Sunday, August 21, 2016

The Safety Challenge to us All

I was in a mediation years ago in a somewhat distant city. The adjuster and I had ridden together. The mediator apparently was experiencing a bad day, and the mood was anything but encouraging. Following brief opening statements, we had separated into caucus. The mediator waited for the door to close behind the others, looked my client in the eye, and related negative perceptions and feelings based on a mediation in which the two had participated months before. It was not the epitome of unbiased and balanced mediation. I remember that afternoon like it was yesterday; it is seared into my memory not because of the mediator's performance, but because the afternoon got worse. 

After several rounds of offers, a lull had settled in our room. We were quietly discussing something other than workers' compensation when my client's cell phone rang. By the second ring, my phone had begun to ring. Each call was from one of the adjuster's co-workers; there had been a fatality with their insured, which happened to be a client of mine also. I knew from facial expression the adjuster was simultaneously receiving the serious news. As we drove north that afternoon, we contemplated going to the scene. But we concluded that we would only be in the way.

Weeks later I received photographs from the scene. With the multitude of vehicles and personnel reflected, we made the right call. There were fire trucks, rescue trucks, ambulances, police cars and more displayed. The worker had been working at a significant height. I remember thinking that it was more than seven stories, but it has been many years. There was a cable stretched across the worksite, secured on each end. The employer explained to me that all of the employees were issued a safety harness, with a wire/clip with which they could attach themselves to this long cable. Thus a stumble or trip would be an abrasion or bruise, but hopefully nothing worse.

The police report said that the employee was wearing the vest at the time of his fall. It was undamaged and intact. The wire and clip in like-new condition. No one could ever explained why his harness was not connected to that cable, that day, at that moment. The coworkers all testified that each had such a vest and that each regularly used it, including the dead employee. Why it was not connected at that critical moment bothered me for years after the case was closed. 

I was reminded of that cable recently when WorkCompCentral published a story regarding a roofer in Tennessee. The employee was working on a rooftop back in 2013. Like the gentleman in the story above, this employee was required to use a safety cable. As soon as I read that, the incident from so many years ago came back in vivid memory. 

The Tennessee employee's cable became "tangled around his leg." He therefore "unhooked the cable to untangle it." In a tragic coincidence, at that moment, he also "accidentally stepped off the roof and fell 8 1/2 feet to the ground." Eight feet does not sound like much. But experience has taught me that a fall from eight to ten feet is significant. As the old sarcastic saw goes, the fall will never hurt you, but the sudden stop at the end can be painful or even deadly. 

The Tennessee employee fractured a hip socket, broke an arm, and broke the pubic bone. Though it does not sound like it, he was lucky. I knew a young man that suffered a similar fall and happened to land on his shoulder and head. Head trauma can be quite troublesome; that young man had to have his skull sawn open to relieve cranial pressure and spent years in medical care and rehabilitation.  Falls from ladders are a significant cause of occupational death

But the Tennessee employee injuries were certainly serious. He was eventually placed at maximum medical improvement and assigned a significant 25% permanent impairment. His employer sought to avoid paying benefits because he failed to "use a required safety device." The trial judge declined to enforce that law, concluding that this employee "had a valid excuse for unhooking his safety harness," and benefits were awarded. 

The appellate court reversed, concluding that the safety equipment was required and that the employee knew this. The court concluded that the worker had not demonstrated "a valid excuse for violating a known safety rule when safer alternatives were available." And so the court ordered that the injured employees claim be dismissed. 

The testimony discussed in the opinion made me return to that fall in Florida so many years ago. Did that man remove his safety cable because of a tangle or other momentary problem? Did he find that wearing such a cable slowed him down and, and so he elected to simply ignore the requirement to wear it? Unfortunately, his unwitnessed death that afternoon forever foreclosed the chance to know why he fell, and why he was not clipped to that cable. 

It is a poignant message, however, for the rest of us. Safety equipment is there for a reason. And its use should be persistent, consistent and insistent. Although we would all hope not, it seems that the planets can align against us and it is just at that moment that we allow ourselves to be vulnerable that the accident happens. It is worth thinking about. 

I thought about it again yesterday afternoon driving to the workers' compensation conference in Orlando. Having drafted this post recently, I had put it and safety out of my mind. Reaching for an object, I momentarily unfastened my safety belt. Afterward, I drove a few miles before my rental car began beeping a reminder and I reconnected the belt. Thankfully, no accident occurred in that brief moment, but the fact remains it could have. Unbuckling was unwise (at best) and in retrospect not really necessary. Anything can wait a few moments. 

Safety is worth remembering. And that safety equipment is worth using; first so that one does not suffer a reduction of benefits under the law. That is important. But more important is that without it our odds increase of ending up in a hospital suffering or even fighting for our life. These instances should remind us all that safety rules and equipment is there for a reason. Rules and equipment are there for us. Buckle up, and stay that way. As Sergeant Phil Esterhouse reminded us all at the end of each Hill Street Blues officer meeting "hey! let's be careful out there." After all, the best safety equipment any of us have is between our ears. We just have to use it. 

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