TOV Injury and Safety Blog

Suing the employer for injuries

Yet another attempt to sue an employer for an extremely unsafe work setting failed with application of the "exclusive remedy" provision of workers compensation.

Worker safety in mines

  The Bush spokesman for the federal Mine Safety and Health Administration confirmed on January 28 that the Agency had failed to issue penalties for hundreds of citations issued since the year 2000. He implied that the problem had occurred in the Clinton Administration, as well, but could not provide documentation.  The preliminary data confirmed by the spokesman documented 4000 unsafe citations issued by the MSHA between January of 2000 and July of 2006, for which no penalty had been assessed. 

  The MHSA "discovered" the problem when someone attempted to confirm whether a penalty had been assessed against a negligent mine owner after a miner bled to death in a December 2005 incident.  The miner had not received first aid after his injury:  the MHSA spokesman acknowledged that the company had never been fined, but claimed that it was fined the maximum penalty of $60,000.00 on the 18th of January, 2007, after the issue was brought to the Agency's attention.

Safety concerns with regulating the chemical industry

        The Department of Homeland Security has just released its rules on reporting stockpiling of toxic chemicals, and true to form, the Bush administration has imitated the fox in the henhouse.  The new rules allow, for example, unregulated storage of up to 2500 pounds of chlorine:  one of the most deadly chemicals in regular use.  A company does not even have to report the theft of 450 pounds of chlorine, even though it could be more deadly than  ten times that quantity of high explosive.    Chlorine has been used against civilians by insurgents in Iraq.  [Think of the disaster in Bhopal, for example, and then imagine if it was designed to achieve maximum mortality by the architects of 9/11.]  The Department had proposed more stringent rules in April, however, they have been watered-down since by the Administration's corporate allies who provide what cerebral power is exercised by this Administration.  A Greenpeace spokesman attributed the tepid and unsafe rules to the usual pattern of former industry executives now serving in the federal government as regulators----who refuse to regulate.

Worker safety at BP

  The New York Times today reported that British Petroleum is expected to settle accusations of criminal responsibility for the explosion and fire of 1990 that killed 15 workers and injured 80 more.  Government officials report that they will continue to investigate the responsibility of BP executives.  BP reported 4.4 billion dolars in profit for the most recent quarter, beating analyst expectations and proving that crime can pay if lives are cheap and we don't include environmental degradation in the equation.  Perhaps that equation will be re-balanced eventually, as BP faces more than 1,000 civil lawsuits for injuries and property damage, and the company has already set aside nearly 2 billion dollars to satisfy the claims. 

        Earlier in the year, a federal safety panel attributed the explosion to safety deficiencies "at all levels" of the plant  and found that the BP executives had ignored warning signs of impending disaster.  BP has pledged to spend a billion dollars to remedy safety problems at the Texas City plant.  To date, no one has reported that the Bush Administration intends to introduce legislation to protect American refineries from frivolous lawsuits, but that step wouldn't surprise us.  That seems to be the next step whenever a negligent contributor to the incumbents finds itself facing legal exposure of a level that makes it uncomfortable. 

        Next thing you know, we'll find out that BP actually earned higher profits after the output of this refinery was cut in half by the explosion:  because the huge reduction in supply increased prices in the industry and paying workers comp to the maimed and widowed was cheaper than paying to actually produce oil.

       

Problems with food safety in the U.S.

  The McClatchy-Tribune Company reported on October 14 that  while our nation's top food safety officials were in Miama setting the "course for the next 100 years of food safety", the handful of boots left on the ground at the USDA were initiating a recall of 21.7 million pounds of hamburger.  While our national government is spending billions on the "war on terror" and in particular making enemies by attempting to police a civil war in Iraq, it is continuously stripping every other element of the Federal government of the workers needed to protect our citizens.

        The "starve the beasters" have used a combination of tax cuts and budget cuts to strip the number of inspectors in the USDA (and many other branches of government, including the Consumer Product Safety Commission and the Occupational Safety and Health Administration), resulting in glaring problems  with safety in our food supply.  This recent embarrassment started in September when consumers in New York and Florida fell ill from E.Coli exposure.  By the time 32 people had been poisoned, inspectors had finally traced the problem to New Jersey-based Topps Meat Company.  A full 18 additional days passed, however, before Topps was forced to recall a FULL YEAR'S PRODUCTION:  apparently the problem that lead to the E.Coli poisoning had existed for that many months without being identified.   Inspectors who insisted on anonymity to avoid retaliation told the paper that managers are doubling and tripling their workload as a result of downsizing that has left the agency under-staffed [and over-managed in Miami, apparently].

When government does not regulate

       An RPI Coating company spokesman told the Associated Press that it was "devastated" over the loss of five of its employees who were killed in a deadly fire in a hydroelectric plant in Georgetown, Colorado.  "They were very experienced guys.  They were some of our best."  The fire has been traced to a heated device in which the workers were mixing an epoxy-based sealant.  It turns out that RPI has been issued numerous safety violations by the California Occupational Safety and Health Administration and the Denver-area Federal OSHA office.  Since 1986, the Denver office had issued 35 safety violations against the company ("more than most companies"), and an OSHA spokesman was quoted in the New York Times to the effect that "They have a significant history with OSHA, and these are serious violations".  One employee of the company was killed while working on the Oakland Bay Bridge in 2002.  The dead employees were 18 year-old Anthony Aguirre; Donald Dejaynes, 43; Gary Foster, 48; Dupree Hold, 37; and James St. Peters, 52.  It has been our experience that when a tragedy like this occurs, it can frequently be traced to a culture of corner-cutting and a lack of safety-consciousness that is ingrained in some companies.  Individual workers who might object to safety compromises end up biting their tongue and attempting to ignore potential risks, in order to preserve their jobs and their sanity.

The dangers associated with lead

     While the human body needs to consume tiny amounts of many non-organic minerals, lead is not one.  So far as we know, lead is of no value to the human body and consumption of lead has devastating consequences for humans--particularly during the early stages of brain development, when it has been widely documented to interfere with neurological development.  Furthermore, the neurological impact is permanent and irreversible.

     Lead is the heaviest "stable" element, however, it does break down when it interacts with certain other elements--particularly sulfur.  Because it is resistant to corrosion and discoloration, it has historically been used in many domestic products including kitchen utensils and water pipes.  More recently it has been used to improve the adhesive properties of paint.  Although its use was banned in interior paints in 1971, lead is still used in the United States to bind exterior paints.  Obviously, in China it is widely used in inferior products because it is cheaper than many other stable minerals.

More limitations on premises liability

      The Michigan Supreme Court recently decided that a landowner conducting dangerous activity on his property should owe no duty to persons injured off the premises.  There is no Michigan statute which addresses this question, so the Court was required to analyze and address the issue as a matter of judge-made "common law".  The case involved the death of the wife of a worker who routinely laundered the worker's clothes and was exposed to asbestos fibers as a result.

         The Defendant's property was contaminated by asbestos.  The Plaintiff died after prolonged illness resulting from exposure to her husband's work clothing.  She laundered the clothing for him on a regular basis and no one disputed that her death was a result of contact with asbestos carried home from Defendant's property on her husband's clothing.

         The federal government has previously concluded, after substantial study, that no environmental exposure is more dangerous than asbestos.  It is extremely toxic with clearly demonstrated and substantial detrimental health effects.   Exxon Mobil knew of the "take-home" risk of asbestos as long ago as 1937, however, the majority of our Supreme Court ignored this confirmation of known risk.  Further, by government regulation a property owner is now required to manage and control the "take-home" risk of asbestos, as the health risk to off-site persons such as this housewife have been very clearly documented in prior years.

        As long ago as 1916, employers  were urged by safety publications to launder contaminated work clothing on site.  The Occupational Health and Safety Administration began regulating "take-home" clothing in 1972.  In the 1960s, admonitions about the safety of laundering asbestos-exposed clothing were documented, yet the "industrial apologists" on our Supreme Court not only refused to impose a legal duty; they also engaged in an intellectually superficial examination of the "foreseeability" of injury without a full hearing on the merits.  In other words, they gave lip service to a weighing of social cost and benefit without allowing the issue of negligence to be fully addressed.  After engaging in what it called a "weighing of competing social policy considerations" (i.e., the relative advantages and costs of imposing responsibility) the four right-wing jurists who speak for the Chamber of Commerce on the Michigan Supreme Court concluded that a property owner should owe no duty to a person injured when not on the premises, regardless of any issue of negligence.   One of the three dissenting Justices noted that the majority showed an unseemly interest in the corporate cost of regulating asbestos without giving any consideration to the health cost for individuals.  As Justice Kelly wrote, "it is a sad day" for our citizens when our Supreme Court responds to one of the greatest and most expensive environmental health catastrophes of our time by eliminating corporate responsibility and leaving individual victims to bear the associated cost.  It is also stupid public policy to impose that cost on the workers and their family who cannot control the risk, rather than placing the duty where it belongs:  on the entities with the knowledge, resources, authority and legal duty to impose appropriate controls.

      Oddly, Justice Young provided the deciding fourth vote in the case, despite his firmly-stated conviction that the Court lacked the constitutional basis to even decide the case.  We can only suppose that he was more interested in the (no liability) result than he was interested in the underlying legal analysis.

      Sadly, these Justices are so jaundiced and so deeply biased in favor of their corporate supporters that they simply cannot or will not recognize the costs borne by an injury victim.  They can read a spreadsheet pretty well (especially if it relates to corporate profits or campaign advertising expenditures); they don't do as well with the New Testament.