Reporting to OSHA after a severe injury

A shop can do everything right when it comes to safety: train workers, use the latest machine safeguarding, and promote a safety culture so ingrained that workers wouldn’t even think of going to the shop floor without the proper personal protective equipment.

But this is real life. Severe injuries like amputations happen, unfortunately, and when they do, shops must report the injury to OSHA. Reporting such things is serious business, and how and when a fabricator reports these incidents really matter.

David Jones drove this point home during his presentation at The FABRICATOR’s Leadership Summit, held in San Diego in February, as part of the Fabricators & Manufacturers Association Annual Meeting. An attorney with Ogletree, Deakins, Nash, Smoak & Stewart in Atlanta, Jones specializes in workplace safety and has more than 35 years of experience in employment and labor law.

During his talk, Jones performed a role-playing exercise with Doug Raff, owner of Paragon Industrial Controls in Tustin, Calif. The two performed a hypothetical situation involving the reporting of an amputation.

Jones and Raff emphasized that the following situation is hypothetical and for informational purposes only. None of what follows represents an official interpretation of OSHA regulations. And some of the verbiage—used to illustrate a point—probably wouldn’t be said at all during an actual conversation with an OSHA inspector. But their conversation showed a lot about what a shop can expect during an inspection, and it gave a few insights as to how companies can best navigate the OSHA inspection and citation process.

To set the scene, late in the day a press brake operator is injured. The tool cut the very tip of his finger off—a serious injury and considered an amputation by OSHA. He is rushed to the hospital. The next morning the shop owner calls the local OSHA office.

Scene One: The Call

OSHA Representative Jones: This is OSHA. What can I do to help?

Environmental Health and Safety (EH&S) Manager Doug Raff: I need to report an amputation.

Jones: Oh, I’m so sorry. What happened to the injured employee?

Raff: Well, he’s at the hospital, and we’re not really sure how bad it is.

Jones: What body part was involved?

Raff: It was his finger.

Jones: How much of the finger was taken?

Raff: It was the very tip of his finger. He put it where it shouldn’t be. I don’t understand how this happened.

Jones: It sounds like you’re ready to blame the employee, Mr. Raff, and as it turns out, there’s a requirement for employers to guard machines, so that even if employees engage in idiosyncratic behavior, they won’t get hurt.

Raff: But we do have safeguarding on this machine. We have a light curtain there.

Jones: What is the employee’s name and his position?

Raff: Jose Hernandez. He’s a machine operator.

Jones: Did the accident occur today?

Raff: I’m calling you this morning because it occurred yesterday, late afternoon.

Jones: So you are calling me within 24 hours, so you’re following the rules. But why didn’t you call me earlier? If you called me yesterday afternoon, I could have had an inspector there at your facility to follow up on it right away.

Raff: Well, people were leaving, and it was late in the day. So we decided to do it this morning. We knew we had 24 hours to call you.

Jones: I will tell you, Mr. Raff, that a lot of companies will put off making the call to OSHA so that they can do things, like putting a guard back on the machine.

Raff: As far as I know, that has not happened.

Jones: Well, as you may know, when we at OSHA get a call on an amputation, as you just described, we do a triage, and we figure out whether we’re going to come do an investigation, or whether we’re going to allow you to do an internal investigation, write a report, and submit it to us. So in order to triage this situation, and to figure out whether or not we need to do an on-site investigation, we have a few questions for you. This employee—is he younger than 21 years old?

Raff: No, he’s been with us for quite a long time. He’s been doing this job for at least 10 years.

Jones: Thank you. If the employee were underage, that person is part of a population that we really need to protect. So if it had been someone who was 18 to 21 years old, we would come out and perform an investigation right away. So, is English the first language of this employee, or does he speak another language primarily?

Raff: He speaks Spanish, but he also speaks English quite well, and he’s been in this country quite a long time.

Jones: OK, so he speaks and understands English well. So he’s not a non-English speaker, a group that needs extra protection to remain safe on the job. And he’s been on the job for 10 years.

Raff: Yes, he’s been on the job a long time, and he’s a hard worker.

Jones: So right now, what is the condition of the machine? Is anyone working on it? And how is the plant accomplishing the work without this machine?

Raff: We now have it closed off. We’re sending what work we can to our other press brakes, and we’re outsourcing the work we can’t handle. We’re not sure how this actually took place. We’re looking it over.

Jones: OK, but what do you mean by “closed off”?

Raff: Well, it’s locked out.

Jones: If you really had it locked out, I would have thought you’d tell me that you really had it locked out from the beginning.

Raff: That was a poor choice of words. Yes, it’s locked out and tagged out.

Jones: I’m thinking I’ll need to have one of my staff inspectors come by and take a look at this machine, just to address any discrepancies. Have you ever had to call OSHA before for a situation like this?

Raff: No, we run a very safe operation here.

We always tell our people, if there’s a problem, tell the supervisor.

Jones: Was the employee engaged in normal production operations, either performing a job or doing setup or other adjustments on the machine?

Raff: Well, you know, it’s an old machine, and he’s been running it a long time, and that machine was here long before he was.

Jones: When you get a new order, do you need to change the tooling, and do you need power on the machine in order to retool it? If so, you can have a lot of situations in which the employee is not fully protected.

Raff: We had a light curtain on this machine. We still really don’t know how he possibly got injured on it.

Jones: Was the light curtain working?

Raff: I went out and checked it myself. And yes—yes, it was working.

Jones: Even light curtains aren’t infallible.

Raff: Well, like I said, it is an old machine. I know he fusses with it a bit.

Jones: OK, I think I’ve heard enough. I think we need to send one of our inspectors out there.

Raff: OK. When will he be here?

Jones: I can’t tell you when, because there’s a prohibition against advance notice, but I can tell you that my inspector is going to be on his way very quickly. Thanks for making the call, and I’m sure we’ll have further discussions.

Scene Two: Meeting the Inspector

Soon after the OSHA inspector, a Mr. David (played again by David Jones) arrives at the shop and meets Raff in his office.

OSHA Compliance Officer David: Mr. Raff, are you the EH&S manager?

Raff: Yes, I am.

David: I’m the OSHA compliance officer.

Raff: Good to meet you. What’s your name?

David: Jim David.

Raff: OK, let me write that down.

David: Here’s my card. I’m here because you made a report to the OSHA officer about the amputation injury of Jose Hernandez. I’d like to conduct an opening conference with you to run you through exactly what will happen during the course of this investigation. First, I know that most employers would prefer OSHA to come in and only take a look at things that are within the scope of the injury.

Raff: That’s what I would prefer too.

David: But my agency has a national emphasis program in place for amputation injuries, which I must adhere to. This says that if I’m at your place of work and investigating an amputation injury that occurred because of a machine guarding situation, I’m required to take a look at all of the machines that need to be guarded, and all of the potential amputation hazards in the facility. So you can expect that I’ll be doing that today, and I’m hoping this won’t be a problem for you.

Raff: Well, I’m sure we can accommodate you. We run a pretty tight ship.

David: That’s good, because if you can’t accommodate me, and if you decide for whatever reason that you won’t allow me to do that, my recourse would be to get on the phone with one of the Department of Labor attorneys back at the regional office, and they’ll go down to the U.S. courthouse and get a warrant signed by a magistrate or federal judge, and I’ll be back.

Raff: I understand completely. You’re welcome to come in.

David: Good. It’s positive that you’ll be cooperating with the scope of the inspection. Now, there are some documents that I need to see. I need to see the standard operating procedures for using the machine and related documents that show the training this employee has had. Was he trained in Spanish or English?

Raff: He was trained in English.

David: And that is a language he understands well?

Raff: Yes, he speaks fluent English. He’s been here for a long time.

David: I need to take a look at your OSHA 300 logs for the past three years. I need to see if there have been any other employees who have incurred amputations in the workplace. In this case, I’m choosing not to have an employee representative walk around with us, but I may choose one should the need arise. In the walk-around, I’ll look at the machine involved and any other equipment that might raise guarding issues as well. So was the injured person involved in setting up the machine during normal operation?

Raff: Yes. This old machine makes simple parts. He puts the part in, and he breaks the light curtain, so the machine can’t run while he’s doing that. Once the part is in there, steady against the backgauge, he removes his hands and cycles the machine. Like I said, this is an older machine.

David: OK. So in this case, the injured employee is not here, so I need to talk to a supervisor from that area who is familiar with the equipment.

Scene Three: Shop Floor Inspection

David and Raff walk to the press brake department to speak with Simon, the press brake supervisor.

David: Hi, Simon. Good to meet you. I won’t be following any preset outline here. I’m going to be informal with these questions, so I can get all the information I need to conduct a complete investigation. Has this light curtain always been operable and on the machine?

Simon: Oh yes. The light curtain has always been on the machine.

David: When was the last time that Jose operated the machine without the guard?

Simon: He never operates the machine without the guard.

David: What do you do if you need to deactivate the light curtain, for maintenance or anything else?

Simon: We do a lockout/tagout.

David: But you need to have power going to the machine to perform certain maintenance tasks, correct?

Raff: We do have a safe way of going about it, and it’s all documented in our SOP, in the documents you’ll be receiving.

David: Sounds good. Now, I’ll need to take photographs of the machine.

Raff: That’s fine, but if you don’t mind, Simon will be taking the same photographs you’ll be taking. We just want to be sure we know what you know, so we’re all on the same page.

David: That’s fine. A lot of companies do that. But I will want to do some employee interviews. You did stand here while I asked your supervisor a few questions, and that’s fine; employers have a right to participate in interviews of a management representative, and as a press brake department supervisor, he is a management representative. But when I get to the point where I’m interviewing hourly front-line employees, I hope you understand that those interviews need to be in private.

Raff: Are you sure we can’t have one of our leads with them?

David: No, we really can’t have their supervisor with them. It has to be in private. I’ve seen enough, so let’s go back to the conference room.

Scene Four: In the Conference Room

David: Something obviously went wrong. Someone lost part of his finger. If someone got injured, that means to me that an OSHA violation occurred. You don’t dispute that, do you?

Raff: I wish I could. I’d like to think everything happens on the shop floor the way it should. I was hoping he was operating the machine in the way he was trained to do—but I suppose he wasn’t.

Jones: Well, since you’re the EH&S manager and you just admitted a violation occurred, that’s really an admission that could be held against the company.

Raff: Actually, I didn’t mean that—again, a poor choice of words on my part. He may have completely followed those procedures, and yet something still happened.

Jones: OK, well then, I will return, and I’ll be sure to talk to the injured employee as well.

Scene Five: The Citation

Jones has spoken with the injured operator and other employees and, after investigating the incident, found out that the problem did indeed have to do with machine guarding. He returns to Raff for one more meeting.

Jones: How much time do you think you’ll need to fix these issues?

Raff: I really don’t know. I’m going to have to bring somebody in to look at it.

Jones: It becomes really important to know this, because if I don’t hear from you during this conference about how long it’s going to take you to abate, then when I write the citation, I’ll say you need to abate within five days. Is that going to be enough time?

Raff: Actually, it may take several weeks to bring in the people we need to solve this problem.

Jones: If it’s going to take that long, you’ll need to implement interim alternative protective measures to prevent another employee from getting injured until you implement a permanent fix of the machine.

Scene Six: The OSHA Informal Conference

Sometimes upon receiving a report of an amputation, instead of conducting an inspection, OSHA will permit an employer to perform a “rapid response investigation” into the incident and submit a report to OSHA. When OSHA has reviewed the matter, it will issue one or more citations if the agency finds that the employer has violated an OSHA standard. Often, an employer will request an informal conference with OSHA in an effort to resolve the citation. In this scene, OSHA Area Director Bob Smith (played again by the versatile David Jones) is sitting in his office when the phone rings. He picks it up and arranges an informal conference with Raff.

Smith: Bob Smith speaking.

Raff: This is Doug Raff, and I’m calling about our recent citation. My company would like to participate in an informal conference. We’ve looked things over, and we’ve got some things to talk about with you.

Smith: This is federal OSHA, so you have 15 working days from the day you receive the citation, within which you have to do something—or else the citation and fine become a final un-appealable order.

Raff: I know—that’s right here on the piece of paper you sent me.

Smith: OK, so are you available next Tuesday at 10 a.m.?

Fast-forward to the following Tuesday.

Smith: Thanks for coming in. I understand the facts concerning the serious accident that occurred involving your press brake operator. We talked when you called to schedule an informal conference. By the way, I’m glad you called me to schedule the informal conference. Sometimes companies will write me an e-mail or letter to schedule the conference, and it’s just so much easier when I get a call and we can agree to it over the phone, so I can get my assistant to send out a confirming e-mail.

Raff: So you prefer calls to e-mail?

Smith: When you call, we get a chance to interact a bit, and you get a sense of what I’m like as a person too. During your earlier call, we talked about what happens after the 15 working days. I’ve got this green card indicating that the postal service had someone from your company sign for his receipt of the citation. When you add 15 working days, not counting federal holidays and weekends, next Friday is when that period ends. The fact we’re meeting the Tuesday during the week before means we still have nine working days left in the contest period—that is, the period in which you can contest the citation—so we have plenty of time to work through any issues that you may have with the citation.

Scene Seven: Abatement

Smith: Now, talk to me about abatement. That’s really the first thing I want to know.

Raff: The machine is entirely locked out and tagged out. We’ve contacted a company that does machine safeguarding. They’ve taken a look at it and given us a quote to enhance the safety of what is already there. They should be able to come in about three or four weeks.

Smith: I sure would have liked it if you had abated the violations already. But I know these things can’t happen immediately, and as long as you keep it locked out and employees are not going to be exposed to the hazards, we can give you another 30 days. And if you need more time than that, you’ll need to file a petition for modification of abatement, or PMA.

Raff: Yes, I understand. We’re prepared to do so if we need to.

Smith: Now, let’s talk about these citations. I’ve gotten to know your company well. As you know, I issued you a machine guarding citation, along with a lockout/tagout citation, but I’m willing to drop the lockout/tagout citation.. Nevertheless, realize if within the next five years you get two or more repeat citations based on machine guarding, this citation would be a predicate to those future repeat citations, and you could end up going into the Severe Violator Enforcement Program.

Raff: I know, but I feel we run a pretty safe operation here. I’m still surprised that anything like this happened.

Smith: I’m impressed by what I’ve learned of your operation, and also the commitment that you folks have to safety. So let’s go ahead and settle it on that basis. We’ll reduce your penalty, though the fine still will be significant. This is a serious violation. If we are in agreement, I can draft an informal settlement agreement for our use in settling the case. You can review it, sign it today, and at least this part of the case will be behind us. After this, you’ll need to file a certification for corrective action worksheet, describing what you did to abate the affirmed violation, and present what we call extrinsic evidence—separate documentation showing the purchase order and your installation or repair of the equipment. That will be your evidence of abatement.

Raff: We can do that. Can I take the document back to my company so that management can review it, and then bring it back to you tomorrow?

Smith: You can do that. Thanks very much.

Goal of Prevention

After this role-playing exercise, both Raff and Jones emphasized that honesty and integrity go a long way when reporting a severe injury to OSHA. Company leaders should know their rights, but they also should navigate the OSHA citation process with their eye on the bigger goal: to prevent such accidents from happening again.

For more information on The FABRICATOR’s Leadership Summit and the FMA Annual Meeting, visit www.fmanet.org/annualmeeting. Jones has also presented at FMA’s annual safety conferences. For more information, visit www.fmanet.org/training.

Ogletree, Deakins, Nash, Smoak & Stewart, 404-881-1300, www.ogletreedeakins.com

Paragon Industrial Controls Inc., 714-564-9925, www.paragon-ind.com