Safety and OSHA News

Worker says safety manager followed him to hospital to avoid lost-time injury record

No doubt part of your job as a safety manager is to avoid lost-time injuries. But the object is to do that before an injury occurs. This company landed in court because of what a safety manager is alleged to have done after an employee was injured. 

On Aug. 6, 2012, Lonnie Harper was working at Boise Paper Mill in Louisiana when a lime kiln grinder shut down because it was clogged. Harper found material that was too large to pass through the grinder had caused the clog.

Boise had provided a pry bar so employees could dislodge material in the grinder.

Harper used the bar to dislodge the large material when some of it hit the bar and then struck him in the head. He suffered a serious head and brain injury and was air-lifted to a hospital for treatment.

Boise sent its safety director, David Ludolph, to the hospital. Harper says Ludolph “assumed manipulative control over the care being rendered” to Harper. According to court documents, Ludolph had the company doctor release Harper “to work in an effort to … masquerade around the fact that this catastrophic event resulted in lost man hours.” Acting on Boise’s behalf, Ludolph demanded that Harper return to work, even though he was in critical condition, because Boise didn’t want to record a lost time accident.

Harper sued Boise for:

  • intentional tort associated with the removal of safeguards that resulted in the injuries he suffered, and
  • intentional infliction of emotional distress by Ludolph.

A federal court granted Boise’s request that both parts of the lawsuit be thrown out. Harper appealed to the U.S. Fifth Circuit Court.

What makes something ‘intentional?’

The circuit court noted that under Louisiana state law, workers’ compensation is usually the exclusive remedy when an employee is injured at work. There is an exception when a worker is injured as a result of an employer’s intentional act.

Intentional means the company:

  • consciously desired to cause injury, or
  • knew an injury was substantially certain to follow.

Harper alleged Boise knew or should have known that an injury was so imminent that its neglect became an intentional risk to every operator associated with the lime kiln.

Under Louisiana law, “should have known” isn’t good enough. Harper needed to show the company actually knew that its actions would cause injuries.

So the circuit court upheld the decision of the lower court to throw out Harper’s intentional tort claim.

To show, under Louisiana law, that an employer inflicted intentional emotional distress, an employee must prove three things:

  1. The conduct of the company was extreme and outrageous
  2. The emotional distress suffered by the worker was severe, and
  3. The company desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from its conduct.

In previous rulings, the Louisiana Supreme Court said to show intentional infliction of distress in a workplace, there must be a pattern of deliberate, repeated harassment over a period of time.

Harper alleged that Ludolph, the safety manager, “literally demanded that he return to work while he was in critical condition because of his head injury for no other purpose than to pretend for industrial purposes that there was no lost-time accident.” Harper said this amounted to emotional distress because Ludolph valued “corporate profits over patient safety.”

The circuit court noted that Harper’s complaint didn’t allege a pattern of harassment. It only mentioned one incident.

Also, Harper’s complaint said the sole purpose of trying to get him released from the hospital was to avoid a lost-time accident record. If that was the sole purpose, Harper couldn’t also claim that this was being done to intentionally inflict emotional distress.

So the circuit court also threw out the second portion of Harper’s lawsuit.

Ultimately, the courts made no ruling on whether Boise, as alleged, tried to get around recording a lost-time injury on its OSHA forms by getting a worker with a serious head injury to be released so he could return to work. The courts only said there was no intentional action on Boise’s part to either cause physical injury or emotional distress to its workers.

There are reasons for a safety manager to follow an injured employee to the hospital, such as to make sure the person gets proper medical care. You’d certainly hope the situation wasn’t as alleged by Harper in this lawsuit.

Have some thoughts on this case? Let us know about it in the comments.

(Lonnie Harper v. Boise Paper Holdings LLC, U.S. Circuit Crt. 5, No. 13-31208, 7/10/14)

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Comments

  1. jburzynski says:

    I don’t get it. If he sustained a head injury that left him in critical condition he will likely be prescribed meds for pain… which makes it a recordable even if he would be returned to work immediately. Sounds to me like an overzealous manager trying to be a case manager for WC.

    • “I don’t get it”… You are 100% correct, this incident as described is a recordable incident no matter if he returns to work or not. Since there were changes to what is considered recordable a few years back, companies (potential client companies of an employer) feel like OSHA has made it so every incident is recordable unless it is treated as a first aid incident. So what they are looking at now, is not just the total recordable incidents rates (TRIR) but which of those recordable incidents hit their DART rate. DART – Days away from work, restricted, or transferred…
      Depending on who that company’s client base is their DART rate may be key to future work. For example, many Government construction projects will not even let a company come to the table to bid on a project if their DART rate is above the industry average. Also, on those Government projects being the lowest bidder is not a clear cut sign that you will be awarded the contract. The Government may say, sure you were the lowest bidder but you also have a higher DART rate which means during the course of this project you are trending to get X amount of people hurt that will spend X amount of time off site, which will likely delay the completion date of the project and/or increase the price to complete.
      I think, this injured worker was suggesting the Safety Manager was attempting to get him to come back to work so on paper (the OSHA log) it would look as if, he was injured but the injury was not severe enough to prevent him from doing his job therefore it was not that bad.
      I am not sure this is what the Safety Manager was truly attempting to do. I just thought I would add my $.02 on what some companies are doing now that the DART rate has become more important than the TRIR.

      • Good point. While we all strive for zero injuries and good looking OSHA logs, I never considered some of the challenges other employers face getting work.
        Maybe I’m overly conscious of the perceptions that some may have when your employer shows up in the hospital, but I still think in the scenario described above he went too far.

  2. As a Safety Manager it’s my job to go to the hospital and manage the injury. The nature of this injury itself, a concussion from what it sounds like, and the helicopter medevac to a hospital, it sounds like this is already going to be recordable injury. This employee’s paranoia may be affecting his perception. I can’t even envision any scenario where a safety manager has the juice to have a doctor and a hospital release a patient back to work to avoid lost time, especially if their patient is in “critical condition”, AND if it is true, then there’s his lawsuit right there, against the medical providers.

  3. SafetyMgrExcellence says:

    Lost time is to be avoided at all costs. The key to holding costs down is prevent Worker’s Compensationitis. Where employees stay out for long periods of time for no reason than to milk the system watching TV, and lawyer commercials. If you don’t have day 1 the problem is solved. A ligitimate injury needs the best medical care available yesterday not tomorrow. Never short a employee on great medical care,but make sure its good. I have pulled people out of the OR because a quack was going to work on them and sent them elsewhere. I’ve had people released to count paperclips lying down in my office to maintain the work ethic necessary for quick recovery. My rule for 30+ years has been take them to the doctor and stay with them. Get them back to work to finish their shift even if it is only for 5 min. Never let one go home and come back to work tomorrow there is to great a chance to incur lost time tomorrow. OSHA Restricted Duty and Recorable I take and log and get on with life. Lost Time is inherently bad because of sitting home and getting paid. It breeds lawyers, lawyer’s whores for doctors, loss of employee self respect, and copy cat injuries. Remember you’re paying the bills, money talks, and control is everything.

    • You’re Rule sounds like trouble waiting to happen. If an employee with a head injury is returned to work for the last 5 minutes of shift and then passes out on the way home .You will be responsible for ordering them back despite medical advice. This case should be a simple workers comp for the head injury. Worker can make complaint to OSHA about the improper recording of lost time accident. If company doctor says you are fit for duty doesn’t matter. Employee’s have always had the right to second opinion from neutral doc.

      • No kidding. A non-medical expert deeming a physician a “quack” and “pulling them to another doctor” is just lawyer bait…. and, I wonder… Does Mr. Excellence really think that they need to get back for the end of the shift??? I have to question anyone who doesn’t know the regs well enough to think that finishing the shift changes ANYTHING.

        Obviously, this guy is doing nothing but “managing to the log” rather than managing to prevention…. Anyone else taking his advice is really well beyond the bounds of ethics.

        • mark walkden says:

          i completely agree with you i personally have been to the er with an employee thankfully not often but yes just to ensure he gets good treatment, and i have never expected them to finnish the shift. if the person was really hurt shock is allways a factor which is somthing that can set in later if not immediately so i allways ensure they go home taking them there myself if they have no other way to gat home. medical treatment is a recordable and employees need to be taken care of and be allowed time to recover. this is after all not the dark ages.

          • I still think its a good practice to accompany an injured employee to the hospital. Many times a conversation has convinced a Dr. not to not use narcotics and conveying the fact that we will accommodate all light duty restrictions. At least that should prevent the lost time event. With that being said, I’m not going to push a Dr. to release an employee with a known head injury.

  4. RA - Houston says:

    Everyone needs to ask themselves one question. You’re the injured employee, You have a severe head injury and have to be air lifted to the hospital. Your employer is there and insisting that you be released and return to work THAT DAY. How would you feel? There’s absolutely no other explanation for that kind of conduct other than the employer trying to keep a recordable injury from becoming a lost time. Unfortunately, I see a lot of this type of attitude in the construction industry. Managing a claim once it occurs is important, but where’s the line between controlling a claim at the expense of your injured employee? Safety has come a long way in the last 25 years, but what worries me is the fact that it has now turned into a numbers came. If you don’t think that a lot of companies hide injuries, manipulate doctors, and misclassify records, you need to pull your head out of the sand. When are we going to get back to putting the welfare of our employees the priority over playing a numbers game to make our OSHA logs look good?

  5. I always accompanied injured employees to hospitals and clinics. In fact I pre visited each care faculty we used and explained to them that I and/or their supervisor would be with them. In that meeting I explained the nature of our work, our policies for returning employees to the job and our light duty program.
    Its sad that so few facilities have an industrial medicine division. Most emergency Doctors have no clue on what the difference is in a first aid, recordable, and lost time accident. Worse yet large numbers of employees will not give the doctors an accurate portrayal of their work duties leading the doctors to prescribe time off when its not needed.
    Accompanying them shows that you do care. In serious cases you can talk with their family to assure them their loved one is getting good care. Many of my employees had English as a second language. My being there helped them and the doctors fully understand the extent of their injury and how it would effect their work.
    Was I managing the injury? Of course I was. was I controlling the doctors decisions? No! Our employees came to realize that we took an interest in their well being. Our providers recognized that we were a good source of information on OSHA regulations. Best of all our Supervisors learned that they had a responsibility to remain with their employees throughout their treatment. Nothing like spending the night in ER to pound home that they needed to manage safety.

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