Nearly a third of OSHA inspections are triggered by employee complaints of various sorts. In some cases, investigators come to the worksite because a worker claims that they were retaliated against after being a safety “whistleblower.” In other cases, OSHA gets called when an employee is unable to get correction of hazardous conditions through internal means. Then there is the “payback” complaint to OSHA, where an employee has an axe to grind with the company.
A recent decision in an OSHA case involving U.S. Utility Contractor Company (ALJ Gatto, December 2014), fell into this last category. OSHA inspected the company jobsite after an employee reported that he had received an electric shock on the job while working on hot wires.
The employee filed the complaint with OSHA several months after the incident allegedly occurred, after the company had contested his workers’ compensation claim on the basis that its investigation showed there had been no potential for electrical injury in the area where he was working. According to the employer, the worker’s injuries occurred when he fell from a handrail while working on de-energized wires, when he should have used an appropriate ladder.
OSHA cited the employer for a serious violation of 29 CFR 1926.416(a)(1), related to improper protection of employees working in proximity to an electric power circuit. The initial proposed penalty was $5,390, but at trial OSHA proposed raising it to the maximum $7,000.
The standard states: “No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding it effectively by insulation or other means.”
To sustain the serious citation, OSHA had the burden of proving that the standard applied to the cited condition, the requirements of the standard were not met, employees had access to the hazardous condition, and the employer “knew or should have known of the hazardous condition with the exercise of reasonable diligence.”
The Administrative Law Judge (ALJ) heard testimony from several management representatives, including experienced electricians, who all confirmed that, in their experience, there was no way that the junction box at issue could have been energized. The complainant was a journeyman electrician who had himself tested the wires and found them to be dead prior to initiating work. There were apparently no marks on any tools or the electrical equipment consistent with an electric shock.
In coming to this conclusion, the judge relied heavily on the respective credibility of the witnesses. He found the management witnesses testified with “confidence, specificity, and certainty” and noted that their testimony was generally not contradicted by any other witnesses, other than the complaining employee. The management witnesses were the general foreman, the on-site project manager, and the company safety director. They also had a witness from a competing company testify in support of their position on the technical issues.
OSHA offered only two witnesses: the complainant and the inspector. The agency also offered a number of “hearsay” and “double hearsay” statements about emergency room and doctor’s purported findings, but did not call any doctors or EMTs as witnesses, nor did it introduce any documentary evidence to support a diagnosis of electric shock injuries. The ALJ discredited the hearsay findings because the agency could have called the medical witnesses and made them available for cross-examination by the employer, but failed to do so.
The complainant was described in the decision as having “an untruthful demeanor and appeared to have an axe to grind” with the employer. The Court noted that he only complained to OSHA after having his comp claim denied, and deemed his testimony “disingenuous and self-serving.”
The OSHA inspector did not score points with the ALJ either. The inspector testified that, while he had some training on electrical hazards, he could point to only one other electrical incident investigation out of more than 600 cases he had handled. He admitted that he was not providing any expertise beyond what he was informed of by the electrician/complainant. He relied heavily on the complainant’s statement and had not reviewed any textbooks or manuals to support his theory of the citation case. The inspector had never worked as an apprentice or journeyman electrician and was not a licensed electrician (as opposed to the company’s witnesses). The ALJ did not credit the inspector’s testimony except where it was corroborated by witnesses other than the complainant.
The court concluded, by a preponderance of evidence, that the worker was injured in his fall, and not due to electric shock. The ALJ vacated the citation and its civil penalty. While this was a favorable outcome for the employer in this case, litigating the matter certainly cost more than the initial proposed fine or even the maximum exposure of $7,000 in the case (OSHA does have the right to ask the judge to increase penalties at trial).
It is easy to assume that, had the workers’ comp case been accepted, the worker likely would not have gotten OSHA involved. This is a risk that must be considered when suspect workers’ compensation claims are filed. A rigorous investigation of each incident and determination of whether it is truly compensable, and whether a worker violated any OSHA or internal safety or health requirements, is critical to reducing (and discouraging) bogus claims and imposing appropriate discipline, where needed. But denied workers’ compensation claims can bring OSHA to your door.
In addition, employers must bear in mind, however, that OSHA views disparate discipline against injured workers to be a violation of Section 11(c) (whistleblower) protections of the OSH Act. A worker who breaks a safety rule and is hurt on the job as a result cannot receive a harsher sanction than another who breaks the rule but is not injured. This, too, can prompt a visit by OSHA, with significant consequences. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, March 2015
Did you enjoy this article?
Subscribe to the FREE Digital Edition of Modern Contractor Solutions magazine.