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The 7th U.S. Circuit Court of Appeals held May 4, 2015, that delaying an emergency 911 call while a worker was trapped in sand up to his waist in a storage bin is a willful violation, affirming a decision made by the Occupational Safety and Health Review Commission.
Dukane Precast Inc., a concrete building products manufacturer, received citations from the Occupational Safety and Health Administration (OSHA) for three serious violations of the agency’s confined space standard and one willful violation for not contacting emergency services immediately after an incident. OSHA issued a $70,000 penalty and Dukane asked for review.
William Ortiz was working in a sand storage bin at a Dukane facility near Chicago in February 2012, when the sand beneath his feet gave way and trapped him in sand up to his neck.
His co-workers were able to free him above his waist. The plant manager arrived on the scene within 10 minutes and asked other workers to help dig Ortiz out, but after several attempts, they determined they could not.
After Ortiz had been trapped for 90 minutes, the manager called 911. Fire department personnel reached the scene within 10 minutes, but it took them between three-and-a-half and four hours to free Ortiz, meaning he had been trapped for more than five hours. He sustained serious injuries to his lower body from being squeezed by a large mass of sand for such a long time, including a herniated disc and a torn meniscus.
An administrative law judge with the review commission affirmed a willful citation, a three-item serious citation and the penalty of $70,000 against Dukane, whereupon the employer appealed to the U.S. Court of Appeals.
OSHA requires that if workers enter spaces such as the sand bin in which Ortiz was trapped—a permit-required confined space—that employers “develop and implement procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue.”
Dukane argued that the applicable regulation doesn’t require that the employer actually call 911 immediately or prevent co-workers from attempting a rescue, but requires merely that it has adopted such procedures. “That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work—not even call 911,” said the court. “Literalism frequently, and in this instance, leads to absurd results.”
The term “willful” is not defined in the statute or in a regulation, the court said, but “can be a synonym for recklessness or denote a heightened form of negligence, similar to gross negligence and thus falling short of recklessness.”
The court cited
Lakeland Enterprises of Rhinelander Inc. v. Chao, in which a willful violation is defined as “committed with intentional disregard of, or plain indifference to, the requirements of the statute.” The court added that “ignoring obvious violations of OSHA safety standards amounts to plain indifference,” and that “there is no doubt that [the manager] acted recklessly and therefore willfully … and that his reckless behavior must be imputed to Dukane.”
Even though the manager testified before the review commission that he didn’t know that the bins were permit-required confined spaces and that Ortiz was in danger, the commission and the appellate court found this testimony not believable.
“His ignorance of safety procedures, if indeed he was ignorant of them rather than determined to ignore them, was itself willful. For he had to know that there was a risk of accidents and that if he hadn’t a clue to how to respond, the consequences could be disastrous,” the court said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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