On July 22, 2015, Hassell Construction Co. was cited by OSHA for 16 safety violations (including 6 egregious willful violations) and given a whopping $423,900 fine. Hassell Construction Co. is a construction company based in Richmond, Texas with about 150 employees that construct water and sewer lines around Houston, Texas. The employer was given 15 business days to comply with each citation, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the OSHA Health Review Commission.
These citations were given after a trench that was 8 feet below the ground collapsed in February crushing an unsuspecting employee. Luckily, the worker was dug out by his co-workers using their bare hands. The minute the worker was freed from the trench, the trench collapsed a second time.
According to OSHA’s regional administrator in Dallas, John Hermanson, “Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.” Due to the fact that trench cave-ins such as the one in February are completely preventable OSHA has also placed the construction company in the Severe Violator Enforcement Program which often inspects employers and mandates follow-up inspections to ensure that they are complying with the law. In North Carolina, a similar incident allowed the employee to sue the employer directly and overcome the exclusivity provision of the North Carolina Workers’ Compensation Act. Woodson v. Rowland. 373 S.E.2d 674 (1988).
Read about the citations here: https://www.osha.gov/ooc/citations/HassellConstruction_1031127_0722_15.pdf
Original Article 7/22/15 posted on WorkersCompensation.com.
Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.
In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compenstion paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).;
In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.
The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).
While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.