prove costly.

The No. 1 goal for Britain’s Health and Safety Executive (HSE): investigating work-related accidents and illnesses and taking enforcement action to prevent harm and secure justice where appropriate.

Other HSE priorities:

• Encourage strong leadership in championing the importance of health and safety in the workplace
• Reinforce the promotion of worker involvement and consultation in health and safety matters, and
• Identify which activities deliver a significant reduction in the rate and number of deaths and accidents.

The goals were established following a survey of 1,000 British workers and 200 business owners and senior managers. Some survey findings:

• 36% of business leaders agree that the “stick” as opposed to the “carrot” is the most effective way to improve health and safety
• 26% of owners and managers admit their companies will face pressure to cut their health and safety budgets in the recession
• 60% of business leaders feel safe in their workplace, compared to just 35% of employees, and
• 22% of workers in small businesses fear that their employer will cut health and safety corners in the recession, compared to just 16% in large organizations.

The HSE says one reason it’s launching its program is because of fears that workplace safety and health will take a backseat during the current recession.

Click here to read more about Britain’s new workplace safety and health strategy.

How is the recession impacting your company’s safety plan? Let us know in the Comments Box below.

While it didn’t cite Wal-Mart for a violation of a specific standard, OSHA has used its General Duty Clause to fine the retailer in the trampling death of a worker last November.

Wal-Mart has 15 business days to decide whether to pay the $7,000 fine or appeal it.

OSHA issued Wal-Mart one serious citation under its General Duty Clause for inadequate crowd management following the Nov. 28, 2008, death of its employee, Jdimytai Damour, at its Valley Stream, NY, store.

Damour died of asphyxiation after he was knocked to the ground and trampled by a crowd of about 2,000 shoppers who surged into the store for its annual day-after-Thanksgiving sale.

OSHA says employees were exposed to being crushed by the crowd due to the store’s failure to implement reasonable and effective crowd management techniques.

OSHA’s acting director for the Long Island, NY, area, Anthony Ciuffo, said this was not an unforeseen situation. Ciuffo says Wal-Mart should have recognized the hazards based on previous Friday-after-Thanksgiving crowds.

Wise use of General Duty Clause?

The agency cites the General Duty Clause when there’s no specific regulation that covers an incident resulting in serious injury or death.

OSHA’s General Duty Clause states, “Each employer shall furnish to each of his employees employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

How does OSHA define “recognized hazards”? In its recently revised Field Operations Manual (FOM) for inspectors, OSHA lists three ways in which a hazard qualifies as recognized:

• Employer recognition: This can be established by evidence of actual employer knowledge of a hazardous condition.
• Industry recognition: A hazard is recognized if the employer’s industry is aware of its existence.
• Common sense recognition: The FOM states, “Hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it.”

So, here’s the question: Do you think trampling by a crowd was a recognized hazard in this Wal-Mart case? Also, what do you think about OSHA’s increased use of the General Duty Clause overall? Let us know in the Comments Box below.

While working, an employee was pulled into and lodged in a large lathe. Emergency personnel pronounced him dead when they arrived. The worker died of severe trauma to his upper torso.

OSHA determined the lathe didn’t have proper machine guards.

In all, OSHA issued 23 alleged serious safety and health violations against the company, including:

• blocked or locked exit routes
• lack of proper fire protection equipment and training
• inadequate forklift truck training
• improper storage of compressed gas cylinders, and
• lack of protective gear for skin exposure to hexavalent chromium.

The company has 15 days to decide whether to pay the fines or contest them.

The state recently shut down five farm labor contractors for violations of heat illness prevention regulations.

Four contractors provided no shade for workers exposed to temperatures over 100 degrees, and one had less than a single gallon of water for 15 employees working in temperatures as high as 116 degrees.

The state uses the Order to Prohibit Use (OPU) to shut down employers when employees are exposed to an immediate hazard. The employers’ operations are stopped until they can prove their ability to safeguard workers.

The OPU was first used last year against Merced Farm Labor following the death of Maria Vasquez Jimenez who had been working 9 hours in a vineyard with little water and no shade.

Already this year, California has conducted over 850 heat inspections and issued more than 250 citations for violations of the heat illness prevention standards.

More information about heat illness prevention and training materials are available here.

Imagine this: Two of your employees who work together both get little sleep before performing a safety-sensitive task. Then, the two are involved in an incident that kills 50 people.

A major focus of the National Transportation Safety Board’s (NTSB) investigation into the crash of Continental Connection Flight 3407 on Feb. 12 has been on whether the captain and co-pilot were fatigued.

Co-pilot Rebecca Shaw lived with her parents near Seattle and commuted across the country to her job. The night before the accident, Shaw flew overnight from Seattle and changed planes in Memphis before reporting for the early morning flight out of Newark, NJ.

It’s unclear whether Captain Marvin Renslow slept the night before the trip. He was in the middle of a two-day assignment. The night before, he logged into a computer in a crew room, according to NTSB documents.

The crash killed all 49 people on the plane and one person on the ground.

The problem of fatigued employees isn’t limited to pilots. Fatigue costs U.S. employers $136 billion annually in health-related costs and lost worker productivity — not to mention potential lawsuits in cases involving serious injury or death.

What can be done?

You can’t follow your employees home to tuck them into bed at night. Most of the responsibility for being alert at work falls on employees themselves.

However, there are some tips you can give workers and some things you can do to improve alertness. Among the things workers can do:

• Set regular hours for sleeping. The average adult needs eight hours a night, but some require up to 10.
• Avoid caffeine three to five hours before going to bed.
• Naps can help if they’re less than an hour or longer than 90 minutes. That way, workers are less likely to wake up during deep sleep.
• Develop overall good health habits such as daily physical activity and a balanced diet.

For companies with night or long shifts, bright light and cooler temperatures enhance alertness. If possible, schedule the most tedious tasks early in a shift. Moderate physical activity during breaks, such as taking a walk, helps, too.

Employees should have at least ten hours between work shifts.

Have you taken steps to encourage workers in safety-sensitive positions to get proper rest? Let us know about what you’ve done, or leave us a comment on this story, in the box below.

A recent survey by a British insurance company seems to suggest that.

RSA surveyed over 2,000 UK employees, and 71% report an increase in their stress levels because of the recession.

On top of that, 20% of workers surveyed believe they are more likely to face a workplace accident due to recession stress. The percent of workers who fear they’re more likely to have an accident, broken out by industry:

• manufacturing: 35%
• transportation: 28%, and
• leisure sector: 21%.

RSA estimates 13.5 million work days will be lost this year in Great Britain due to workplace stress.

Is there something to this? Let us know what you think in the Comments Box below.

Wrico Stamping Co. of Grapevine, TX, has 15 days to decide whether to contest the fines.

OSHA cited Wrico for:

• one willful violation for failing to perform regular inspections of mechanical power presses
• one serious violation for failing to provide safety blocks on mechanical presses
• one serious violation for not providing adequate supervision while employees are working on hazardous equipment
• one serious violation for not giving employees adequate training for maintaining mechanical equipment, and
• one other-than-serious violation for failing to report an amputation injury within 30 days.

California authorities have made massive allegations of workers’ comp fraud against an employer.

The Orange County District Attorney has charged the owners of three California roofing businesses with $38 million in workers’ comp fraud.

Michael Petronella and Devon Kile are accused of skirting comp payments by under-reporting the number of employees working for their companies and by discouraging their workers from filing claims. They both face between five and 102 years in prison.

Officials started an investigation when an employee of one of the companies fell off a roof and collected $6,000 in workers’ comp coverage.

The employee said he was working for Petronella Roofing, which had workers’ comp coverage. In fact, he was on a different company’s payroll, Western Cleanoff. Western had no comp insurance because it claimed it didn’t have any employees.

The indictment cites 41 other instances of employees who filed comp claims while on the payroll of uninsured companies owned by Petronella and Kile.

The district attorney accuses the two owners of playing a shell game of shuffling payrolls to make fraudulent claims for uncovered workers who were injured.

Why should other companies care?

Does comp fraud by some companies impact others who do the right thing and purchase proper insurance coverage?

One obvious reason it does: Companies without proper comp insurance have lower costs and can charge less than competitors.

Here’s another reason: Fraud is a key factor behind high comp insurance rates for other companies. When employers under-report the number of insured workers to reduce their comp premiums, it looks like there are fewer workers in a particular industry.

Comp premiums are based on injury rates in an industry. If the number of total workers is too low, but the number of injured workers stays the same, it appears that an industry has a higher accident rate than it actually does.

In California, where this case took place, the state Workers’ Compensation Insurance Bureau recently recommended a 24% average increase in comp premiums.

In a recent poll on Safety News Alert, only 19% of respondents said the current workers’ comp laws were just about right.

What do you think about the state of workers’ comp? Let us know in the Comments Box below.

The Orange County Register has more about this fraud case here and here.

Slips, trips and falls are routinely one of the top causes of injuries in workplaces. They also subtract from a company’s bottom line due to medical and workers’ comp insurance, lost productivity and retraining costs.

Here are 12 common mistakes made by companies when it comes to slip, trip and fall prevention:

• Mistake #12: Starting from scratch. There’s no need to. One place to start: consensus standards, such as ASTM’s Practice for Safe Walking Surfaces and ANSI’s Standard for the Provision of Slip Resistance on Walking/Working Surfaces.
• Mistake #11: Missing the opportunity to control walking style. Employees need to be reminded not to run and to keep their eyes on their walking path, especially while carrying items.
• Mistake #10: Relying on ineffective measurements. Best practice: Test flooring as it will be installed and used, under expected conditions (including wetness).
• Mistake #9: Short flight stairs and other elevation changes. Stairs with three or fewer steps need to be marked with contrasting color to other walking surfaces and be well lit. Seriously consider eliminating any change in level that’s 1/4 inch or greater.
• Mistake #8: Footwear. Shoes meant for both indoor and outdoor working conditions may not provide the best protection against slip, trips and falls in either circumstance because of their design compromises. Shoe features that need to be considered are: tread pattern, tread composition, sole height, support, lacing and adjustment method.
• Mistake #7: Ignoring pre-loss indicators. Slippery floors often lead to a lot of near-misses without injury before an incident with injury occurs. Attention needs to be paid to near-misses.
• Mistake #6: Less than adequate housekeeping. Any slip, trip and fall prevention program needs to include a serious statement of commitment to keeping walking/working surfaces clean.
• Mistake #5: Relying on single-factor solutions. While it may seem prudent to focus on the largest potential cause of slips, trips and falls in a particular facility, secondary factors shouldn’t be ignored after the primary one is addressed. Example: If a floor’s finish is addressed, the facility should still look into floor treatments, footwear, warnings and spill response.
• Mistake #4: Unresponsive contaminant control. Contaminants aren’t just chemicals. In some facilities they may be weather-related or food. Elimination of the contaminant should be considered first, followed by reduction and then dealing with the contaminants once they’re present.
• Mistake #3: Lack of proper cleaning procedures. Problems with cleaning range from poor spill response to improper daily cleaning to insufficient or nonexistent deep cleaning.
• Mistake #2: Selecting flooring inappropriate for the application. If a flooring sample can be installed to test under actual conditions, that’s ideal. If that’s not possible, find other examples of similar installations to yours.
• Mistake #1: Lack of proper follow-up. Selecting the proper flooring and establishing policies to prevent slips, trips and falls are the right places to start. But policies must be reinforced and updated if necessary. Companies should follow up on near-misses as well as injuries.

Adapted from a presentation by Keith Vidal of Vidal Engineering in St. Louis and David Natalizia of Dynamic Safety in Costa Mesa, CA, at the 2008 ASSE Safety Conference. For information on ASSE’s 2009 Safety Conference, click here.