Contractor cites supplier as OSHA investigates death

Legal counsel for painting contractor RF Barratt Enterprises LLC last month cited the role of local Sherwin-Williams workers in the death of an employee.

RF Barratt painter Joshua Halphin on March 24 fell to his death from the fifth floor of the $26 million Aspen Springfield apartment complex under construction at 1028 E. St. Louis St.

According to a March 31 news release from Kansas City attorney Mark Thornhill of Spencer Fane LLP, Halphin and two other painters were assigned to help Sherwin-Williams store employees transport paint to a fifth-floor apartment. The workers, who were not trained for heights, were allegedly told they would be taking the paint up through an enclosed stairwell.

The release states about 30 buckets of paint, each weighing 60 pounds, were actually placed in a plywood container raised by forklift to an apartment balcony. Halphin was unloading buckets from the reportedly unsecured container when it shifted and fell from an estimated height of 50 feet.

Springfield Business Journal’s calls to RF Barratt were not returned by deadline.

Thornhill, who is representing RF Barratt in the ensuing Occupational Safety and Health Administration investigation, said the store in question is Sherwin-Williams Commercial Paint Store No. 3202 at 535 E. St. Louis St.

Mike Conway, director of corporate communications for Cleveland-based The Sherwin-Williams Co., declined to comment via email citing the ongoing OSHA query.

As part of the process, Thornhill said OSHA representatives have interviewed employees of subcontractor RF Barratt and workers at other companies. Project general contractor is Austin, Texas-based Aspen Heights Construction LLC.

“I wouldn’t presume to know what OSHA is going to decide,” Thornhill said. “OSHA is conducting its own investigation, and OSHA will make its own determinations.”

The OSHA process
OSHA spokesman Scott Allen said in the event of a jobsite death, employers must contact the agency within eight hours. Officials with OSHA’s Kansas City-based Region 7 office were on-site at Aspen in the week following Halphin’s death to investigate.

The agency has six months to complete its inquiry, which is still being conducted.

“This is in the very early stages,” Allen said. “We try to complete these as quickly as possible, but at the same time we have to be thorough.”

Investigations involving fatalities usually take the full time frame, he said.

Helping businesses work through OSHA investigations, inspections and any resulting penalties are part of Summit Safety Group LLC co-owner Jake Woolfenden’s job. His company specializes in safety compliance and consulting for around 300 clients in the Midwest.

One client – vehicle suspension manufacturer Ridewell Corp. – incurred OSHA penalties totaling $71,000 in January 2015 after a worker was killed in an accident involving a machine. Woolfenden declined to comment on Ridewell’s case as the company currently is contesting the violations, but he said aspects of OSHA’s investigative process and the steps companies might take after being cited are generally similar.

In the case of a fall as occurred at Aspen, he said the agency likely would examine workers’ fall protection measures and their level of safety training for the job site.

The most recently available data from the U.S. Bureau of Labor Statistics shows falls, slips and trips accounted for 793 of 4,679 worker fatalities – nearly 17 percent – in 2014. Of those deaths, 44 percent were in the construction industry. Fall protection also was the most frequently cited violation in 2015, according to OSHA.gov.

“I don’t know the details here, but any time someone is being told to put themselves in harm’s way that’s a bad deal, and unfortunately it’s a typical scenario,” Woolfenden said. “There’s absolutely responsibility there, and there’s also responsibility to say, ‘I’m not doing that’ or ‘I haven’t been trained on this.’”

Penalties and reductions
If a company violates an OSHA standard, the penalty incurred depends on the company’s history of past citations and if it’s previously been cited for the same violations. According to online OSHA records, Halphin’s death is the only investigation related to RF Barratt in the past 10 years.

“It can be as little as $100 if it isn’t considered serious,” OSHA’s Allen said of the fines, noting a serious violation can cost up to $7,000 and willful or repeat violations can each cost $70,000.

In January 2015, Kansas City-based structural steel and precast concrete contractor DNRB Inc. netted the highest initial penalties – $511,000 based on 10 citations – in the state. Although currently being contested, the fines contribute to $2.2 million incurred by 18 Missouri employers each fined over $40,000 last year. The average penalty was roughly $120,000, according to Springfield Business Journal research.

OSHA also can make amount determinations based on the company’s size. For instance, if a company has fewer than 250 employees, a resulting penalty could be reduced anywhere from 10 to 60 percent.

Summit Safety’s Woolfenden said in less serious cases, OSHA offers an expedited payment program, which reduces the cost of penalties 30 percent if the company agrees not to argue the citation. But employers, such as Ridewell and DNRB, can contest the violations and make a case for why their prior records and current safety procedures should lessen the financial blow.

Summit Safety and similar companies help clients navigate that process as part of a monthly contract, but Woolfenden said he also works for an hourly fee. Informal contests are typically conducted over the phone, and costs are usually less than $1,000. But Woolfenden said in formal contests – likely to take place in serious injury and fatality cases – attorney expenses can reach $250-$375 per hour. “Even if they get out of certain violations, they have to show corrective actions,” he added.

Meanwhile, work remains underway on the 172,000-square-foot, four-building Aspen Springfield development expected to open this fall. Woolfenden said incidents such as Halphin’s death should serve as a wake-up call for employers and employees to be aware of potentially dangerous work environments.

“Companies should be promoting on a general basis – know when to stop,” Woolfenden said. “One of the main general principles of safety is ‘This stuff is not worth your life.’”

Web Producer Geoff Pickle contributed.