Safety and OSHA News

Court: OSHA fine was based on worker’s lie

The Occupational Safety and Health Review Commission recently overturned an OSHA fine issued to a company in connection with a worker injury. OSHRC found OSHA relied upon questionable statements from the employee to issue the violation. 

Ronnie Lopez, a former employee of U.S. Utility Contractor Co., was injured at a worksite on Oct. 17, 2013.

The company denied his workers’ comp claim because its investigation showed Lopez wasn’t burned as he claimed. Instead, he was injured because he was standing on a guardrail instead of using a ladder and fell.

After his workers’ comp claim was denied, Lopez filed a complaint with OSHA several months after the incident.

Lopez says on the day he was injured, he was directed to tie a light with wires going into a junction box into existing wires. He says he tested the wires and they weren’t energized before he began work. U.S. Utility agrees with this. The company and its former employee disagree about what happened next.

Lopez says when he stripped a wire he “at once was grabbed by the now present 277 volt hot circuit.”

Following an investigation (several months after the incident), OSHA issued one serious violation to U.S. Utility for failing to protect its employees from electrical hazards when they worked on live circuits. The proposed fine was $5,390, but when the company appealed, OSHA proposed raising the fine to $7,000, the maximum for a serious violation.

When the case went before OSHRC, U.S. Utility presented testimony from several witnesses on the worksite that day:

  • The general foreman at the site tested the junction box immediately after the incident with a voltage meter and found it was dead – there was no voltage present.
  • U.S. Utility asked a journeyman electrician working for another company at the work site to independently test the junction box. He found it had no voltage.
  • U.S. Utility’s project manager testified the junction box circuit was tested in his presence and didn’t have any voltage.
  • The company’s safety manager testified he didn’t see any evidence of shock or burn marks on the tools Lopez was using or any burn marks on the junction box which would be expected if there had been an electrical injury.

So, who do you believe: the employee or employer?

The OSHRC judge wrote, “Each management witness testified with confidence, specifcity and certainty … the testimony of each was consistent.” The judge found their testimony to be credible.

On the other hand, the judge wrote, “Lopez displayed an untruthful demeanor and appeared to have an ax to grind with U.S. Utility.” The judge discredited Lopez’s testimony.

The OSHA officer who conducted the inspection also testified. He said he had some training relating to electrical hazards and had performed at least one investigation involving multiple injuries from an electrical hazard. But he admitted he had never served as an apprentice or journeyman electrician and wasn’t a licensed electrician.

The judge found the OSHA inspector “extensively relied on Lopez’s statements during his investigation.” Therefore the judge also discredited the inspector’s testimony.

OSHA had one more argument to try to get the violation to stick. OSHA said medical evidence supported the finding that Lopez worked on an energized circuit and suffered electrical injuries.

However, the doctors and EMT who treated Lopez were never called to testify by OSHA. Therefore, the judge found the medical claim to be “heresay evidence,” because it appeared that, at least initially, the emergency responders and doctors relied on Lopez’s account of events that day to say that he received an electrical injury.

For those reasons OSHRC vacated the violation. No penalty was assessed to U.S. Utility.

What this company did right: It immediately investigated the incident. Getting an independent opinion from someone outside the company was also a smart move.

What do you think about this case? Let us know in the comments.

(Secretary of Labor v. U.S. Utility Contractor Company, OSHRC Docket No. 14-0744, 12/4/14)

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