Your Day In Court Does Not Always Work Out!

June 2, 2016

As first published in Industrial Safety & Hygiene News

A New York-area employer who contested the violations cited against his company by OSHAafter a worker’s fatal fall

now faces considerably higher fines than originally proposed – due to what came to light during the litigation.

A 70' foot fall

The case stemmed from a 2012 incident in which a painter for Tower Maintenance Corp., working at a height of

approximately 70 feet, inadvertently contacted an energized power line and fell from the tower, striking a second

employee painting on the tower below. The second employee fell from the tower about 40 feet to the ground. The

employee who contacted the power line suffered fatal injuries and the second employee survived the fall, but suffered

multiple serious injuries.

In 2010, another employee of the Sea Cliff, New York-based company was killed in a similar incident at a Pennsylvania

worksite.

Could feel their hair stand up from electricity

An OSHA investigation of the 2012 incident found Tower Maintenance employees were repainting a series of electric

transmission towers supporting high-voltage power lines. The difficult work required employees to climb the towers,

which are over 100 feet tall, and apply paint to the towers' surfaces as they climbed. Employees told inspectors that they

worked so close to the energized power lines that they could feel the hair on their skin stand up. Despite the extreme and

obvious hazards of the work, Tower Maintenance refused to provide the employees with functional fall

protection equipment and failed to provide the employees with any safety training.

After its investigation, the agency issued three citations, including one repeat violation for the employer's failure to

provide employees with functional fall protection equipment, one repeat violation for the employer's failure to provide

training, and one serious violation for permitting unqualified employees to work in close proximity to energized electric

lines. OSHA proposed a total penalty of $35,000 for the violations.

New information emerged in court

During litigation, additional facts came to light. Several Tower Maintenance employees had requested new fall protection

equipment prior to the fatal incident but the company denied the requests, instead directing painters to use the faulty

equipment or to work with no fall protection at all. Additionally, Peter Vlahopoulos, the company's project director and the

husband of the company's owner, previously owned an industrial painting company that accumulated numerous OSHA

citations related to inadequate fall protection.

Based on these newly discovered facts, an administrative law judge for the independentOccupational Safety and Health

Review Commission affirmed the recommendation by the U.S. Secretary of Laborsecretary argued that the fall protection

violation deserved a "willful" classification and the maximum statutory penalty of $70,000.

All co. supervisors knew about safety violations

The judge's decision stated that Tower Maintenance had heightened awareness of OSHA's fall protection requirements and

was "plainly indifferent to the safety of its painters." The record established that the company "systematically sent painters

up towers" without the required training or fall protection equipment despite a similar fall fatality less than two years prior.

The judge also found that all of Tower Maintenance's supervisors knowingly permitted the painters to work under these

unsafe conditions. The decision also held that Tower Maintenance failed to train or qualify its employees to perform work

near energized electric power lines. The judge assessed a total penalty of $91,000 for the three violations - $56,000 more

than OSHA initially proposed.

"Tower Maintenance's negligence contributed directly to this preventable tragedy. The company routinely exposed

workers to falls and electrical dangers without the proper fall protection and training, despite the fact a similar fatality

occurred less than two years prior," said Robert Kulick, administrator of OSHA's New York Region. "The judge's decision

sends an important message to employers: OSHA will hold companies that fail to protect employees accountable."