Did company order drug test before calling 911 for injured worker?
June 18, 2012 by Fred HosierPosted in: construction safety, Fatality, Injuries, Lawsuits, Special Report
PDF A widow is suing a Texas company, alleging it took the employer two hours to get an ambulance for her husband who had fallen several feet and hit his head. She also claims a drug test was ordered before anyone called 911.
Benino Perez, 67, had worked for Texas Industries (TXI), a cement and construction company, for 38 years.
On July 2, 2011, he was working for TXI in Dallas when he fell, gradually lost consciousness and died several hours later in a hospital.
His widow, Alejandra Perez, alleges in a lawsuit that while Benino was laying unconscious on the ground a fellow employee ordered a drug test. The lawsuit claims co-workers unzipped his pants and took urine from him and that it was two hours after the fall when paramedics were finally called.
She is suing the company for $15 million for actual and punitive damages. The suit claims the company was negligent for failing to train employees and provide proper equipment, and for the wrongful death of her husband.
OSHA investigated but issued no fines in the case.
She is receiving workers’ comp death benefits, and the company paid for Benino’s funeral.
TXI denies Perez was given a drug test and that the call to 911 was delayed.
The company says 911 was called after one of the company’s drivers noticed Benino walking irregularly with blood coming from his nose.
“At any time when a TXI employee has immediate medical needs, the first and highest priority is to ensure that their needs are promptly met,” said TXI in a statement. “Any drug testing analysis would have been done under the care of the paramedics or at the hospital.”
Alejandra’s lawyer says one witness said there were cameras that may have recorded exactly what happened, but they were removed the next day.
A TXI vice president said the cameras weren’t facing the area where Benino was working and the fall and its aftermath weren’t recorded.
Of course, workers’ comp is usually the exclusive remedy in cases in which a worker is injured or killed on the job. One exception is intentional tort, in other words, the employee is injured or killed as result of an intentional act by the employer that was known to be certain to cause serious injury or death.
In this case, even though the alleged drug test before calling 911 would be an egregious act, the lawsuit most likely can’t turn solely on that point. That’s why negligence for failing to train employees and provide safety gear is also included.
If it can be proven that there was a delay in calling 911 for obtaining a drug test, should that enter into a decision in this case? Let us know what you think in the comments below.
(A copy of the lawsuit is available here.)
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Tags: calling 911, drug test, negligence lawsuit, Texas Industries
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June 18th, 2012 at 8:43 am
I just read this article and the 2 links in it. It looks like there are fundamental differences in just the basic facts. I am wondering though, how does one take urine from an unconscious man? In a hospital you have catheters for that purpose, but working as a EMT in Texas, I’ve never seen one in an ambulance, much less a jobsite. That makes me question that part of the family’s narrative. It appears the company has stepped up as far as the funeral and death benefits.
June 19th, 2012 at 7:33 am
I have never seen a man unconscious pass urine. If you said they took blood or hair that would be a little more believable. And what the company has a drug test strips laying around construction site.
June 19th, 2012 at 8:02 am
I asked myself the same question: how does one extract urine (at the worksite) from an unconscious victim? How did the widow come up with this story-cell phone video, gossip or assumption? Although I symphatize with the wife’s lost, sometimes people with the right intention (or malicious) will make up stories to “stir the pot”, at the expense of the family’s pain and suffering.
At the very least, it should be thoroughly investigated and the results of the investigation be provided to thewidow so she can come to closure.
June 19th, 2012 at 9:41 am
Unfortunately, in the year 2012, “closure” means winning a lawsuit. I am sure the company did not make a dime when the man died at work. I am also pretty confident the man did not commit suicide in this manner. So if we weigh the remaining options, it was likely AN ACCIDENT. Go grieve and stop trying to ruin everyone else’s lives. Sorry for you loss!
June 19th, 2012 at 10:04 am
“A fellow employee ordered a drug test” fellow employees do not order drug tests. That is a management responsibility. Employees are informed prior to starting any job the drug test policy. This is an unfortunate accident, however, the ambulance chacing lawyer and grieving widow would probably do good to take the WC remedy.
June 19th, 2012 at 11:18 am
I agree with all the above… something sounds fishy here..
June 19th, 2012 at 12:04 pm
It appears that OSHA reviewed the claims concerning guardrails and other safety concerns and interviewed employees and issued no fines. I would expect that they would have demanded and reviewed any video tapes from camera’s.
There is no information (witness statements) presented concerning the fall. It appears to be only a few feet and he apparently hit his head. There is only one statement that a co-worker noticed the injured worker was stumbling with blood coming from his nose and then 911 was called. There is no information concerning the cause of death or if the results of any drug testing.
Certainly, if employees tried to obtain a urine test while he was unconcscious, they should be charged with sexual assault and have to answer for their actions in court.
I understand that after a tragic accident, everyone wants answers and to understand what happened. Sometimes, there is confusion that cannot be cleared up because of different perceptions. Sometimes, people can do some stupid things in the heat of a crisis. It appears that the workplace followed basic safety rules and practices. It appears that when co-workers became aware of a medical emergency EMS was called. That seems to be what I would expect at any worksite.
June 19th, 2012 at 12:57 pm
So many people confused by the trees when looking at the forest! What about the cameras that were removed the following day; the company said the accident wasn’t caught on tape. Convienent! You folks keep waiting on the Easter Bunny, he’s on his way! The issue is a delay in medical treatment following a head injury.
June 19th, 2012 at 1:43 pm
Robert-Robert one tree does not a forest make. Do you not think the OSHA inspectors in interviews did not hear the “removed camera” saga? Easter Bunny may be on the way but LOTTO is out of the question I hope. This looks more like a clear case of “what’s in it for me” than grieving widow. Guy falls, hits his head and co-workers do the best they can. Widow said “co workers” extracted the urine, that seems nuts to me. Every co-worker I know would protect that to the end.
June 19th, 2012 at 1:54 pm
another attorney speakes. Nothing clear on your side but you position relative to a fact or a truth. Stop blowing urine smoke, delay in treating a head wound! Cameras dissappear! I see who’s going to “save the gold”.
June 19th, 2012 at 3:02 pm
I’m not a lawyer, Robert, I’m a safety manager and I worked for many years in EMS before now. I googled this article yesterday trying to find out more, but every article seems to have been from the same source, with the same sensationalistic headline. I don’t know who’s “gold” Mimidunn, or for that matter myself you may be accusing of trying to save. I assure you I’m not profitting in any way from this man’s death. You might try rational argument and leave the Easter Bunny out of it if you are trying to influence peoples opinion. That’s just a suggestion based on my experience. When you say “stop blowing urine smoke”, i think I understand your meaning, but like myself, that’s all we’ve brought up about this article. We questioned how you obtain urine from an unconcious man, which seems to be the headline not just here but in numerous other sites as well. Unless you were there, you don’t know any more than anyone else reading these articles. You have your opinion, I have mine, and Mimidunn has hers. That’s all they are, opinions.