Posted by Steven Lillicrap, 21, started his shift at about 7:30 am on a cold Feb 3, 2009 at a construction site near St. Louis, Missouri. He was an apprentice Operating Engineer and this was his first big assignment. He would be working with more experienced men to dismantle a 100-ton crawler crane. The crew was in a hurry because the company, Ben Hur Construction, Inc., needed the crane that day at another job site. (The firm runs 15-20 projects at a time.) Within a couple of hours, Steven Lillicrap was dead. He suffered chest crushing injuries when the safety lanyard he was wearing got caught up in the working parts of the crane’s hoist drum.
OSHA’s St. Louis office conducted an investigation of the fatal work-related incident and alleged that Ben Hur Construction had violated several mandatory safety regulations. Specifically, in late July 2009, OSHA issued:
*a willful violation of 1926.503(a)(2), with a proposed penalty of $70,000, for failing to assure that workers were trained properly in fall protection;
*a serious violation of 1926.550(a)(8) with a proposed penalty of $7,000, for failing to protect a worker from moving equipment parts; and
*a serious violation of 1926.550(a)(1) with a proposed penalty of $7,000, for failing to comply with the manufacturer’s specifications for the crane.
I learned this week that all of these alleged OSHA violations and the proposed penalties have been dismissed.
After receiving the OSHA citations and penalties, Ben Hur Construction contested them before the federal Occupational Safety and Health Review Commission (OSHRC), a right afforded to employers under the OSH Act. By the time the case went to the formal hearing before an administrative law judge (ALJ), the willful and two serious violations with total proposed penalties of $84,000 had been downgraded to just two serious violations with a penalty totaling $14,000. Attorneys with the Labor Department had filed a motion to amend the cited standard on training to a different one (1926.21(b)(2)) and convert the $70,000 willful violation to a $7,000 serious violation.
ALJ Ken S. Welsch heard the case Secretary of Labor v. Ben Hur Construction in May 2010. OSHA alleged that the company failed to comply with the crane manufacturer’s operating instructions which states:
“!WARNING Stay Clear of All Moving Machinery During Raising or Lowering of Gantry. Position a Signalman to Observe All Areas and Warn Operator of Danger.”
The company’s lawyer argued that Ben Hur was complying with all of OSHA’s standards, including 1926.550(a)(1) on following
“the manufacturer’s specifications and limitations applicable to the operation of any and all cranes.”
The employer insisted that the procedure outlined in the operations manual for disassembling the crane is a “recommendation,” not a specification,” meaning the OSHA citation was erroneous. The judge agreed.
In his November 3 ruling, Judge Welsch explained that a specification
“connotes steps of instructions that are required, mandatory, obligatory, and compulsory,”
while a recommendation is
“a suggestion, a proposal an option to be considered.”
The cited OSHA standard (1926.550(a)) uses the term specifications, not recommendations.
At the time of the incident, the 21 year old worker was standing on a small elevated platform next to the moving cables on the crane. Because the company has a fall protection policy that requires employees to tie-off 100% of the time for any work done at heights over six feet, Steven Lillicrap was wearing a lanyard. The problem is, there were no tie-off points or anchors on the crane which would be the proper place to affix a lanyard. He apparently tied off to the cable. When the crane operator moved the crane forward and boomed up, Steven Lillicrap’s lanyard was caught up in the boom hoist drum cable. OSHA asserted that apprentice Steven Lillicrap had not been properly trained on the use of fall protection, in particular, an appropriate anchor point. The judge also disagreed with OSHA’s assessment on this point.
As I read the judge’s ruling, he seemed to rely heavily the testimony of the crane operator and other witnesses with close ties to the employer. The crane operator, for example, said that he provided safety training to young Lillicrap. This is the man who was running the crane when Lillicrap was killed—reason enough to discount his testimony—and also someone who is kept on Ben Hur Construction’s payroll year round, even when there is no work for him, because the company does not want him to be hired by another company.
The crane operator said that he told apprentice Lillicrap
“do not tie off to your cable or anything, watch where your feet are too.” “Don’t have your hands or anything in the way of moving parts.”
A litany of “don’ts” is not effective training in my book. Meaningful training involves communicating, practicing and reinforcing how to perform a task safely. The crane that Steven Lillicrap was dismantling had no tie-off anchor points. Having a 100% tie-off rule without showing an apprentice worker where to tie-off is irresponsible. I’ve not read anything indicating that young Steven Lillicrap was shown by anyone in authority exactly where to safely tie off.
I find the judge’s ruling troubling for other reasons. He seems to rely heavily on testimony from witnesses with economic connections to Ben Hur and who not so subtly suggest that Steven Lillicrap should have known better. They describe the young man as an “exceptionally able apprentice,” “very mechanically inclined,” “work-wise,” and a “good hand,” without acknowledging another fact: this 21 year old worker was unskilled labor. He only had 1 year under his belt of a three year apprenticeship program and had spent most of that time learning to operate a rubber tire backhoe. All the compliments in the world about his work ethic and natural abilities should not have blinded managers to his lack of experience on this particular dangerous task.
Earlier this month, a new OSHA crane safety standard took effect. It replaced a rule that had been on the books since 1971. The new rule includes stronger requirements to protect workers from harm when cranes are being assembled and disassembled, including a director who
“must ensure that each member of the crew understands his or her tasks, the hazards of the tasks, and any hazardous positions or locations to avoid.”
The family and friends of Steven Lillicrap must painfully wonder how their lives might be different had this rule been on the books.
As his mom, Diane Lillicrap said“…when he went to work that morning, I expected him to come home. I worried about my son going out at nighttime, being 21 years old. Not going to work.”
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