In a recent case, two employees of the same company sustained the same injuries. But the state’s Supreme Court said one could sue, and the other couldn’t.

Here’s what happened: A guy working for a recreational vehicle dealership was given a makeshift pre-fab “office” that was heated by a propane stove. He complained that the fumes from the stove made him sick, but the company ignored his complaints.

Then one day his girlfriend found him unconscious in the office. He was later diagnosed with numerous debilitating neurological impairments and declared permanently disabled.

A short time later, a new employee was hired to do the same job. He, too, complained that the fumes were making him sick. And he, too, was eventually found unconscious — this time by a co-worker. He was also eventually declared permanently disabled.

In fact, he died a short time later (the decision doesn’t say whether his death was related to the exposure).

When the first employee and the family of the second combined forces and sued, the company was able to get both cases dismissed by a district court, successfully invoking exclusive remedy.

But the state’s Supreme Court saw things differently. The district court was right, it said, to toss the first employee’s complaint. But the second employee, it said, might have had a point. Granted, the company hadn’t intentionally harmed him. But given all the circumstances, the company might have been reasonably certain that harm would occur. And that might be enough to overcome exclusive remedy.

Now, the case will be heard by a jury, if it isn’t settled first.

While noting that it was hard to sympathize with the company in this case, one of the high court justices nonetheless vehemently disagreed with the decision to let the employee’s case be heard, saying, “I believe the legislature intended Workers’ Compensation to be the exclusive remedy except … where the defendant’s conduct arose from specific intent rather than willfulness. In other words, an assault would allow a personal injury action. Gross negligence, such as we have here, would not.”

The case, Alexander v. Bozeman Motors, Inc., was decided by the Supreme Court of Montana.

What do you think? Does exclusive remedy unfairly protect even reprehensibly negligent employers, or does the dissenting justice have it right — unless an employer sets out to deliberately harm an employee, workers’ comp should always be the only remedy? Feel free to comment below.

Twenty-nine miners died in the explosion.

The Charleston Gazette reports that the investigation is looking into whether any criminal violations of mandatory health and safety standards were committed in connection with the explosion at the Massey Energy mine.

Violating safety and health standards could lead to misdemeanor criminal charges. Faking required mine safety records or other safety documents required by MSHA is a felony.

Mining disasters with multiple deaths in 1989, 1991 and 1992 led to criminal charges against mine operators and company officials. The four most recent coal mining disasters — those with five or more deaths in one incident — didn’t lead to criminal charges.

An investigation into the January 2006 fire that killed two miners resulted in Massey Energy’s Aracoma Coal subsidiary pleading guilty to 10 criminal violations and paying a $2.5 million criminal fine, as well as admitting that one of the violations resulted in the deaths of the two miners.

Do you think Massey should face criminal charges in this case? You can enter your comments in the box below.

James Lomma, owner of New York Crane, and his former mechanic, Tibor Varganyi, have pleaded not guilty to second-degree manslaughter, criminally negligent homicide and reckless endangerment charges in the deaths of two workers on May 30, 2008.

A weld on a crane’s turntable, that officials say New York Crane had done on the cheap in China, cracked apart, sending the machine’s boom and car plummeting 20 stories to the ground with the driver still in it. The operator and another worker on the ground were killed. A third worker was seriously injured.

The Manhattan District Attorney said Lomma was “motivated by profit,” to make the crane repair on the cheap using a Chinese company.

A lawyer for Lomma’s crane company said they’d fight the charges because no fewer than seven inspectors signed off on the refurbished crane part.

But prosecutors say even the Chinese company warned it wasn’t equipped to do the repair. An e-mail from the company says, “We are afraid the weld we had it not good.”

On Aug. 15, 2009, 29-year-old Carl Beck fell 42 feet from a roof in Washington, PA, while laying shingles and died.

Beck worked for C.A. Franc Construction. OSHA issued the company $539,000 in fines. Company owner, Christopher Franc, also faces $250,000 and six months in prison in connection with his guilty plea to criminal charges of violating safety rules.

OSHA found the company had failed to provide any fall protection to its employees working on a pitched roof 40 feet above the ground. The agency issued 10 per-instance willful citations, one for each employee working on the roof without fall protection. An 11th citation says Frank failed to train a new employee.

The company has 15 days to respond to the OSHA citations. Christopher Franc will be sentenced June 18.

The architect of the strategy to get bigger penalties by prosecuting safety violations under environmental laws says it’s time to overhaul OSHA legislation for the first time in almost 40 years.

Under the new Democratic regime with larger majorities in both houses of Congress, there’s a chance this could happen, David Uhlmann, now an environmental law professor at the University of Michigan told the recent Professional Conference on Industrial Hygiene in Tampa.

Specifically, Uhlmann proposed to:

• Upgrade criminal safety violations by employers from misdemeanors to felonies (”it should be more penalized than going through a red light”)
• Increase criminal penalties for injuries and endangerment instead of just death
• Enhanced penalties, up substantially from the present $70,000 maximum for willful violations
• Change present “vague” definition of an employer to allow prosecution of responsible corporate officers and supervisors, and
• Provide more law enforcement resources to prosecute criminal cases.

Should good companies agree?

When Uhlmann was the top environmental cop in the Justice Department, a business owner in Idaho got the longest jail term ever for an environmental crime — 17 years — for maiming a 20-year-old for life by sending him into a cyanide slush tank without PPE.

Uhlmann expects good companies to agree because it would level the playing field and force “bad actors” to incur the same expenses for good safety and health programs.

Do you agree with Uhlmann that good companies should want tougher penalties for OSHA violations? Let us know in the Comments Box below.