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Dukane Precast, Inc. v. Perez – $70,000 OSHA Fine Affirmed

The Occupational Safety & Health Administration, the federal government agency that sets safety standards and regulations for U.S. employers and workers, is clear there must be protocol in place to protect workers in permit-required confined spaces.
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Per 29 C.F.R. §1910.146(d)(9), this includes the requirement to have a plan in place to summon rescue and emergency services in case someone is trapped in one of these situations. Employers also owe a duty to prevent unauthorized personnel from attempting a rescue.

There are also requirements to have signs posted at the entrance of these spaces, indicating the danger and warning not to enter. There also has to be railing or barriers around these locations.

According to court records in the recent case of Dukane Precast, Inc. v. Perez, none of these precautions were taken, and a worker suffered serious injury as a result.

OSHA fined the Chicago-based company $70,000 for these serious safety protocol violations, but the company appealed. However, the U.S. Court of Appeals for the Seventh Circuit essentially upheld that fine by refusing to review the administrative law judge’s finding that the penalty was valid.

According to court records, the worker was employed at a concrete building products plant in Illinois at the time of the accident. He was working inside a bin, about 10 feet in width at the top, tapering down into a cone shape at the bottom. The bin was about 18 feet deep, and was used to store sand.

Worker was standing inside the bin, scraping sand from the inner wall, when sand underneath his feet started to give way. He began to sink and became quickly engulfed in sand up to his neck. He screamed and several workers ran to the bin and tried to dig him out.

They were able to remove the sand above his waist, but they couldn’t get him out beyond that. The rescue attempt was done at great risk to themselves because the sand could have easily given way underneath them as well.

Within 10 minutes, the plant manager was notified of the incident and responded to the scene. He apparently decided there was no emergency, the workers were handling it and left the scene.

Workers continued to try to dig out their co-worker. They had no special equipment or experience. They also weren’t very successful. After 90 minutes, he remained stuck. This was even after he repeatedly asked them to call 911 for professional help. For reasons unknown, no one did.

Finally, the plant manager, realizing the “rescue” was taking much longer than it should, contacted emergency personnel, who arrived within six minutes. Using all of their equipment, they were able to finally extract him after about three hours. So in all, he was trapped almost five hours. As a result, he sustained serious injury to his lower body from the pressure of the sand.

He was entitled to workers’ compensation, and exclusive remedy provisions barred him from further pursuing action against the company. However, OSHA cited the company for multiple serious violations. Specifically, the company didn’t have a protocol for contacting emergency personnel, other workers were put at risk by taking on rescue efforts (as was the victim), and there were no proper barriers or warning signs at the entrance of the bin.

For all of this, the company was fined $70,000. Inspectors determined the violations were not only serious, but willful.

Company argued before an administrative law judge that the applicable rule doesn’t require managers actually call 911 or stop co-workers from rescue efforts, but merely that it have these procedural guidelines on record.

The rule states employers must “develop and implement” these procedures, which employer argues merely means to adopt rather than apply.

While conceding this might be an appropriate literal interpretation, both the administrative law judge and the appellate court ruled this was not inevitable nor was it sensible. Taking the employer’s view, it would mean a company would not have to do anything at all to rescue a worker. Such an interpretation, the courts found, would “lead to absurd results.”

Thus, the $70,000 fine stands.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:
Dukane Precast, Inc. v. Perez, May 4, 2015, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Sheena H. v. W. Va. Office of Ins. Comm’r – Statute of Limitations on Workers’ Comp Claims, May 8, 2015, Atlanta Workers’ Compensation Attorney Blogs