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An administrative law judge of the U.S. Occupational Safety and Health Review Commission has vacated two citations issued by federal safety and health regulators against a Florida contractor involving a workplace fatality.
Justin Smith died in October 2015 after he was struck by a bulldozer operated in reverse while working at an apartment complex construction project in Saint Petersburg, Florida, where Riverview, Florida-based Central Site Development L.L.C. was engaged in site development work, according to commission documents. However, Mr. Smith worked for a subcontractor engaged in underground pipe work hired by Central Site.
A U.S. Occupational Safety and Health Administration investigator was on-site about three hours after the fatal incident occurred following a referral from the police department. OSHA issued two citations to Central Site — one serious citation under the Occupational Safety and Health Act’s general duty clause carrying a proposed penalty of $6,300 for allegedly exposing employees to a struck-by hazard, and one other-than-serious record-keeping violation with a proposed $400 fine.
However, an administrative law judge vacated the serious citation after concluding that the U.S. Department of Labor failed to establish that any of Central Site’s workers were exposed to the hazard, deeming the inspector’s assertions to that effect “so vague it is meaningless” and “inadmissible opinion testimony.” The judge directly stated that the multiemployer worksite doctrine does not apply to citations issued under the general duty clause.
Paul J. Waters, an attorney with Waters Law Group in Clearwater, Florida, said his client, Central Site, was pleased with the decision and praised the judge’s thorough analysis of the issues, particularly the judge’s conclusion that the company could not be held liable under the general duty clause unless OSHA could prove Central Site’s own employees were at risk.
“It wasn’t a significant fine from a monetary perspective,” he said. “There is a principle here. With the citation, OSHA is essentially charging Central Site as being responsible for this fatality.”
The judge also rejected the Department of Labor’s contention regarding the applicability of an abatement method featured in a national consensus standard published by the American National Standards Institute and the American Society of Safety Engineers for work zone safety for highway construction. The department failed to show the proposed abatement method featured in the standard was feasible and would have had a material effect on the likelihood of injuries in the Central Site situation, according to the decision.
The judge also vacated the record-keeping citation, which was based on an OSHA requirement that a government official receive requested records within four business hours of the ask and that the employer did not provide requested injury and illness logs, after deciding that the department failed to prove the cited record-keeping standard was violated.
The commission adopted the administrative law judge’s ruling as a final order as Aug. 10.
Fatalities are increasing in the U.S. construction industry, particularly among Hispanic workers, as the sector continues to recover from the economic recession, according to a new study.