In March, UCLA chemistry professor Patrick Harran and the UC Board of Regents will be facing an ordeal they likely never anticipated: a court arraignment on felony charges related to a 2008 laboratory fire that killed Sheri Sangji. They face three counts each of willfully violating occupational health and safety standards. According to the Los Angeles Times, the charges are thought to be the first stemming from an academic lab accident in the United States.

By way of background: In December 2008, Sheri Sangji was working with t-butyl lithium, a substance that ignites on contact with air. A drop spilled on her clothing causing an instant conflagration. She suffered second and third degree burns over 40% of her body, and died 18 days after the fire. In the wake of this accident, Cal/OSHA imposed a $31,875 penalty, citing safety lapses and lack of training. (Chemjobber has followed this case diligently . See all his posts on the Sheri Sangji case, with the most recent at the top.)

UCLA officials call the recent criminal charges outrageous, saying this was a tragic accident and Sangji had been trained to do the dangerous work she was doing. But a 95-page Cal-OSHA investigative report contradicts that defense, saying Sangji was neither experienced nor well trained, terming the risk “foreseeable,” and stating that the death was preventable had Sangji worn appropriate clothing. Further, “The report states that UCLA, by repeatedly failing to address previous safety lapses, had “wholly neglected its legal obligations” to provide a safe environment in campus labs and that Harran was personally responsible.”

In the wake of Sangji’s death, we posted about this tragic incident a few times. First, we raised the issue of why university labs aren’t safer, suggesting, among other things, that lab safety be added as a criteria of evaluation for federal funding sources. We got some push back from commenters who thought that such a suggestion was naive and that health and safety personnel were unqualified to oversee “exotic” scientific protocols. We followed with a response to these criticisms, as well as provided links to other articles and places where the death was being discussed by students, scientists, private lab workers and safety professionals. (See More on the
UCLA lab death of Sheri Sangji.)

While Harran and UCLA are facing charges, this is apparently not a random or isolated incident. In December, Beryl Lieff Benderly of Science Careers posted Taken for Granted: A Blueprint for Safety Action Now. Here’s an excerpt:

Issued in October, a CSB report entitled Texas Tech University: Laboratory Explosion lays out in 23 pages of straightforward, nontechnical language what went wrong in a near-fatal 2010 incident on the Lubbock campus and what needs to be done to prevent anything like it from happening again.

The report goes far beyond the usual accident investigation’s list of technical mishaps. It views the maiming of Texas Tech University (TTU) graduate student Preston Brown not as an isolated series of individual errors but as the predictable outcome of a culture, set of values, and system of organization prevalent not only at TTU but also at many other campuses. Having collected at least “preliminary information” on 120 other such incidents, CSB declares itself “greatly concerned about the frequency of academic laboratory incidents in the United States.”

Academia has evaded some of the scrutiny that private employers face in safety standards. The issue of lab safety still sparks controversy. Many still think that the environment is too exotic and too specialized to incorporate safety standards and that regulations would stifle creative research work. That’s little more than obfuscation and foot dragging. Lieff Benderly posted another article Taken for Granted: How to Live With Danger outlining the contrast between chemical laboratory safety and that of another industry, airlines.

In The Sharp Knife of a Short Life, the blog Chembank frames the issues well:

“Changing the culture of an institution–especially one as intractable as chemical academia–is extraordinarily difficult. But so long as we forgo meaningful changes in favor of cosmetic ones that we don’t even bother to sustain anyway, we will continue to experience frustration and tragedy. One wonders what magnitude of disruption is necessary for our community to commit itself to improvement. Apparently, it is much greater than the death of a twenty-something student.”

We repeat a comment that we made in 2009:

Some workplaces come by safety voluntarily with a commitment from the top. Other employers – even generally well meaning employers – don’t truly embrace safety until they have had paid some very steep price. Sometimes that price is a gut-wrenching human one, as when a worker dies; other times, the toll is purely economic, in high workers comp costs, ruinous lawsuits, and bad publicity. Unfortunately, money is often the best change agent. That, and the push provided by standards and enforcement under OSHA.

In my last post, I covered how plant nurses can save employers $$. I mentioned Nurse Practitioners (NP’s) as one of the recommended type of plant nurses. I received a few inquiries on exactly who are NP’s. Nurse Practitioners do have their place as plant nurses even though the upfront cost for NP’s are usually more than RN’s.

The NP website is here. The services they provide are:

• Order, perform and interpret diagnostic tests such as lab work and x-rays
• Diagnose and treat acute and chronic conditions such as diabetes, high blood pressure, infections and injuries
• Prescribe medications and other treatments
• Manage patients’ overall care
• Spend time counseling patients
• Help patients learn how their actions affect their health and well-being

The first time that I had come across a NP was as a plant nurse for a home builder in NC. The company’s E-Mod was almost 2.0 and rising every year. The owner of the home builder made a great risk management move by hiring in a Nurse Practitioner. The home builder’s Mod dropped from a 2.0 to a 1.3 in four years. The company closed in the late 90’s.

NP’s can be a very expensive plant nurse option. There are three instances where NP’s would be recommended in a company with:

1. An E-Mod of 1.8 or higher
2. A large payroll
3. Centralized operations (one plant or many plants with a central location)

The cost of an NP would be more easily absorbed by a company that is paying a large premium or a self insured. I would estimate the breakeven point for having an NP on staff would be approximately $350,000 or more in premiums.

I have not really pointed out how NP’s are different from RN’s or LPN’s. The link above will explain the difference in detail. The one advantage that I see is the ability to prescribe medications. NP’s can also treat injuries to a further degree than an RN. There are many websites that cover NP’s including Wikipedia.

Earlier this month, Julie Ferguson blogged the hazards of unsafe trenches. Today we examine the consequences of unsafe trenching for Oscar Avalos, a laborer for a Texas-based company involved in the installation of sewer pipes. The good news for Oscar is that a jury awarded him $4.5 million for the general contractor’s negligence in supervising his jobsite; a court of appeals has upheld the award. The bad news, of course, is that Avalos will never work again.

Nowak Construction, a Kansas-based company, was hired by the city of El Paso, Texas, to install new sewer lines. James Heiman, Nowak’s onsite superintendent, was neither an engineer nor safety expert. In their plans submitted to the city, Nowak proposed using trench boxes for safety, a proven means of preventing trench collapse. Unfortunately, when they hired Rocking Q as a subcontractor, they did not require that Rocking Q adhere to the trench box procedure. Instead, they deferred to Rocking Q’s decision to use “sheet piling” – a form of bracing in which steel plates are driven into the ground with a backhoe and then secured with chains. This alternative plan was never submitted to the city for approval.

Thus we have a jobsite where digging and maintaining trenches are a constant activity, where the original safety plan has been scrapped, and where an alternative plan is in effect. Rocking Q did not use any cross-bracing to support the street plates. Rocking Q’s owner testified that no one from Nowak told him that this was unsafe or asked him to use cross-bracing. Further, an engineer representing the City visited the work site daily and never criticized the trench safety system (in itself fodder for another blog posting).

Water-soaked Trenches
On the evening of September 13, 2006, 1.15 inches of rain fell within a two-hour period. At about 7:30 the next morning, site super Heiman went to the area where the Rocking Q crew was working. He then went to work about 150-feet away, within sight of the Rocking Q crew.

Here comes the astonishing part: Heiman testified that he returned to the area at around 12:30 or 1 p.m. and saw that the street plates were not anchored in any way – they had neither chains nor cross-bracing. Heiman did not mention to anyone that he thought the site was unsafe. Just two hours later, the dirt behind a street plate collapsed, causing the plate to fall on Avalos while he was working in a trench. The unanchored plates, intended as safety barriers, were transformed by unstable earth into moving objects with catastrophic impact. Avalos was totally disabled in the accident.

Initially, Avalos’s injuries were covered by workers comp. But he also sued the GC Nowak for negligence. In the course of the testimony, Novak’s lack of safety oversight was exposed:

Heiman testified that the street plates were tied back with a chain. Heiman had never before worked on a job in which street plates were used for trench safety. He had some initial concerns about [the subcontractor's] system because no structural supports were used for the street plates. According to Heiman, [the sub] told him “that’s the way they do it in Texas.” Heiman called Mr. Nowak to report his concerns, but he also told Mr. Nowak that [the sub]’s system seemed to be working. Mr. Nowak spoke with [the sub], who assured him that the plates were being hammered into the ground properly and that a chain was being used to anchor the plates. Mr. Nowak then approved the use of street plates for trench safety.

By giving a verbal OK to the revised trench safety plan, and by not seeking El Paso’s approval for the change, Nowak assumed liability for the consequences. When the trench failed, Nowak became the responsible third party for Avalos to sue.

The Eyes of a Stranger
One of the intriguing aspects of this case is the way everyone overlooked an obvious hazard, including the city’s own site inspector. Trenches were routinely secured by plates driven into the ground. There were no cross braces – indeed, no requisite trench boxes – in view. Based upon the testimony, it appears that chains to secure the plates were not used consistently.

Because we are consultants, LynchRyan always has the benefit of seeing job sites for the first time. We view the work being performed with the eyes of a stranger, because we are, literally, strangers. As part of our approach to safety, we encourage companies to look at the work being done as if they had never seen it before. Routine fosters indifference. I once toured a large warehouse with the company safety director. We came across an employee awkwardly pulling a bulky box from a shelf above his head; a rolling ladder stood a few feet away. What I saw was a very unsafe practice which could easily have been mitigated by using the ladder; what the safety director saw was his buddy, Ralph. He waved to Ralph and we moved on.

Everyone knows that trenches are dangerous. As OSHA frequently notes, “an unprotected trench is an open grave.” Yet even in companies whose only work involves trenches, the hazards persist. Despite OSHA’s videos, PowerPoints, brochures, and posters highlighting trench hazards – along with well-publicized fines for failure to comply – bad safety practices in trenching persist. In losing this liability case, Nowak has probably learned a painful lesson. But I shudder to think that big time lawsuits are the only effective way to motivate management to take trench risks seriously.

You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.

In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.

Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.

A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.

The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]

The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.

The court wrote:

Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.

No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.