Safety and OSHA News

Worker suffers fatal fall: Was it unpreventable employee misconduct?

A worker falls to his death while upgrading a communication tower. An OSHA investigation showed that the worker had, for some reason, detached himself from his fall protection. Is the company at fault?

OSHA thought so. It issued Paramount Advanced Wireless a $7,000 fine in the death of Gerry LeClercq for one serious violation: “Employees were working on a communication tower 60 feet above the ground without any fall protection.”

Paramount appealed the fine to an administrative law judge, arguing that the fatal fall was an unforeseeable incident of employee misconduct.

A company can use unpreventable employee misconduct as a defense if it can show it had a thorough safety program which was adequately communicated and enforced and that the employee conduct was a departure from an enforced safety rule.

The record showed Paramount had:

  • a well-communicated, comprehensive and properly enforced safety program that required employees to be tied off at all times on towers
  • an extensive written safety policy based on industry experience and standards set by national organizations
  • required that each crew member take a written test on proper climbing
  • required 100% fall protection for employees
  • a progressive disciplinary policy (verbal warning, written warning, suspension, termination), and
  • disciplined and terminated employees for safety violations.

The record also showed that, on the day of the fatality, the foreman on duty had filled out all necessary safety paperwork required by the company’s policy and that it was signed by all employees who were on the site.

The employees were also properly supervised on the day of the incident.

For all those reasons, the judge found Paramount showed that the fatality was an unforeseeable event caused by the actions of the employee who unhooked himself from his fall protection. The citation and fine were thrown out.

(Secretary of Labor v. Paramount Advanced Wireless, Occupational Safety and Health Review Commission, No. 09-0178, 6/21/10.) You can read the judge’s decision here.

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Comments

  1. It’s nice to see that the system works when a responsible employer does the right thing. It’s unfornuate that the OSHA inspector did not have the smarts to do a similar evaluation of the Employer and not issue the citation to begin with as all it served to do is waste time and assets of the Employer to prove what would have been obvious to the inspector if he/she did there inspection properly.

  2. The court ruled correctly. The worker paid a terrible price for his decision to disconnect his fall protection.

  3. “Departure from an enforced safety rule.” Something Safety Managers should point out to business decision makers. Many times policy enforcements are unevenly enforced if the culprit is favored. The back end of our Safety programs is just as important as is training. It demonstrates the difference between verbiage and behavior. We never know when something is going to come up and we have to prove we had programs in place. That is not the time, to try to prove we mean what we say.

  4. I heard one time that the difference between breaking a law and breaking a regulation is that when you break a law you are innocent until proven guilty and when breaking a regulation you are guilty until proven innocent. Unfortunately, the cost of the burden of proof (of innocents) is normally shouldered only by the company. In this case the company apparently had good written documents in place and did not have to scramble to produce their defense,

  5. But they shouldn’t have had to provide a defense at all, if OSHA had done its job correctly. From this story, it seems obvious that the company was in full compliance with all the regulations and the OSHA inspector should have been able to ascertain that in the initial investigation. OSHA’s attitude seems to be to issue judgments and assess fines and only do a thorough investigation if forced by the courts. As Chuck notes, that’s backwards.

  6. If the company did not contest, OSHA would have accepted payment. I agree with RandiG. Inspectors need to investigate properly, which means review of the evidence prior to judgment. In this case – they obviously jumped to a conclusion – especially in lignt of an employee fatality.

  7. Just wondering if the company has any recourse for recovering it’s cost against OSHA or it’s poorly trained inspector?

  8. In the Safety Business we refer to this as “Evolution in Action”.

    Remind your workers and drivers that the emergency rooms, morgues and cemeteries are full of people who though “It won’t happen to me”.

  9. PO'd Safety Guy says:

    This proves that a company can do everything right, by the book, and it still can’t prevent an employee from putting himself in harm’s way. It’s tragic that a life was lost, but the courts have to recognize that employees have to take responsibility for their own safety, especially if they have been properly trained.

    It would be interesting to know how the courts would have viewed the case had Paramount not has all their safety t’s crossed and i’s dotted. My guess is they would have been found liable for the employee’s death because it would be assumed that a lack of training was the cause. It goes to show that all the training, all the paperwork, all the signed documents mean less than squat if the employee doesn’t follow the rules and use some common sense.

  10. PO’d, I agree with your statements. In this case, there was a young “bulletproof” man who did not follow his training. He died as a result. That would be to some, his “just rewards”. Legally, I believe the judge made the correct decision. Regardless of where the fault lies, who is guilty, who is innocent, a young man died. Looking at this case in that way, I, as a safety professional feel for my colleagues and those that supervise. They are the one’s who first must contact the living, knowing that a man died on their watch (no matter the cause). I am certain there will be some new items added to their programs, if only because you don’t want people dying for any reason. Legally, your covered with the paperwork, dotted I’s and crossed t’s, but morally you have to change something because a man is dead. The relatives, co-workers, and friends of this young man bare heavy marks from this situation. This is not something that you can just say “it was his fault” and walk away – there has to be some change, whether it is tighter control of the program, or discipline and enforcement with teeth strong enough to overcome complacency. I agree we have a tough gig in that way – we can never do enough, change is our best friend, and there is always something we can do to prevent…my two cents.

  11. DMac well said!!!!

    We preach “Do not outwit your common sense and training”.

    People still do what they want vs. anything they are trained to do.

    The aftermath of this is horrific between upset coworkers and the family then there are the rumors.

    My heart goes out to all.

  12. David OldSalt says:

    While I agree this is tragic and feel terribly for the loss, I remain a common-sense climber and have supervised climbing supervisors and written instructions on the subject for enough decades to appreciate the company’s position. The OSHA inspector should be not only ashamed, but disciplined and fined to pay for the company’s time, the court costs, and the price of producing and distributing a bulletin broadcasting the point to all bureaucrats in regulatory positions. That fine should not fall on the government, but the individual careless and reckless bureaucrat with the over-zealous pen, who disconnected himself from doing due diligence – he deserves more bruises than the dead kid.

    The company is already doing more than is reasonable and prudent. The argument, “we can do more” only empowers over-reaching government experts like the aforementioned bozo to get farther inside our lives. The day I need an OSHA expert to perform safely on my job, I’ll retire for my own safety. The first and foremost piece of safety equipment I’ll ever own is between my ears, and I can apply it better than any cubicle-sitting bureaucrat’s approved training or required spec sheet to keep my butt out of a sling – or in one, if that is where it is most likely to get me home in one piece at the end of a day. If it weren’t for the young man being able to hide behind all the boxes on the requirements list, maybe his supervisor could have seen and done something about the fact that he was reckless or a corner-cutter, and shouldn’t have been in a climbing role.

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