SRTK Shareholder Jerry Rempel recently secured a victory for a client where the applicant attempted to use OSHA citations in support of an S&W petition. Jerry was able to overcome that with employer testimony and a persuasive legal argument that the citation did not rise to the level of a serious violation which would invoke a presumption of a Serious & Willful act by the employer which would entitle the applicant to an automatic 50% increase in his recovery.
Applicant was being trained by a co-worker, while working as a maintenance mechanic. His co-worker took him to the roof of the facility and explained that they would be performing maintenance work on the exhaust fan. He informed the applicant that there was a fan inside the large metal shell, and that even with the machinery de-energized, the fan may move because of the hot air rising from the facility. He explained to the applicant that a bar must be inserted into the fan pulley housing to prevent movement.
They proceeded back downstairs to perform other activities, and then the co-worker informed the applicant that he was going to get supplies and to meet him on the roof. Without anyone’s knowledge, the applicant decided to remove the guard from the pulley housing without placing the bar in the shaft to prevent inadvertent movement. With the pulleys still moving, he stated that he looked into the pulley system with a flashlight. He said that the flashlight was bumped, and his hand was pulled into the pulley system. His thumb and part of two fingers were amputated, which resulted in his great toe being amputated and placed where his thumb had been.
Although there were several OSHA citations, Jerry argued they were settled with a non-admissions clause. Applicant attempted to use the OSHA citations to support an S&W Petition. Through defense witness testimony, Jerry was able to establish that there is no appreciable difference between the prior procedure and the current procedure that was approved by OSHA as an abatement. Either procedure brought the fan and pulley system to a complete stop. The court also noted that the OSHA citation did not support a finding as required by LC4553.1 and were not binding on the WCAB. The WCJ concluded that the applicant had not met his burden of proof and ordered a take nothing on the S&W Petition. Had applicant prevailed at trial, the S&W would have resulted in increased benefits to the applicant of about $200,000.
Great work, Jerry!