OSHA fines over one-million dollars have become more common. But here’s one with a twist: It’s not for workplace hazards — it’s for recordkeeping violations.

OSHA has issued Goodman Manufacturing Co. 83 willful citations for failing to record and improperly recording work-related injuries and illnesses at the company’s Houston air conditioning cooling facility.

The proposed fines total $1.215 million.

OSHA received a complaint that Goodman wasn’t properly recording injuries.

An investigation showed the company had either not recorded or failed to properly record the nature and/or duration of 72% of employee injuries and illnesses from January 2008 to March 15, 2010.

OSHA categorized the recordkeeping citations as willful because the company was extremely knowledgeable about OSHA’s requirements but made many unsupportable decisions.

The company has 15 business days from receipt of the citations to decide whether to contest the citations.

OSHA has implemented a National Emphasis Program (NEP) on Recordkeeping to assess the accuracy of injuries and illnesses recorded by employers. You can find out more about the NEP here (PDF).

Metrolink in California and Connex Railroad are offering a $200 million settlement to victims and families in connection with the Sept. 12, 2008, crash between a commuter train and a Union Pacific freight train. The crash killed 25 and injured more than 100. There are 76 lawsuits filed against the railroad companies.

Paul Kiesel, the coordinating attorney for all the lawsuits in the case says the $200 million offer isn’t enough.

Kiesel says some victims already have medical bills that total six or seven figures.

Example: Construction worker Curtis Whitney suffered spinal injuries in the crash. He had no insurance and has undergone multiple surgeries. His medical bills already total $600,000.

The $200 million offered is the liability cap allowed under federal law in passenger rail incidents.

The cap was set in law by Congress.

U.S. Rep. Elton Gallegly (R-CA), in whose district many of the victims live, said he probably will introduce legislation that could adjust the liability cap.

Kiesel points to what BP has done regarding the Gulf oil disaster and claims the payouts can and should exceed the liability caps. BP could have stayed within a $75 million cap, but it put up $20 billion to pay for damages caused by the gusher.

The train crash was caused by a contract Metrolink engineer, employed by Connex, who ran a red light while text-messaging, according to an investigation by the National Transportation Safety Board. Metrolink now employs Amtrak as its operating contractor.

Should the cap be raised in the Metrolink case? Let us know what you think in the Comments Box below.

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.

Washington DC’s Metro public transit system is installing cameras on its entire fleet of 1,500 buses to monitor bus driver performance and improve safety.

The new cameras constantly record when the buses are running. When a driver makes any extreme movement — a sharp turn or a quick stop — the cameras capture the eight seconds before the incidents and the four seconds after. The video and audio are also automatically downloaded from the bus.

“Because the operator knows the camera will be watching him or her, they will try to minimize the times the system is triggered, and it will lead them to be more alert,” said Metro assistant manager Jack Requa.

The cameras will be very sensitive. Even driving over a pothole could trigger recording.

Metro has contracted with DriveCam which will analyze data from any incidents for Metro.

The system is also expected to help reduce damage to buses, workers’ compensation claims and injuries.

The head of the bus drivers’ union didn’t object to the cameras but said they too narrowly focused on driver skills.

Do you think the driver cams will help improve safety? You can leave a comment below.

The first federal lawsuit has been filed in the case, and a lawyer says he waited for OSHA to act before going to court.

A February explosion at the Kleen Energy site in Middletown, CT, killed six workers and injured 50 others. OSHA hit 17 construction companies with a total of $16.6 million in fines for 371 safety violations.

Now an injured worker has filed a $6 million lawsuit in federal court alleging proper safety precautions weren’t taken at the site.

Nicholas Novik is suing the plant’s owner and three contractors, claiming they failed to properly ensure that gas at the plant wouldn’t ignite.

Novik’s injuries are reported to be “life-altering,” including trauma to his head and hearing loss.

Many other civil lawsuits have also been filed in state courts.

More than 35 residents whose homes were affected by the explosion have also filed lawsuits.

How does the OSHA fine connect to the lawsuits?

William Bloss, a lawyer for Novik, told The Record, “We were interested in seeing what OSHA’s conclusions were before filing. They obviously were very thorough with their investigation.”

The California Chamber of Commerce says Proposition 19 would lead to more workplace injuries by forcing employers to let workers smoke pot on the job.

A five-page legal analysis released by the CalChamber (PDF) also claims an employer’s hands would be tied to take any action based on the perception that an employee’s marijuana use is a potential threat in the workplace.

Employers would have to show that pot use actually impairs job performance, according to the analysis.

The CalChamber gives this example: If a forklift driver showed up smelling of pot smoke, an employer could not take disciplinary action until it could be shown that the employee’s job performance was “actually impaired” by the marijuana use.

Proposition proponents say that’s not the case. They cite a determination by the state Legislative Analyst’s Office that employers would “retain existing rights to address consumption of marijuana that impairs an employee’s job performance.”

David Rosenfeld, a union lawyer with ties to the Proposition 19 campaign, told The Los Angeles Times that employers are upset because they wouldn’t be able to simply fire employees who test positive for pot, which can stay in the body for days. Instead, they’d have to show that their work was impaired. “There are lots of people out there who use marijuana responsibly and it doesn’t impact their work,” Rosenfeld said.

In addition to the CalChamber, the Association of California School Administrators and the League of California Cities have opposed the measure for similar reasons.

Proposition 19 would make it legal for adults 21 and older to possess up to an ounce of pot for personal use. Polls show slightly more than 50% of those asked support the measure to approve Proposition 19.

Do you think workplace safety would be harmed by the passage of Proposition 19? Let us know in the Comments Box below.

The fines are in connection to the 2005 explosion at BP’s Texas City, TX, refinery that killed 15 workers and injured 170.

BP had already paid $21 million in fines for that explosion. In the original settlement, BP also agreed to identify and correct certain safety deficiencies.

In a 2009 follow-up inspection, OSHA found the company made many changes but “failed to live up to several extremely important terms of that agreement,” according to OSHA.

As a result, OSHA issued $87.4 million in penalties against BP. Originally, $56.7 million was levied for BP’s failure to abate hazards it said it would fix in the original agreement. Another approximately $30 million was for new violations. OSHA found it had assessed 29 duplicate violations totaling $6.1 million. That brought the failure-to-abate fines down to $50.6 million.

So BP has agreed to pay the entire $50.6 million for the failure-to-abate fines. It is still contesting the $30 million in new violations.

On top of the fine, BP has agreed to allocate a minimum of $500 million to take immediate steps to protect those now working at the refinery.

BP has also agreed to:

• perform safety reviews of the refinery equipment according to set schedules
• hire independent experts to monitor its efforts, and
• submit quarterly reports for OSHA’s review.

China doesn’t lack workplace safety regulations. The problem for workers is that they’re not enforced.

It’s often up to local authorities in China to enforce the country’s safety laws, according to the article in The Washington Times. Local officials are often paid off by factory owners to ignore serious injuries and even deaths.

This gives Chinese manufacturing a short-term advantage over the U.S., but the cost is life and limb.

Example: The China Labor Bulletin (CLB) recently reported on a worker who got a finger caught in some equipment and was sent to a hospital. It was cheaper for the company to compensate the unconscious worker for a lost hand than to surgically repair his finger.

When the worker woke up, his hand was gone.

The CLB also reports, “It is much more cost-effective for coal mine owners to buy off the families … than risk closure by reporting an accident,” leaving many deaths overlooked. Local governments often pressure bereaved families into signing compensation agreements.

The owners’ priority: Keep production moving.

And here’s another interesting factoid from the article: Some labor laws put into effect in China in 2008 used input from U.S. laws.

An employee injures her knee just by walking up stairs at work and applies for workers’ comp benefits.

Maureen Shay was a teacher in North Carolina. She normally used the school’s elevator to reach the second floor where her classroom was because it was difficult for her to walk up the stairs.

Then the elevator broke and she had to use the stairs.  A month later, her knee gave out while walking up the stairs.

Another month later, her knee pain hadn’t improved. An MRI revealed a medial meniscus tear in her knee.

Shay had surgery and filed a claim for workers’ comp benefits.

The insurance company denied coverage, saying the injury wasn’t work-related.

On appeal, the workers’ comp commission ruled in Shay’s favor and awarded her benefits.

The company appealed to a state court.

Was it an ‘accident?’

In court, both sides agreed that the injury arose out of and in the course of Shay’s employment. However, there was another issue to settle.

Under the state’s Workers’ Compensation Act, an employee is entitled to compensation for an injury only if it is caused by an “accident.”

North Carolina courts have defined accident as “the direct result of a specific traumatic incident” and not part of the employee’s normal work routine.

The court said in Shay’s case, since she didn’t stumble, fall, trip, slip or twist her knee, she didn’t suffer an accident.

Shay tried to argue that, because the elevator broke, walking up stairs to her classroom wasn’t part of her normal work routine.

But the court didn’t buy that argument either. It noted that she’d been walking up the stairs for four weeks before she injured her knee. It said that climbing the stairs for a month became part of her normal work routine.

The court’s final word: Comp benefits denied.

(Shay v. Rowan Salisbury Schools, Court of Appeals of NC, No. COA-09-1587, 7/20/10.)

What do you think about the court’s decision? You can leave a reply below.

OSHA has cited three construction companies and 14 subcontractors for 371 safety violations, totaling $16.6 million in penalties.

The Feb. 7, 2010, explosion at the Kleen Energy plant construction site was felt as far as 40 miles away.

OSHA officials say the construction companies cut corners to gain a $19 million incentive if they finished construction early on the plant. Published reports say in the weeks and months leading up to the explosion, employees were working seven-day, 84-hour weeks.

In late June, a U.S. Chemical Safety Board investigation revealed the explosion was most likely caused when natural gas was used during a routine gas purging procedure. The gas found an ignition source. Welding and other work was being performed nearby.

O&G Industries, the project’s general contractor, has been issued 119 willful and 17 serious citations with penalties totaling $8.3 million. Keystone Construction and Maintenance was issued 94 willful and 16 serious citations with fines of $6.6 million. Bluewater Energy Services, the commissioning and startup contractor for the plant, was issued 12 willful citations and 8 serious citations totaling $896,000. In addition, 14 subcontractors were also cited and fined.

O&G says it plans to contest the fines.

As a result of the explosion, OSHA will be issuing a warning letter to natural gas power plant operators regarding the dangerous practice of cleaning fuel gas piping using natural gas.

Erie County, NY, wanted to cut its $11 million annual outlay for workers’ comp payments.

So the County Executive, Chris Collins, announced a new policy: Injured employees would have to come to work and get their workers’ comp checks from their supervisors.

New York’s Workers’ Compensation Board ruled the policy was illegal. Specifically, the board said the Erie County policy violated the law that workers’ comp payments must be “periodic, prompt, in like manner as wages and direct.”

The Buffalo News reports Collins’ administration has backtracked a bit, but has refused to entirely end the policy. A spokesman says only workers who aren’t permanently disabled and might be fit for light duty would have to collect their checks from their supervisors.

The workers’ comp board had been deciding a challenge filed by an Erie County correctional facility officer who was injured when she broke up a fight between inmates. The worker had been awarded permanent partial disability. She had received notice that she would have to personally pick up her biweekly checks at sheriff’s headquarters.

The workers’ comp board said requiring employees in that situation to pick up their checks “overly burdens an injured worker by adding unnecessary traveling costs and potentially places an injured worker at risk of further injury.”

The injured officer had been receiving $390 a week — slightly more than $20,000 a year.

What do you think of the county’s policy and the state workers’ comp board’s ruling? You can leave a reply below.

Sen. Patty Murray (D-WA) and Sen. Al Franken (D-MN) have called on OSHA to demand stricter safety requirements in its negotiations with BP regarding $90 million in fines.

In a letter to OSHA, the senators ask the agency to require BP to:

• report any process safety incident that occurs at a site under its control, regardless of the number of workers injured or killed. Currently, companies must report incidents to OSHA only if one or more workers are killed or three or more are sent to hospitals.
• record all injuries and illnesses of workers at sites under its control, regardless of whether they are employed by BP or by a contractor. Companies don’t have to report contractor injuries or deaths unless they directly control the employee’s work.

All 15 workers who died in an explosion at BP’s Texas City, TX, refinery in 2005 were contractors.

BP faces $90 million in fines for 862 safety violations after a follow-up inspection at the Texas City refinery and another inspection at a BP refinery near Toledo, Ohio.

When a safety incident causes deaths or serious injuries, should OSHA be able to impose tough new requirements on the company? Let us know what you think by leaving a reply below.

When no one witnesses a workplace injury and the injured employee files for workers’ comp, sometimes all you have to go on is the worker’s story. The situation can become more complicated when the worker delays reporting the injury.

Frank Karban said he was moving equipment at work on Feb. 24, 2007, when he bent down, made a twisting motion and “felt a pop” in the right side of his lower back.

Karban says he continued to work that day and didn’t report the injury to his supervisor until the next month.

His supervisor says Karban never told him about the incident.

Almost seven months later, Karban went to his employer’s environmental health and safety representative to report the injury.

Before he reported the injury at work, Karban saw his doctor who sent him for an MRI, which revealed lumbar spine abnormalities. His doctor and a specialist both recommended Karban stop working.

More than a year after the injury took place, Karban filed a claim seeking lifetime medical benefits for injuries resulting from the injury and temporary total disability. He claimed he’d never suffered a back injury before the workplace incident.

His doctor sent a note to the Workers’ Compensation Commission stating Karban had been to his office complaining that he hurt his back. However, that visit happened one month before Karban said the injury occurred at work.

Despite that information from the doctor, a deputy commissioner awarded Karban temporary total disability benefits for six months.

His former employer appealed, and the full commission reversed the deputy commissioner’s ruling, finding Karban failed to prove he suffered a compensable workplace injury and failed to provide adequate notice of the injury to his employer. The full commission also reversed the deputy commissioner’s finding that Karban was credible.

Karban appealed to a state court.

The court sided with the full commission: It didn’t find Karban to be credible. Specifically, the court noted several discrepancies in Karban’s testimony. Karban was unable to explain the medical records that showed he suffered an injury before his alleged workplace injury.

The credibility issue was enough to throw out Karban’s claim — in the end, he didn’t get workers’ comp benefits. Therefore, the court never ruled on whether he provided adequate notice of his injury to his employer.

Cite: Karban v. Universal Fiber Systems, Court of Appeals of VA, No. 2094-09-3, 7/13/10.

As this case shows, the longer a worker waits to report an injury, the more complicated a workers’ comp claim can become. What is your company’s policy on employees reporting injuries? How late is too late? Do you have specific procedures for when no one else witnesses a workplace injury? Let us know what you think in the Comments Box below.

OSHA cited Danbury Hospital in Connecticut with one serious violation of the GDC for failing to provide a workplace free from recognized hazards likely to cause death or serious injury to workers. In this case, the hazard is employees being injured by violent patients. The fine: $6,300.

OSHA says it identified several instances during the past 18 months in which employees in the hospital’s psychiatric ward, emergency ward and general medical floors were injured by violent patients. The agency’s report cites 25 cases in the past five years in which hospital employees lost workdays or were put on restricted duty after being injured by patients.

Police say in March, a patient, Stanley Lupienski, shot nurse Andy Hull three times. Lupienski is charged with first-degree assault, first-degree reckless endangerment, illegal discharge of a firearm and carrying a pistol without a permit. Hull hasn’t returned to work at the hospital.

OSHA says its investigation was prompted by worker complaints. The president of Danbury Nurses Union, Unit 47, Mary Consoli, says the union complained to OSHA.

Danbury Hospital says it doesn’t agree with all the details of OSHA’s report, but it won’t contest the citation. The hospital says it’s already made changes to its security system.

OSHA recommended the hospital create a written violence prevention program that includes hazard assessment, prevention strategies, staff training, incident reporting and periodic review.

OSHA’s website notes that there is no regulation regarding workplace violence, but the GDC can apply.

OSHA’s guidelines for preventing workplace violence for health care and social workers can be found here.

Did OSHA make the right decision to cite the hospital for a GDC violation involving workplace violence? Let us know what you think in the Comments Box below. Also, take our poll on OSHA’s use of the GDC on our home page.

A worker slipped and fell, and sustained multiple injuries including one to her back. While the worker was still healing, she lost her job in a mass layoff. Does she still get comp payments?

Vivian Toscano suffered injuries to her hip, shoulder, elbow, ankle, knee, and lumbar and cervical spine. During her recovery, she was restricted by her doctor from performing various job functions.  She received temporary partial disability (TPD) benefits.

Her employer, Wyeth/Pharma Field Sales, didn’t offer her modified work appropriate to her restrictions.

Then Wyeth laid off about 1,200 employees, including Toscano, while she was still recovering.

Wyeth’s insurance company denied Toscano’s TPD benefits on the basis that her loss of earnings wasn’t related to her workplace injuries, rather it was caused by the layoff. Toscano appealed to get the TPD payments back.

An appeals court sided with the employee. It said Toscano wasn’t able to do her job because of a workplace injury. That fact didn’t change after the mass layoff.

Based on that, the court said she should continue to receive TPD benefits.

Cite: Wyeth/Pharma Field Sales v. Toscano, District Court of Appeal of FL, first district, No. 1D09-5138, 7/7/10.

What do you think of the court’s decision? Let us know in the Comments Box below.

The Ohio Industrial Commission awarded Millard Thomas benefits for a total loss of vision.

His employer, La-Z-Boy Furniture Galleries, appealed on the grounds it shouldn’t have to pay to return Thomas’ vision to his post-transplant condition, 20/50. The company said Thomas’ vision returned to the 20/200 it was before the transplant (which was brought on by a disease, not a workplace injury), and therefore he shouldn’t get comp benefits.

The case went all the way to the Ohio Supreme Court. It noted that this was a case of “first impression,” meaning one of its kind hadn’t been heard by the state’s highest court before.

In a nutshell, the court said, without precedent, the Industrial Commission could use its discretion to determine that Thomas’ 20/50 corrected vision after the corneal transplant could be used as the measure of his pre-injury visual acuity. Therefore, since his vision went from 20/50 to 20/200, he could receive benefits for a total loss of vision.

Cite: State ex rel. La-Z-Boy Furniture Galleries v. Thomas, Ohio Supreme Court, No. 2010-Ohio-3215, 7/13/10. You can download the court’s decision here (PDF).

What do you think about the court’s ruling? Let us know in the Comments Box below.

That scenario has cost a company in Washington state $2.7 million.

The horse had been hit and killed by an employee driving a utility bucket truck owned by Sprint’s subsidiary, United Telephone Co. of the Northwest. The driver said he left the scene to get help. It was after sunset, and the road was dark.

A car Nanette Aurdal was driving struck the dead horse. An eyewitness said Aurdal’s car became airborne before crashing back to the pavement.

Aurdal sustained a full-body whiplash, pulling her spine, nerves and muscles so severely that she had to get an implanted pump to administer pain medication directly into her spinal cord.

The injuries made it impossible for her to have children, and she has gone into debt because of her medical bills. She also quit her job and was forced to close her family business.

Her lawyer argued that the utility truck driver had flares, cones and other safety devices in the vehicle that could have been used to warn other drivers and prevent Aurdal’s crash.

A jury awarded Aurdal $2.7 million. The company hasn’t commented or said whether it plans to appeal.

Do you think the company was liable because its driver left the scene of the crash with the horse? Let us know in the Comments Box below.

Eleven people were injured at a July 4th fireworks display in Palmyra, PA, and now OSHA and the Bureau of Alcohol, Tobacco and Firearms are investigating.

One 17-year-old needed skin grafts for burns on the back of his legs. Eight of the 10 others injured were treated and released at a local hospital. Two others were held overnight for observation. The injured suffered burns, cuts and bruises.

State police say when one of the fireworks didn’t ignite properly, it exploded inside a discharge tube. That caused surrounding discharge tubes to fail. The fireworks inside the tubes exploded, sending burning material into the crowd.

OSHA will investigate whether the company that put on the display, Schaefer Pyrotechnics of Ronks, PA, followed all required safety procedures.

Schaefer was fined $8,100 by OSHA for a July 4, 2004, fireworks mishap in Pittston, PA. About two dozen people were injured.

In 2007, during a fireworks show put on by Schaefer in Vienna, VA, a rogue mortar launched and injured 11 people. No OSHA violations were issued in that incident.

In both of those incidents, faulty fireworks were blamed. The company uses fireworks manufactured in China. It says it tests them regularly and visits the factory where they’re made in China.

Kimmel Schaefer Jr., owner of the company, said in the week around July 4, it launched 1,800 fireworks and only one malfunctioned. He said the company uses a 240-foot safety zone around the launch site, 30 feet more than required.

For most employees, turning around isn’t dangerous. But for a nurse in Mississippi, that simple act resulted in a broken leg, a protracted court battle, and ultimately, a sizable workers’ comp award. 

Irene Hare was 74 at the time. She’d had serious problems with her left leg since 1964, when a car accident killed her mother and crushed her left ankle and knee. She’d walked with a limp ever since.

In 1987, another car crash again severely damaged the same left knee and ankle. After having a screw and side plate implanted in her left femur, she eventually had her kneecap removed.

In ‘88, she slipped on some ice and broke her femur above the knee.

Finally, in 2000, she broke her pelvis after falling off a curb.

But she was back at work one night in 2005. In fact, she was working for the sixth day in a row, although she was supposed to work only four days a week. She was always happy to fill in when others took time off.

Her leg, she admitted, hurt more than usual that night, and she told co-workers she planned to get a shot for arthritis when her shift ended.

While delivering meds to a patient, she remembered she’d left a glass of water on her cart. So she pivoted. And her left leg “popped just like a shotgun.” X-rays showed she’d fractured her left femur.

She filed a workers’ comp claim.

Her employer argued that the injury hadn’t arisen out of her employment. Rather, it was a natural progression of her 40-year history of injuries and surgeries on her left leg.

It brought in an expert witness who said she had significant weakness in the leg that made her susceptible to a “spontaneous fragility fracture.” The fracture could have occurred during any normal life activities, he said, but it happened to occur while she was doing her job.

Not true, said her treating doctor. Her past injuries were completely healed by the time of the accident, and this injury was “further up the shaft … well away from her original fracture.”

In overruling a comp commission decision that denied benefits, a court of appeals gave more weight to the treating doctor’s testimony, and added “that the employer takes the worker as the worker is found, that is, with all the physical strengths and weaknesses the worker brings to the job. If a lame worker suffers an employment fall and is injured, the injury is said to arise out of and in the course of employment under the same test applied for workers not lame. By the same token, if an awkward worker stumbles and falls, the rule is the same as if the worker were agile.”

The court also said the commission had failed to consider “the humanitarian aims” of comp laws to compensate and make injured workers whole.

A dissenting judge thought comp should have been denied, saying “the singular fact that an injury occurs while an employee is on the job does not create a compensable injury … I fear that the majority’s conclusion (turns every) employer into an insurer or guarantor for all injuries to any of its employees who suffer an ‘untoward’ event while on the job.”

What do you think? Feel free to comment below.

Cite: Beverly Healthcare v. Hare, Ct. App. Miss., No. 2009-WC-00344-COA, 6/29/10.

After losing seven-and-a-half fingers in an industrial accident, 53-year-old Manuel Rosario said he, not his employer, was to blame.

It happened last week at the Long Island (NY) aerospace company, Hughes-Treitler.  Rosario said the machine he was working on slammed shut before he could pull his hands away.

He lost all his digits except two thumbs and part of his right pinkie.

But he said in an interview, “You have to be strong and take care of what happened to you.”

Of course, OSHA is now investigating the accident. And it seems doubtful that its attitude toward the company will be as forgiving.

Lira, 60, an employee of Santa Cruz County, CA, was recently pulled into a wood chipper and died at the scene. An ambulance was canceled before it arrived.

But a quarter century ago, when he was working for the county, an incident claimed one of Lira’s arms and badly mangled the other.

Lira grabbed jumper cables out of the cab of a crane when its extension touched a nearby power line, badly shocking and burning him.

Because of severe burns, doctors thought they would have to amputate both of his arms, but they saved one with help from a transplanted toe.

Throughout his recovery, his goal was to get back to work. Lira had worked for the county since 1969.

That same job claimed his life on June 7.

The California Department of Industrial Relations is investigating.

… 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.

Michial Jacobs was struck by a tractor trailer driven by Thomas Lloyd on Oct. 2, 2004. The truck was going 55 miles per hour.

Lloyd fell asleep at the wheel.

Police reports say Jacobs suffered a fractured rib and sustained a concussion.

Jacobs sued Lloyd’s employers, Pacific Transportation Services and Ernie Newland. The employers admitted liability for the crash but contested the extent of Jacobs’ injuries.

Jacobs says he also suffered an injury to his mid-back which resulted in chronic pain. He says he hasn’t been able to return to work as a carpenter.

The employers offered to settle for the insurance policy limits on the claim, but Jacobs rejected that.

When workers don’t report injuries right away and then apply for workers’ comp benefits, it often raises a red flag. With conflicting testimony, these cases often come down to which side the court finds more believable.

Rodney Harris claimed he injured his back at work on July 6, 2007, while lifting a drain from a machine. He says it happened 15 minutes before the end of his shift, the day before he was scheduled to begin a one-week vacation.

He didn’t report his injury that day, and even admitted, when the case went to court, that he knew about the company’s policy that injuries must be reported to a supervisor immediately.

Harris said one reason he didn’t report the injury was because he’d suffered from pulled muscles in his back before, and that’s all he thought it was.

Over the weekend, his back pain increased. The following Monday, while on vacation, he saw a doctor.

Harris was diagnosed with a large disk herniation and severe degenerative disk disease in his lower back.

He eventually applied for workers’ comp benefits. The company didn’t think Harris had been injured at work, and the case eventually went to trial.

Among the facts recorded by the court:

• The medical records from his first two doctor visits don’t indicate that Harris’ injury was work-related.
• Harris’ wife claims, on the day her husband was to return to work after vacation, she called his employer, Keystone Foods, to say he suffered a work-related back injury before vacation. However, Harris’ supervisor says there was no mention of the injury being work-related during the call.
• A neurosurgeon that Harris saw after his first two doctor visits also has no record that the injury was work-related in his documents.
• Harris is legally deaf. His wife and mother both said communication problems with the doctors were the reasons there were no mentions of the injury being work-related in their medical records.
• Harris’ doctors said they weren’t comfortable saying that his back injury was work-related because they had no documentation of a workplace accident.

Taking all these statements into consideration, both a trial court and appeals court found Harris’ testimony, along with that of his wife and mother, to be credible. It found that it was likely that communication problems Harris had with his doctors contributed to the fact that the injury happened at work was missing from their records.

The court upheld Harris’ workers’ comp benefits with one exception. Alabama law says if notice of a workplace injury isn’t given within five days, an employee won’t be entitled to medical benefits that may have accrued before the date of notice.

So the court said his initial doctors’ visits before he notified the company about the injury would not be covered.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Keystone Foods v. Harris, Court of Civil Appeals of Alabama, 6/4/10.

Maryland Occupational Safety and Health (MOSH) has issued a record $1.03 million fine to poultry processor Allen Family Foods.

MOSH inspected the company’s facility in Hurlock after an employee suffered a serious hand injury reaching beneath an unguarded conveyor belt.

State officials say Allen has ignored warnings to improve a dangerous workplace for more than a decade.

Allen Family Foods has been inspected 16 times at two locations in Maryland since 1998. Seven inspections were after incidents, and MOSH issued a total of 192 violations.

Other incidents have included cuts on employees’ hands and arms. Among previous citations against Allen were ones for lack of safety training.

Allen VP of human resources Tracy Morris said, “The citation in this case is not an accurate reflection of our safety record. Rather, we think it is the result of MOSH’s adoption of a more aggressive enforcement policy.”

The company plans to contest the fines.

The million-dollar fine is the result of 51 violations, including one categorized as egregious and 15 as willful.

It’s the largest MOSH fine in Maryland history.

How do you know that the worker who claims to have been injured on the job isn’t committing workers’ comp fraud?

Over the years, employers and insurance companies have uncovered some telltale signs.

Any one of these red flags alone probably isn’t enough reason to suspect fraud. There’s a better chance the worker may be trying to pull one over on you notice a few of these situations:

• The disgruntled employee. While a worker known as a regular complainer might seem to be the most likely candidate, also consider workers who were recently denied vacation time, demoted or disciplined, and are keeping quiet about it.
• Difficult to contact. Injured employees who are difficult to contact at home may be working at other jobs. Also, beware when employees aren’t available immediately but call right back. In the age of cell phones, people at home can call employees at their new jobs, and then the employees call back using their cell phones.
• The new employee. Statistics show the newer the employee, the more likely a claim is fraudulent.
• No witness. This is more likely to be a red flag when the employee normally doesn’t work alone.
• Unusual circumstance. This one is related to no witness. Was the employee supposedly working somewhere they wouldn’t be normally?
• Rough hands. Calluses or grease under fingernails may be a sign that the worker is double-dipping at another job.
• Knows about workers’ comp. Does the employee show an unusual knowledge about the workers’ comp system?
• 24-hour lawyer. Did the employee get a lawyer very soon after the injury occurred?
• Doctor shopping. A request for a second opinion may not be a red flag, but watch out when the need for a new physician happens after the first doctor says the employee can go back to work.
• Good timing (for the employee). This includes before a layoff and injuries that are reported early on a Monday — a sign that the injuries may have happened off-the-job, over the weekend.

Do you have any signs of fraud to add to this list? You can share your experience in the Comments Box below.

Transocean, an offshore drilling company, is a business partner with BP in connection with the Deepwater Horizon oil rig that exploded, killing 11 workers and sending huge, unknown amounts of oil into the ocean.

Just two years ago, the Minerals Management Service (MMS), the federal agency that enforces safety rules on oil rigs, gave Transocean a top safety award for a “perfect performance period.”

The performance of the MMS itself has already been called into question. The Obama administration says it will reform the agency.

Now, consider a video, posted by the company, in its online magazine. In it, Transocean chief executive Steven Newman is seen dancing at a company gathering in Mumbai last year.

Newman was reportedly making good on a promise to dance if the India Division team posted a top safety record two years running.

So here’s the question: Who would want to be the worker or workers who get injured and ruin the chances of seeing the CEO look silly?

This is the sort of safety incentive being called into question by OSHA administrator David Michaels.

Michaels says safety programs should focus on reducing hazards, not rewarding a decline in injuries.

The OSHA administrator suggests workers will hide injuries to get safety rewards, such as dinners or gift cards.

No word on whether Newman’s offer of dancing would be the sort of incentive that Michaels wants to discourage, but it seems to fit into the category. There’s also a report that the company had scheduled a lavish luncheon honoring safety award winners on May 3, which was canceled after the rig disaster.

The Newman video isn’t the only one uncovered recently as the news media seek to learn more about Transocean.

Workers at the Deepwater Horizon rig made a video about hand safety a year ago. The video uses hip-hop music. Transocean pulled the video off its website after the rig explosion.

Was Transocean sending the wrong messages to its workers about safety by offering incentives, such as the CEO’s dance and the lavish award lunch? Let us know what you think in the Comments Box below.

A worker at a bear park smoked pot before coming to work where he fed grizzlies. The worker was seriously injured by one of the bears. A workers’ compensation judge called that “mind-bogglingly stupid.” But did the judge rule the worker was entitled to workers’ comp?

Montana’s comp law says: “An employee is not eligible for benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.”

Here’s what happened in this case:

Employee Brock Hopkins entered a pen at Great Bear Adventures in West Glacier, MT, to feed grizzlies. He was attacked by one of the bears and escaped by crawling under an electrified fence. He suffered severe injuries.

Hopkins admits he smoked marijuana that day. (Changed from original version to clarify that the defendant smoked marijuana on the day of the incident.)

His employer presented no evidence about his level of impairment on the day of the attack.

Hopkins sought workers’ comp benefits for his injuries but was initially denied on the grounds that his use of marijuana was the major contributing cause of the accident. Hopkins appealed to the state’s Workers’ Compensation Court.

Here’s what the judge wrote: “When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage. Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill advised to say the least and mind-bogglingly stupid to say the most.”

The judge noted that, while using pot before interacting with bears may have been stupid, there was no evidence presented to conclude that Hopkins’ pot use was the major cause of the incident.

The decision: Hopkins was entitled to workers’ comp benefits.

What do you think about the judge’s decision in this case? Let us know in the Comments Box below.

Hopkins v. Uninsured Employers’ Fund, Workers’ Compensation Court of MT, No. 2008-2152, 5/4/10.

the old stand-by, caffeine.

A study published in the Cochrane Library shows caffeine worked better than naps at reducing errors and improving performance among late-night workers. It worked as well as prescription medications and light therapy — and it costs less than those.

The research didn’t look directly at worker injuries, but safety pros know an alert worker is less likely to be injured.

Third-shift workers suffer more injuries on the job. Some of the biggest workplace disasters occurred on the night shift: the Exxon Valdez and the Chernobyl and Three Mile Island nuclear incidents.

Although no correlation has been shown yet to fatigued workers, the recent BP oil disaster in the Gulf of Mexico also happened at the start of the overnight shift.

So the good news for night workers who’ve relied on caffeine is that there’s no reason to discontinue doing so, if they’re healthy.

The best way for them to take advantage of caffeine’s effects: small doses spread out over time.

If night workers find they’re losing concentration, a 20-minute break with caffeine might help. That’s how long it takes for the substance to have an effect.

For purposes of workers’ comp benefits, just what constitutes an injury “arising out of and in the course of employment”? A court recently issued an interesting interpretation of that phrase.

Terry Henry worked at Precision Apparatus, a company that builds ambulances and fire trucks.

Each morning before his shift, he’d arrive early to arrange his tools and prep for the workday.

The company also allowed employees to work on their personal vehicles before work, at lunch and after hours.

One morning, Henry arrived early for his usual routine. He hadn’t filled in his time card yet.

A co-worker pulled his personal vehicle into a garage bay to fix a flat tire. Henry heard someone say the vehicle was going to roll off the jack, so he went outside to get a rock to keep the truck from moving.

When he went outside he tripped and broke his leg.

He applied for workers’ comp benefits. The Missouri Labor and Industrial Relations Commission said the injury didn’t occur in the course of work and rejected his claim. Henry appealed.

The Missouri Court of Appeals upheld the Commission’s decision. It said helping a co-worker didn’t qualify as work.

However, the court also wrote in its opinion, that some injuries at work before an employee clocks in are eligible for workers’ comp benefits.

“The Commission could have found that [Henry] was working for the employer when he was arranging his tools and at his workbench if the injury had occurred at that time. Had the Commission found a compensable injury occurred at his workbench, but prior to [the start of his shift], we would accept the Commission’s factual determination.”

Bottom line: This state accepts the idea that if an employee is injured “off the clock” while performing tasks in the workplace that benefit the employer, that worker may be eligible for workers’ comp benefits.

What do you think about the decision regarding Henry and the court’s statement on when workers’ comp benefits kick in? Let us know in the Comments Box below.

Cite: Henry v. Precision Apparatus, Missouri Court of Appeals, No. 29772, 2/16/10.

‘Manhood’ lost in workplace accident.

It’s not what you might think.

The Brisbane Times in Australia used that headline on a story about 31-year-old Regan Fynn.

He’s suing his former employer, CSR Ltd., in connection with an injury he suffered involving a forklift.

Fynn was trying to exit the forklift but fell due to a missing foot step on the machine.

His full body weight landed on his right arm.

His lawyers say, while Fynn was once a strong, fit man, he now suffers from constant pain and weakness in his right arm and hand.

Two surgeries haven’t helped, and Fynn has become “introverted, morose and depressed.”

In fact, his claim against CSR says, “He feels as though he is unable to provide for his family and feels as if he has lost his manhood.”

OK, now we get it.

Fynn says he’s unable to teach his children to play sports, he suffers from emotional problems, and his marriage and sex life have suffered.

He seeks $503,000 from CSR, saying the company was negligent because it didn’t maintain the forklift properly.

You know how, despite the fact that both countries speak English, certain words don’t translate exactly the same between the U.S. and Australia? This story makes us wonder.

What types of workplace noise do you think of in connection with occupational hearing loss? Jack hammers, lawn tractors, manufacturing assembly lines? In this case, a worker claims hearing loss from being yelled at on the phone by angry customers.

Linda Zahm worked for National Fuel for 31 years. For 18 of those years, she spent varying parts of her day on the phone with customers who were angry and/or had difficulty hearing.

When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.

Two years after she retired, Zahm filed a workers’ compensation claim contending she’d suffered occupational hearing loss due to long-term noise exposure “from being on the telephone for years.”

A workers’ compensation law judge and the Workers’ Compensation Board ruled that Zahm had suffered occupational hearing loss. The company appealed.

Zahm’s treating physician testified that her hearing loss was from employment.

However, the appeals court sided with the company.

The court said Zahm’s doctor based her opinion on an erroneous assumption that Zahm spent all 31 of her years on the job on the phone for eight hours a day and was exposed to 80 to 90 decibels of noise.

The court said Zahm’s “description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious.”

Outcome: Award of workers’ comp benefits overturned.

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

Cite: Zahm v. National Fuel, Appellate Div. of NY Supreme Crt., 4/15/10.

Doctors reattached the limb, and initial results appear positive.

The unidentified worker, a plumbing subcontractor, was operating a lift machine with his arm extended outside of its cage.

When he went through a doorway, his arm hit a vertical I-beam and was severed at a point between the elbow and wrist.

After the surgery, the arm regained sustained blood flow, a sign the procedure may have been successful.

OSHA is investigating.

OSHA cited Birdair, Inc., of Amherst, NY, for the incident in which two workers slid about 260 feet down the side of the domed roof. One of the workers suffered head and chest trauma and a broken leg. The other hurt his back.

Birdair faces $45,000 in fines for:

• one willful violation for employees not wearing the correct fall protection equipment, and
• one serious violation for workers not trained about hazards associated with falls.

Birdair says it will contest the citations.

An OSHA spokeswoman told the Star-Telegram that the workers were wearing fall protection gear, but it wasn’t tied off in accordance with OSHA standards.

The injured men were among employees finishing work on the stadium’s fabric roof panels.

Larry Collins was running sanding equipment at the metal polishing company he owns with his brother in Holland Township, MI, when he was shocked by the machine.

A co-worker managed to push him away from the machine. Other workers started CPR.

But when the deputies arrived, Collins wasn’t breathing.

All Ottawa County, MI, sheriff’s cars have a portable automated external defibrillator (AED) in their trunks.

Sheriff’s Lt. Mike Brookhouse says within 30 seconds of using an AED on Collins, he started to move and breathe.

Collins was taken to a local hospital for additional treatment.

“It (the AED) saved this guy’s life,” said Brookhouse. “He’s the luckiest guy around.”

Does your workplace have AEDs on site? Have you ever experience a situation in which one had to be used at work? Let us know in the Comments Box below.