Acrohphobes, take note: this post is about working at extreme heights!
We spotted a jaw dropping video in our Twitter feed the other day — an engineer climbing the spire at the top of the One World Trade Center, a dizzying 1,776 feet. It’s a promotional video for a fall protection firm called Rigid Lifelines. It led us to more dramatic video footage of the tower completion and an interesting case history behind the safety engineering challenge that the tower construction posed, which is depicted in a dedicated website, Safe at 1776.
“A symbolic reference to the year America signed the Declaration of Independence. With its spire attached, the new World Trade Center became the tallest building in the Western Hemisphere, and the third tallest building in the world. The 104-story super-scraper stands on the northwest corner of the 16-acre World Trade Center site, occupying the location of what used to be the original 6 World Trade Center.”
“To ensure the safety of workers who will perform routine maintenance atop the massive tower, builders, engineers, and the Port Authority partnered with Rigid Lifelines to design and supply 1,975 linear feet of total fall protection track, and the highest self-retracting lanyards in an occupied building. Rigid Lifelines designed two systems for the One World Trade Center building–a horizontal system for the rings and a vertical system for the spire. Each system was specifically designed to ensure that workers have 100 percent fall protection from the moment they leave the top floor to the moment they touch the flashing beacon light.”
We’re heartened to see this commitment to worker safety – see our prior entry You Think Your Job is Tough, which includes footage of a worker “free climbing” a 1,768 foot Antenna Tower. And on a related note, The high price for fast phones: Cell tower deaths, a Frontline and Pro Publica investigative video about cell tower worker deaths in a small industry with a death rate that is about 10 times the rate of construction. Accountability is hindered by the complex web of subcontractors on these jobs, allowing large network sponsors to deflect responsibility for fatalities.
In an era when one death per million dollars spent on bridge construction was axiomatic, chief engineer of the Golden Gate Bridge Joseph Strauss decided his project would be different. He refused to accept the conventional wisdom that worker deaths were just a normal cost of doing business and introduced a series of safety innovations – you can see an overview in this brief video clip:
More on his commitment to safety during construction is presented in the PBS American Experience documentary “Golden Gate Bridge.” Perhaps the innovation that was most touted was the introduction of a safety net, “… similar to a circus net — suspended under the bridge. The safety net extended ten feet wider than the bridge’s width and fifteen feet further than the roadway’s length.” While there was one deadly accident when a scaffold platform fell and broke through the net resulting in 10 fatalities, there is no doubt the net saved many other lives. Nineteen survivors whose falls were stopped by the net became de facto members of “The Halfway to Hell Club.”
Strauss employed many other fascinating safety innovations, ranging from sauerkraut juice “cures” for men suffering from hangovers to special hand and face cream to protect against winds. But next to safety nets, the other noteworthy safety practice that emerged during the bridge’s construction was the reliance on hard hats. The hard hats of the era were called “hard-boiled hats,” and were made of leather and canvas. You can read more about the history of the hard hat at the Bullard site. Edward W. Bullard first introduced the hats in 1919, based on a doughboy hat he had worn in WWI. His hats were originally created to protect miners. The Bullard history says:
America’s first designated “Hard Hat Area” was set up at the San Francisco Golden Gate Bridge construction site. “The project’s chief engineer, Joseph B. Strauss, shared a vision with my grandfather that the workplace could be a safer environment for the worker. One problem the bridge project faced was falling rivets, which could cause serious injury,” said Bullard. “My grandfather transformed the mining helmet into a durable industrial hard hat.”
The Bullard Company asserts that the first official “Hard Hat Area” was the Golden Gate Bridge project in San Francisco. The project’s chief engineer, Joseph B. Strauss, beginning on January 5, 1933, directed all the workers to wear hard hats to protect themselves from falling rivets and other materials. However, the Six Companies constructing Hoover Dam first required all its workers to wear hard hats by November 1931.
Here’s a picture of the vintage “Bollard hard boiled hats” of the era, courtesy of Hal’s Lamp Post, a site with an excellent and very interesting collection of mining artifacts.
Health Wonk Review – Jason Shafrin has posted the Health Wonk Review: More than Birth Control Pills edition at Healthcare Economist. And there is indeed much more than birth control in this issue: politics, health care reform, the Affordable Care Act, and a grab bag of other timely topics. Check it out! CDC calls prescription drug problem “epidemic” – The CDC weighs in on the prescription drug abuse problem, calling it “epidemic” and “the fastest growing drug problem in the United States.” Risk & Insurance offers a concise summary. And on the same theme is a story about how New Jersey has implemented a Prescription Drug Monitoring Program. “In unveiling the program last month, state officials related that one patient obtained more than 2,500 doses of oxycodone and methadone in a four-week period. The patient presented what are now believed to be forged prescriptions to three pharmacies on 14 separate occasions, spread out his visits among the pharmacies, and paid sometimes with cash and sometimes by insurance.” Affordable Care Act: What if… – What if the Supreme Court overturns the mandate? At Managed Care Matters, Joe Paduda looks at what the repeal of the mandate would mean for workers comp. Marijuana & impairment Roberto Ceniceros recently discussed the issue of marijuana use and impairment. He cites a recent Louisiana appeals-court ruling that upheld benefits for an injured worker who showed positive in a post-injury test for consumption of marijuana and a prescription drug. Emerging Risks: Exploding Hog Farms – Hog farmers take note: the Minnesota Daily covers reports of a mysterious foam that has caused Midwest swine barns to unexpectedly explode. The foam can build up to heights of four feet on manure pits. “The foam traps gases like methane and when a spark ignites it causes an explosion. About a half dozen barns in the Midwest have exploded since the foam was discovered in 2009. / In mid-September 2011, a barn in Iowa was added to the growing number of barns taken down by the foam. In the explosion, 1,500 pigs were lost, and one worker was injured.” Contractors in conflict zones – At Risk Management Monitor, Jared Wade discusses contractor deaths in Afghanistan as reported in a recent New York Times article. He notes that, “In 2011, for the first time, there were more civilian contractors working for U.S. companies that died in Afghanistan than there were U.S. soldiers.” He follows up with excerpts and links to a prior Risk Management story on working in the world’s most dangerous locations Economy & Insurance – Global financial woes will not derail the economy, according to Robert Hartwig, President and Economist at the Insurance Information Institute, who has been a reliable forecaster and source of information on both the overall economy and the impact on the insurance industry. He sees opportunities for insurers beyond waiting for rate increases. Read more in Chad Hemenway’s story at Propertycasualty360: Hartwig: U.S. Insurers Should Look at ‘New Trajectory of Growth’ Aging & Construction Work – The Center for Construction Research and Training analyzed 100,000 workers comp construction industry claims for the
state of Colorado to understand the relationship between the claimant
age and costs by the causes and natures of injuries and illnesses. Consistent with other aging studies, the report says “Older construction workers filed a small percentage of the total workers’ compensation claims; however, when they did file a claim the associated costs were greater.” Review the key findings: The Role of Age on the Cause, Type, Nature and Cost of Construction Injuries (PDF) News briefs
A little more than a week ago, family members and coworkers watched helplessly as 39-year old Raul Zapata was buried alive when a wall of dirt fell on him at a residential construction worksite in Milpitas, California. Zapata was working in a 12-foot deep ditch, the foundation of a 5,800 square foot home in a gated community. The cave in was extensive enough that it took two days to rescue his body. Zapata and his coworkers should not have been working at all that day because three days prior, the city had issued a stop work order to the construction company, U.S. Sino Investments Inc. The order was issued after a city building inspector determined that the ditch was a safety hazard due to a lack of adequate shoring to prevent a cave-in.
To add insult to injury, the employer did not have workers’ comp insurance. They also lacked a permit, a state requirement for any projects deeper than five feet. In a case of closing the barn door, the Contractors State License Board has since suspended U.S.-Sino Investment’s general building contractor license for this failure. The flouting of the stop work order, the failure to get a trenching permit and the failure to carry workers comp coverage – these are not unsurprising accompaniments to trenching fatalities. Fatalities are often preceded by multiple citations or warnings and violators are often serial violators. It’s not uncommon for OSHA to issue mulitple “willful” citations related to trenching failures. OSHA defines a willful violation as one “committed with an intentional disregard of, or plain indifference to” OSHA requirements, the highest level of citation, carrying fines of $5,000 to $70,000 per incident.
Two workers a month are buried alive in trench collapses. Most of these tragedies are avoidable simply by following OSHA standards, which mandate that all excavations 5 feet or deeper be protected against collapse. It’s a stroke of luck that no other workers were killed at the Milpitas site – it’s not uncommon for rescuers to rush to the aid of a victim and become entrapped themselves when an a secondary collapse occurs. Trench rescues require speed, precision, and expertise.
Geoffrey Hampton worked as a laborer for Intech Contracting LLC. Hampton, an insulin dependent diabetic, was working with a crew on September 9, 2009, repairing a bridge in Muhlenberg KY. Hampton suddenly uttered a profanity and walked to the edge of the bridge. He climbed over a 4 foot barrier and fell 60 feet, suffering permanent injuries.
Hampton has no memory of the incident. His co-workers testified that he had been complaining about not feeling well; that he had taken a snack of sweets to adjust his blood sugar; and that the fall did not appear to be an act of suicide.
Hampton was certainly “in the course and scope” of employment, but the question for the courts was whether his injuries arose “out of” employment. The Appeals Court found that his idiopathic condition – diabetes – was the likely cause of his actions and that his extensive injuries did not arise “out of” employment. As a result, Hampton was unable to collect workers comp.
It’s important to note that Hampton’s employer took specific steps on that fateful evening to remove Hampton from harm’s way:
– When he requested time for a break to adjust his blood sugar, they immediately consented.
[NOTE: Hampton had inadvertently left his insulin at the hotel room.]
– When Hampton complained about not feeling well toward the end of the shift, he was told to sit in the truck. He left the truck and walked toward the bridge rail on his own. Not All Risk is Work-Related
The court noted that Hampton’s diabetes was not under control, which certainly raises the issue as to whether it was safe for him to perform this kind of work; if the employer had awareness of the medical condition, they should have required a note from Hampton’s doctor that it was safe for him to perform the essential job duties.
The court implies that there were circumstances where an injury might have been compensable: for example, if Hampton had been working near the edge of the bridge and had experienced a black out due to hypoglycemia, he would likely have been eligible for comp benefits. However, if it could be proven that the black out was the result of his own negligence in attending to his illness, perhaps the claim would still have been denied.
But Hampton was sitting in a truck, safe and secure, with no unusual risks or exposures. He was clearly out of harm’s way. There is no way of knowing why he did what he did, but it is clear that work had nothing to do with it. When he went over the rail of the Muhlenberg bridge, he gave no thought to the workers comp safety net that usually covers his every working moment. The findings of the court are both harsh and fair. For Geoffrey Hampton, the fateful date of 9/09/09 will resonate every moment of his diminished life.
Pop quiz: 1) In highway construction zones, do most fatalities occur A) to the vulnerable workers who are standing in the work zone while thousands of cars and trucks speed by, or B) to the motorists in the cars and trucks that are speeding by?
2) Are most highway construction workers killed by A) being struck by passing motorists or B) being struck by construction vehicles?
If you guessed “A” for both answers, you are correct. Motorist safety in highway work zones
Highway construction projects pose hazards for drivers and workers alike, but about 85% of the vehicle-related fatalities that occur in work zones each year involve motorists. Lane changes,uneven surfaces, stop and go traffic, driver impatience at delays, unpredictable occurrences, and poor night visibility are all factors that make these zones hazardous. For those who need further incentive for caution than self preservation, bear in mind that 32 states and the District of Columbia double the fine for speeding (or committing other traffic violations) in a work zone. The Governors’ Highway Safety Administration offers a handy state by state chart of work zone traffic laws.
One of the best safety strategies a driver can take is avoidance: seek an alternate route. The Department of Transportation offers national traffic and road closure information to help drivers plan in advance – or drivers can check with state transportation authorities – most offer alerts about major construction projects. For those who can’t avoid a construction route, the Wisconsin DOT offers tips for safe driving in a work zone. The tip sheet notes that work zones requiring special caution encompass more than just highway construction projects. They include emergency vehicles at the side of the road, snowplows, garbage pickups, landscapers and any situation where workers are at risk. Worker safety in highway work zones
This spring, the NIOSH Science Blog featured an excellent post by David E. Fosbroke about construction equipment visibility. In the post, Fosbroke cites a multi-year study of 844 fatalities at road construction sites. While 73% of these fatalities occurred when workers were struck by vehicles, victims were killed by construction equipment at least as often as by passing motorists. And of the incidents when workers were killed by construction equipment, at least 50% of those fatalities involved vehicles backing up.
To help prevent such fatalities, NIOSH offers downloadable blind area diagrams of of 38 pieces of construction equipment and 5 pieces of mining equipment. These diagrams map out the area around a vehicle or piece of equipment that cannot be seen from the operator’s position. The post explains this and other issues related to highway construction safety – including some good observations in the comments section.
For additional information, The National Work Zone Safety Information Clearinghouse provides comprehensive information to improve motorist, worker and pedestrian safety in roadway work zones. Resource include links to related sites and training resources. More safety resources: NIOSH: Highway Work Zone OSHA: Highway Work Zones and Signs, Signals, and Barricades
In December of 2010, OSHA introduced stronger worker safeguards to prevent falls in residential construction. Under the prior directive, some employers were able to bypass fall protection requirements. The new standards for residential construction were scheduled to go into effect on June 15, but earlier this month, OSHA announced a three-month phase in to allow employers time to gear up to meet compliance requirements. During the phase in, however, employers must be fully compliant with the old directive.
OSHA estimates that 1.6 million Americans are employed in the construction industry, half of which work in residential construction. Each year, roughly 38,000 construction injuries are reported. Fatalities from falls are the number one cause of death in construction, with an average of 40 workers killed each year as a result of falls from residential roofs. These are preventable deaths.
In April, the U.S. Court of Appeals for the Seventh Circuit rejected a challenge to OSHA’s directive by the National Roofing Contractors Association. The trade association was seeking to maintain a provision in an earlier directive that allowed certain residential construction employers to bypass some fall protection requirements. “With the issuance of the new directive, all residential construction employers must comply with 29 Code of Federal Regulations 1926.501(b)(13). Where residential builders can demonstrate that traditional fall protection is not feasible, 29 CFR 1926.501(b)(13) still allows for alternative means of providing protection.”
OSHA says that the new directive interprets “residential construction” as construction work that satisfies both of the following elements:
The end-use of the structure being built must be as a home, i.e., a dwelling.
The structure being built must be constructed using traditional wood frame construction materials and methods. The limited use of structural steel in a predominantly wood-framed home, such as a steel I-beam to help support wood framing, does not disqualify a structure from being considered residential construction.
Henry C. Becker Custom Building Limited was doing some construction work in Newburyport MA. They hired the Great Green Barrier Company to do some waterproofing. They apparently did not ask for a certificate of insurance; Great Green Barrier did not carry workers comp for their employees. There was an explosion on the jobsite. Timothy Wentworth, an employee of Great Green Barrier, was killed; his son, Ezekiel, was severely injured. As the employees of an uninsured subcontractor, the Wentworths collected workers comp through Becker’s insurance company, which paid out substantial lump sum settlements to each.
Then the Wentworths sued Becker as a third party. Becker objected: comp, after all, is an exclusive remedy. Once the Wentworths collected comp benefits, they should be precluded from any other remedies. Becker sought and won a summary judgment dismissing the lawsuit.
The case wended its way to the MA Supreme Judicial Court, where the justices determined that the summary judgment was improper: the exclusive remedy provision of the comp statute applies only to employees. The Wentworths were not employees of Becker, but of Great Green Barrier. Becker, in other words, was a third party and thus, despite the payment of comp benefits, was not immune from lawsuit. Compounded Liabilties
Becker is going to pay and pay again: first, under their workers comp policy, the payroll for Great Green Barrier employees will have been added to the Becker payroll in the premium audit; that’s the chump change. Then, the substantial losses for the Wentworths – each likely exceeding the state rating point limit of $175,000 – will be added to the experience modification calculation for Becker over a three year period. That’s serious bucks (but nowhere near the financial hit taken by Becker’s comp carrier).
Then, given this ruling, the Becker company is vulnerable to a lawsuit, which is likely to result in additional payments to the Wentworth family. The MA Supreme Court has made it crystal clear: general contractors are liable for the comp costs of uninsured subs, but the acceptance of comp benefits does not preclude a third party lawsuit.
The lesson for GCs should be clear: proper risk transfer must be a fundamental part of the operation. Make sure subcontractors carry workers comp: require that any and all subs produce a certificate of insurance, with the GC named as an additional insured. Track the expiration dates on the certificates and do not allow subs on the job site unless they have shown that comp (and liability) policies are in place.
Henry C. Becker Custom Building has learned about risk transfer the hard way, an expensive lesson indeed. May a word to the wise be sufficient.
If Missouri is the “Show me” state, Pennsylvania is in the running for the “show me the documents” state. They have a way of over-engineering solutions to what may or may not be problems. (See our prior post [“Blood on the Forms“] on requiring injured workers to sign 2 forms at the time of injury.) Now the Keystone state weighs in on the independent contractor conundrum through the recently implemented Construction Workplace Misclassification Act, also known as Act 72.
In tackling the problem of misclassification, Pennsylvania has done something smart: they have limited the scope of the law to the construction industry, where the worst abuses abide. (Massachusetts kicked a hornets nest with an expansive definition of independent contractor that extends well beyond construction.) The statute contains the usual and customary language requiring independent contractors to control the work, work for others and provide their own tools. But in its relentless need for documentation, Pennsylvania requires general contractors and subs to get out the pens and archive some paper. Independent contractors must:
– Have a written contract for every job
– Carry at least $50,000 in general liability coverage for the duration of the job (this requires a certificate of insurance from the agent)
– Document a proprietary interest in their business (how would a sole proprietor do this – tax forms?)
– Realize a profit or suffer a loss for the project (an interesting and potentially problemmatic issue for craftsmen whose spouses are not accountants)
Act 72 prohibits general contractors from forcing subs to sign any contract that results in misclassification. It also forbids retaliation against any person who files a complaint under the law. The Amish Exception
As we pointed out in a previous blog, Pennsylvania’s Amish population (roughly 51,000 total) is generally exempt from insurance requirements. Amish employers are not required to provide social security or workers compensation coverage, and it appears likely that the Amish will be exempt from the new health insurance standards. When a need arises, they pass the (rather old fashioned) hat throughout their community.
So what happens when an Amish (or non-Amish) general contractor hires an Amish sub? Which of Act 72’s requirements apply to the Amish? Certainly not the general liability insurance. Perhaps not the “profit and loss” and “proprietary interest” documentation. While we are not suggesting that employers seek out Amish subs to avoid Act 72, it might simplify matters. For everyone else in PA, it’s time to focus on the paperwork.
