A truck backed over an employee, killing him. OSHA issued two citations against his employer, saying workers didn’t receive safety training about hazards around construction equipment. The company says it was a case of unpreventable employee misconduct. Who prevailed when the case went to a review board?
John R. Jurgensen Co. had been hired for a road-widening project in Butler County, Ohio. Much of the work was done at night.
On the night of Sept. 4, 2010, a dump truck driven by a subcontractor’s employee backed over a Jurgensen worker. The employee died as a result of his injuries.
OSHA issued three serious citations against Jurgensen but dropped one when the case went to the Occupational Safety and Health Review Commission (OSHRC). The two remaining citations were for failure to:
- implement and maintain workplace procedures or work rules to ensure that workers were protected while on foot from trucks traveling in reverse through the work zone, and
- train employees on how to work near construction vehicles to reduce their vulnerability from being struck by or caught between vehicles. Specifically, there had been no training of employees required to mark pavement for the areas in which trucks were backing up.
The two citations came with a total of $9,000 in fines.
Jurgensen appealed.
Training was documented
The company argued it did provide specialized training to its employees.
About seven months before the fatality, all members of the Jurgensen crew working on the paving project attended safety training, including the worker who was killed. The sign-in sheet lists the topics covered, including “hazard awareness, night work.”
A PowerPoint presentation used in the training instructed the workers to “know your surroundings: vehicle and equipment paths, safe paths to/from work locations, stay outside a ‘safety circle’ around equipment,” as well as other safe practices around construction equipment.
The OSHRC said the PowerPoint training shows Jurgensen had implemented and communicated work rules about safety around vehicles in the work zone. For that reason, the first citation was vacated.
To back up its second citation, OSHA said a Jurgensen foreman had instructed the worker who was killed to mark gravel with a line for a paver to follow, and that the worker was performing this task when he was hit by the truck.
Jurgensen disputed that theory. The company claimed the worker left his assigned work area to use his cell phone to call his wife, with whom he was fighting. Jurgensen had a strict policy forbidding the use of cell phones during work.
The company introduced the worker’s cell phones records into evidence. It shows he placed a call at 9:36 p.m. the night of his death and the call lasted for 8 minutes. Local police received the 911 call reporting the incident at 9:59 p.m.
The OSHRC said the record supported Jurgensen’s theory that the worker had left his assigned work area to place a prohibited call. He was struck by the truck at about 9:45 p.m., and 911 was called minutes later.
For that reason, the review commission also threw out the second citation against the company.
A couple of take-aways from this case:
- Safety managers know they need to keep proof of training for situations just like this one. This case shows it’s important to keep copies of any electronic documents, such as a PowerPoint presentation, used in the training.
- Time and time again, we’re seeing how cell phones and hazardous work don’t mix. While the exact situation in this case isn’t known, it’s likely the worker was distracted by making a phone call and failed to hear or see the truck backing up toward him.
(Secretary of Labor v. John R. Jurgensen Co., OSHRC Docket No. 10-2646, 7/23/12)
