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Penalty for violations in partial thumb amputation upheld

Posted On: Jul. 19, 2019 1:39 PM CST


A request for review of an Occupational Safety and Health Review Commission decision was denied by an appellate court, which upheld the monetary penalty assessed against the company for violating lockout-tagout standards.

In Southern Hens Inc. v. Occupational Safety and Health Review Commission, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans unanimously held that Moselle, Mississippi-based Southern Hens Inc. must pay $12,000 for the safety violations.

On June 21, 2016, night shift worker Sheila Norman was cleaning a machine called a short weight tumbler at Southern Hens’ 700-employee poultry processing plant when her glove became caught in the drive mechanism, which caused partial amputation of her thumb.

During an investigation of the plant, a U.S. Occupational Safety and Health Administration inspector observed employees clearing a jam on a conveyer, noting that it lacked a protective guard of the pinch point, and issued three serious citations — two related to Ms. Norman’s injury and for the unguarded machine.

Southern Hens contested the citations, and an administrative law judge affirmed two of the three citations. She found that the company’s lockout-tagout procedures were adequate, but assessed penalties of $7,000 and $5,000, respectively, for the failure to lock out the tumbler for cleaning where Ms. Norman received her injury and the unguarded conveyer. Southern Hens sought review from the commission, which declined discretionary review.

Southern Hens appealed, but the 5th U.S. Circuit Court of Appeals declined to review the decision. Although Southern Hens argued that it lacked knowledge of the violative condition and that Ms. Norman's injury resulted from misconduct, the court agreed with the administrative judge’s decision that if Southern Hens had exercised reasonable diligence, it would have learned that Ms. Norman was not locking out the tumbler while scrubbing out the inside of the machine by hand.

The court also agreed with the administrative judge’s determination that employees were exposed to nip point hazards because of the lack of a physical guard covering the conveyer, and that the company had constructive knowledge of the violation.

“The lack of a physical guard on the conveyor could be easily observed by anyone passing by, all the more so because the adjoining, identical conveyor had such a guard,” said the administrative judge.

Finally, the appellate court upheld the penalties assessed by the administrative judge, finding that the penalties are not in excess of the statutory cap.

Southern Hens did not immediately respond to a request for comment.