Employment Law Daily Following fatal workplace accident, citation, $7k fine upheld for General Duty Clause violation
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Wednesday, August 22, 2018

Following fatal workplace accident, citation, $7k fine upheld for General Duty Clause violation

By Kathleen Kapusta, J.D.

Declining an employer’s request to set aside a $7,000 penalty imposed by an administrative law judge, who found a breach the OSH Act’s General Duty Clause in connection with what the painting contractor/employer characterized as a “freakish, unforeseeable, and still-unexplained” fatal workplace accident, the Tenth Circuit found substantial evidence supported the ALJ’s findings, and there was no abuse of discretion in admitting testimony by the DOL’s expert regarding safety procedures. Accordingly, the court denied the employer’s petition for review and confirmed the final order of the Occupational Safety and Health Review Commission (F&H Coatings, LLC v. Acosta, August 20, 2018, Holmes, J.).

12,000-pound vessel to be sandblasted slips. F&H Coatings, a commercial and industrial painting contractor, contracted with Boardman LLC, a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman’s manufacturing facility. During the performance of this contract, a 12,000 pound vessel slipped from its support racks and crushed one of F&H’s employees as he and his supervisor were preparing to sandblast the vessel.

The vessel, which was about 15 feet long and had a number of irregular protrusions, including a 2,600 pound manway, was elevated by a set of pipe racks provided by F&H before it fell. Boardman did not use pipe racks while manufacturing the vessel but instead used “rollers.” According to F&H, it was impossible to place the vessel in the rollers once legs were attached to it at the end of the manufacturing process.

Citation becomes final. After investigating the accident, OSHA issued a citation to F&H for a violation of the General Duty Clause, finding that the employee was “exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement.” When F&H contested the citation, the DOL filed a complaint seeking enforcement of the citation by the Commission. After a two-day hearing, the ALJ issued a written order, finding that the accident resulted from an obviously hazardous condition of which F&H was aware. The ALJ entered a decision and order affirming the citation and the $7,000 penalty assessed by OSHA. The full Commission declined to undertake discretionary review, and the ALJ’s decision thereafter became the final decision of the Commission.

Expert testimony. On appeal, the Tenth Circuit first addressed F&H’s contention that the ALJ should not have admitted the testimony of a safety and health consulting company officer as an expert on safety procedures used to support tanks and vessels during blasting and painting. Although he was not an engineer and had no expertise with regard to the design or fabrication of pressure vessels, the court found that in light of testimony regarding the officer’s professional experience, certifications, and awareness of industry standards relating to the elevation and placement of heavy objects on various support structures in industrial settings, there was no abuse of discretion in the ALJ’s decision that he was qualified to offer expert testimony.

Reliability. Nor did the ALJ abuse his discretion in determining that the officer’s testimony was based on reliable analytical methods under Daubert. The ALJ would not have abused its discretion in effectively reasoning that, as to the general subjects of which the officer testified, the reliability of his testimony was not significantly undercut by the fact that he had not considered the details regarding engineering specifications for the particular tank at issue or done “calculations with regards to this case to determine the center of gravity of [the] vessel.” It was notable, said the court, that he testified that other employers used alternate methods of support for similar vessels, including I-beams, which provide additional features to ensure that loads do not fall, as well as testifying generally to the considerations that go into designing support systems, including the need to accommodate some human error in centering the weight of the load. His experience and industry knowledge were sufficient for the ALJ to find his expert conclusions with regard to these general subjects were reliable.

Substantial evidence. As to whether substantial evidence supported the ALJ’s conclusion, the court observed that the Commission need not prove that a condition was the proximate cause of the specific accident in question to show that it was a hazardous condition. Here, the ALJ found that the placement of the vessel on the pipe racks constituted a hazard, and the likelihood of the vessel falling was exacerbated by the uneven weight of the protruding manway and the placement of the vessel “on rounded crossbeams.” In reaching this conclusion, the ALJ relied upon testimony by F&H’s safety director and by the city police officer who responded to the accident regarding the dimensions of the vessel; testimony by the OSHA investigator regarding the dimensions of the pipe racks; and testimony by the employee’s supervisor regarding the orientation of the vessel in the pipe stands.

The ALJ also reviewed photographs of the vessel and the pipe racks and inferred from this evidence that placing the vessel on the pipe racks created a risk of accident and injury because the vessel was likely to fall. Further, the ALJ discounted the supervisor’s conclusion that the vessel was stable by noting his further testimony that he relied solely upon his experience to assess the stability of the vessel’s position, but he had never personally observed an improperly placed vessel. “The placement of a six-ton, cylindrical object on top of round metal pipes, with only visual observation and a shove to ensure stability, certainly increased the risk of serious harm to those employees assigned to perform work on the elevated object,” said the court, concluding that the ALJ’s determination was based on substantial evidence.

Recognition of obvious hazard. The presence of a hazard gives rise to a violation of the General Duty Clause only if it was “recognized” either by the employer or by the industry, or was so obvious as to put the employer on constructive notice, observed the court, noting that here the ALJ concluded that the hazard was obvious and, moreover, that F&H recognized the hazard. The ALJ noted the obviousness of the “increased risk” created by “placing an awkwardly shaped, incredibly heavy object on elevated crossbeams” as evidence of hazard recognition.

Industry overall. While the ALJ did not refer to F&H’s safety director’s testimony that other companies in the industry place similar vessels on pipe racks without incident, and that industry associations do not recognize the hazard, the ALJ did not abuse his discretion by focusing the inquiry upon F&H’s recognition of the hazard and the obviousness of the hazard to it, rather than whether the condition was recognized as hazardous by the industry overall.

As to F&H’s claim that the hazard was not obvious, and, in fact, that the direct cause of this “freakish and unforeseeable accident” remains unexplained, whether the vessel “rolled, slipped, or slid off the racks” was irrelevant because the DOL was required to show only that the condition contributed to an increased risk of injury or death. Further, said the court, the fact of the employee’s death combined with the physical characteristics of the vessel provided substantial evidence supporting the factual finding of the ALJ that placement of the vessel on the pipe racks was likely to result in death or serious injury.

Moreover, in concluding that a feasible and effective means existed to materially reduce the hazard, the ALJ, weighing conflicting testimony, found that using rollers to support the vessel, as Boardman had done during fabrication, would be one feasible means of abating the hazard. In addition, the ALJ relied on the expert’s testimony that F&H “could have implemented any number of alternatives for supporting the vessel while sandblasting and coating,” including rollers and I-beams. This testimony, combined with the other evidence in the record, provided substantial evidence to support the ALJ’s conclusion that alternate—and safer—means of supporting the vessel were available, the court concluded.

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