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The Occupational Health and Safety Review Commission last week upheld a willful safety violation and vacated another violation in a case that centered on the employee-employer relationship among companies hired to tear down buildings at a worksite in Philadelphia.
In 2013, Griffin Campbell, who operated Campbell Construction, was hired by STB Investments to demolish a four-story city building and two shorter adjacent buildings. Sean Benschop, who operated S&R Contracting, discussed the project with Mr. Campbell and offered to do some of the demolition work as a subcontractor. Mr. Campbell declined, saying Mr. Benschop’s estimate was too expensive, but later asked Mr. Benschop to use his excavator to demolish the taller building for $800 per day. Mr. Benschop agreed, according to documents in Secretary of Labor v. Sean Benschop d/b/a S&R Contracting, and its successors.
Darryl Alston, who had worked for S&R for several weeks doing a variety of tasks on an on-call bases, assisted Mr. Benschop at the site and other worksites, including driving Mr. Benschop to and from projects, retrieving supplies and doing other tasks.
On June 5, 2013, Mr. Benschop and Mr. Alston arrived at the worksite to find a demolition on an unsupported, free-standing wall had not progressed as Mr. Benschop had expected overnight. He elected to proceed with demolition of the wall using his excavator, despite having warned Mr. Campbell that the building was dangerous, because of time and money pressures, court documents show.
Mr. Benschop planned for the wall he was working on to fall into a vacant lot, but the wall fell in the other direction, landing on the partially demolished city building, which then collapsed and caused a four-story freestanding wall to fall on top of an adjacent Salvation Army retail store, killing six people inside and injuring 12 others. Mr. Benschop was injured while getting out of his excavator, according to case documents.
The U.S. Occupational Safety and Health Administration’s investigation into the incident resulted in two citations, including a willful violation, alleging that Mr. Benschop did not brace a multistory freestanding wall at the worksite, which put his employee, Mr. Alston, in danger. OSHA issued a $70,000 penalty for the violation. Mr. Benschop contested the citation.
The commission joined Mr. Benschop’s case with a similar case against Mr. Campbell, Secretary v. Griffin Campbell d/b/a Campbell Construction, because both cases involved common issues of law and fact. The consolidated cases were then stayed pending resolution of criminal prosecutions against both men. Mr. Benschop pleaded guilty to six counts of involuntary manslaughter, 12 counts of recklessly endangering another person and other charges, and Mr. Campbell was found guilty of the same charges.
Upon resolution of the criminal cases, the commission settled the case with Mr. Campbell and proceeded with the case against Mr. Benschop. The central issue of the case was whether Mr. Benschop was an employer with an employee at the worksite, case records show. Mr. Benschop argued that his company was not an employer and had no employees at the site, and that he was not a subcontractor on the site. Rather, he asserted that he and Mr. Alston were functioning as employees of Campbell Construction at the time of the incident.
The review commission determined that Mr. Alston was an employee of Mr. Benschop, saying post-hearing statements he submitted lacked credibility as to Mr. Alston’s status as an employee on the worksite. The commission said evidence showed Mr. Alston had worked for Mr. Benschop as an assistant previously, and sworn testimony provided by Mr. Benschop shortly after the incident indicated the he considered Mr. Alston to be his employee. Further, the commission found that Mr. Benschop had actual knowledge of the danger posed by the unsupported wall and that he exhibited indifference to employee safety, justifying the willful nature of the violation issued.
However, the commission applied a 20% discount to the penalty due to the small size of the employer, resulting in a final assessed penalty of $56,000.
The U.S. Occupational Safety and Health Administration issued 18 citations, including 10 willful violations, and $1.5 million in proposed fines against a drain services company after two of its employees died in a trench collapse last year.