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Employer citation over fall-related death partially vacated in split decision

Employer citation over fall-related death partially vacated in split decision

An administrative law judge of the U.S. Occupational Safety and Health Review Commission vacated one citation item against an employer whose worker fell to his death but affirmed other serious violations and assessed $12,600 in penalties.

On Feb. 24, 2015, the U.S. Occupational Safety and Health Administration’s El Paso, Texas, area office received a report of a fatality at Midwest Steel Inc.’s Fort Bliss, Texas, worksite and sent a compliance safety and health officer to inspect, which led to a three-item citation and a proposed total penalty of $18,900, according to court documents.

The 51-year-old welder had 18 years of experience and “a good reputation for working well and working safely; there is no evidence in the record Midwest management had any safety or quality concerns regarding decedent’s work,” the document stated. But he fell from his temporary work platform on the sixth floor of the worksite and died at the scene. There were no witnesses to the incident, but the synthetic lanyard that was part of his personal fall arrest system had severed, having been melted through for some undetermined reason.

The OSHA inspector’s citation targeted the synthetic lanyard and the temporary work platform, according to the documents. But the judge vacated part of the citation because he found that the agency failed to establish a violation of the general duty clause of the Occupational Safety and Health Act because it failed to prove that the employer knew not to use the synthetic lanyard in hot areas of more than 180 degrees.

However, in affirming part of the citation, the judge found that the scaffold the welder was working from was not designed by a qualified person as required by OSHA’s regulations, as the deceased worker built it himself; that using this temporary working platform exposed him to a fall hazard; and that the employer knew of the violative conditions. The judge also determined that no competent person inspected the scaffold in violation of the OSHA’s scaffold standard.

“The record shows the gravity of the violations was high as illustrated by the grave consequences in this case,” the judge said in his ruling. The employer “directed ironworkers with no documented scaffold training to build a pre-designed, but undocumented, structure. It was this structure the ironworker depended on to keep him safe while he concentrated on the task that he was actually trained in, welding; a task that utilized tools, such a as a weedburner, to which he was trained to use cautiously due to their dangerous high-heat nature. While the record shows (Midwest) does not have a documented history of OSHA violations, the court agrees with (the Secretary of Labor) no reduction for history or good faith should be applied here due to the high gravity of the violations.”

The administrative law judge’s decision became a final order of the commission on Friday.

An attorney for the employer could not be immediately reached for comment.


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