Protecting Employers Since 1985

July 2011

By: Nancy E. Joerg, Esq.

This OSHA case arises from a particularly tragic and heart-wrenching fact pattern. On July 28, 2010, two teenagers died in a grain bin tragedy. The United States Department of Labor Occupational Safety & Health Administration (OSHA) investigated the deaths which occurred as a result of grain engulfment at the company’s grain elevator in Mt. Carroll, Illinois. The two teenagers “drowned” in a sea of grain in the grain bin. OSHA eventually hit the company with numerous violations and fines (which the company is fighting).

OSHA SUBPOENA: As part of the hard fought legal battle between OSHA and the grain bin company, OSHA issued a subpoena demanding inspection reports and documents prepared by the grain bin company’s workers’ compensation carrier. The workers’ compensation carrier argued in court that it should not have to provide OSHA with the safety inspection records. The carrier lost this legal struggle in May of 2011.

WORKERS’ COMPENSATION INSURANCE COMPANY ARGUED UNSUCCESSFULLY AGAINST THE SUBPOENA: The workers’ compensation insurance company argued unsuccessfully that the subpoena from OSHA would actually discourage businesses from permitting workers’ compensation insurance carriers to conduct safety inspections. The insurance carrier told the court that if the inspection reports can be used against a business during later litigation or OSHA enforcement proceedings, such safety inspections would be curtailed. However, on May 2, 2011, the court did not agree with the insurance carrier and therefore ordered that the safety inspection records be given to OSHA. ( Hilda L. Solis v. Grinnell Mutual Reinsurance Co.)

COURT’S DECISION: Judge Philip G. Reinhard of the U.S. District Court of Northern Illinois ruled on May 2, 2011 that OSHA has jurisdiction to investigate the workplace fatalities; and further, has the authority to require the production of relevant evidence and the ability to issue a subpoena to obtain that evidence. The requested documents, which included copies of site safety inspections, applications for insurance coverage for the site, and correspondence between the workers’ compensation insurer and the grain bin company concerning the site, were found by Judge Reinhard to “reasonably relate to the investigation of the incident and the question of OSHA jurisdiction.”

GRAIN BIN SAFETY: Grain bin safety has become an important focus for OSHA. OSHA’s Region V, which includes Illinois, Ohio and Wisconsin, initiated a Grain Safety Local Emphasis Program in August 2010, and has since conducted 61 inspections and cited grain operators/facilities for 163 violations. The 163 violations cover hazards associated with grain engulfment, machine guarding, electricity, falls, employee training, combustible dust and lockout/tagout of energy sources on potentially dangerous equipment. Grain bins are extremely hazardous work environments and OSHA is trying to decrease danger where possible in these bins.

OSHA has great legal powers to investigate workplace safety matters. Courts generally support OSHA’s mission. Companies should expect that all safety inspection records are likely to be obtained by OSHA when it investigates.

Questions about OSHA or any related matters? Please contact WS Shareholder and Senior Attorney Nancy E. Joerg at 630-377-1554.

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