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The 10th U.S. Circuit Court of Appeals affirmed a general duty clause citation and $7,000 penalty against a commercial and industrial painting contractor in relation to a fatal accident.
F & H Coatings L.L.C. contracted with Boardman L.L.C., a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman’s manufacturing facility in Wichita, Kansas. During the performance of this contract, a fatal accident at the Boardman facility took the life of Toney Losey, an employee of F & H. On Sept. 23, 2014, Mr. Losey and his F & H supervisor, Robert Patrick were preparing a 12,000-pound vessel for sandblasting when the vessel slipped from its support racks and crushed Mr. Losey. F & H characterized this event as a “freakish, unforeseeable, and still-unexplained accident,” according to the ruling released on Monday.
In March 2015, the U.S. Occupational Safety and Health Administration cited F & H for a violation of the Occupational Safety and Health Act’s general duty clause because F & H’s employee was “exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement” — a finding that the company contested, according to the ruling. The law judge conducted a hearing and entered a decision in November 2016 finding that “the accident that killed Mr. Losey resulted from an obviously hazardous condition of which F & H was aware.” The full Occupational Safety and Health Review Commission declined to review the law judge’s order, making it a final decision of the review commission.
F & H appealed to the 10th Circuit, arguing that the evidence did not support the law judge’s conclusion that F & H breached the general duty clause. The company argued that the placement of the pressure vessel on pipe racks did not constitute a hazardous condition and that the occurrence of a “freakish and unforeseeable accident” is not evidence to the contrary. It also argued that the agency did not prove that the situation met the necessary criteria under the general duty clause such as employer or industry recognition of the hazard, likely causing death or serious physical harm, and that feasible means existed to abate the hazard. F & H also objected to the allowance of expert witness testimony by the law judge.
The 10th Circuit concluded that the law judge’s findings “are supported by substantial evidence” and affirmed the final order after finding that there was “no abuse of discretion” in the law judge’s conclusion that the expert was qualified to offer the testimony or that his testimony was reliable and that each element of the general duty clause was present, according to the ruling.
“The fact of Mr. Losey’s death combined with the physical characteristics of the vessel provide 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,” the appellate court stated.
“At this time we are reviewing our client’s options in light of the court’s decision, with which we respectfully disagree,” Gary W. Auman, attorney for the employer F&H Coatings, said via email.
An independent agency may be ready to curtail the U.S. Occupational Safety and Health Administration’s perceived overuse of the Occupational Safety and Health Act’s general duty clause to cite employers for failing to provide safe workplaces to their employees, according to some legal experts.