Lawyer Up! Litigating Workplace Safety and Health Disputes

MAKE-IT-SAFE MONDAY 

I think it goes without saying that litigating for most is used only when you reach that proverbial last straw.  In the case of work place injuries, you hope that enough preventative measures have been put into place to remain far from a court room. Alas, things fall through the cracks. Therefore, when litigation is imminent, there is very important information to consider. The following article provides this advise.  It is from EHS Today and is written by attorney Michael Taylor:

Attorney Michael Taylor offers a tutorial to help you understand the litigation process required when your employer contests an OSHA citation before the Occupational Safety and Health Review Commission.

Despite the fact that the Occupational Safety and Health Review Commission (OSHRC) recently celebrated its 40th anniversary, many employers still do not fully understand the make-up of the OSHRC, the process for litigating OSHA citations and the reasons why they might want to litigate citations, proposed penalties and proposed abatements. Without this knowledge, employers cannot effectively evaluate their decision to litigate.

The OSHRC is the independent federal agency that adjudicates workplace safety and health disputes between OSHA and private industry. In the early 1970s, members of Congress feared that allowing one federal agency to set standards and regulations, conduct inspections and enforce the standards and regulations would be unfair to the regulated community, so the OSHRC was created.

As Senator Jacob Javits, R-N.Y., the author of the amendment to create OSHRC, artfully stated: “I feel very strongly that a great element of confidence will be restored in how this very new and very wide-ranging piece of legislation [the Occupational Safety and Health Act]will be administered if the power to adjudicate violations is in the hands of an autonomous body, more than one man, and more than in the Department of Labor itself. … We have a difficult piece of legislation reaching the whole of American business, involving millions of employees and tens of thousands of employers. This will give them a greater measure of confidence.”

Staffing for the OSHRC

The administrative law judges of the OSHRC perform, among other things, the duties of ruling on motions, making findings of fact and conclusions of law. Currently, there are offices in Washington, D.C. (headquarters),
Atlanta and Denver.

In addition to the judges, the OSHRC has a chairman and two commissioners who are located in the Washington office and are otherwise known as the supreme court of workplace safety and health law. They are confirmed by the United States Senate, and they serve a 6-year interval term at the pleasure of the president of the United States.

The Office of the General Counsel provides legal support to the chairman and the two commissioners. This office provides, among other things, legal advice to the members of the OSHRC regarding Petitions for Interlocutory Review and Petitions for Discretionary Review. In general, a Petition for Interlocutory Review is a request to rule on an issue before a trial has ended. A Petition for Discretionary Review is a request to rule on an issue after a trial has ended.

Why Litigiate?

There are many reasons why an employer may litigate citations, proposed penalties and proposed abatements.

First, an employer may litigate in response to administrative liability. Under the OSH Act, 29 C.F.R. § 651 et seq., a citation may be characterized as serious, willful, repeat or failure to abate. Case law also dictates that OSHA may issue a per instance or per employee penalty if the language in the standard or regulation authorizes such penalty. This is otherwise known as an “egregious violation.”

A serious violation has a maximum penalty of $7,000, a willful or repeat violation has a maximum penalty of $70,000 and a failure-to-abate violation has a maximum penalty of $7,000 per day. An egregious violation may be characterized as willful and could carry the maximum penalty of $70,000. An employer may receive, for example, 10 proposed willful violations for allegedly failing to train 10 employees. Each proposed willful violation may carry the maximum penalty of $70,000 for a total proposed penalty of $700,000.

An employer may litigate in response to the existing proposed characterizations and penalties because they are grave. If the existing proposed characterizations and penalties are not grave, an employer still might want to litigate to minimize the risk of receiving grave characterizations and penalties in the future.

An employer does not have to carry the case to trial in order to minimize the risk. In fact, a substantial portion of the contested cases settle and do not make it to a trial. An employer can minimize the risk through settlement negotiations before, during and after discovery.

Second, an employer may litigate to minimize the risk of civil liability. Approximately 32 states authorize the use of OSHA standards and citations as evidence of negligence at trial, and approximately 14 states authorize the use of OSHA standards and citations as negligence per se at trial.

Regarding the former, an employer would still be allowed to argue that it did not owe the plaintiff a duty of care nor did it breach a duty of care, the first two elements needed to establish a negligence cause of action. Regarding the latter, an employer would be prohibited from presenting a defense that it did not owe the plaintiff a duty of care nor did it breach a duty of care. In essence, an employer would only be able to present a defense regarding causation and damages, the last two elements needed to establish a negligence cause of action. These issues may arise only if an employee can get out of the state workers’ compensation exclusivity provisions, or the employee is not an employee of the employer. Many experienced plaintiff counsel will allow OSHA to do a significant portion of the legwork, and then use the OSHA case in the civil case.

Third, an employer may litigate in order to avoid criminal liability in the future. Section 17(e) of the OSH Act states that if an employer willfully violated the law and the violation caused the death to an employee, that employer shall be guilty of a misdemeanor with a maximum of 6 months in prison. Under the Criminal Fine Enforcement Act, an individual can receive a maximum criminal penalty of $250,000, and the organization can receive a maximum criminal penalty of $500,000. The United States Department of Justice handles the criminal prosecution. There may be state criminal prosecution as well. Typically, administrative litigation is stayed pending the criminal prosecution.

Fourth, an employer may litigate in order to avoid abatement. Abatement can be extremely expensive and have minimal or no safety or health benefit. When evaluating the potential cost, employers should analyze the initial and ongoing capital and labor costs needed in order to implement the abatement. When evaluating the potential safety or health benefit, employers should consult with internal or external experts. Abatement costs often are a key factor in deciding whether to proceed with administrative litigation.

Fifth, an employer may litigate because OSHA has issued a negative press release. Currently, OSHA has been issuing negative press releases with very harsh language shortly after issuing citations and proposed penalties, but prior to employers defending themselves during litigation. Dr. David Michaels, assistant secretary of labor for OSHA, calls such press releases “regulation by shaming” and asserts that press releases can be “very effective.”

Sixth, an employer may litigate to minimize the risk of OSHA conducting a follow-up inspection. In general, history and experience indicate that employers who tend to roll over after receiving significant citations and notifications of proposed penalties often receive more follow-up inspections (and therefore more citations and notifications of proposed penalties) than employers who politely push-back. It is a misperception in the regulated community that if an employer accepts the citations and pays the penalties as proposed, OSHA will not come back to the worksite for a follow-up inspection. History and experience indicate that employers who tend to fight everything at no cost often find themselves having repeated visits from OSHA.A negative press release can damage an employer’s relationships with current customers and employees as well as the employer’s ability to obtain relationships with potential customers. Negative press also can damage an employer’s reputation within the local community. During settlement negotiations, an employer may want to request that any negative press releases be removed from the Internet; otherwise, the press release will live forever.

Seventh, an employer may litigate to get out of the Severe Violator Enforcement Program. Certain criteria must be met before an employer can be put in the program. Once an employer is in the program, OSHA may conduct nationwide inspections of the employer at the same time or over a certain period of time. This can pose a significant risk to an employer and cause major business interruptions. There is no way to get out of the program unless an employer litigates.

Eighth, an employer may litigate to eliminate an increase in workers’ compensation costs. Several states have statutes or regulations that authorize the increase in workers’ compensation payments based on safety or health violations. The commonwealth of Massachusetts, for example, requires workers’ compensation payments to be doubled when an employee “is injured by reason of serious and willful misconduct of an employer.”

Ninth, an employer may litigate to eliminate the use of citations as leverage in collective bargaining process. Many unions use citations and penalties as leverage in the collective bargaining process in attempt to force an employer to agree to develop and implement other things related to safety or health in the workplace. Ignoring the fact that an employer has already abated the citation item, unions nevertheless try to use the citations as an indication that the worksite is dangerous and therefore in need of serious safety or health improvements.

Finally, an employer may want to litigate because it has pride in its workplace safety and health program. In this regard, many employers will litigate because the cited standard or regulation does not apply to them, they did not violate the terms of the cited standard or regulation, no employee was exposed to alleged violation or no one in management knew of the alleged violation. They take pride in the fact that their written program contains safety and health rules beyond what is required in a standard or regulation; they effectively communicate those rules to employees; they take affirmative steps to discover violations of the rules through internal and external auditing; and they discipline employees accordingly when they discover violations of the rules.

Reasons to Litigate
➤The existing proposed characterizations and penalties are grave and characterized as willful, repeat or egregious.
➤To minimize the risk of civil liability.
➤To avoid criminal liability in the future.
➤To avoid the costs and/or business disruption associated with abatement.
➤To force OSHA to recall a negative press release.
➤To minimize the risk of follow-up OSHA inspections.
➤To avoid being placed in the Severe Violator Enforcement Program.
➤To eliminate an increase in workers’ compensation premiums.
➤To eliminate the use of citations as leverage in the collective bargaining process.
➤The cited standard or regulation does not apply, the employer did not violate the terms of the cited standard or regulation, no employee was exposed to alleged violation or no one in management knew of the alleged violation.

The Litigation Process

Pursuant to section 9(a) of the OSH Act, an employer has 15 working days from the receipt of the citations and notification of proposed penalties to file a notice of contest with OSHA. In general, an employer loses its rights to challenge the validity of the citations and notification of proposed penalty if the notice of contest is not filed within the 15-day period. The 15-day period does not give an employer a significant amount of time to evaluate the impact of the citations and notification of proposed penalty. That is why it is very important for an employer to understand in advance why it may want to litigate.

During the 15-day period, an employer has the right to schedule an informal conference with OSHA. During the informal conference, OSHA may reduce the total proposed penalty by a few dollars and re-characterize a citation item from serious to an other-than-serious violation. In general, OSHA does not make significant concessions at this stage in the process. After receipt of the notice of contest, OSHA has 15 working days to forward the notice of contest to the OSHRC for docketing. The OSHRC assigns a docket number to the notice of contest. This starts the formal litigation process.

There are two types of trial proceedings, simplified and conventional. A case qualifies for simplified proceedings if:
➤ There are relatively few citation items;
➤ The aggregate penalty is not more than $20,000;
➤ There are no allegations of willful or repeat violation;
➤ There are no fatalities;
➤ A hearing is expected to take less than 2 days; or
➤ The case involves a small employer.

A motion to remove the case from simplified proceedings must show good cause for removal. A joint motion, however, does not require a showing of good cause. In general, simplified proceedings involve the waiver of pleadings, minimal discovery and a less formal trial. Very few cases in Simplified Proceedings go to trial.

A conventional proceeding involves pleadings, discovery and a formal trial. If the proposed penalty is $100,000 or greater, the chief administrative law judge must assign a settlement judge (not the trial judge), and the parties are required to attend a settlement conference. Typically, the settlement conference is held after discovery is complete. Some settlement judges require the parties to submit a position paper that explains the strengths and weaknesses of their case and what it will take to actually settle the case and will use the information to try to persuade each party to reach a middle ground. Other settlement judges do not require a position paper and take a more hands-off approach. Experience indicates that the latter type of settlement judge tends to be less successful in resolving the case.

Very few cases actually proceed to trial. When a case actually settles depends, for the most part, on the attorney representing OSHA. Some attorneys for OSHA attempt to initiate settlement discussions early in the case after receiving the inspection file. Some attorneys for OSHA only will talk settlement after discovery is complete because it is not until after discovery is complete that counsel on both sides fully can evaluate the strengths and weaknesses of their case and advise their clients where a middle ground might be reached. Some attorneys for OSHA will only talk settlement at the eve of trial. This is designed, for the most part, to gain the most leverage as possible.

Employers must be prepared in the event that the case does not settle. This includes drafting a pre-hearing statement, preparing fact and expert witnesses for examination and assembling exhibits to be used at trial.

After the trial is completed, the administrative law judge will issue a written decision with findings of fact and conclusions of law. The administrative law judge either will affirm, modify or vacate the citations, characterizations or proposed penalties. The written decision becomes a final order 30 days from the date of docketing unless one of the parties files a Petition for Discretionary Review and the petition is granted.

If the Petition for Discretionary Review is granted, the parties will be asked to file briefs and will be given time to respond. Oral arguments may be requested, but that is rare and takes place only when there is a significant issue that affects the regulated community as a whole.

After reviewing the briefs, and oral argument if heard, the chairman and commissioners will issue a written decision. A party has 60 days from the date of the final order to file an appeal with the appropriate U.S. Court of Appeals. An employer is authorized to file an appeal in the circuit in which the violation is alleged to have occurred, where the employer has its principle office or in the Court of Appeals for the District of Columbia Circuit. OSHA is authorized to file an appeal in the circuit in which the violation is alleged to have occurred or where the employer has its principle office, but not in the Court of Appeals for the District of Columbia Circuit.

If the appeals court reverses an OSHRC decision, the administrative law judges are bound to follow the legal precedent in the OSHRC decision, not the legal precedent in the U.S. Court of Appeals decision.

Thank you for your time and attention.  Let’s make it safe this Monday.

Aaron Lamb

General Manager, Lift’n Buddy, a Southworth Company 

How Do You Stack Up?

MAKE-IT-SAFE MONDAY

It does not matter whether you work in a lumber yard, hospital, or fast food restaurant; it is likely that your job will require you to stack items from time to time. Having your inventory neatly organized is an essential component to creating a safe work environment. 

• Look for labels on boxes that indicate which side should face up, whether the items inside are fragile, and if additional items can be placed on top of this box. It is also likely the box will have safety labels for heavy items or if it requires a team lift. Always make sure important information printed on your boxes is visible once your items are stacked. You can waste a lot of time and energy looking for a single item if labels are not clearly visible.

• Never stack boxes near aisles or walkways. Employees or customers could inadvertently bump a supporting box cause an unstable stack to tumble over.

• All cylindrical items such as pipes, barrels, or kegs should be stacked in racks or be blocked on a level surface to prevent them cylinders from rolling. Use a pyramid style of stacking method for cylinders once your bottom layer is in place.

• Never stack boxes above your head unless the load is supported by shelving. Lumber should never be stacked more than 16 feet high. 

• The heaviest boxes should always be placed near the bottom. When stacking boxes make sure that the entire load of the box is supported by a flat uniform base. There should never be a box that hangs over the edge when stacking on a pallet. 

• The integrity of cardboard box can be greatly diminished after only a few uses. If you are reusing a box be sure that it can support the load that you are stacking on top of it. A Box with holes, creases in the side walls, or crushed corners is a good indication that it is time to send it to the recycling bin. 

• If your stack looks unstable try to wiggle it. If the stack starts to sway or becomes unstable it is time to rearrange your boxes.

Following these simple guidelines will ensure that your inventory, employees, and customers stay safe. It will also create a more efficient and professional looking work area.  

Thank you for your time and attention.  Let’s make it safe this Monday.

Brad Lindemann

Sales Coordinator, Lift’n Buddy, a Southworth Company 

Lifting Kegs BEGS for a Mechanical Solution

MAKE-IT-SAFE MONDAY

Keg Handling Safety

Weighing in at upwards of 160 lbs., a full keg of beer poses a health and safety hazard for anyone attempting to manually handle beer kegs.  Many bar and restaurant workers have learned firsthand the difficulty of manual keg handling, which is why keg handling safety is so important.  Beer distribution companies would agree that delivery operations can NO LONGER manually handle kegs. According to OSHA (Occupational Safety & Health Administration) a full beer keg is too heavy to be safely carried or lifted by one person without risking serious injury. As with all potentially dangerous activities, knowing the risks associated with keg handling and having the right tools to do it safely is essential.

Keg Handling Risks

• Overextension: Attempting to lift or carry a full keg without proper training or equipment can lead to serious strain injuries, particularly in the lower back. Even when two people are carrying a keg, there is still a risk that one person will lose their grip, forcing the other to carry the entirety of the weight. For these reasons, properly handling and lifting equipment is essential.
• Repetitive strain injuries: Long-term injury can result from continually attempting to move kegs without proper ergonomic equipment. Repetitive strain injury (RSI) is one of the most common occupational diseases identified in restaurant and liquor retail employees.
• Drops: Manually or improperly lifting a keg can lead to drops which can potentially cause broken bones and permanent disfigurement. Make sure all kegs are properly secured when lifting them using approved ergonomic equipment.
• Slips and falls: Environmental hazards such as dust, clutter and — particularly in the restaurant and bar industry — wet floors, can lead to slips and falls when handling kegs or other heavy loads. Be sure to keep your work area clean, dry and clutter-free at all times to prevent on-the-job accidents.

The Importance of Ergonomic Equipment

OSHA considers the repetitive manual handling of beer kegs a hazardous activity with increased risk of pain and injury.  Furthermore OSHA recommends minimizing the manual lifting of kegs whenever possible as the continued lifting of items in this weight range is associated with the development of lower back injuries.  Considering the staggering costs of workplace injuries, why risk the health of your employees by continuing to manually handle kegs? Keg handling safety should be a focus for all companies that transport kegs.

Thank you for your time and attention.  Let’s make it safe this Monday.

Aaron Lamb

General Manager, Lift’n Buddy, a Southworth Company 

OH, Those Elbows! 5 Tips To Manage Elbow Pain

MAKE-IT-SAFE MONDAY

A focus on ELBOW HEALTH is worthy of attention, after all we have two!  Like any joint, elbows are subjected to wear and tear with repetitive motion. Today, we borrow great insight from the Built Lean website. (http://www.builtlean.com/). Although the article is geared towards elbow health as it pertains to weight lifting, it is applicable to lifting ANYTHING! The following tips are written by Stephen Bergeron, Certified Strength and Conditioning Specialist, holding a BS in Exercise Physiology.  Let's pay attention to Mr. Bergeron's words of wisdon on the ELBOW: 

Pain is the body’s #1 warning sign that something is wrong and we should address the problem before it gets worse. Even if you are able to train around joint pains, it still doesn’t mean that you should ignore them.

For most people with elbow pain, a little bit of soft tissue work and corrective exercises can help decrease, or even eliminate the elbow pain. These corrective exercises are especially important if you work at a desk for a large majority of the day. Working at a desk combined with an intense training regimen can wreak havoc on joints such as your elbows.

The following is a simple guide to helping prevent and manage elbow pain from weight lifting.

NOTE: If your elbow pain is severe, chronic, or worsening, you should consult with your doctor right away. It’s worth the time and money to get an x-ray and consult a medical professional. It’s better to be safe than sorry because you are going to be using your elbows for the rest of your life.

Elbow Pain Causes

The most common cause of elbow pain I see on a daily basis is from overuse or repetitive motion from desk jobs. Over time, things like typing, reaching for something across your desk for a phone, or even regular bench pressing, or pushups can be deleterious to the health of your elbows.

Eventually small tears can begin accumulating in the surrounding tendons, which may cause inflammation and pain. This can become significantly worse as the tendon repairs and scar tissue forms around the area creating a lack of blood flow.

Elbow Pain Symptoms

Elbow pain can come from the inner or outer part of your elbow, and in some cases the pain can radiate down your arm. Anything from a muscle strain, to tendon strain, tendonitis, bursitis, arthritis, a fracture, or dislocation can cause elbow pain. The most common forms of elbow pain from overuse, or repetitive motions are muscle, or tendon sprains.

Most people will notice pain when twisting the forearm or wrist, especially while holding onto something heavy like a dumbbell.

Elbow Pain Treatment

First and foremost, the best way to treat elbow pain is to find the source of the pain and eliminate it at least temporarily. If you continue to do what caused the pain in the first place it is safe to say that the pain will linger.

Here are 5 strategies to help you mitigate, or even eliminate elbow pain:

Elbow Pain Treatment #1 | Get a Massage

Chances are that the pain in your elbow is the consequence of a muscle imbalance or soft tissue restriction elsewhere in your body.

For example, if you lack proper tissue length in your pecs and/or lats you will struggle when trying to externally rotate your shoulder (turn your hands outwards away from your body). You can only get away with this for so long until you have to press something over your head.

The two options here are to get a massage from a licensed professional or use daily self myofascial release (SMR) on your upper back, pecs, biceps, and lats. The better you move throughout your upper body, the better your elbows will feel.

Elbow Pain Treatment #2 | Stretch Your Elbow and Wrist Flexors

This goes along with #1 as it relates to the mobility of your upper extremities. If your elbows, wrists, and shoulders are tight you risk damaging the soft tissue around these joints .

In conjunction with foam rolling and SMR, it is a good idea to stretch these areas after improving the quality of the tissue.

One stretch I have become a huge fan of using with many of my clients is the elbow and wrist flexors stretch. You extend your elbow and wrist and gently use your opposite hand to pull them into greater extension.

Elbow Pain Treatment #3 | Limit Arm Isolation Exercises

In other words, ditch the single joint exercises like bicep curls, tricep kickbacks, and shoulder flies. Trust me on this one. Working the elbow joint in isolation is a sure fire way to keep that pain coming back.

Instead, opt for full body exercises like pushups, pull-ups and bodyweight rows once your elbows are feeling a little better. This will ensure that your elbows are stabilized by more muscles than just your biceps and triceps.

I have found that laying off the isolation stuff for even just a little while will help your elbows feel exponentially better. This way your training won’t skip a beat.

Elbow Pain Treatment #4 | Supplement With Omega-3s

Reducing inflammation is just one more reason you should be supplementing with Omega-3s or fish oil. This can help with the reduction of swelling and formation of scar tissue in your elbows.

The other option would be to get more Omega-3s in your diet from fish, walnuts, flax seeds and chia seeds. Sprinkling flax or chia on your breakfast or salads is a simple way to make sure you are getting them in daily as fish isn’t always the easiest option.

Elbow Pain Treatment #5 | Swap The Barbell For Dumbbells

I know this one may be hard to swallow for many bench press addicts but switching to dumbbell exercises temporarily might be one of the best ways to ease chronic elbow pain from training.

We all possess imbalances or asymmetries to some extent. Take for instance the hand with which you write. Chances are it is the same hand you throw with or carry your briefcase with. We all have a dominant side.

If you have apparent shoulder motion asymmetries, dumbbells should be swapped for all of your favorite exercises such as bench press, rows and overhead presses. Your elbows will thank you!

Summing It All Up

Just because you have elbow pain doesn’t mean you were born with “bad” elbows. Your best bet is to identify the cause then practice some of these strategies to keep you training longer and harder.

I hope this article has helped you gain some knowledge and insight into some of the possible causes of elbow pain and how you can eliminate or reduce that pain before you give up training all together.

As a reminder, if your elbow pain is severe, or worsening, it’s worth consulting a doctor right away. Let me know if you have any questions and I will answer below.

Thank you for your time and attention.  Let’s make it safe this Monday.

Aaron Lamb

General Manager, Lift’n Buddy, a Southworth Company