If you are on your cell phone arguing with your spouse when you are supposed to be working, and you don’t see a big truck coming at you, is that your employer’s fault?
No, the Occupational Safety and Health Review Commission has ruled, in a decision that vacates just such a case against an Ohio highway contractor.
John R. Jurgensen Company
|Crews had just begun paving operations when the accident occurred.|
At issue was whether the John R. Jurgensen Company, of Cincinnati, was responsible for the death of an employee who was killed on a highway paving job when a subcontractor backed over him with a loaded dump truck.
The Occupational Safety and Health Administration had issued three serious citations against Jurgensen in the fatal accident, which occurred shortly before 10 p.m. Sept. 24, 2010. The crew was working on a project to widen the State Route 4 Bypass under a contract with the Ohio Department of Transportation.
The truck was operated by an employee of Jerry Ritter Trucking, of Goshen, OH. (Ritter Trucking was cited for one “other than serious” violation related to “recording criteria” in the case, but no fines were issued.)
OSHA alleged that Jurgensen failed to maintain a safety program and failed to instruct employees in recognizing hazards. A third citation was withdrawn before the case went to a hearing. Each citation carried a $4,500 fine.
Serious citations involve life-threatening hazards about which an employer knew, or should have known.
Jurgensen has had no other OSHA violations over the last decade.
‘You Just Ran Over One of Our Guys’
The accident occurred on the first night of the project’s paving operation, the ruling said.
Jurgensen’s foreman had arranged for the trucks to enter the area via a side road that had been closed to public traffic before the work began. The trucks backed up along a designated route to a staging area, where they lined up to unload.
At some point, according to the ruling, one of the workers left the area where the crew was working and moved to a spot along the route designated for dump trucks. The trucks were equipped with balloon lights and working backup alarms, the investigation found.
One driver, however, backed over the worker who had left the work area. The driver said he thought he had rolled over a slab of asphalt until a Jurgensen employee “jumped on the side of the truck and said, ‘You just ran over one of our guys,’” according to the commission.
Night Work Dangers
At the appeal hearing, Jurgensen argued that it worked with two safety consultants to provide specialized safety training to its employees for night work.
|The dump truck had a balloon-type illumination, and the backup alarm was operating, the investigation showed.|
One safety training session was provided seven months before the accident, and the victim had attended it, the company’s records and sign-in sheets showed. The session focused on “Hazcom/Hazard Awareness, Night Work,” the records showed.
The training module details night hazards, including appropriate conduct around equipment.
“Basically we try to preach brother’s keep out there at night shift,” the company’s safety manager testified.
The commission agreed.
“The record establishes Jurgensen had implemented and communicated work rules designed to prevent employees from being struck by vehicles traveling in reverse through the work zone,” the ruling said.
“Specifically, Jurgensen trained its employees to stay in their assigned work areas, to know the traffic control plan, and to stay clear of vehicle and equipment paths.”
Prohibited Phone Call
On the second count, OSHA accused the contractor of having failed to train the victim in safely marking the pavement where the trucks were to back up.
The company contended, though, that the victim was not marking pavement at all but had “left his assigned work area to use his cell phone to call his wife, with whom he was fighting.”
The ruling added: “Jurgensen had implemented a strict policy forbidding the use of cell phones during work.”
The victim’s cell phone records showed that he placed a call at 9:36 p.m. that night and that the call terminated eight minutes later—about the same time as the accident.
“While it is unknown whether the decedent was struck while he was using his cell phone or a few minutes after he ended the call,” the ruling said, “the record supports Jurgensen’s theory that the decedent had left his assigned work area in order to place a prohibited call without being seen.”