Page 38 - MetalForming September 2009

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelaw-
offices.com
OSHA has announced a new look at citation penalties (probably to increase them), new discussion of an ergonomics standard and a new Nation- al Emphasis Inspection Program to dis- cover alleged widespread employer underreporting of workplace injuries— focusing on high-risk injuries with low severe injury cases. OSHA also seems intent on reducing or limiting the vol- untary self-inspection compliance pro- gram. Our office has seen recent cita- tions with proposed penalties approaching $100,000.
It may be time to have a safety pro- fessional conduct a walk-through update. Be sure to utilize attorney-client and work- product privilege study procedures.
On the intentional tort front, a fed- eral district court in the Southern Ohio District recently denied a summary judgment motion filed by the employ- er and sent the case to a jury trial. A for- mer machine operator at a bottle man- ufacturing plant injured his hand on a glass-cutting milling machine that allegedly had been retrofitted by the employer with a longer spindle-acti- vating lever. The employer denied that it modified the Cincinnati-brand mill lever. The employee’s expert witness gave pretrial testimony that the lever on the mill was not the original mill lever and placed the operator’s hand 7 in. closer to the cutters. Since this was the employer’s summary judgment motion, the court had to construe the facts most favorable to the opposing party (the worker) and assumed that the original machine lever was replaced by the employer.
The federal court judge viewed the accident facts to include the following: • The plaintiff was employed by the
company for nearly 34 years. The com- pany makes metal molds used to form molten glass into beverage bottles. The company uses a mill to cut cooling grooves on the molds to assist in remov- ing the bottles. One of the jobs the plaintiff did was to operate the mill.
• More than 15 years prior to the accident, the company acquired a Cincinnati horizontal milling machine. The plaintiff never received formal training on the mill, but was trained on how to run milling machines similar to the Cincinnati mill during his appren- ticeship. He had lots of experience with the Cincinnati mill and used it thou- sands of times before his accident. At the time of his accident, by the plaintiff’s own admission, he was the most qual- ified person to run the Cincinnati mill.
• Before using the Cincinnati mill, the operator had to set the spindle speed by using a dial. The appropriate spindle speed varied, depending on the number of cutters used and the type of metal to be cut. The spindle speed dial was immovable without the mill’s power being on, but the dial could not be moved with the spindle moving. The speed indicated by the dial was not always accurate because vibrations from the mill would make the dial move, so the operator had to move the dial and then start the spindle to ensure the speed was correct. To determine whether the mill was running at the proper speed, the operator would look at the amount of chip load, the size and temperature of the cutting and the smoothness of the operation. If the speed was not correct, the operator would stop the spindle, move the dial and check the speed again by starting the spindle.
• The mill also had a spindle activa-
36 METALFORMING / SEPTEMBER 2009
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YOU & THE LAW DOUGLAS B.M. EHLKE
New OSHA Developments