OSHA’s burden in a fatal accident case is not to prove that a violation caused a worker’s electrocution death, but to prove that it was possible for workers to contact energized lines in violation of the mandatory standard. A recent decision by a judge of the Occupational Safety & Health Review Commission reaffirmed that in holding that the cause of an accident is not necessarily relevant to whether a violation occurred.
The 2015 case, Secretary of Labor v. Tim Graboski Roofing, Inc., involved a roofing company that provided reroofing and new roofing services for both residential and commercial properties. In 2013, the company’s tile crew members were finishing a roof at a Florida worksite. One worker (the crew chief’s son) remained on the ground to mix cement. At some point the crew chief asked him to reposition one of the metal extension ladders used by the other crew members to access the roof. The rest of the crew heard the son cry out, then heard the ladder fall. They saw the worker lying on the ground with the ladder beside him. He died at the hospital.
When OSHA arrived, the ladder had already been moved, but the inspector met with a representative from Florida Power & Light. He determined that power lines, running parallel to the roof’s edge upon which the extension ladder had been resting, were energized with 7.6 kilowatts. The OSHA inspector determined that when the decedent moved the metal ladder, it either came into contact with the energized line closest to the roof, or the electricity arced from the power line to the ladder, resulting in the employee’s electrocution death.
OSHA cited the employer under 29 CFR 1926.416 and 1926.1053. Each item alleges that the employer violated construction standards that require protection of employees from exposure to energized electric power circuits or electrical equipment. The employer argued that OSHA failed to meet its burden of proof because there was “no evidence” supporting the agency’s contention that “individuals were working in close proximity to the power lines, or that any individual accessed the roof from the side of the house near the power lines.” No employees testified and no evidence was presented on this contention.
The judge found that, to establish a violation of 1926.1053, OSHA must prove that Graboski’s employees were using a ladder with conductive siderails where the employees or ladder could contact exposed electrical equipment. To prove a violation of 1926.416, the agency must prove that employees were exposed to accidental contact with energized lines “passing through or near the jobsite.” The company claimed that, because no one witnessed the accident, the inspector’s testimony regarding how the decedent supposedly repositioned the ladder and whether it came into contact with the power lines was “mere speculation.” There were no markings on the ladder to indicate contact was made with a hot power line, and the agency never introduced a copy of the autopsy report that purportedly attributed the decedent’s death to electrocution.
ALJ Calhoun ruled that OSHA does not have to prove that the employee’s death was caused by electrocution after moving the ladder and making contact with power lines, but rather the agency must prove that contact with energized lines “was possible” by employees working at the site. Even if the employee had died of a heart attack or other natural causes while moving the ladder, Graboski would still be in violation of the cited standards if OSHA established the elements of the violations.
The judge noted that, while no employees testified at trial, the crew chief had given a signed statement and a drawing to the inspector, indicating that he was on site at the time of the accident, heard his son’s cry, and found him on the ground by the ladder. His statement, although offered through the inspector’s hearsay testimony, was found “highly credible” by the judge. The crew chief had told OSHA that, prior to the accident, he personally had been working from the same ladder that “came in contact with the cables.”
He added that his son knew the ladder had to be retracted and did not know why he moved it while it was still extended. In the judge’s view, this was sufficient to establish worker proximity to an energized circuit.
The court found that the use of “proximity” in the standard means that an employee shall not work so close to an energized power circuit that he may inadvertently contact it in the course of his work. It is an objective test. While the employer argued that the decedent was at least 16 feet from the closest power line, the argument ignored that the ladder he was moving could easily contact the line. As a result, to be compliant, the employer would have to deenergize and ground the circuit or guard it effectively by insulation or other means.
In terms of employer knowledge, while some employees told OSHA that they were unaware of the energized lines because “there were many trees,” it was clear from photos that the lines were visible and this established “constructive knowledge”—the employer “either knew or, with the exercise of reasonable diligence, could have known, of the violative condition.” The employer has an obligation to have adequate work rules, training programs, and adequate supervision of employees. It must anticipate hazards to which employees may be exposed and take measures to prevent the occurrence of violations.
Although Graboski also raised the “unpreventable employee misconduct” affirmative defense, the judge found that the company lacked work rules on using non-conductive ladders and that it had not adequately communicated ladder safety rules to its workers. The employees told OSHA that they had no training on working safely near electricity and were not trained to stay a safe distance from power lines. All three citations related to the electrocution hazard were affirmed. The company was also found guilty of a willful violation of the OSHA fall protection standard, although that was not a causal factor in the fatality. OSHA’s proposed penalty of $84,000 was affirmed in full. ■
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, September 2015
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