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Judge upholds citations against builder in worker’s fall into pit

Judge upholds citations against builder in worker’s fall into pit

An administrative law judge of the Occupational Safety and Health Review Commission has affirmed citations against an Indiana construction company after an employee was injured after falling through an unguarded hole and assessed $6,500 in total penalties.

In September 2016, a temporary employee working for Fort Wayne, Indiana-based commercial construction company CME Corp. fell more than 10 feet into a pit while working on a construction project at a turkey processing plant in Saint Henry, Ohio, according to the judge’s ruling released Friday. The employee, a temporary worker supplied by United Labor Group, survived the fall, but his injuries required multiple surgeries and he remains unable to work.

CME contested a serious citation and proposed a $6,236 penalty issued by the U.S. Occupational Safety and Health Administration for failing to provide fall protection to the injured employee as he worked along the edge of the pit. The company also contested a $3,500 penalty assessed for an other-than-serious citation issued by OSHA for failing to report the accident.

There was no dispute the employee fell through an unguarded opening along the edge of the level just above the pit, but CME contended the opening was a point of access to the upper level from the pit and did not need to be guarded under the applicable regulations, according to the ruling. However, the Labor Department contended the unguarded opening was not being used as a point of access at the time and therefore required some form of fall protection.

“CME’s contention the opening remained an entrance to a point of access as long as it was used for that purpose ‘at some point’ is not consistent with the language of the standard and would lead to needless exposure to fall hazards,” the judge said in affirming the citation. “Accepting CME’s argument, an employer could designate an area as a point of access, use it as such once, and leave it open in perpetuity, regardless of whether it was ever again capable of functioning as a means of entering the level below. This would permit employers to expose employees to the fall hazard addressed in the standard.”

An employer may protect employees from falls from unprotected edges by a guardrail system, safety net system or personal fall arrest system, according to OSHA’s fall protection standard.

“CME did not use any of these methods to protect employees in the cited area of the mezzanine from falls to the pit below on Sept. 15, 2016,” the judge said. “CME does not dispute it provided no form of fall protection. The standard was violated. Nor is there any dispute employees were exposed to a fall hazard.”

But the judge did agree that the department should have taken more than the company’s size into account when determining penalties. While the judge agreed that a high gravity-based penalty was warranted, he said the company was entitled to history and good faith reductions. 

“Although only a few employees were exposed for a short period of time, lighting was poor, increasing the likelihood of an accident,” the judge said. “The severity of the resulting injury is unquestionably high. There is no evidence in the record CME has received citations from OSHA in the past. CME presented evidence it has a lower than average injury rate for its industry, it has a comprehensive safety and health program and makes efforts to train all its employees on its safety and health rules, including temporary employees. CME cooperated with the inspection.”

The maximum penalties for both citations was $12,471, but the judge slightly lowered the assessed fine to $6,000 for the first citation from the $6,236 proposed penalty issued by OSHA, but significantly lowered the penalty to $500 from $3,500 for the second citation.

“Although the OSHA inspection was delayed by CME’s failure to report the injury, CME had corrected the hazardous condition that resulted in the injury immediately,” the judge said. “CME’s failure to report was not a deliberate attempt to conceal the accident, but the result of a good faith belief the reporting requirement would be fulfilled by (United Labor Group).”

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

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



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