Safety and OSHA News

Was this employee’s death work-related?

Imagine this: Someone finds one of your employees on the ground, conscious but incoherent, in your company’s parking lot. He dies two days later in the hospital. Cause: blunt trauma to his head. Is this death reportable to OSHA?

Here’s what happened: A Home Depot employee in Houston was found lying under a truck in the store’s parking lot. The worker’s job was to gather shopping carts in the lot and help customers load packages into their cars. The worker didn’t have any visible injuries. Other employees said the man was incoherent, lying on the ground and moving, while putting his hands behind his head.

He was taken to the hospital where he died two days later. An autopsy said the cause of death was “blunt head trauma with subdural hematoma and brain contusions.”

OSHA investigated. It issued just one other-than-serious citation for the company’s failure to report the employee’s death to OSHA within eight hours of occurrence.

Home Depot appealed. An administrative law judge upheld the $1,000 OSHA fine. The judge said, “the evidence suggested that the employee fell in the Home Depot parking lot, sustaining the head injuries to which he eventually succumbed.”

Home Depot also appealed that decision. This time, the Occupational Safety and Health Review Commission threw out the citation. Reason: The judge’s finding that the employee fell in the store’s parking lot wasn’t supported by a preponderance of the evidence. The Commission said it was speculation that he fell and hit his head in the parking lot.

OSHA has 60 days to decide if it wants to appeal the Commission’s ruling.

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

Cite: Secretary of Labor v. Home Depot, OSHRC Docket No. 07-0359, 9/16/09. (PDF)

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  1. This was my brother and it is very upsetting to my family that this has been reversed. Home Depot employees did not call the police to investigate even though they were told by a customer he was found under a white pickup in the parking lot. None of the employees that went out to the parking lot asked the customer for his name and none of them took note of the license plate number. Home Depot claimed there was no video for us to review that showed my brother in the store or outside (how can that be?) and basically seemed to do nothing to find out how the trauma occurred.

    What really bothers me is that Home Depot did not seem to care enough that someone was found hurt on their property to take the time to find out how it happened; or if they did, they didn’t share it with his family. There was one lady in the HR dept that would at least call the family during the two days he was in the hospital to check on his prognosis.

    How can it possibly be “speculation”? Can you sustain spontaneous blunt head trauma and brain contusions? He was fine that morning when he was at home, my other brother drove him to work and he was fine, his co-workers said he was fine that morning. So, if he didn’t fall in the parking lot, did he fall in the store? Did he get hit with something while in the store?

  2. A.E. Simmons says:

    As the facts are presented I cannot understand how Home Depot could possible think this did not occur on their property – whether inside or outside. Their employee, found in their parking lot, injured, on the clock.

    Obviously, Home Depot did not follow procedures as outlined by OSHA. No witnesses, no pictures, no physical evidence.

    It is a mistake for OSHA to drop this citation.

  3. Ok… An employee was found to be incoherent and obviously hurt (holding the back of his head) and you don’t call police to investigate for criminal activity or conduct an on-site investigation yourself. That’s asinine.

    Home Depot can’t prove he didn’t fall because they did nothing to either find the truth, or protect themselves. It is perfectly reasonable to assume the employee fell in the parking lot if you’re able to rule out being struck by an object. They didn’t call the cops; therefore I can only assume they ruled out struck by. Otherwise this would be a criminal cover up. I’d take the OSHA fine over criminal prosecution.

    Ultimately, the employee was hurt on the job. Home Depot sent this employee into the parking lot to assist their customers, and retrieve their property; he was in duty. What the hell else needs to occur before OSHA is notified?

  4. Gloria

    First and foremost, please accept my condolences to you and your family regarding the loss of your brother.

    I do not want to get into the behavior of Home Depot, I am coming strictly from a position of what caused the blunt trauma injury or the fall that caused the blunt trauma injury.

    From a personal experience, last Tuesday I expereinced a severe case of Benign Non Positional Vertigo, which means I experienced a severe dizzy spell. One minute I was sitting in my chair, I started to feel a little dizzy, and in less than the time it takes you to snap your fingers I fell out of my chair and I could not get up, I was so dizzy and nausious (vomiting and dry heaves) I could not call out for help. A co-worker found my approximately 15 minutes later, called 911, and I was taken to the hospital by ambulance. Some wonderful drugs were given to me and within an hour good to go. With that said, no telling what might have happened to me if I had been standing up.

    My fall was not caused by anything work related, just an isolated case of BPPV. There is extensive information on the Web about BPPV.

  5. So, If I get this right, an employee has a heart attack and dies in the parking lot, that is reportable,… but it an employee is struck in the head after clocking in (but no one sees it) that is NOT reportable?

    It may be speculation that the employee fell and struck his head. IT IS NOT SPECULATION THAT HE WAS STRUCK ON THE HEAD WHILE ON THE JOB. Perhaps he was mugged, or hit by a car, or struck by a falling object, or…..

  6. First off, sympathies to you and your family, Gloria. This is undoubtedly difficult and your ire is understandable. Your note serves as a stark reminder of the real human beings on the ‘other side’ of these cases.

    There are insufficient facts in the brief write-up of this case to render an opinion as to the decisions. How long had the man been at work this work day, and how about witnesses to his activities at work – on previous work days and this day he was found injured, to cite just a couple that come to mind.

    Between the write-up and Gloria’s comment, it shows a bright light on how I want things handled at my place.

  7. I don’t understand how callous Home Depot can be! If anything Home Depot should have contacted OSHA to make sure they were in compliance even if they weren’t sure of the circumstances. Yet Home Depot professes to be the fried to their (Olympic) employees for marketing sake. If you care about your employees as they claim, they sure go about being friendly and caring in strange ways.

  8. i confirm and agree with the judge’s finding that the employee fell in the store’s parking lot wasn’t supported by a preponderance of the evidence.

  9. Gloria, I’m very sorry for your and your families loss.

    Home Depot you dropped the ball, you didn’t properly train your managers on OSHA injury reporting.
    When someone is found laying on the ground for no apparent reason, the police needs to be notified. Foul play and/or vehicle accident can’t be ruled out, for this reason alone the police should have been contacted. Gloria I’m wondering are/were the police ever involved? If not I might question why not. Either way it’s a work related injury, he was on the clock, and on the jobsite.

    Btw Rich, BPPV you sound like you work for Home Depot loss control and are making excuses, you comments offended me so I’m sure it offended Gloria.

    My opinion is he was hit by the truck he was laying under, how would he have ended up under the truck, we will never know what really happened because Home Depot DIDN’T NOTIFY THE PROPER AUTHORITIES and this is why they should receive the fine.

  10. Reporting it to OSHA does not make it a recordable or anything else. Report it and sort it out later. Why is that so hard to figure out? And, at least in our area, doesn’t Home Depot have security cameras that monitor the parking lot?

  11. Mike Tunney says:

    I am sorry for the family’s loss. I am always shocked when I hear of the unfortunate set of circumstances associated with workplace injuries and death. I cannot believe that between Home Depot and law enforcement nobody could figure out what to do. I understand that the “preponderance of the evidence” does not support that the employee fell. However, the OSHA standard states that Home Depot needs to report, within 8 hours, any time an employee dies at work. This is without regard to the circumstances. The citation was issued for a failure to properly report a workplace death. The preponderance of the evidence cannot show how this young man died. However, cold hard facts show that he did die at work and the employer failed to report it. In addition, it sounds to me that there is a more than slight possibility that this was vehicular homicide. I do not understand law enforcement’s failure to investigate. Frankly, the amount of good will lost as a result of this matter will end up costing Home Depot far more than $1000.

  12. Billy Evans says:

    Gloria, my condolences as well. OSHA is very plain in their instructions for following the laws. Home Depot is most definitely at fault here. If it is an accident of any type, someone, somewhere needs to be looking at it. Evidently Home Depot does not have any type of Environmental, Health and Safety Program, and if they do have one they might consider hiring someone qualified to do their job. Very poor performance on the part of Home Depot. Get em OSHA.

  13. I am very sorry for you and your families loss.

    As far as whether it was reportable to OSHA it comes down to two things. Was the employee on the clock and was the injury sustained while on company property.
    This only means they were required to report it, not accept any liability.

  14. If Home Depot didn’t call the police, how did the employee get to the hospital? Surely someone called 911. The worker didn’t have any visible injuries, so why would someone automatically think there was an injury or trauma?

  15. Thank you for the condolences. To clarify, a Home Depot employee called 911 but asked for an ambulance only. I am the one that called the Harris County police department and was finally given to a detective who went out to Home Depot to investigate but told me he did not get much cooperation from them but he could not find anything to further investigate since they were not called to the seen at the time. I am not trying to make accusations against Home Depot; I just want to know what happened to him and they didn’t seem to make any effort help us find that answer.

    As to the OSHA charge, I am also the one who contacted OSHA, mainly because I had hoped that they would be able to get information that I couldn’t. I had no idea how OSHA worked or really what they did until someone mentioned them to me.

    I am not and never was looking at this as a “criminal” issue. I just wanted them to be open, honest and helpful in finding out the cause of his death. But, since OHSA placed a charge against them, what I don’t understand (and if anyone else does, please tell me) is: If a person has been at work for an hour and a half, everyone around him says he seemed fine, then is found in the parking under a pickup by a customer, is incoherent, is diagnosed with blunt head trauma and brain contusion: how can you say nothing happened to him while he was at work? Does this mean if you suffer an injury at work and do not bleed or the injury is not immediately known, then it can’t be work related? It is an admitted fact he was at work, so how could it not have happened at work? Pardon me if I have this incorrect but I was told that if a death occurs while on the job, the employer had eight hours to report such death and it was up to OSHA to determine whether that death was work related. That being said, (and if correct), how then could Home Depot not be guility of “failure to report”? As far as I know, OSHA only charged them with “failure to report”.

  16. One thing I failed to mention. When we finally received a copy of the store’s incident report, it stated that this was a work related injury but they wanted it processed as an “incident only”.

  17. The things that bother me the most about this whole deal is that, had this been a non-employee would they have when calling 911 have requested the police as well. But having said that it was not and it was our brother who was found under a customers truck. That in itself warrents that the police should be called. As Gloria has said it was not about any criminal isssue, it has been and always will be to have found out what happened to our brother on that day. We know that we will never be given those answers. But Home Depot has a responsibility to contact OHSA for any employee injury that results in death. That is what this is all about “failure to report”, not anything else. There was never a question of was he clocked in when this happened, only that the chain of events that followed were not correct. The only thing that we as the family have to hold on to is that hopefully this will not happen to another family and that some where that the laws or rules of “reporting” will be more strict on employers in the future.

  18. Everyone keeps referring to Home Depot did this or didn’t do that….HD is a name, these were Managers, fellow employees, co-workers who didn’t or maybe did take action, do not take the human element out of it, it is too easy to blame a name, Home Depot, but when you do that you give a pass to the people that really are accountable. I’ll bet just like all large companies that HD has a Safety Plan and it addresses mishap reporting, etc. Did the managers and employees follow it? I agree that if the employee was on the clock, and it is not proven as a pre-existing or special category (Heart attack, workplace violence) then it is work related, pretty straight foward but I don’t have all the facts….

  19. I wasn’t aware that when you call 911, you have the option of requesting “ambulance only”. In my area, when you call 911, there is always a joint law enoforcement/EMS response.

  20. Gloria, you need to get a good lawyer. There are two things going on here. What are the Worker’s Compensation benefits in your state, for the loss of your brother. Next the Attorney General should be notified of the lack of investigation. Home Depot is hoping this will go away as you have the potential for a very large lawsuit. To me, I can see strict negligence on the part of Home Depot, which opens them up tp a lawsuit. OSHA should not disregard the charges as nothing was ruled out or in for criminal charges, as a hit and run, mugging, etc. Thus, the not reporting should stand. You should contact OSHA regarding the latest ruling and also contact your federal congressman in your area for help. In addition, are there any local media (TV stations) that do investigative reporting?? I would also contact them. I wish you well and you have my prayers for your loss.

  21. I’m a safety rep for my company. If any employee is on the clock and on property then it is an OSHA recordable, period!! I will fuss at my people if they don’t tell me of a near miss due to the fact that, whats a near miss today will be an injury tomorrow. I don’t get HD not wanting to get the truth due to the fact that if it was a work related death, I would want to know so it could never happen again or if it was from someone hitting him in the head I would want to know to protect my employees! HD was wrong and so was OSHA for not demanding a better investigation. Far to many unanswered questions.

  22. Gloria:
    My sincere condolences to you. I would suggest that you contact a board certified personal injury attorney in your area. The behavior of Home Depot’s employees and managers is inexcusable. Even if there was an underlying medical condition that precipitated your brother to fall, they did not respond correctly. It happened on their property and he was their employee. It just is not possible that there is no security video of the parking lot area…they just do not want to turn it over. A good lawyer will get it. Do you know anything as to whose truck he was found under? An individual usually doesn’t fall under a truck, so did it run over him? The 911 group also has a responsibility to call the police to an accident scene, so I would mention this to the lawyer too. Was a complete autopsy performed? If not, contact the medical examiner in the county or city where you live. Although no amount of money will replace your brother, Home Depot must not be allowed to just walk away from this. Justice must be done. I know you will not find peace until you find the truth. God bless.

  23. Ralph Blessing says:

    First of all my sincerest condolences to the family. This is a tragedy and travesty, but the travesty is on whose part?

    This is a very hard scenario to work with and was clearly not investigated to the full extent of the law. However with that being said we must take out all personal feelings and look at the evidence which I must say is lacking.

    Found under a truck. Could he have been hit (bumped) by the truck? How did he get under it? Did he stoop to pick something up and hit his head on the truck? As someone mentioned did he get mugged? Did he take a break and leave the HD area and sustain an injury somewhere else and return to work? Did he pass out and hit his head when he fell? Too much conjecture.

    Is it reportable to OSHA? It was an HD employee but did it occur on the job? Just because he was found in the parking lot does not prove anything. Sorry for the lack of support but I do agree there is not enough evidentiary information available to prove beyond a doubt this occurred on the premise.

    As a member of the jury I would find it difficult to convict anyone concerning this issue. What I would focus on is any video that is available both in and outside of the store. Look at his timecard and see if there is a break in work. Did he have a history of fainting, high blood pressure, diabetes, etc. or anything else that could attribute to his falling? Was this after lunch and if so what did he have for lunch?

  24. Ralph it was already established that he was working and on the clock. The OSHA regulation states, it must be reported. HD broke that standard, the citation should stand. I agree there are alot of unknowns and this is why I suggested a good attorney to rattle a few people to get answers. I cannot believe that local or state police have not investigated this and wrote it off as a work related matter. By that fact alone the OSHA citation should stand. However, an investigation needs to be done. Where is the real CSI when you need them??

  25. Sue Gloria. Think of the other customers and workers at HD that you might be saving in the future. HD is negligent for not having proper security and/or cameras in the parking lot.

  26. Alicia

    I do not work for HD; I am the Corporate Safety Officer for an international corporation. My personal experience/illness is true. Again, I reiterate, I was only looking for any evidence of causation NOT HD behavior.

    According to OSHA, Determination of Work Relatedness:
    Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment unless an exception specifically applies.

    A case is presumed work-related if, and only if, an event or exposure in the work environment is a decernable cause of the injury or illness of of a significant aggravation to a pre existing condition.

  27. It is a most unfortunate incident that occurred to the gentleman. However, unless the building is owned by Home Depot or the terms of any lease applied states that Home Depot is responsible for any incidents in that parking lot — they should be released from extreme liability. As far as being injured while working, I don’t know what the evidence suggests but has any one considered how he ended up under the truck? Was he assaulted in the head then placed under the truck? Any signs of robbery? Was he in a car accident earlier in the day?

    A lot of times when people suffer head trauma it doesn’t strike them right away but as they become more uncomfortable, they find a place to rest and unfortunately they die of an aneurysm. Home Depot should not be held liable unless there is enough evidence to prove that his injury occurred on their property and not prior to the start of his work shift. In any event, may his soul rest in peace.

  28. Everyone is trying to be a detective and determine what happened and who is liable. OSHA requires the following: “OSHA Standard 1904.39 requires that any incident resulting in either the death of an employee, or the hospitalization of three or more employees be reported immediately. From the time of the incident, the employer or his representative has eight hours to report the incident. If the employer is not aware of the accident when it occurs, he has eight hours from the time he is first made aware to make the report.” The employer did not comply with this standard and was fined. The judge ruled correctly but made the assumption that the injury resulted from a fall. The Review Commission screwed up because it put too much emphasis on the assumption of a fall and did not weigh the evidence that there was an “incident that resulted in the death of an employee.” Unless the injuries could have occurred prior to coming to work or there is evidence that the employee showed up for work with these injuries, it is pretty clear that the employer should have reported this incident within 8 hours of learning of this employee’s death.

  29. Gloria, I’m so sorry for your loss.

    I think it is Home Depot’s responsibility to prove that the incident that caused the death *didn’t* happen while the employee was on the job/work site. Because it really sounds like it did. It doesn’t sound like the judge was really interested in preponderance of evidence. Who got that judge his office, I’d be very curious to know.

    In addition, it doesn’t matter if the employee tripped and fell, got hit in the head by a passing truck mirror, got mugged, or sustained some other head injury in the store. OSHA and Home Depot need to investigate this. Part of good worker safety is to find out what happened when there’s an injury or death and do everything in your power to prevent a repeat of the incident. Another part is to train employees to do proper reporting when there is an incident.

    Something really didn’t go right here. It gives me yet another reason not to shop at Home Depot.

  30. Re-reading the article, I see the mistake made by the judge in the first place. The judge made a statement that stated essentially that “the employee fell” and that was the cause of death. That statement was too specific.

    The judge should have ruled that “something happened that likely injured the employee” while the employee during his work shift that could have resulted in the injury or death. That would place the incident during the employee’s work time, and make Home Depot responsible for reporting, investigation, etc.

    I think the case needs to be re-evaluated.

  31. Wow, what are the odds that someone who is subscribed to this service would be personally affected? My heart goes out to you and your family. I hope everything goes well and please keep us updated if you can.

  32. Well, I’m afraid there won’t be much to update you on CL. Several months after his death and getting no answers from Home Depot, I did contact an attorney in Houston to see if there was any way to get answers through that route. However, the attorney advised that there was really no “cause of action” that could be cited in a complaint under the law, only morally. I have tried every avenue that I could find available to me to get answers from Home Depot. Even though the OSHA citation would not bring me answers, it was the last hope I had that someone finally someone would stand against HD and say they were in the wrong. My only hope now is that OSHA will appeal but I have my doubts.

  33. Max Ramirez says:

    I think the devil is in the details. While I agree that it was conjecture that the employee fell in the parking lot and caused his injuries (after all this is what we THINK happened…no one can PROVE it happened) it should be a mute point. The employee was on the clock performing his duties. Whether he went outside and tripped, was run over by the white truck he was under, was mugged, hit by a meteorite or whatever….he was on the clock performing his job when he was injured. Even if he was goofing off, he was still on the clock. I think the administrative review and the subsequent appeal are focusing entirely on the “how” of the case instead of the “what”. He was working and got hurt performing his duties.

    OSHA should appeal. But against a Fortune 500 company? Not likely.

  34. Gloria, try another attorney and file a Workers Comp Claim; of course every state is different.
    I handled WC claims for over 20 years and we paid plenty of them that there was no proof of where a person may have received the injury. Back injuries, knee injuries, etc can happen at home and not be claimed until until the person goes to work; but unless we could PROVE the person injured themselves at home, we were ordered to pay.
    In this case, I know one thing….HD should have reported the accident to OSHA; that is very plain and simple. That does not mean they accept liablity, only that they acknowledge that there was a death (or serious injury).
    I assure you our HD has security cameras. One of our workers was at a HD and with his loaded truck and when he came out items were missing. We requested a review of the cameras along with the police department and were able to recover our goods; he was arrested and the tape was used at his trial. It makes me wonder if there was something on the tape that they did not want anyone to see; maybe not but they would not want me on the jury; sounds suspicious.
    Anyway…file a WC claim.

  35. My prayers go to the family………
    Ralph really for lunch why don’t you ask what he had for dinner the night before.

    Off track again. The discussion is about whether the fine should be thrown out or not. The question was is there enough evidence to support a workplace injury. Unless you had a witness, video tape or other evidence to prove without a doubt it happened there it can only be assumed. Don’t misunderstand what I am saying he went unconscious at work but just because he went unconcious there doesn’t make it a workplace injury. The injury could have occure somewhere before he got to work and I can tell you some head injuries can manifest later on.

  36. Tom, I thought the question was “Did they fail to report?” HD’s own incident report said they considered it a workplace injury. However, even if it was found later by the OSHA investigators not to be related, HD had a duty to report it and let OSHA be the decision maker; thus, the fine and citation was for “FAILURE TO REPORT”. You can’t be your own jury; you’ll find yourself innocent every time.

  37. Gloria I am very sorry for you and your family.I was with that company for more then 10 years.I saw alot of things,if you get hurt on there property inside or outside you better pray your not a employee because the hell starts real fast.But if you are a customer or in most cases a scammer which i saw many times they would bend over backwords real or fake they would pay.workmans comp is really scary and the way it works,they can break W/C laws and nothing will happen to them but if you break a law you will find yourself in jail real fast.I wish you the best get a very good attorney and get what your family deserves because they really dont care, they have forgtten how important the associates are.

  38. Gloria:
    Please talk to several other board certified attorneys who specialize in personal injury and/or labor law. Your brother died ON THE JOB and the employer can not prove that they did not have liability here. He was on the clock, on their property. Many lawyers don’t want to do a lot of work, and this is a difficult case, but you can prevail. Also, did anyone get the license plate of the truck he was found under? You may include the owner of the vehicle in your legal actions too. They would have to prove they did not run over him…have you ever heard on anyone falling UNDER a vehicle? Don’t give up and get justice for your brother.

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